General Terms and Conditions of Sale of TPS GmbH

(As of December 2010)

A. Conditions of Sale and Delivery

I.         General Information

  1. Any deliveries and services shall exclusively be carried out on the basis and in accordance with the respective order confirmation as well as the following general terms and conditions. They are basis of any agreements and offers and are deemed valid by the placement of an order or acceptance by the customer.
  2. General terms and conditions of the customer, which are contrary to or deviate from these terms of business, are not binding for TPS GmbH, even if TPS GmbH does not expressly reject them or unconditionally provides services or accepts services by the customer without regard to contrary or deviating terms and conditions of the customer. TPS GmbH is not obliged in case the customer’s purchasing conditions deviate from the legal regulations – regardless the content of these terms of business.

II.        Offer/Order/Delivery

  1. All offers are without obligation. An order shall only be deemed accepted when TPS GmbH has confirmed it in writing.
  2. The written order confirmation by TPS GmbH determines the entire content of the contract and affects - subject to written objections raised at short notice - the conclusion of the contract, even if it does not contain all the points that the customer wanted to reach an agreement on or if it deviates from the customer’s explanations in any way, particularly also in terms of the exclusive validity of these general terms of business. Special customer requests, namely guarantees or other concessions relating to goods or the execution of the contract, require a specific written confirmation in all cases.
  3. Changes, additions or verbal agreements require written approval by TPS GmbH. This also applies for the production or the transfer of material examination sheets, especially inspection sheets and measurement reports. These are to be charged separately – unless otherwise explicitly agreed upon.
  4. Agreements deviating from the content of the order confirmation or agreements that are not included in the confirmation agreement are invalid until confirmed in writing by TPS GmbH. Any details published by TPS GmbH in written form or on drawings, i.e. in catalogues, published material such as descriptions, images and drawings, all data relevant to products such as size, weight and performance determine the nature of the products of TPS GmbH. This data is only binding if expressly stated. They do not provide a warranty of characteristics or any guarantees.
  5. Surplus or short weights and surplus or short deliveries within standard commercial limits shall not be subject to complaints or entitled to price reductions. Guarantees have to be individually and expressly indicated as such.
  6. TPS reserves copyrights and proprietary rights of quotes, drafts, drawings and similar information, both tangible and intangible - including in electronic form. Such items may only be made accessible to third parties with prior consent of TPS GmbH. Drawings included in quotes or other documentation are to be returned on request and by all means if TPS GmbH is not commissioned to do the work.
  7. Should TPS submit objects which were delivered according to the purchaser’s drawings, models, samples or other documentation, the purchaser shall guarantee that third-party proprietary rights are not violated.
  8. In addition, the purchaser undertakes to immediately indemnify TPS GmbH against any and all third-party claims in this connection. The purchaser assumes full responsibility for documentation such as drawings, models, samples, etc., which are to be submitted by him.
  9. TPS GmbH reserves the right to accept small orders and to fix minimum purchasing quantities or minimum invoice amounts. For goods manufactured to the purchaser's specifications, quantities ordered can exceed or fall below up to 10%.

10.  For call orders, TPS GmbH is entitled to purchase the material for the entire order and to produce the entire order immediately. Therefore, any modification requests by the purchaser cannot be considered after the order has been placed unless this has been explicitly agreed upon.

III.      Machining of submitted parts

  1. Parts to be processed are to be delivered free domicile TPS GmbH.
  2. The material of the sent parts is to be disclosed and efficient processing is to be ensured. Pre-machined parts are to be delivered true to size and free from radial run out. Parts that need to be broached must not be fully machined and need to have additional allowance for milling.
  3. Should these prerequisites not be not fulfilled, TPS GmbH is entitled to charge for additional work as well as replacements for premature wear and tear or damaged tools, or to withdraw from the contract altogether. The purchaser has to pay for the proportionate part of the agreed price for the services provided by TPS GmbH.
  4. Tools and devices which do not correspond with the usual range of services offered by TPS GmbH, as well as special clamping devices, are charged extra. They remain property of TPS GmbH. Faulty pre-machined parts can be re-worked or sent back without any query and at the purchaser’s expense. Parts sent in to be merely toothed will only be deburred when explicitly agreed upon. Waste material of parts sent in to be processed becomes property of TPS GmbH.

 

IV.       Delivery, Delivery Period, Delay of Delivery

  1. TPS GmbH is obliged to deliver goods of average type and quality within the limits set by customary tolerances as regards to type, quantity, quality and packaging.
  2. The delivery period results from the agreements of the parties involved. TPS GmbH states delivery periods at best discretion. The delivery period commences after final clarification of all production details with the date of the written order confirmation issued by TPS GmbH. Adherence to delivery times is subject to clarification of all commercial and technical questions between the contractual parties and to the fulfillment of all obligations by the purchaser, for example procurement of necessary official certificates or permits, or the payment of a deposit.
  3. Delivery times and delivery dates shall be understood as approximates and are non-binding. TPS GmbH is entitled to deliver before the agreed delivery date. On indication of readiness to deliver or of dispatch, the delivery times and dates shall be regarded as having been adhered to, even if dispatch is impossible at no fault of TPS GmbH.
  4. Should an acceptance procedure be required, the acceptance date is relevant - with the exception of legitimate rejection of acceptance - or alternatively the indication of readiness to accept the goods.
  5. If the dispatch, respectively the acceptance of a delivery item, is delayed due to reasons for which the purchaser is responsible, the purchaser will be charged the expenses resulting from that delay, commencing one month after the indication of dispatch or readiness to accept the goods.

 

  1. TPS GmbH reserves the right to carry out and separately invoice partial deliveries.

 

  1. TPS GmbH is entitled to fulfill contractual obligations after the scheduled date if the purchaser is informed of the missed deadline and if a time period for the supplementary performance is given to him unless the supplementary performance is unreasonable for the customer or the customer rejects the offer of supplementary performance within an adequate period of time.

 

  1. If the delivery date is missed due to force majeure, to industrial conflict, official measures or other events beyond TPS GmbH’s influence, the delivery period shall be extended accordingly. TPS GmbH shall inform the purchaser of the beginning and end of such events as soon as possible.

 

  1. The purchaser can withdraw from the contract without notice if TPS GmbH is ultimately prevented from performing their obligations in full before the passing of risk. Furthermore, the purchaser can cancel the contract when a part of the delivery of the order becomes impossible and if a legitimate interest of rejection of a part delivery can be justified. Should that not be the case, the purchaser has to pay the contractual price that applies to the partial delivery. The same shall apply in cases of inability of performance.

 

10.  If the impossibility / inability of performance occurs during a delay in acceptance or if the purchaser is solely or predominantly responsible for these circumstances, he shall remain under the obligation of counter-performance.

11.  TPS GmbH is free to effect delivery ex works or ex branch. TPS GmbH shall arrange for packaging and dispatch according to its best judgment, but without further obligation. Insurance against damage in transit shall be taken out by TPS GmbH only when requested by the purchaser in writing and at the purchaser's expense - unless otherwise separately agreed. A separate agreement also exists when TPS GmbH effects delivery “ex works”. In this case, TPS GmbH shall take out transit insurance on its own account.

 

V. Price / Payment

  1. Prices are quoted ex works including loading and excluding packaging, transportation charges, postage, value insurance, damage insurance and transit insurance. Statutory VAT will be charged separately and has to be paid by the purchaser additionally.
  2. A discount or other rebates are only granted if expressly agreed in writing.
  3. After expiry of the due date of payment, TPS GmbH is entitled to charge interest at the statutory rate of interest according to § 288 BGB (German Civil Code) and reserves the right to enforce further damage caused by delay.

Granted payment periods shall become invalid and outstanding payments shall become immediately payable in case the opening of bankruptcy proceedings on the purchaser’s assets have been applied for, in case the customer does not meet substantial obligations towards TPS GmbH or third parties without stating reasons and giving explanations, or in case the customer has stated incorrect facts as far as his financial standings are concerned.  TPS GmbH is entitled to request sufficient securities at its discretion at any time for all outstanding debts. In case this request is not met or the purchaser does not fulfill his payment obligations or if TPS GmbH gains knowledge of circumstances that call the purchaser’s creditworthiness into question, all outstanding claims, including those for which bills of exchange have been accepted, shall become due for payment immediately.

  1. Advance payments or part payments are not subject to interest. Discounts, which have not been expressly agreed to, shall not be accepted.
  2. If a suspension of the contract has been agreed on, the price specified is immediately due and payable with a deduction of the direct cost for the completion of the ordered parts, respectively for remaining work by TPS GmbH.
  3. Any rights of the purchaser to set off against claims by TPS GmbH are excluded unless the counter-claim is justified in the customer’s right and either determined legally valid or uncontested or recognized by TPS GmbH in writing.

 

VI.       Retention of Title

  1. Goods supplied shall remain the property of TPS GmbH until full settlement of all present and future principal and incidental claims, which are due to TPS GmbH by the purchaser, irrespective for what legal reason they came about. As for open account terms, the retention of title secures the balance due arising from the comprehensive business relationship.
  2. For the duration of the retention of title, the purchaser shall allow members of staff of TPS GmbH access to the supplied goods, which are subject to the retention of title, at any time during usual business hours.
  3. The purchaser is obliged to insure the goods, which are subject to the retention of title, against theft, damage or destruction as well as store the goods separately on request of TPS GmbH at his own expense or mark them appropriately and visibly as property of TPS GmbH and take all measures which extensively insure the retention of title. TPS GmbH reserves the right to insure the item of delivery against theft, breakage, fire or water or any other damages at the purchaser’s expense unless the purchaser has verifiably taken out such insurance himself.
  4. As a precaution, the purchaser shall herewith cede any claims arising against the insurance provider irrevocably and in full to TPS GmbH. TPS GmbH assumes the cession.
  5. If a third party acquires rights to the goods subject to the retention of title during the period of retention of title, any claims by the purchaser against the third party, including all rights, are deemed ceded irrevocably to TPS GmbH as a precaution. TPS GmbH assumes the cession.
  6. The purchaser shall neither make the item of delivery subject to pledge nor offer it as collateral without written consent by TPS GmbH. The purchaser has to inform TPS GmbH immediately of any seizures, attachments of confiscation or other legal measures by third parties and provide TPS GmbH with all information and data, which are necessary to protect its rights.
  7. If the purchaser is in breach of contract, especially if he is in default on payment, TPS GmbH has the right to repossess the products supplied. Repossession by TPS GmbH, as well as the seizure of the delivery item shall not be considered as a termination of the contract. After return of the objects of sale, TPS GmbH shall be authorized to sell them. The proceeds of such sales will be credited to the purchaser's accounts payable – with the deduction of reasonable sales costs.
  8. The purchaser shall be entitled to sell the goods delivered in the course of ordinary business transactions.
  9. If the purchaser re-sells the goods supplied, he herewith agrees to assign - until payment of all sums due - any accounts receivable from his customers as a result of such sale, including all ancillary rights, to TPS GmbH up to the value of the reserved property. The purchaser is entitled to collect the receivable. Revenues collected are to be paid out to TPS GmbH immediately as of the due date of the claims and in the amount of the value of the reserved goods. Authorization to resell the goods and to collect outstanding debts can be withdrawn if the purchaser defaults on payment or if there is a significant deterioration in the purchaser's financial situation which gives rise to serious doubts concerning the purchaser's creditworthiness. On request of TPS GmbH, the purchaser shall be obliged to inform the sub-purchasers of the assignment and to provide TPS GmbH with necessary information and documentation that are required for TPS GmbH to assert its rights against the sub-purchaser. TPS GmbH shall be authorized to collect outstanding debt.

10.  TPS GmbH is authorized to demand the handover of goods which are still under its ownership if TPS GmbH gains knowledge of circumstances that call the purchaser’s settlement of its claim into question. The purchaser herewith agrees that members of staff instructed with the collection of the goods by TPS GmbH are allowed to enter and drive on the premises where the goods are stored for this purpose.

11.  On the purchaser’s request, TPS GmbH is obliged to release the securities insofar as their feasible value exceeds the claims of TPS GmbH by more than 20%. TPS GmbH reserves the right to select the securities to be released.

12.  In the case of repurchase of products on account of our reservation of ownership, TPS GmbH shall, as a matter of principle, only be obligated to credit the invoice value less the depreciation incurred so far and less any expenses for repurchasing and disassembly.

13.  The purchaser has to immediately notify TPS GmbH of any property being put at risk through imminent or effected seizure, or of impairment of TPS GmbH’s rights of ownership and claim by third parties and to inform the bailiff about TPS GmbH’s ownership. The purchaser shall be liable for damages occurring from the omission or for any costs of intervention.

14.  Processing or alteration of a delivery item by the purchaser shall always be carried out for TPS GmbH. If supplied items are processed with other objects which are not the supplier’s property, TPS GmbH obtains co-ownership of the new object in relation to the value of the supplied items (total invoice amount incl. VAT) to the value of the other processed objects at the time of processing. The provisions that apply for the goods supplied and subject to retention of title, also apply for the new objects created.

15.  If the supplied items are inseparably mixed with other objects which do not belong to the supplier, TPS GmbH obtains co-ownership of the new item in relation to the value of the supplied items (total invoice amount incl. VAT) to the value of the other processed objects at the time of mixing. If mixing is performed in such a manner that the item of the purchaser is to be regarded as the principal item, then it is deemed agreed that the purchaser assigns co-ownership to TPS GmbH proportionally. The purchaser shall safeguard TPS GmbH’s co-title on their behalf.

16.  The purchaser also assigns to TPS GmbH the receivables for securing our claims against him, which are created against a third party by the combination of the purchased goods with real property.

 

VII.      Warranty

  1. Without redemption of legal exclusions or restrictions of TPS GmbH’s responsibility, the supplied item is imperfect when – under consideration of the stipulations in clause II - it noticeably deviates from the type, quantity or properties stipulated in the written order confirmation or if it noticeably deviates from the common properties in the absence of agreed upon properties or also when the item is not suitable for normal use.
  2. All parts, which prove defective as a result of circumstances lying before the passage of risk, must be gratuitously repaired or replaced by perfect goods at the discretion of TPS GmbH.
  3. The purchaser shall examine each individual consignment immediately and in every respect as far as noticeable and typical deviations in regards to quality, quantity or otherwise and shall declare these deviations immediately and directly to TPS GmbH, at the latest 7 days after receipt of consignment, in writing with exact descriptions of type and extent. Failing to do so, shall deem the consignment as accepted. Members of staff, sales representatives or other sales agents of TPS GmbH are not entitled to accept complaints or to provide explanations regarding warranty.
  4. Unless otherwise explicitly agreed upon in the written order confirmation, TPS GmbH is not responsible for the supplied item being suitable for other than its customary use or for the fulfillment of further expectations of the purchaser. TPS GmbH shall not accept liability for material defects which occur after the passage of risk. In case the purchaser attempts to eliminate defects himself without TPS GmbH’s consent or through third parties, TPS GmbH shall be deemed free of the obligation of warranty, unless these attempts are carried out appropriately.
  5. In order for TPS GmbH to make repairs and replacement deliveries as appear necessary, the purchaser must provide sufficient time and opportunity in coordination with TPS GmbH to do so; otherwise TPS GmbH is released from liability for the consequences. In cases where it is urgently required by reason of a threat to operating safety or to prevent unreasonably high losses (of which the supplier shall be informed immediately), the purchaser shall be entitled to rectify the defect himself or to have it rectified by a third party and to demand repayment from TPS GmbH of the unavoidable costs incurred thereby.
  6. In case the faulty goods need to be sent back to TPS GmbH by the purchaser, TPS GmbH is entitled to arrange for transport and to instruct the purchaser as to how the transport has to be carried out. The purchaser shall provide all details and information necessary for transport, such as dimensions, weight, etc. In case the purchaser does not provide this information or effects transport without providing TPS GmbH the opportunity to arrange for transport, the purchaser shall be liable for the additional transport costs which would have been avoided if transport had been arranged by TPS GmbH.
  7. Under statutory regulations, the purchaser has a right to rescind the contract if TPS GmbH allows a deadline set for the remedy of a defect or a replacement delivery due to a defect to expire without any resolution. If the defect is merely insignificant, the purchaser shall only have a right to reduce the contract price. The right to an abatement of the contract price is excluded in all other respects.
  8. As far as third-party products are concerned, TPS GmbH’s liability is limited to the assignment of its claims against its subcontractors. As far as running properties of drives are concerned, the test facility results of TPS GmbH are relevant. When delivering individual parts, TPS GmbH’s liability shall be restricted to the adherence to drawings provided.
  9. When processing parts that were submitted, TPS GmbH shall not be liable for defects which arise from material characteristics. In case submitted parts become unusable due to flawed materials or other defects during machining, TPS GmbH is entitled to charge for the incurred machining costs.

10.  In case material provided by the purchaser becomes unusable during machining due to circumstances that TPS GmbH is responsible for, TPS GmbH shall bear – excluding any further claims - the machining costs of the replacement, which is to be provided by the purchaser free of charge and carriage paid.

11.  No warranties shall be accepted in the following cases:

 

a) Inappropriate and improper usage or handling, faulty assembly and start of operation by the purchaser or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, faulty construction work, soil unsuitable for construction, chemical, electrochemical or electrical influences – for which TPS GmbH is not responsible.

 

b) Any claims made by the purchaser due to delivery of defective goods shall expire one year after the start of the statutory period of limitation. Claims for damages in cases of intent shall remain unaffected.

 

VIII:    Taking back goods/Withdrawal

  1. Goods manufactured according to the order specifications cannot be taken back, especially when dealing with custom-made products, standard parts drilled to fixed dimensions or modified standard parts.
  2. Order cancellations of custom-made products and of standard goods requiring further mechanical machining are generally excluded. In exceptional cases, TPS GmbH might be willing to take back unprocessed brand-new bearing dimensions at prices to be negotiated.
  3. Credit notes are generally not paid out in cash, but set off with future receivables.
  4. Taking account of the statutory regulations, the purchaser is entitled to withdraw from the contract when it has become impossible to TPS GmbH to fulfill its contractual duties, when TPS GmbH defaults as regards to the fulfillment of its primary contractual duties or in cases of considerable breach of obligations granted in this contract and if the delay and breach of obligations by TPS GmbH can be justified according to clause IX. In order to establish delays without foregoing further legal requirements, it is always required to send a separate request note to TPS GmbH directly and immediately after due date and also in case a concrete calendar date had been specified in the contract, demanding the completion of performance within a reasonable period of time.
  5. Without waiver of further legal rights, TPS GmbH reserves the right to withdraw from the contract without substitution if the purchaser disagrees with the validity of the General Terms and Conditions of Sale and Delivery, when the specific provisions of the regulations for consumer goods purchases (§474 BGB – German Civil Code) are applied, in case the opening of bankruptcy proceedings on the purchaser’s assets has been applied for, in case the customer has stated incorrect facts as far as his financial standings are concerned, when TPS GmbH itself is not supplied correctly or on time through no fault of its own or when it has become impossible for TPS GmbH to fulfill their obligations of performance for any other reasons with reasonable means considering its own and the purchaser’s identifiable legitimate interests and in particular the agreed upon counter-service, at the time of contract conclusion.

 

IX.       Indemnity

  1. Except liability according to the German product liability act or liability for losses resulting from the culpable injury to life, limb and health, TPS GmbH shall be liable to indemnity claims contractually and non-contractually, without foregoing the legal prerequisites, only on the basis of and in accordance with the following provisions. The following provisions are also valid in case of violation of warranty obligations or in the event of delays. In accordance with regulations in clause IV, the customer is primarily obliged to make use of an offer of supplementary performance, respectively in accordance with regulations in clause VII, to make use of warranty appeals and can claim damages only for residual disadvantages, under no circumstances however, instead of other legal remedies.
  2. TPS GmbH shall only be liable in case of culpable violation of essential contractual obligations and in case of intentional and grossly negligent violation of other obligations towards the purchaser.
  3. In accordance with the limits of these General Terms and Conditions, in the event of liability, TPS GmbH shall replace the purchaser’s verifiable damages in terms of damage occurrence and amount of damage to the extent that it was predictable for TPS GmbH as a result of breach of duty and unpreventable for the customer on contract conclusion. Prior to contract conclusion, the purchaser shall provide TPS GmbH with written indication of any special risks, atypical contingencies and unusual amounts of damage.
  4. Compensation of damages instead of performance of obligation can be claimed by the purchaser, irrespective of the statutory provisions and in the provisions of these General Terms and Conditions, only after additionally threatening TPS GmbH to refuse performance of obligation and - in the event of lack of performance of obligation by TPS GmbH - after ultimately refusing performance of obligation within a reasonable period of time after threat of repudiation.
  5. The statutory period of limitation for contractual claims is equally applicable for non-contractual claims of the customer against TPS GmbH, which compete with contractual claims. Insofar as TPS GmbH is not liable for willful intent or insofar as the purchaser’s claim has not expired before, an exclusion period of 6 months shall be valid for the lodgment of claim for damages, commencing on refusal of compensation.
  6. The above provisions regarding TPS GmbH’s liability shall also apply for legal claims for reimbursement of futile expenses, as well as for the personal liability of members of staff, employees, co-workers, freelancers, representatives and persons appointed by TPS GmbH to perform its obligations.
  7. Irrespective of further statutory and contractual claims, the purchaser shall be liable to TPS GmbH as follows:

 

a) In the event of delayed receipt of payment, the purchaser shall reimburse the statutory costs of the judicial and extra-judicial litigation, as well as interest amounting to 10% above the base interest rate set by the European Central Bank.

 

b) Subject to proof by the customer that damages did not occur or only to a remarkably lesser extent, TPS GmbH reserves the right to set a flat rate for compensation amounting to 15% of the respective value of the delivery without proof in the event of the customer's delay in acceptance or if the customer fails to accept agreed-upon delivery after a reasonable extension of time.

 

X.         General Basis of Contract

  1. Albershausen shall be place of performance, payment and performance for all obligations arising from the contractual relationships between TPS GmbH and the purchaser.
  2. The law of the Federal Republic of Germany shall apply exclusively for contractual and non-contractual relationships with the customer.
     The court of jurisdiction for both parties is Ulm. TPS GmbH shall also be at liberty to enforce its rights and to take legal action in any competent court of the purchaser’s domicile.
  3. In the event that any of these provisions is or are invalid, the validity of the remaining provisions shall be unaffected. A reasonable provision should replace the invalid or unfeasible provisions or to bridge any loophole, which, according to the meaning and purpose of these conditions, most closely approximates the original provision.

 

B. General Terms and Conditions of Purchase

I.         General Information

  1. Our general terms and conditions of purchase shall be valid for contracts of purchase, contracts for work and services, contracts for work and materials and any other contracts used by TPS GmbH to purchase goods or services.
  2. Any supplier’s terms and conditions which contradict our terms and conditions of purchase or which limit our statutory claims in the event of improper supply, shall also be deemed rejected, even if TPS GmbH does not expressly contradict them. This particularly applies for deviating provisions in general terms and conditions of sale and delivery, which are only binding for TPS GmbH when we agree to them in writing in a separate agreement.

 

II.        Conclusion of Contract, Alteration of Contract

  1. Orders and any legally important declarations shall be made in writing. However, small orders can be placed orally without written confirmation.
  2. Oral offers and commitments made by members of staff of TPS GmbH are non-binding and without obligation. Members of staff who have not been entered in the commercial register do neither have the authority to conclude, nor the authority to receive a contract, nor are they authorized to orally add to or alter the contract, unless the employee of TPS GmbH produces a power of attorney. Contracts and declarations, no matter of what kind and who they are sent to, as well as alterations to the contract, are only binding for TPS GmbH in the event of contract confirmation in writing or via fax / e-mail. This requirement can only be waived in written form.
  3. The supplier has to expressly indicate and identify any deviations from the order. In the event of absence of such indication, the supplier cannot claim to have accepted the order based on the alteration.
  4. The order shall become binding if the supplier confirms it within two weeks in writing, stating prices and delivery periods. Delayed order confirmations entitle TPS GmbH to cancel the order.
  5. Acceptance of delivery does not mean that TPS GmbH accepts the supplier’s general terms and conditions.

 

III.      Execution of Orders

  1. Any instructions regarding the execution of orders shall be adhered to accurately. Any costs incurred arising from disregard of such instructions, shall be at the supplier’s expense.
  2. In the event of delay in delivery due to force majeure, respectively official measures, TPS GmbH shall be entitled to withdraw from the contract after setting a period of grace of at least 2 weeks and if failure to deliver within this period occurs. In case TPS GmbH is constricted to execute an order of its own, which the delivery is meant for, despite all reasonable efforts, TPS GmbH shall be entitled to cancel the contract at any time. In such a case the actual costs, which the supplier verifiably incurred, shall be reimbursed exclusive of a profit margin. In cases of force majeure, TPS GmbH shall not be obliged to compensate the costs incurred by the supplier.

 

  1. If the supplier or a creditor files for the opening of legal composition or insolvency proceedings on the supplier’s assets, or in case a levy of execution against the supplier remains fruitless, or in case the supplier is restricted regarding his directives or administration of his assets or the management of his company, or in case a considerable deterioration of his financial circumstances – in particular as regards to his financial solvency – occurs, TPS GmbH shall be entitled to withdraw from the contract, irrespective of its other legal or contractual rights and/or shall be entitled to enter the supplier’s contracts with his subcontractors.

IV.       Prices

  1. The price agreed upon shall be deemed to be the fixed price carriage free to our works and includes all additional charges. Where applicable, statutory VAT has to be added. Partial subsequent increases in price are excluded, even if 4 months or more time has elapsed since the order was placed.
  2. Unless not agreed upon as per no. 1, our shipping instructions according to the order shall be deemed to be valid.
  3. The method of pricing shall not affect the agreement concerning the place of fulfillment.
  4. We reserve the right to accept excess or short deliveries.

 

V.         Invoicing, Payment, Assignment

  1. Invoices shall be sent to TPS GmbH immediately after delivery, stating VAT separately.
  2. Payments can be effected either in cash (also via cheque or bank transfer) with a 3% discount within 2 weeks after delivery and receipt of invoice, respectively 60 days net or by bill of acceptance under compensation of note tax, note charges and discount. In case part payments have been agreed on, these shall be requested separately.
  3. Our payments shall neither be deemed to be acceptance of the supplier’s general terms and conditions and his accounting, nor acceptance of the consignment. In case we find any flaws with the consignment, which the supplier is responsible for, we are entitled to withhold a proportional part of the price until the flaws have been eliminated.
  4. Any claims of the supplier against TPS GmbH can only be assigned with prior written consent by TPS GmbH.

 

VI.       Date of Delivery, Cancellation, Contractual Penalty

  1. The agreed upon date of delivery is binding unless clause III.2. applies.
  2. In case the supplier defaults on timely delivery, he shall pay TPS GmbH forward cover at the rate of 0.2% of the order value per working day elapsed, however in total a maximum of 10% of the entire order (plus VAT if applicable).  Our further claims shall remain unaffected. Acceptance of a delay in delivery or service by TPS GmbH does not imply that the supplier is entitled to a waiver of claims for compensation.
  3. If the supplier gets into arrears partially, TPS GmbH is by all means entitled to withdraw entirely from the contract or to claim damages due to failure of performance of the entire contract after setting a period of grace of a minimum of 14 days and if delivery is not carried out within this period of time.
  4. The period of delivery shall commence on the day the order was placed. Delivery has to be effected immediately unless otherwise agreed. As soon as the supplier has to expect that he will not succeed in effecting timely delivery entirely or partially, he has to announce the delay immediately, indicating the reasons as well as the assumed duration of the delay, thus not affecting his contractual obligations.

 

VII.      Packaging, Return Shipment

  1. Insofar as TPS GmbH has to bear costs for packaging material due to separate agreements, TPS GmbH is entitled to return re-usable packaging material in good condition to the supplier, meeting the transport costs, and shell be refunded 2/3 of its value stated in the invoice or of its common value.
  2. Special instructions regarding the return of packaging material shall be clearly highlighted on the front page of the delivery note.

 

VIII.    Passage of Risk, Transfer of Ownership, Insurance

  1. The risk of accidental loss or accidental depreciation of the goods – irrespective of the time of transfer of ownership – shall pass to TPS GmbH by the physical receipt.
  2. Unless otherwise stated in the order, TPS GmbH presumes that the supplier shall take out transport and construction risks insurance at his own expense.
  3. The ownership shall pass to TPS GmbH at the time the consignment is handed over by the supplier to the carrier, forwarding agent or to any other person or institution appointed to carry out transport. The supplier herewith assigns his claim for restitution against the carrier, freight forwarder, etc. to TPS GmbH.
  4. In case TPS GmbH purchases objects which, according to prior agreements, have to be stored by the supplier over a certain period of time until they are requested from the supplier by our customers, respectively if the supplier receives instructions as to how and where delivery shall be effected, the following shall apply as regards to transfer of ownership and subsequent protection of our title:

a) The transfer of ownership of these objects shall pass to TPS GmbH on the supplier’s receipt of the payment of the purchasing price. The supplier shall notify us of the receipt thereof immediately. At the latest, the transfer of ownership shall pass 5 days after dispatch of means of payment to the supplier, respectively execution of bank transfer by our bank.

 

b) The supplier shall mark the respective objects as our property in his storage and store them separately in such a way that they can be selected at any time. Furthermore, he shall also insure the objects against loss and/or damage of any kind, except force majeure, at his own expense and to show us proof of such insurance.

 

c) He herewith assigns the respective insurance claims to TPS GmbH in advance.

 

IX.       Warranty Claims and Recourse

  1. TPS GmbH commits to inspect the goods for any obvious deviations from quality and quantity within a reasonable period of time. A complaint shall be deemed to be punctual if it is received by the supplier within 28 working days after delivery.
  2. In the event that TPS GmbH has well-founded suspicions that the goods might be faulty after receipt of the consignment, TPS GmbH shall receive € 100.00 to carry out an inspection even if the goods turn out to be free of defects or if they can be used by TPS GmbH despite minor deficiencies.
  3. The supplier guarantees that all deliveries/services conform to the most advanced technology, to the relevant statutory provisions and the regulations of government authorities, professional associations and trade associations.
  4. The supplier shall be liable for the environmental compatibility of the delivered goods and packaging materials and for any consequential damages, arising from any violation of the statutory waste disposal duties.
  5. TPS GmbH is entitled to the statutory defect claims without restriction.
  6. Claims for material defects shall become statute-barred at the time stipulated by law, unless otherwise agreed.
  7. For restored or repaired parts by TPS GmbH within the limitation period of the defect claims, the limitation period shall commence anew from the point of time the supplier completely fulfilled our claims of supplementary performance.
  8. The supplier shall compensate TPS GmbH costs arising from poor delivery of the delivery item, especially transport costs, travel expenses, labour costs, material costs or costs for reception inspection exceeding the customary extent.
  9. In the event of TPS GmbH taking back its own manufactured products and/or sold products as a consequence of deficiency of the contractual item delivered by the supplier or in the event that the purchase price of such items was reduced or there were claims against TPS GmbH, then TPS GmbH reserves the right of recourse to the supplier, in which case we need not allow for a period of time otherwise required.

10.  TPS GmbH is entitled to charge the supplier for compensation of expenses which TPS GmbH had to bear in relation to its customer who has a claim against TPS GmbH for compensation of expenses for the purpose of supplementary performance, in particular transport costs, travel expenses, labour and material costs.

11.  In cases according to numbers 8 and 9, the limitation period commences at the earliest 2 months after the point of time at which TPS GmbH has fulfilled the customer’s claims, but 5 years after delivery through the supplier at the latest.

12.  If a material defect is detected within a period of 6 months from the transfer of risk, it shall be assumed that the defect already existed at the time of transfer of risk, unless such assumption is incompatible with the nature of the item or of the defect.

X.         Product Liability - Indemnification

  1. If the supplier is responsible for a product defect, he shall be obliged to indemnify TPS GmbH against third-party claims for damages upon first request. The supplier’s responsibility can particularly be assumed when the cause lay within the scope of his control and organization and that he is externally liable himself.
  2. Within this scope, the supplier shall also be obliged to reimburse any expenditures according to §§ 683, 670 BGB (German Civil Code) arising from or connected with a product recall made by TPS GmbH. As far as possible and reasonable, TPS GmbH shall notify the supplier of the content and extent of the recall measures to be taken and shall give the supplier an opportunity to comment.
  3. The supplier commits to obtain an appropriate third party product insurance providing sufficient cover. Any further claims for damages to which the purchaser is entitled shall not be affected.

XI.       Warranty for subcontracting

  1. Within the scope of regulations regarding the duty of replacement for degraded material and loss, TPS GmbH shall demand replacement free of charge for parts provided or the assumption of costs for replacement.

XII.      Liability of auxiliary persons, Aids

  1. The supplier shall be liable for damages caused by auxiliary persons even if such persons were appointed solely for the occasion of fulfillment of the supplier’s obligations.
  2. Any members of staff requested from TPS GmbH by the supplier are to report solely to the supplier for instructions. If any damages are caused by a member of our staff, we cannot assume any liability for damage under any legal viewpoint.

XIII.    Defects of Title

  1. The supplier fully guarantees that industrial property rights of third parties are not infringed upon by delivery or usage of the items to be supplied and that third-party claims in respect of alleged violation of property rights cannot be filed against us.
  2. In the event of infringement of third party rights, we are entitled to compensation for damages incurred by us from the supplier. We are entitled to obtain permission from the eligible person to place the objects in question into operation at the supplier’s expense.

XIV.     Non-Disclosure: Drawings and other technical documentation and tools

  1. The supplier is to provide TPS GmbH with a reproducible copy of the construction drawings free of charge and in good time. Our drawings and technical documentation, as well as drawings made to our specifications, may neither be made use of, nor copied nor made accessible to third parties unless necessary in the scope of the order. The recipient of our drawings and other technical documentation is responsible that third parties also use them exclusively for our intended purposes. In case the order is not placed, all technical documentation and drawings have to be sent back to us immediately and have to be deleted on computers.
  2. The recipient shall be liable for any damages incurred by TPS GmbH arising from disregard to this provision.
  3. Tools, moulds, etc. produced entirely or partly at our expense become our property on production. The supplier shall store them carefully and maintain them as well as repair them if required so that they can be used at any time. In the event of manufacturing problems, the supplier has to hand over the tools, moulds, etc provided or paid by TPS GmbH.
  1. The supplier shall be obliged to maintain secrecy in respect of all commercial and technical details and documentation that are not public knowledge and that have become or shall become known to him as a result of the business relationship and to exclusively use this information for the purpose of supply of the ordered goods or services. Any subcontractors are to be obliged accordingly.
  1. The supplier may only name the purchaser’s company name or his brand for references or publications with the purchaser’s prior consent in writing.

XV.       Place of Performance, Place of Jurisdiction, Applicable Law

  1. The place of performance for each delivery is Albershausen.
  2. The sole place of jurisdiction is Stuttgart. However, TPS GmbH shall also be at liberty to enforce its rights and to take legal action in any competent court of the supplier’s domicile.
  3. In addition, the law of the Federal Republic of Germany shall apply exclusively.

XVI.     Our Customer’s General Terms and Conditions & Customer Protection

  1. For orders carried out for a customer, his general terms and conditions of purchase shall predominantly apply (also for the relation between our supplier and us) provided we have agreed to them and they are attached to the order.
  2. The supplier shall be obliged to enter contractual relationships solely with us for the purpose of satisfaction of potential further needs of our customer for the construction for which the agreed upon delivery is determined in this contract. In case of a direct or indirect circumvention by the supplier and/or any of his affiliated companies, TPS GmbH is due financial compensation to the extent of the highest benefit which the supplier and/or any of his affiliated companies would have drawn from such a business transaction, in addition to any expenses and legal charges which are payable due to the collection of this compensation.  In case of proven violation of this contract (each individual delivery of products for standing orders, respectively each individual order for one-time orders) TPS GmbH is due a contractual penalty amounting to 10,000.00 EUR. TPS GmbH is at liberty to prove and claim higher damages.

XIV.     Set-off

  1. Only counter claims, which are undisputed by us or have been legally confirmed, may be offset by the supplier against claims due to TPS GmbH from the supplier.

XV.       Partial Invalidity

  1. In the event that any of these agreed upon conditions of purchase are or become invalid, the validity of the remaining provisions shall be unaffected. If required, reasonable and replacing provisions shall be agreed upon with the supplier in individual cases, which best approximate to the commercial intention of the invalid provision. The same shall apply to any loopholes in this contract.  

Turning and Milling Technology

Laser Technologie

Drive Systems Technology

Sheet-Metal Technology