General Terms and Conditions of Sale (AGBV)
1. General
1.1 Unless otherwise agreed in writing, these GTCS shall form the contractual basis for all deliveries and services provided by TMH Hagenbucher AG to its customers (delivery of goods and works, provision of services), hereinafter also referred to collectively as "Services".
1.2 Deviating terms and conditions of the Customer shall not be recognized and shall not form part of the contract unless TMH Hagenbucher AG has expressly agreed to their validity in writing. By accepting or paying for a service provided by TMH Hagenbucher AG, the Customer declares its agreement with these GTCS.
1.3 These GTCS shall also apply if the Customer does not confirm them or confirms them in a different form and TMH Hagenbucher AG provides services to the Customer in full knowledge of them.
1.4 Unless explicitly stipulated otherwise, the written form requirement shall also apply to communication by fax or e-mail.
1.5 These GTCS are originally written in German. If translations deviate from this, the original German version shall apply.
2. Conclusion of contract / scope of deliveries and services
2.1 The ordering of a service by the customer shall be deemed a binding contractual offer. Unless otherwise stated in the order, TMH Hagenbucher AG shall be entitled to accept this contractual offer within 2 weeks of its receipt by TMH Hagenbucher AG.
2.2 Acceptance may be declared either in text form (e.g. by order confirmation) or by delivery of the goods to the Customer.
2.3 The services to be rendered or rendered by TMH Hagenbucher AG shall be exhaustively listed in the service confirmations (also referred to as 'order or offer confirmations' or similar) with any enclosures. TMH Hagenbucher AG shall be authorized to make changes that lead to improvements, provided that these do not result in a price increase.
2.4 We reserve the right to make changes to the product range and products at any time. This shall also apply if TMH Hagenbucher AG has provided the Customer with catalogs, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards), other product descriptions or documents - including in electronic form. Information on the weight, color and dimensions of products is non-binding.
2.5 Any confirmation of performance by TMH Hagenbucher AG which is not objected to in writing by the Customer within 2 working days shall be deemed to have been accepted.
2.6 International trade terms shall be interpreted in accordance with Incoterms 2020.
3. Prices and price adjustments
3.1 Unless otherwise agreed in writing, all prices are net ex works (EXW), excluding VAT/sales tax, without packaging and deductions. All ancillary costs, e.g. for taxes, freight, insurance, export, transit, import and other permits and certifications shall be borne by the customer.
3.2 If the date of performance is later than three months after conclusion of the contract, TMH Hagenbucher AG shall be entitled to adjust the price of the goods or services by those cost factors which are beyond the control of TMH Hagenbucher AG (e.g. increase in material, energy or other manufacturing costs, price changes by suppliers, exchange rate fluctuations, etc.). This price adjustment is also referred to as 'MEATZ'.
3.3 The MEATZ also applies without further ado to individual purchases under framework agreements concluded for more than 3 months.
4. Terms of payment / default
4.1 Payments shall be made by the Customer in accordance with the agreed terms of payment at the domicile of TMH Hagenbucher AG strictly net without deduction of discounts, expenses, taxes, levies, fees, customs duties and the like.
4.2 Unless otherwise agreed, the invoice amount shall be due for payment 14 days after invoicing. However, TMH Hagenbucher AG shall be entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. TMH Hagenbucher AG shall declare a corresponding reservation at the latest with the order confirmation.
4.3 If payment is not made on time, the Customer shall be in default without further ado.
4.4 Unless otherwise agreed in writing, payments for export deliveries shall be made in the form of advance payments, irrevocable bank guarantees or irrevocable and confirmed letters of credit.
5. Retention of title
5.1 TMH Hagenbucher AG shall remain the owner of all deliveries until TMH Hagenbucher AG has received payment in full in accordance with the contract. TMH Hagenbucher AG shall be entitled to have the retention of title entered in the relevant public registers at the Customer's expense. The Customer shall maintain the delivered items at its own expense for the duration of the retention of title and insure them appropriately against theft, fire, water and other risks for the benefit of TMH Hagenbucher AG.
5.2 The Customer irrevocably authorizes TMH Hagenbucher AG to make all declarations and perform all legal acts on its behalf which are necessary for the valid registration of a reservation of title in accordance with the applicable legal system.
6. Packaging
6.1 Unless otherwise agreed, the packaging material shall be invoiced to the customer and shall become the customer's property after payment has been made.
6.2 Containers, frames, pallets and other materials which are the property of TMH Hagenbucher AG must be returned by the Customer in good condition, carriage paid, no later than 30 days after receipt; otherwise they shall be invoiced by TMH Hagenbucher AG.
6.3 If the packaging material used by TMH Hagenbucher AG is the property of the Customer, it must be delivered in good condition to a place specified by TMH Hagenbucher AG by a date agreed in advance with TMH Hagenbucher AG at the latest.
7. Delivery period and delivery dates
7.1 The delivery period shall be agreed individually or specified by TMH Hagenbucher AG with the confirmation of performance. It shall commence as soon as the contract has been concluded, all official formalities such as import, export, transit and payment permits have been obtained, the payments to be made at the time of ordering and any securities have been provided and the main technical points have been clarified.
7.2 Unless otherwise agreed, TMH Hagenbucher AG shall deliver EXW, which shall also be the place of performance for the service and any rectification of defects. The delivery deadline shall be deemed to have been met if the Customer has been notified of readiness for dispatch by the time it expires.
7.3 If the Customer is in default of acceptance, fails to cooperate or if the provision of the service is delayed for other reasons for which the Customer is responsible, TMH Hagenbucher AG shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs).
7.4 TMH Hagenbucher AG shall be permitted to provide partial performance provided this is not unreasonable for the Customer.
7.5 In the event of force majeure affecting TMH Hagenbucher AG itself or its suppliers, the performance obligations of TMH Hagenbucher AG shall be suspended for the duration of the disruption. The same shall apply in the event of energy or raw material shortages, labor disputes, pandemics, epidemics, official decrees or traffic or operational disruptions.
7.6 TMH Hagenbucher AG shall be entitled to withdraw from the contract if there is a significant change in the circumstances existing at the time of conclusion of the contract as a result of which it cannot reasonably be expected to adhere to the contract.
7.7 Performance of the contract shall be subject to the proviso that TMH Hagenbucher AG does not violate any provisions of national or international foreign trade law or any sanctions or embargoes.
7.8 If an agreed performance date is exceeded for reasons for which TMH Hagenbucher AG is responsible, the Customer shall set TMH Hagenbucher AG a reasonable grace period for performance in writing. This grace period shall be at least 4 weeks. If performance does not take place after expiry of the grace period and the Customer therefore wishes to withdraw from the contract or claim damages in lieu of performance, it shall be obliged to notify TMH Hagenbucher AG of this expressly in writing in advance, setting a further reasonable grace period of at least 4 weeks and requesting performance.
7.9 At the request of TMH Hagenbucher AG, the Customer shall be obliged to declare within a reasonable period of time whether it is withdrawing from the contract due to the delay in performance and/or demanding compensation in lieu of performance or insisting on performance.
7.10. The rights of the Customer pursuant to clause 12 of these GTCS and the statutory rights of TMH Hagenbucher AG, in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or rectification of defects) shall remain unaffected.
8. Inspection and acceptance of the service
8.1 TMH Hagenbucher AG shall inspect the Services prior to dispatch, insofar as this is customary. If the Customer requests further inspections, these shall be agreed separately and paid for by the Customer.
8.2 The Customer shall inspect the Services immediately upon receipt and notify TMH Hagenbucher AG in writing of any defects immediately, but no later than 8 days after receipt. If the Customer fails to do so, the services shall be deemed to have been approved.
8.3 The performance of an acceptance test with specific criteria shall be subject to a special written agreement.
9. Inspection and acceptance during the production of a work
9.1 The customer shall bear full responsibility for the design of the work. Therefore, the customer alone decides on the specification sheet, which determines the specification of the works to be produced.
9.2 If the customer wishes a formal acceptance, the modalities are to be specified in writing at the latest at the time of confirmation of performance. After completion of the work, TMH Hagenbucher AG shall be entitled to demand acceptance of the service. Acceptance may only be refused due to significant defects until they have been rectified. If no acceptance is requested, the service shall be deemed to have been approved 15 working days after written notification of its completion. If no acceptance is requested and the customer has started to use the service or a part thereof, the service shall be deemed to have been approved 5 working days after the start of use.
9.3 If the Customer accepts TMH Hagenbucher AG's proposals for improvements to the specifications or changes to the work, this shall not constitute a transfer of liability to TMH Hagenbucher AG.
9.4 Unless otherwise agreed, TMH Hagenbucher AG shall only carry out a simple visual and random inspection of the Works.
9.5 Any samples shall be approved by the Customer. This approval shall constitute release for series production.
10. Warranty
10.1 Unless otherwise agreed in writing, the warranty period shall be 24 months. It begins with the dispatch of the service ex works or the provision of the service, but at the latest on the date of any default of acceptance.
10.2 When providing services (e.g. leak detection, sensor monitoring, data transmission and evaluation, etc.), TMH Hagenbucher AG shall be obliged to provide the service with due care. TMH Hagenbucher AG shall not owe any specific success, nor shall TMH Hagenbucher AG assume any guarantee with regard to the achievement of success.
10.3 In the case of delivery of goods manufactured by TMH Hagenbucher AG, these shall, in the event of material defects, faulty design or defective workmanship, be repaired, replaced or the corresponding net value of the goods shall be reimbursed at the discretion of TMH Hagenbucher AG, provided that the defect occurred during the warranty period, was reported in good time and is recognized by TMH Hagenbucher AG. In the event of a replacement delivery, the Customer shall return the defective item to TMH Hagenbucher AG.
10.4 In the event of delivery of third-party products, the warranty of TMH Hagenbucher AG shall be limited to the scope of the warranty of the third-party supplier vis-à-vis TMH Hagenbucher AG.
10.5 In the event of improper handling or assembly (e.g. non-compliance with installation instructions, improper storage, etc.) and improper use (e.g. use for a purpose other than the intended, agreed or specified purpose, lack of care, etc.) of a service provided by TMH Hagenbucher AG, any warranty claim by the Customer shall lapse.
10.6 In the event of a defect for which TMH Hagenbucher AG is responsible, TMH Hagenbucher AG shall bear the expenses necessary for the purpose of inspection and rectification of the defect. If the expenses increase due to the fact that the object of performance has been moved to a location other than the original place of delivery, the Customer shall bear the associated costs.
10.7 If there is no defect for which TMH Hagenbucher AG is responsible, TMH Hagenbucher AG may claim the costs resulting from the rectification of the defect (in particular testing and transportation costs) from the Customer.
10.8 If the defect cannot be remedied, the Customer may reduce the remuneration or withdraw from the contract. Withdrawal shall, however, only be permissible if the Customer expressly threatens TMH Hagenbucher AG with this in writing beforehand, setting a reasonable further period of grace of at least 4 weeks. There shall be no right of withdrawal in the event of an insignificant defect.
10.9 Claims by the Customer for damages or compensation for wasted expenditure shall only exist in accordance with Section 11, even in the case of defects, and shall otherwise be excluded.
11. Liability
11.1 TMH Hagenbucher AG shall only be liable for direct damage caused intentionally or through gross negligence by persons acting and authorized to act on behalf of TMH Hagenbucher AG (hereinafter referred to as "persons").
11.2 Liability for vicarious agents and auxiliary persons and liability for slight negligence shall be excluded in full.
11.3 Should liability be affirmed for cases under Clause 11.2 above, liability shall be limited to the amount of the last annual turnover achieved with the customer or, if less, the customer's business premises concerned.
11.4 In no event shall TMH Hagenbucher AG be liable for indirect damage and/or consequential damage such as loss of profit, loss of production, loss of use, loss of orders, loss of data, claims by third parties, all other damage not caused to the object of performance itself, etc.
12. Intellectual property / IP rights / no legal relationship similar to a partnership
12.1 The Customer acknowledges TMH Hagenbucher AG's unrestricted ownership of drawings, models, samples and tools as well as designs, software, algorithms, know-how and all other protected rights associated with the services purchased from TMH Hagenbucher AG. These rights shall remain fully with TMH Hagenbucher AG. In particular, no license rights shall be granted without an explicit separate written agreement.
12.2 The conclusion of a service contract with the Customer shall not create a company or a legal relationship similar to a company.
13. data protection
13.1 Both parties shall comply with the rules of data protection, in particular if they are granted access to the operations or hardware and software of the other party. The parties do not intend to process or use personal data on behalf of the other party. Rather, a transfer of personal data only occurs in exceptional cases as a secondary consequence of the contractual services of the parties. The personal data shall be treated by the parties in accordance with the applicable data protection regulations.
14. Confidentiality
14.1 The Customer undertakes to treat any information provided by TMH Hagenbucher AG as confidential.
14.2 Information, projects and framework agreements may not be made accessible to third parties, either in whole or in part.
14.3 The duty of confidentiality shall not apply to information that was already known to the Customer, was lawfully acquired from third parties, is generally known or is state of the art or has been released by TMH Hagenbucher AG.
14.4 Technical and commercial information from TMH Hagenbucher AG may only be used by the Customer in the context of cooperation with TMH Hagenbucher AG.
15. Further provisions / place of jurisdiction / applicable law
15.1 Amendments or supplements to these T&Cs shall only be valid if they are made in writing.
15.2 Should any provisions of these GTCS be or become invalid, this shall not affect the validity of the remaining provisions.
15.3 These GTCS and all contracts concluded and declarations made by TMH Hagenbucher AG shall be governed by Swiss law without its conflict of law provisions and without the provisions of the Vienna UN Convention of April 11, 1980, unless country-specific GTCS provide otherwise.
15.4 The place of jurisdiction for all disputes in connection with these GTCS, contracts and declarations of TMH Hagenbucher AG and deliveries to TMH Hagenbucher AG shall be the registered office of the VRIH company affected by the relevant dispute or, in the case of non-Swiss VRIH companies, the registered office of vonRoll infratec (holding) ag, unless country-specific GTCS provide otherwise.
15.5 TMH Hagenbucher AG shall be entitled to take legal action against the customer at the customer's registered office or at the place of performance.