Terms and conditions

General terms, scope of application

Our Standard Terms and Conditions of Sale apply exclusively to the present transaction and to all future transactions; we herewith reject all terms and conditions of sale of the customer that are contrary to or deviate from our Standard Terms and Conditions of Sale, unless we expressly consented in writing to their application. Our Standard Terms and Conditions of Sale shall apply even if we, despite having knowledge of customer’s terms and conditions of sale that are contrary to or deviate from our Standard Terms and Conditions of Sale, perform delivery to the customer without reservation.

All agreements and arrangements made between the customer and us for the purposes of the implementation of the present contract are laid down in writing in the present contract.

Our Standard Terms and Conditions of Sale apply only to entrepreneurs as defined under Sect. 14 BGB (German Civil Code).

Offer, tender documents, conclusion of contract

The offers we make are subject to change, unless the offer states otherwise.

The customer's order qualifies as a binding offer as defined under Sect. 145 BGB. Unless the order states otherwise, we may accept the offer within 2 weeks from the date we received it.

Acceptance can either be declared expressly in writing (e.g. by confirmation of order) or implicity by delivery of the goods to the customer.

To orders placed via our webshop the following shall apply, contrary to the provisions set forth in paragraphs

• Displays of and advertising for items in our webshop do not constitute binding offers to enter into a purchase
• By sending an order placed via the webshop by clicking on the button "zahlungspflichtig bestellen” (order with obligation to pay), the customer places a binding order. The customer is bound to the order for a term of two weeks from the date of placing the order.
• We will confirm receipt of the order placed via our website to the customer by email forthwith. Such an email shall not be construed a binding acceptance of the order, unless acceptance is declared simultaneously with the confirmation of receipt.
• A contract is concluded no earlier than upon our accepting the customer's order by a declaration of acceptance that is sent in a separate email (confirmation of order) or on delivery of the ordered item.

Models or illustrations in brochures, catalogues, or advertisements, and the like, shall only be binding if expressly so agreed by mutual consent. On principle, such models are not binding, the Buyer may not exercise any rights in the case of a deviation.

Our sales staff is not authorised to enter into any oral side agreement or make any oral undertakings that go beyond the contents of the written contract.

We reserve all title and copyright to all illustrations, drawings, calculations, and other documents. This also applies to such written documents that are designated "confidential". The customer may pass them on to any third party only with our prior explicit written agreement.

Prices, terms of payment, set-off

• Unless otherwise mutually agreed in the individual case, our prices are - "ex storage Gronau", exclusive of packaging, delivery, import and export costs, customs, and all other costs. These will be charged separately.
• The statutory value added tax (German: Mehrwertsteuer) is not included in our prices; it will be shown separately in the invoice at the statutory rate, as amended, that is in force on the date of invoicing.
• We reserve the right to change our prices accordingly if, after the conclusion of the contract, costs fall or rise, in particular on account of price changes at our suppliers, collective wage agreements, or changes in the price of materials. We will prove these to the customer on request.
• Unless otherwise mutually agreed in the individual case, the purchase price shall be due payable (without deduction) within 14 days from the invoice date. Upon expiration of this payment period,

the customer is in default. During default, the purchase price shall bear interest at the then effective statutory default interest rate, as amended. We reserve the right to claim additional damage/loss caused by default. Our right under commercial law to claim interest from the date of maturity, Sect. 353 HGB (German: käufmännischer Fälligkeitszins (commercial interest on arrears)), shall not be affected.

The customer shall be entitled to offset if his/her counter claims are res judicata, undisputed, or are accepted and acknowledged by us. In the case of defective deliveries, the customer's counter claims, in particular under Sect. 6 para. 4, sentence 2 of the present Terms of Sale shall not be affected. Furthermore, the customer is entitled to exercise a retention right inasmuch as his/her counter claim is based on the same contractual relationship.

In the event that the customer is in arrears with more than one receivable, all receivables against the customer shall be due payable forthwith.

We are entitled at all times to assign our receivables to a factoring company. If we notified the customer of such assignment, payments made by the customer from that date shall discharge the customer from his/her corresponding liabilities only if the payment is made to the factoring company; in such a case, the factoring company's bank details stated in the invoice shall be used.

Delivery term, partial delivery

The commencement of the delivery term is subject to the prior clarification of all technical questions.

Furthermore, observance of our delivery obligation is subject to the prior punctual and proper fulfilment of all of the customer's obligations. The defence of non-performance of the contract is reserved.

If the customer defaults on acceptance, or if he/she breaches other obligations of cooperation through his/her fault, we are entitled to demand compensation for the damage/loss thus caused, including any additional expenses. All other rights are reserved.

In the event that the requirements of para. (3) are fulfilled, the risk of the accidental loss or incidental deterioration of the purchased goods shall pass to the customer at the point in time at which he/she defaults on acceptance or falls into arrears.

We are liable under statutory law to the extent that the underlying purchase contract is a transaction where time is of the essence (German: Fixgeschäft) within the meaning of Sect. 286 para. (2), no. (4) BGB or Sect. 376 HGB. We are also liable under statutory law if, as a consequence of late delivery through our fault, the customer is entitled to claim that his/her interest in the further performance of the contract has ceased to exist.

We are also liable under statutory law if the delay in delivery is due to a wilful or grossly negligent breach of contract for which we are responsible; any fault of our representatives or agents shall be attributed to us. If the delay in delivery is not due to a breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable loss/damage that typically occurs.

We will also be liable under statutory law if the event of late delivery for which we are responsible is due to a culpable breach of an essential contractual obligation; in this case, however, liability for damages is limited to the foreseeable loss/damage that occurs typically.

The customer's other statutory rights and claims shall be not affected.

We are entitled to perform partial deliveries if reasonably acceptable to the customer.

Delivery, passing of the risk, packaging costs

Unless the confirmation of order states otherwise, delivery "ex storage Gronau" (EXW according to INCOTERMS 2010) is agreed which is also the place of performance. If the customer so desires we will commission a forwarding company in the name and on behalf of the customer to send the goods to a different destination (purchase involving the carriage of goods (German: Versendungskauf)). In addition, we will take out transport insurance to cover the shipment. The customer shall bear all costs thus arising.

The risk of accidental loss and accidental deterioration shall pass to the buyer no later than upon delivery of possession to the Buyer. In the case of a purchase involving carriage of goods, however, the risk of accidental loss and accidental deterioration shall already pass over on delivery of the goods to the forwarding agent, the freight carrier, or to any other person or institution appointed to carry out the shipment.

Separate arrangements apply to the accepting of returned packaging.

Customer’s claims based on defects

Claims of the customer that are based on defects shall be subject to the prior proper fulfilment of the customer’s obligations to examine the goods and to give notice of any defects under Sect. 377 HGB.

If the purchased goods are defective we may first choose whether to perform subsequent performance by remedying the defect or by delivering a new, defect-free item. In the case of remedying the defect, we shall bear the expenditure, in particular the costs of transportation, of travel, the cost of labour and of materials, unless such costs rise on account of the goods being delivered to a location other than the place of performance.

If subsequent performance fails the customer shall be entitled to demand, at his/her choice, either withdrawal from the contract or reduction of the purchase price.

We are entitled to subject the owed subsequent performance to the condition that the customer pay the due purchase price. The customer is entitled, however, to retain a part of the purchase price that is reasonably proportionate to the defect.

We shall be liable under statutory law if the customer claims damages that are based on wilful intent or gross negligence, including the wilful intent or gross negligence of our representatives or agents. Unless we are accused of a wilful breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage/loss.

We shall liable under statutory law if we breach an essential contractual obligation through our fault; in this case, however, our liability for damages is limited to the foreseeable, typically occurring damage/loss.

If the customer is entitled to a damages claim, our liability in the case of para. (3) shall also be limited to the foreseeable, typically occurring damage/loss.

Liability on the grounds of a culpable injury to life, the body, or health, shall not be affected; this shall apply likewise to compulsory liability under the German Product Liability Act (German: Produkthaftungsgesetz). If a customer of our customer raises claims against us under the German Product Liability Act, our customer shall be liable for damages to us in our internal relationship with our customer, provided the loss/damage was caused through our customer’s fault, in particular by failing to observe the sell-by date.

Unless stipulated otherwise herein-above, liability is excluded.

Claims based on defects shall be time-barred after twelve months, counting from the date of the passing of the risk.

The limitation period in the case of recourse against the supplier under Sections 478, 479 BGB shall not be affected; it shall expire no later than two months from the date on which the customer satisfied the consumer’s claims.

Joint liability

Any further liability for damages exceeding that provided for under Sect. 6 – regardless of the legal nature of the claim raised – is excluded. This shall apply in particular to damages claims based on culpa in contrahendo, on other breaches of obligations, or on tortious claims for compensation for damage to property under Sect. 823 BGB.

The limitation under para. (1) shall also apply if the customer, instead of raising a damages claim, demands reimbursement of futile expenses in lieu of performance.

To the extent that liability for damages is excluded or limited in relation to us, this shall also apply to the personal liability for damages of our employees, staff, representatives, and auxiliary agents.

Securing the reservation of title

We reserve ownership of the purchased goods until the full receipt of all payments.

Choice of law, place of jurisdiction

If the customer is a merchant (German: Kaufmann) the place of jurisdiction shall be at our registered place of business; we are entitled, however, to also bring legal action against the customer at his general place of jurisdiction.

The laws of the Federal Republic of Germany shall apply, to the exclusion of the UN-Convention on Contracts for the International Sale of Goods.

TOK GmbH