General Terms and Conditions of Sale of Trifolio-M GmbH
Version May 2014
The supply of our goods and services are subject to the following terms and conditions provided
that the Customer is a person acting in the course of his business or is a public authority.
Any terms and conditions of the Customer which conflict with or deviate from the following
shall not apply except where we have expressly agreed to the same in writing. Our unconditional
supply of goods and services or receipt of payment by us shall not be construed
as acceptance of conflicting terms and conditions.
These terms and conditions shall govern all future purchase orders placed by the Customer.
The goods and services supplied by us are in conformity with the laws and standards in force
in Germany. We do not warrant conformity with the laws and standards of other countries
(see clause 8).
Insofar as is necessary for the handling of our business we are entitled to store and process
the Customer’s data in electronic and/or written form to the extent permitted by data protection
laws (in particular §28 of the German Data Protection Act).
2. Contractual Representations
Our quotations are without obligation in terms of price, quantity, delivery term and availability.
Our order acknowledgement in text form is definitive in terms of confirming acceptance of
your order, the scope of delivery and delivery date. For orders placed via the internet, any
automatic confirmation of receipt of order sent by us shall not constitute a contractual representation.
3. Prices, Payment Terms, Set Off
Except where otherwise agreed our prices are subject to the price list valid at the date of the
contract. They are ex works (EXW Incoterms 2010) our stores, and do not include packing,
freight, customs duties, ancillary import charges, insurance and VAT. VAT shall be charged at
the rate current at the date of performance.
Where the delivery or performance date is more than 3 months after the contract date we
are entitled upon timely notification to the Customer and prior to delivery or performance to
adjust the price in such a manner as is necessitated by any general price development beyond
our control (e.g. exchange rate fluctuations, currency regulations, customs duties
changes, increases in material and production costs) or by changes of suppliers. For supplies
of goods or services within three months from the contract date the contract price shall apply
in any event. In relation to framework agreements with a price clause the three month
period shall begin to run upon the effective date of the agreement.
In relation to framework agreements with a price clause the three month period shall begin
to run upon the effective date of the agreement
Except where otherwise agreed the Customer shall remit payment of the agreed price without
deduction within 30 days after supply of the goods or services. Upon expiry of the payment
term the customer shall be deemed in default of payment.
The Customer may only set off undisputed counterclaims or counterclaims against which we
have no further recourse to appeal. The Customer shall only be entitled to rights of retention
in so far as these are based on the same legal transaction.
4. Delivery Date
The commencement of the delivery term quoted shall be subject to clarification of all technical
matters and proper and timely performance by the Customer of his obligations.
Where we fail to deliver upon an agreed delivery date and such failure is caused by an act or
omission on our part the Customer shall grant us an extension in writing of not less than 2
weeks. Where upon the expiry of the grace period, delivery is still not forthcoming and the
Customer desires to rescind the contract or demand damages in lieu of performance, the
Customer shall prior thereto set a final and reasonable deadline in writing expressly indicating
his intention. The Customer is obliged at our request to declare within a reasonable period
whether he shall rescind the contract due to the delay in delivery and/or demand damages
in lieu of performance or insist upon performance.
5. Shipment, Transfer of Risk
We supply our goods and services „ex works“ (EXW Incoterms 2010). The risk of loss, destruction
or damage passes to the Customer upon loading at our warehouse or when the
goods cannot or are not to be shipped upon notification of their readiness for shipment. This
shall also apply where we deliver by installment or where we have assumed other duties to
include without limitation shipping cost or to supply to the delivery location or assembly of
We reserve the right to select the transport route and the mode of transport. We shall select
the packaging, protection aids and / or means of transportation on the basis of our experience
at the expense of the Customer. Extra costs incurred by special shipping requirements
of the Customer shall be for the account of the Customer. The same applies to increases in
freight charges that occur after the contract is concluded, any additional costs for re-routing,
warehouse charges etc. except where delivery carriage paid is agreed.
Supply of goods or services by installment is permitted except where unreasonable for the
In relation to make and hold orders approximately the same quantities shall be called off
each month except where otherwise agreed in writing. The entire order quantity shall be
deemed called off one month after the expiration of the call off deadline, or in the absence
thereof twelve (12) months after the contract date. Where the Customer fails to assign
goods ordered to a certain delivery within one month after the expiry of the deadline for
such assignment, or in the absence of an agreed deadline, within one month of our request
for such assignment, we reserve the right to assign the goods at our discretion and deliver
Excess or short deliveries are permitted insofar as they are within the limits which are customary
in the trade.
6. Act of God
In the event of act of god we are entitled to suspend performance of our obligation to deliver.
Where there is a considerable change in the circumstances prevalent at the formation of
the contract, we reserve the right to rescind the contract. The same shall apply in relation to
shortages of energy or raw materials, strikes, governmental decrees, disruption of operations
or infrastructure or where, for the above reasons, a sub-supplier fails to supply us properly,
on time or at all.
7. Retention of Title
Goods sold shall remain our property until payment of all claims under the business relationship
has been received from the Customer.
If the Customer works or processes the goods our retention of title shall be extended to cover
the whole of the new article. In the case of processing, combining or mixing with external
goods by the Customer we shall acquire title in the fraction that corresponds to the invoice
value of our goods to that of the other objects used by the Customer at the time the processing,
combining or mixing took place.
If the goods subject to reservation of ownership are combined or mixed with a principle
good belonging to the Customer, the latter hereby assigns in addition his rights in the new
good to us. If the Customer combines or mixes the goods subject to reservation of title with
a principle good belonging to a third party against payment, he hereby assigns his claims for
payment against the third party to us.
The Customer may resell goods subject to reservation of ownership in the framework of due
business activities. If the Customer sells these goods without receiving the full purchase
price in advance or contemporaneously with the surrender of the item purchased, he shall
agree a reservation of title with his customers in accordance with these conditions. The Customer
hereby assigns to us his claims under this resale and the rights under the reservation
of title agreed. He agrees at our request to notify the assignment to Customers and to provide
us with the information required to claim our rights against the Customers and to hand
over documents. Irrespective of the assignment the Customer shall only be authorised to
collect payments under the resale as long as he complies duly with his obligations to us.
If the value of the securities provided to us exceeds our claims by more than 10 per cent, we
undertake to release securities of our choice on demand by the Customer.
In the event that the above retention of title clauses are void or unenforceable according to
the law of the state/country in which the goods are situated, the collateral security which
corresponds to the retention of title in that state/country is deemed to be agreed.
8. Customer’s Rights in the case of Defects
The goods supplied by us correspond to the German regulations and standards currently in
force. We give no guarantee that the goods comply with other national regulations. Where
the goods are to be put into operation overseas it is the responsibility of the Customer to
ensure that the goods are in conformity with the relevant legal requirements and standards
and where required to make appropriate adaptations.
The Customer shall not be entitled to make a claim based on defective delivery or performance
where the reduced value or merchantability of the goods delivered or services supplied
Where the goods delivered by us are defective and the Customer has notified us of the same
in writing not later than 28 days after the delivery date we shall at our option deliver a replacement
or remedy the defect. The Customer shall grant us a reasonable period of not less
than 15 working days to carry out the same.
The Customer is entitled to demand reimbursement of the costs incurred by reason of the
replacement delivery or remedying of the defect insofar as such costs are not increased due
to the subsequent transportation of the goods delivered to a location other than the original
shipment location unless the purpose for which the goods are intended requires the same.
In the event that we are not in a position to remedy the defect or deliver a replacement the
Customer is entitled to rescind the contract or to demand a reasonable reduction in the purchase
price. Rescission of the contract is only permissible where the Customer prior thereto
sets a final and reasonable deadline in writing expressly indicating his intention.
The Customer shall retain a statutory right of recourse against us insofar as the Customer
has not agreed terms with its customer which exceed the statutory liability for defects.
Except where otherwise provided below any claim of the Customer for damages other than
those claims set out in § 8 aforesaid are hereby excluded irrespective of the legal grounds
upon which it is based. Accordingly we do not accept liability for any damage not incurred by
the goods themselves nor do we accept any liability for loss of profit or any other pecuniary
loss suffered by the Customer. To the extent that our contractual liability is excluded or limited,
such exclusion or limitation shall apply in relation to the personal liability of employees,
representatives and vicarious agents.
The aforesaid limitation of liability shall not apply where the damage incurred has been
caused by willful default, by gross negligence or breach of guarantee, where personal injury
has been suffered or where damages are claimed under the product liability act.
Where we are in negligent breach of a material term of the contract our liability to compensate
damage to property shall be limited to such loss as was typically foreseeable at the time
the contract was made. A material term of the contract shall be any term which places the
Customer in the legal position provided for under the contract in terms of its content and
purpose and any term which must be complied with in order to ensure proper performance
of the contract and upon the performance of which the Customer relied or could be reasonably
expected to rely.
Any other liability in damages is hereby excluded.
Any assignment of the Customer’s claims provided for in § 8 and 9 above is not permitted,
insofar as this prohibition is permissible at law.
The limitation period for claims based on the supply of defective goods and services (§8) as
well as for claims for damages (§9) is one year from the date of delivery. The limitation period
aforesaid shall not apply in relation to claims based on wilful default, gross recklessness,
breach of guarantee or to personal injury claims and to claims under product liability laws
(§9 sub-para. 2). The limitation period aforesaid shall further not apply where longer limitation
periods are prescribed by law.
11. Product Description
A description of all of our goods is set out in our „General Technical Data Sheets“, which will
be sent to the Customer on request. It is the responsibility of the Customer to test our goods
and services as to their suitability for the purpose intended.
12. Jurisdiction, Choice of Law
For Customers whose principle place of business is situated in the European Union all disputes
arising out of these terms and conditions shall be resolved before the courts with jurisdiction
located at our principle place of business. We reserve the right to sue the Customer
at its principle place of business.
For Customers whose principle place of business is situated outside the European Union all
disputes arising out of these terms and conditions shall be finally settled in accordance with
the Rules of the German Institution of Arbitration e.V. (DIS) without recourse to the ordinary
courts of law. The place of arbitration shall be Frankfurt am Main, Germany
The laws of the Federal Republic of Germany shall govern all the legal relationships between
us and the Customer.