for sale to commercial customers
I. Origination of supply contracts; applications of these Terms and Conditions
- Contracts with Customers originate on receipt by Tsurumi of the written or verbal order from the Customer and acceptance by Tsurumi. Acceptance is generally effected by advance presentation of an order confirmation/invoice but may be effected through delivery itself.
- Delivery is made by us exclusively in accordance with these Terms and Conditions of Supply. Their application for subsequent legal relationships is also agreed. In the case of delivery with a consignment note in cases where, because of the urgency of delivery, it is not possible to issue an order confirmation, these Terms and Conditions also apply if already known to the Customer from previous deliveries.
- Terms and conditions of the Customer are not binding on us regardless of whether they conform with or contradict these Terms and Conditions and even if the order is based on them and we fail to countermand their content explicitly. They are only effective if we recognise them in writing.
II. Declarations; scope of goods and services to be supplied
- Dimensions, illustrations, drafts/drawings, KW data and other performance data are only binding in terms of execution if this is expressly confirmed in writing. In addition, these and references to DIN requirements, literature, catalogues, etc. constitute quality and durability guarantees only if they are expressly described as "guarantee". This applies correspondingly to guarantees of supply.
- We are entitled to make part delivery of goods or services and depart from the agreed goods or service to the extent that the Customer may reasonably be expected to accept this.
III. Industrial property rights
- We reserve title and copyright to illustrations, models, product descriptions and other documents; they may be divulged to third parties only with our prior express written consent and must be returned to us immediately on request.
- Our prices apply ex warehouse Antwerp, plus freight and value-added tax at the statutory rate.
V. Delivery time
- Delivery dates and times are approximate unless they are expressly described as binding. A delivery time expressed in terms of days, weeks or months starts as soon as the parties have agreed all details with regard to the order and execution of the order.
- The delivery time is deemed to have been met if the consignment, ready for operation, has within the agreed delivery or performance time been given up for dispatch or collected. If dispatch to the recipient is delayed for reasons attributable to the Customer, the delivery time will be deemed to have been met on notification of readiness for dispatch within the agreed time.
- If we are prevented from fulfilling our obligations through unforeseeable incidents of force majeure or other incidents arising among our supplier through no fault of ours and no fault of our suppliers attributable to us, and such incidents make it difficult or temporarily impossible for us to deliver at all or on reasonable financial terms, the delivery time will be extended by a reasonable period. The aforementioned incidents of force majeure and other incidents include, for example, unavoidable business disruptions, traffic and communication disruptions of all kinds, war, acts of hostility, unavoidable difficulties in obtaining supplies of materials or energy, unavoidable transport delays, strikes, justified lockouts, official decrees, subsequent amendment of the order, failure to obtain in good time official or other approvals required from third parties for execution of delivery, or necessary documentation or Customer information required for execution and requested in good time from third parties or the Customer or the appropriate authority, and disruptions to delivery by our suppliers. If the hindrance to performance lasts for more than three months, we and the Customer are entitled to withdraw from the contract for the part of the contract not yet performed at this point in time. To the extent that, in accordance with the aforementioned cases, the quantity of goods available to us is insufficient to satisfy all our customers, we are entitled at our own reasonable discretion to reduce all our supply obligations; beyond this we are released from our supply obligations.
- If the dispatch or hand-over of goods is delayed at the request of the Customer or for other reasons attributable to the Customer (acceptance default), storage costs may be charged to the Customer two weeks after the agreed delivery date and actual readiness for dispatch at a rate of 0.5% of the invoice amount for each month or part month; the storage charge will be limited to 5% of the invoice amount. The percentage rates quoted are conditional on actual storage rates arising, which may be higher or lower. In the case of acceptance default we are additionally entitled - after allowing a reasonable period of grace to no effect - to dispose of the object of delivery for other purposes and to supply the Customer at a correspondingly later date.
VI. Packaging; dispatch; transfer of risk
- In the absence of an express agreement to the contrary, packaging and the method of dispatch are at our discretion. If we follow dispatch instructions given by the Customer, this is done at the risk of the Customer. We are liable only in accordance with the provisions of the section entitled "Limitation of liability" in these Terms and Conditions.
- Even in the case of carriage-paid delivery, the risk of accidental damage or loss passes to the Customer as soon as the goods are given up for dispatch or collected. If dispatch or receipt is delayed at the request of the Customer or for reasons attributable to the Customer, the risk passes on notification by us of readiness for dispatch.
- Agreements entered into between us and the Customer with regard to the costs for transportation and insurance of the goods constitute pure expense regulations and have no affect on the transfer of risk.
VII. Payment terms
- In the absence of an agreement to the contrary, our invoices are payable without deduction of any kind, in EURO, and within fourteen days after delivery of the goods at the agreed place and receipt of the invoice. This also applies to part deliveries. Section VIII.5 of these Terms and Conditions is unaffected.
- Credits for bills of exchange and cheques are subject to receipt of payment, with value-dating on the day the countervalue is available for disposal by us, and after deduction of expenses such as discounting, bank and bill charges.
- The Customer is entitled to offset counterclaims only to the extent that undisputed or legally established payment claims exist.
- The Customer has a withholding right only if counterclaims relate to the same legal relationship.
- If circumstances arise which may substantially reduce the creditworthiness of the Customer, we are entitled demand immediate payment of jeopardised residual claims even in the event that cheques have been accepted. In the aforementioned circumstances, we will also be entitled to demand advance payment or provision of securities before making outstanding deliveries against which counterperformance is jeopardised and to rescind affected contracts after a reasonable period of grace or demand compensation for non-performance if the counterperformance is not secured.
VIII. Rentention of title
- The goods supplied remain our property until fulfilment of all claims against the Customer which are due to us under the business relationship, whether they result from previous or subsequent deliveries, including interest and costs for possible legal pursuit. This applies even if individual claims or all claims by us are included in an open account and the balance has been struck and accepted. Retention of title also secures liabilities unilaterally established by the bankruptcy administrator in the course of fulfilment election.
- Goods subject to retention of title may be resold by the Customer to third parties or otherwise utilised in the normal course of business provided that the Customer is not in default and no circumstances are evident which might mean that this would jeopardise our claims. In the case of resale, the Customer is obliged in turn to reserve the right of retention of title against its customers until its claims are settled. To secure all our claims against the Customer, all rights and claims resulting from utilisation of the goods are hereby already assigned to us. On request by us, the Customer is obliged to give us an appropriate assignment declaration. The Customer is entitled to collect such receivables even after assignment. On receipt of payment of the said claims of the Customer, the latter is obliged to use the payment receipt immediately to settle our claim in the amount already due. Our authority to collect the receivables ourselves is unaffected by this. We undertake, however, that we will not collect the receivables as long as the Customer meets its payment obligations from the income received by it, it is not in default with payment and, in particular, no application has been made for the instigation of insolvency proceedings against the Customer's assets and stoppage of payments has not taken place. If this is the case, we are entitled to demand that the Customer discloses to us the receivables assigned and the debtors on such receivables, provides all the information necessary for collection, hands over the related documents and notifies the debtors about the assignment.
- If the realisable value of the securities existing for us exceeds the value of the secured receivables by more than 20%, we are obliged on request by the Customer to release securities of our choice to this extent.
- In the case of attachment or seizure of goods subject to retention of title or other disposals or attacks by third parties on our rights, the Customer must promptly notify us and in agreement with us take all necessary action to avert the jeopardy. To the extent appropriate to protect the goods subject to retention of title, the Customer must on request by us assign claims to us. The Customer is obliged to compensate us for all damage and costs - including court costs and legal fees - incurred by us for intervention measures against third-party attachment.
- The Customer must ensure safe and proper keeping of objects to which we have title or joint title and must insure them at its own expense against theft, fire and other property damage.
- We are entitled to demand that objects belonging to us are surrendered at any time and in particular to assert the rights of segregation or assignment of the claim for counter performance in insolvency proceedings if fulfilment of our claims by the Customer is jeopardised, especially if insolvency proceedings are opened against its assets or its financial circumstances substantially deteriorate.
- If, in a foreign country of destination, retention of title is ineffective or not effective to the intended extent, the Customer must on request cooperate in the provision of securities whose effect comes as close as possible to such retention of title.
IX. Liability for defects
- Goods supplied by us must be carefully examined by the Customer to ascertain defects as to identity, quantity and quality . If any recognizable defects are found, they must be reported to us in writing without delay, otherwise all warranty claims for recognized or regonizable defects are excluded.
- As far as defects are reported to us in time the client is entitled to request subsequent delivery, replacement of the defective goods or removal of the defect. In case the goods have been resold, the customer is entitled to decide on the way of the corrective action to be taken, otherwise appropriate action is decided by us. The Customer is requested to advise us immediately of any complaint received from customers in case assertion of warranty claims against us appears as possible. The report of the complaint has to be submitted as specified as possible in order to get a clear picture of the defect and to take appropriate corrective measures. If reasonable,. prior to any agreement with his buyer, the Customer shall wait for our comment in particular whether the way of settlement requested by the buyer is reasonable to us.
- Proved, necessary costs arising for the Customer for transport, labour etc. resulting from the defective goods will be borne by us.
- The Customer's legal rights for reduction of the purchase price or cancellation of the contract or indemnity instead of fulfilment of the contract (last mentioned in compliance with Lit. XI of this contract) remain unaffected from the foregoing provisions if their legal requirements are fulfilled. The Customer is not entitled to any further claims based on the defective goods.
- Defect in quality - in terms of Sec. 1 - exists if the goods at the time of handing over for delivery purpose from our warehouse do not meet the quality standard stated in the product descriptions, advertisement etc. valid at that time of purchase or if the product at that time does not meet the expected quality for this kind of article. Trifling deviation does not come into consideration. This applies correspondingly to trifling defects as to identity or quantity.
- We regularly point out in our product descriptions that the duration of function/operation of the pumps delivered by us in regard to the specific purpose of the product and the great variety of the conveyed materials depend to a great extend on the way and duration of usage and that this may lead to the wear out of certain parts and to the necessity to change those parts in shorter or longer intervals. The Customer has to inform his customer accordingly. Particularly he shall hand over to his customers the last edition of the customers information provided by Tsurumi at the relevant time and refer his customers to the Website of Tsurumi and the application reports shown therein.
- Claims of the customer based on defects shall be subject to a limitation period of one year after date of delivery to the Customer.
- In case we exceptionally granted a guarantee for quality or durability to the Customer, subject to any other provision he is entitled to ask for remedy of a defect accrued within the guarantee period ( see below) free of charge. This also shall apply if claims based on defects according to the above provisions do not exist or have ceased to exist. Malfunctioning caused by operating errors of the Customer are no subject of the guarantee. In the absence of an agreement to the contrary, claims other than the above mentioned remedies are not content of the guarantee. The sort of remedy (exchange or repair) is our decision. The claims shall be subject to a limitation period of three months after expiry of the guarantee period but not prior to expiry of the warranty period (see IX. 7). In case of doubt the guarantee period shall be considered equal to the warranty period.
X. Product liability
- The Customer will support us in every reasonable way in defending ourselves against product-liability claims.
- The Customer will notify us promptly about any damage claims or other unusual circumstances in connection with our products.
XI. Limitation of liability
- Claims for compensation for damage or loss of whatever kind (tortious acts or infringement of principal or incidental duties or of precontractual duties to the extent not already infringed before incorporation of these General Terms and Conditions of Business in the contract or of postcontractual duties, etc.) may be pursued against us only in the case of wilful intent or gross negligence.. The Limitation does not apply in the case of no-fault liability stipulated by law, the infringement of essential obligations resulting out of the nature of the contract, in case of a guarantee as to quality and for damages caused by injury of live, body and physical health based on a wilful or negligent neglect of duty by a statutory representative or employee of Tsurumi. Even if we are generally liable in accordance with the above, this applies - except in the case of precontractual duties already infringed before incorporation of the General Terms and Conditions of Business – only to typical foreseeable damage or loss. The above limitation of liability also applies to the personal liability of our employees and legal representatives.
- Tsurumi will provide standard spare parts at reasonable prices for a period of seven years. No entitlement to supply with such parts is valid beyond this time.
XII. Applicable law
- All legal relationships between the Customer and us are governed exclusively by the law of the Federal Republic of Germany to the exclusion of the Hague Convention on the International Sale of Goods.
XIII. Mediation and place of jurisdiction
- Should it on the basis of a contract concluded on the basis of these General Terms and Condition come to a divergence of opinion between two parties, irrespectively the legal ground, both parties are obliged to undertake legal action only if a Mediation proceeding between the two parties was declared in writing unsuccessful by the Mediator or by one of the two parties concerned. The right, to institute proceedings concerning a temporary legal protection without a Mediation proceeding remains unaffected. Furthermore each of the two parties may go to law straightaway if the opposing party does not agree on the implementation of a Mediation proceeding within six working days.
- The opening and implementation of an Mediation proceeding are based on the rules of the gwmk Gesellschaft für Wirtschaftsmediation und Konfliktmanagement e.V., Briennerstraße 9, 80333 München (gwmk).
- On request of one of the parties, the Mediator is recommended by the gwmk. Has one of the parties requested for a Mediator to be named, the assent of the other party is not required. The challenge of the Mediator named by the gwmk is only possible on important reason.
- The sole place of jurisdiction for all legal actions relating directly or indirectly to the contractual relationship is Düsseldorf. We are also entitled to pursue claims against the Customer in its general place of jurisdiction.
- The place of performance is Düsseldorf.
- To the extent that the goods supplied are subject to German, European and/or USA controls, the Customer will in exporting the products observe the appropriate export regulations. If, at the request of the Customer, deliveries are made duty unpaid, the Customer is liable to us for any subsequent demands by the customs authorities.