General terms and conditions of delivery and services
General terms and conditions of delivery and services
Terms and conditions of delivery and services by the company TKG in proizvodnja vijakov d.o.o., Slovenčeva 15, 1000 Ljubljana, Slovenia (hereinafter referred to as "TKG").
Validity of the terms and conditions of delivery and services
1. The following terms and conditions of delivery and services apply to all deliveries and services of the company TKG for legal entities (§ 14 BGB), corporate bodies under public law or special fund under public law. They also apply to all future deliveries, services or offers to the customer, even if these are not separately agreed upon.
2. Any terms and conditions of customers or third parties do not apply, even if TKG does not specifically object to their validity in individual cases. Even if TKG refers to a document that contains or refers to the terms and conditions of the customer or a third party, this does not constitute a consent to the validity of such terms and conditions. In case of concluded framework agreements between parties, these take no precedence.
3. References to the validity of legal regulations only have clarifying meaning. Even without such a clarification, the statutory provisions apply, unless they are not directly modified or expressly excluded by these contractual terms.
Offers, conclusion and content of contract
1. All offers from TKG are subject to change and non-binding unless they are expressly stated as binding or contain a specific acceptance period. This also applies if TKG has provided the customer with catalogues, technical documentation (e.g., drawings, plans, estimates, calculations, references to DIN standards) or other product descriptions or documents – including those in electronic form.
2. Orders or commissions by customers are binding and can be canceled by TKG within fourteen (14) days after their receipt. Their acceptance can be confirmed either expressly in writing (in particular by e-mail) or by sending the ordered products.
3. In electronic legal transactions, the acknowledgment of receipt of an order does not constitute a binding declaration of acceptance of the contract offer, unless acceptance is expressly declared in the acknowledgment of receipt.
4. Even without this being expressly noted subject of the individual order are applicable DIN or VDE standards or the TKG standards if such standards do not exist.
5. If the customer orders individual products according to his (design) specifications, he is responsible for the correctness of the design, for the completeness of the order and the suitability and legitimacy of use of the products. TKG then manufactures the products without further verifications according to the customer's specifications, taking into account the state of the art.
6. For the legal relationship between TKG and the customer, written contracts, including these general terms and conditions of delivery and services exclusively apply. Such contracts include the complete and all agreements between the contracting parties on the subject matter of the contract. No oral consents made by TKG prior to the conclusion of this contract are legally binding and any oral agreements between the contracting parties will be replaced by a written contract unless confirmed in writing.
7. In order to be effective, any additions and amendments to the agreements made, including these general terms and conditions of delivery and service, have to be confirmed by TKG in writing.
8. Information by TKG on the subject of the delivery or service (e.g., weights, dimensions, tolerances and technical data) as well as the subject’s depictions (e.g., drawings and pictures) are only approximately relevant, unless their applicability for the contractually intended purpose requires exact compliance. They do not represent guaranteed characteristics of properties, but descriptions or designation of the delivery or service. Customary discrepancies and discrepancies occurring due to legal regulations or representing technical improvements are permitted if they do not impair the applicability for the contractually intended purpose.
Prices, payments, shortcomings
1. Deliveries and services are made following the prices as well as terms and conditions specified in the delivery contract / offer or the order confirmation by TKG.
2. The prices are given ex works in Ljubljana plus packaging, unless otherwise agreed, and in addition of any statutory VAT applicable on the day of delivery, customs duties in the case of export deliveries, as well as fees and other public charges.
3. The confirmed prices of an order are in no case binding for subsequent orders of similar type products.
4. If, in the case of one-off services, the delivery takes place two (2) months after the conclusion of the contract or later, TKG is entitled to adjust the prices with regard to the metal price situation on the day of delivery.
5. Invoice amounts are to be paid within thirty (30) days without any deduction. All payments must be made in cash or by bank transfer to one of TKG's transaction accounts. The representatives of TKG have no collecting power. TKG is not obliged to accept other means of payment, in particular bills of exchange, assignment of claims or the like. The date of receipt by TKG is decisive for the date of payment. In case of payment by securities which TKG reserves the right to accept in individual cases, payment is only deemed to have been made when the security is redeemed. The customer bears the costs and expenses associated with such redemption. If the customer does not make a payment by the due date, the outstanding amounts shall be subject to interest of 5% p.a. applicable from the due date. 30 days after the invoice was issued, the customer will be charged default interest at a rate of 9 percentage points above the respective base interest rate; the right to demand higher interest and further damages in the event of default remains unaffected.
6. TKG is entitled to offset the customer's payments against older outstanding claims. If costs and interest have already been incurred, TKG is entitled to offset the payments first against the costs and then against the interest and finally against the main claim.
7. Offsetting counterclaims by the customer or withholding payments due to such claims is only permitted if the counterclaims are undisputed, have been acknowledged in writing by TKG or have been legally established. The exercise of any right of retention is only permitted if the counterclaim stems from the same legal relationship.
8. TKG is entitled to make the entire remaining debt due and to carry out or provide any outstanding deliveries or services only against advance payment or providing security, if after conclusion of the contract, circumstances become known to TKG which are likely to significantly reduce the customer's credit rating and which may put at risk the customer’s ability to pay the outstanding claims of TKG from that contractual relationship (including from other individual orders for which the same framework agreement applies). If the customer does not comply with the request for advance payment or providing security within a reasonable period of time, TKG can withdraw from the contract and demand compensation for non-performance. In this case, the customer has no claims whatsoever against TKG, which particularly applies to not having any claim for delivery.
9. In the event of default regarding any claim, TKG is entitled to withhold the delivery or other services from all contracts with the customer until the customer has completely fulfilled the claims which TKG is entitled to.
Means of production
1. The production costs for samples, means of production (tools, moulds, templates, etc.), whose title to belongs and remains with TKG, will be invoiced to the customer separately from the goods to be delivered. This also applies to means of production that have to be replaced due to wear and tear.
2. The cost of maintenance and proper storage, as well as the risk of damage or destruction of the means of production will be borne by us.
3. The means of production are and remain property of TKG, even if the customer has paid any amount of money for them.
4. After completion of the delivery contract, TKG will store the means of production free of charge for a period of three years from the last delivery. After the expiration of such a period TKG will ask the customer in writing within six weeks whether he intends to continue using the means of production. If the customer fails to make a statement on this matter in due time or if no new order is placed using these means of production, TKG is entitled to sell or destroy the affected means of production.
5. Customer-related means of production, which are designated as such and contain the customer's secret know-how, may only be used by TKG for deliveries to third parties upon prior approval by the customer.
Delivery, delivery time and packaging
1. Deliveries are made ex works in Ljubljana, unless agreed otherwise.
2. Periods and dates for deliveries and services promised by TKG are always only approximate unless a fixed period or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the freight forwarder, carrier or other third party commissioned with the transport.
3. Delivery dates or deadlines are only effective if they have been agreed upon in writing. Delivery deadlines begin on the day on which the agreement is concluded, but not before all execution details have been clarified. If a delivery according to the customer's drawings has been agreed, the delivery deadlines do not begin before the drawings have been handed over to TKG in full.
4. If no contractual agreement has been made for packaging and shipping and no other relevant instructions from the customer exist, TKG reserves the right to choose the packaging and the transport route.
5. The delivery deadline is met if the delivery item has left the production site by the time the deadline expires or if its readiness for dispatch has been notified.
6. TKG is not liable for being prevented to make a delivery or for delays in delivery, insofar as these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g., disruptions of operation of all kinds, difficulties in procuring materials or energy, transport delays, strikes, legally imposed lockouts, pandemics, epidemics or diseases that require special measures such as quarantine and other containment measures, official orders and warnings, lack of manpower, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the non-existent, incorrect or late delivery by suppliers) for which TKG is not responsible. If such events make the delivery or service significantly more difficult or impossible for TKG and the obstacle is not only of temporary nature, TKG is entitled to withdraw from the contract. In the event of temporary obstacles, the delivery or service deadlines are extended or the delivery or service dates are postponed by the period of the obstacle plus a reasonable added period. If the customer cannot be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by means of an immediate written statement sent to TKG. In case of a continuing obligation, the right of termination is superseded by the right of withdrawal.
7. If TKG defaults on a delivery or service, or a delivery or service becomes impossible for it, regardless of the reason, TKG's liability for damages is limited according to Section 10 of these general terms and conditions of delivery.
8. The occurrence of the delay in delivery is determined by statutory provisions. However, in any case a reminder by the customer is required. If TKG is in default of delivery, the customer can demand a lump-sum compensation for his damage as a result of the delay. The flat rate is 0.5% for each full week of delay, but no more than 5% of the value of that part of the total delivery that cannot be used on time or in accordance with the contract as a result of the delay. TKG reserves the right to prove that the customer suffered no damage at all or only a significantly lower damage than the above flat rate.
9. If the shipment is delayed at the request of the customer or if the delivery of the goods is delayed due to circumstances that lie within the sphere of the customer, the costs incurred by the storage shall be charged, starting one week after the notification of the availability for shipment, but at least 0.25% of the invoice amount of the items to be stored per each complete week. We reserve the right to assert and provide evidence of additional or lower storage costs. TKG is entitled to otherwise dispose of the delivery item after setting and unsuccessful expiry of a reasonable deadline and to make a delivery to the customer within a reasonably extended deadline. Further claims, in particular rights arising from §§ 293 et seq. (304) BGB, are retained by TKG, taking into account the customer's services. The same applies also for customer rights from §§ 280 ff. BGB and for the claim for performance.
10. The compliance with the delivery deadline is conditional upon the customer having fulfilled his contractual obligations.
Delivery quantities, delivery contracts on demand
1. TKG's products are mass-products. Deliveries in up to 10% larger or smaller quantity than the ordered or demanded one are therefore customary in the industry and are deemed to be compliant contractual performance. The total price is to be adjusted accordingly.
2. In case of contracts with continuous delivery on demand, the quantities on demand and delivery dates need to be communicated to TKG already when ordering. TKG is entitled to produce the total quantity of the order according to TKG's production plan at any time during the delivery period, unless expressly agreed otherwise. Once the total quantity has been produced, subsequent changes to the goods ordered are no longer possible. Additional costs that TKG incurs as a result of subsequent changes to the orders on demand by the customer with regard to the delivery time and demanded quantity are to be borne by the customer.
3. The customer is obliged to allocate and accept the ordered quantity during the contract period. If the ordered quantity has not been accepted during the deliver on demand period, TKG is entitled, without prejudice to any further legal rights, to demand acceptance and payment of the entire remaining quantity. At the end of the contract period, the customer is in arrears with the acceptance of the part of the order quantity that has not been allocated and called off.
4. The unit price of the parts to be delivered is calculated on the basis of the total quantity defined in the framework agreement. This quantity is to be regarded as the target quantity and contractual basis for pricing. If the target quantity is not taken over, the prices have to be adjusted accordingly on the basis of the quantity actually taken over, and the customer is obliged to make additional payments for the quantity taken over as part of the adjustment.
5. If a period for delivery on demand has not been specified, TKG is entitled, in the event that the customer has not made a delivery on demand within a period that is customary for deliveries on demand, to set a deadline for further deliveries on demand and, after the expiry of such a period without any result, to accept the goods without prejudice to further statutory rights and to demand payment of the entire remaining ordered quantity.
6. If the delivery on demand contract has a term of more than four months, in the event of greater, unforeseeable changes in costs or changes in quantity an appropriate price adjustment shall be deemed to have been agreed upon after four months. This applies in particularly to, but not limited to, changes in the market price of metals and energy. The agreed prices cannot be changed for other reasons, in particularly not if there is a lower competitive offer. The respective point in time of a price change must be selected in such a way that cost reductions are not taken into account according to criteria that are less favorable for the customer as opposed to cost increases, i.e. cost reductions have an effect on prices at least to the same extent as cost increases.
7. Unlimited framework and purchase agreements can be cancelled under a three (3) months period of notice at the end of a calendar month.
Transfer of risk, acceptance, packaging
1. Unless otherwise agreed, the risk is transferred to the customer (or, in the case of a third-party deal, to his own customer) at the latest when the subject of delivery is made available at TKG or when the delivery item is handed over to the forwarding agent, carrier or other person responsible for carrying out the shipment. This also applies if partial deliveries are made or TKG agreed to provide other services, e.g. to assume shipping costs.
2. If the shipment becomes impossible through no fault by TKG, the risk is transferred to the customer at the time of the notification of readiness for dispatch.
3. TKG is responsible for choosing the type of shipping, unless the customer has given express instructions in this regard
4. Transport damage must be reported immediately after receipt of the shipment to the forwarding agent or the carrier and a certificate needs to be issued.
5. Only upon an explicit request by the customer the consignment shall be insured by TKG at the customer’s expense against theft, breakage, transport, fire and water damage as well as against other insurable risks.
6. Items that have been delivered must be accepted by the customer if they only have insignificant defects, without prejudice to the rights from § 9.
7. If special acceptance conditions or tests have been agreed upon for the goods to be delivered, then the acceptance/testing takes place in the production facilities of TKG in Ljubljana. The costs of acceptance as well as any travel and accommodation costs of the customer are to be borne by the customer himself. If the customer does not make an official acceptance, the goods are deemed to have been accepted at the time the risk is transferred.
8. If an agreed acceptance does not take place, the goods shall be deemed accepted if: the delivery has been completed, TKG informed the customer of this with reference to the assumed acceptance according to this § 7 Point 8 and asked him to accept, three working days have passed since the delivery or the customer has started using the delivery and the customer has failed to accept the goods within this period for a reason other than a notified defect that makes it impossible to use or significantly impairs the use of the delivered item.
9. TKG is entitled to partial deliveries if the partial delivery can be used by the customer within the scope of the contractual purpose, the delivery of the remaining products ordered is ensured and the customer does not incur any significant additional work or additional costs as a result.
Retention of title
1. All deliveries and services are subject to retention of title. Delivered goods remain property of TKG until the purchase price, the fees and all other claims of TKG from the ongoing business relationship have been paid by the customer in full.
2. This retention of title also remains in effect if individual or all of TKG's claims are included in a current account and its balance has been drawn and acknowledged.
3. The customer is obliged to insure the products against all standard risks, in particularly against natural disasters and burglary/theft. Furthermore, at the request of TKG, to insure the products against further risks and provide their special storage and provide evidence of this to TKG upon its request.
4. If the goods are processed or used by the customer, the processing/use is carried out on behalf of TKG, which is therefore considered the manufacturer within the meaning of § 950 BGB and directly acquires ownership of the intermediate or end product. If the goods are processed with others which do not belong to the customer, TKG immediately acquires co-ownership of the new item in the share of the value of the goods delivered in the value of the third-party goods at the time of processing. In the event that no such acquisition of title by TKG should incur, the customer already now transfers his future title or - in the above-mentioned share – its co-ownership of the newly created product as a security to TKG. If the goods with retention of title are connected or inseparably mixed with other elements to a uniform object and if such other items is to be regarded as the main item, the customer shall, insofar as the main item belongs to him, transfer the proportionate co-ownership title of the uniform item to TKG in the share as specified in sentence 1.
5. The customer is entitled to resell the delivered goods and to further license them within the framework of the agreement made in the ordinary course of business. As a precaution, the customer hereby assigns to TKG all claims with ancillary rights in connection with the resale and the business relationship with its customers - in the case of co-ownership of the customer held in the reserved goods proportionally according to the co-ownership share - in the amount of the value of the goods delivered in each case. The same applies to other claims that take the place of the reserved goods or result otherwise with regard to the reserved goods, such as insurance claims or claims from tort in the event of loss or destruction. All of the aforementioned assignments should be silent, i.e. the third-party buyer should not be informed. TKG revocably authorizes the customer to collect the claims assigned to TKG in his own name. TKG also remains authorized to collect the claim, but undertakes not to collect the claim as long as the customer meets his payment obligations to TKG and there is no defect in its ability to perform. TKG is authorized to notify the purchaser's customers of the assignment of claims at any time. The customer must pay the amounts collected to TKG immediately. At the request of TKG, the customer has to inform the customer of the assignment. Furthermore, he is obliged, upon TKG's request, to declare the names of the customers and the amount of the assigned claims and to immediately provide TKG with all information and surrender all documents that are necessary for the assertion of the assigned claims.
6. The purchaser may neither pledge the delivery item nor assign it as a security. He must notify TKG immediately of seizures, confiscations or other dispositions by third parties. Should TKG incur damage (e.g., through loss of rights) due to a failure to notify or a delayed notification, the customer is liable for compensation. In the event of seizure by third parties, TKG is obliged to inform the seizure officer of the retention of title in favor of TKG and to submit a copy of the seizure report to TKG.
7. In the event of a breach of contract by the customer, in particular non-payment of the due purchasing price, TKG is entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not at the same time include a declaration of withdrawal; TKG is rather entitled to demand return of the goods and to reserve the right to withdraw from the contract. If the customer does not pay the due purchasing price, TKG may only enforce these rights if the customer has been previously given a reasonable deadline for payment without success or such a deadline is non-essential according to the statutory provisions.
8. The assertion of the retention of title and the seizure of the subject of delivery by TKG is not deemed as withdrawal from the contract.
9. TKG will release the goods subject to retention of title and the items or claims replacing them if their value exceeds the amount of the secured claims by more than 50%. TKG is responsible for selecting the securities to be released.
1. The delivered items are to be examined carefully immediately after delivery to the customer or to the third party designated by the customer. The regulations of § 377 HGB apply to the incoming goods inspection. With regard to obvious defects or other defects that would have been recognizable in an immediate, careful inspection, they are deemed to have been approved by the customer if TKG does not receive a written notification of defects within seven working days of delivery. With regard to other defects, the delivered items are deemed to have been approved by the customer, if the notice of defects is not received by TKG within seven working days after the point in time at which the defect became apparent; if the defect was already evident at an earlier point in time during normal use, this earlier point in time is decisive for the beginning of the complaint period. The customer bears the full burden of proof for all prerequisites for a claim, in particular for the defect itself, for the point in time at which the defect was discovered and for the timeliness of the notification of defects.
2. Any quality or durability guarantees must be expressly stated as such in writing.
3. TKG must be given the opportunity to determine the defect being subject of the complaint. Rejected goods are to be returned immediately at TKG's request, with TKG bearing the transport costs if TKG's inspection confirms the existence of a defect. If the customer does not comply with the request to return the goods or makes changes to the delivered goods without the consent of TKG, this will result in the expiry of any warranty claims.
4. In the event of a justified notice of defects, TKG can choose to rectify the defect or deliver a replacement.
5. If the subsequent performance fails, the customer can upon his discretion demand a reduction of payment (abatement) or cancellation of the contract (withdrawal). In the case of only a minor breach of contract, in particular in the case of only minor defects, the customer is not entitled to withdraw from the contract. Quantities of rejects and errors of up to 10% of the total quantity delivered for the respective order are considered irrelevant within the meaning of Section 323, Paragraph 5, Clause 2 of the German Civil Code.
6. If the customer chooses to withdraw from the contract due to a defect in title and/or quality after subsequent performance has failed, he is not entitled to any additional claims for damages as a result of the defect. If the customer chooses compensation after subsequent performance has failed, the goods remain with him should this be reasonable for him. The compensation is then limited to the difference between the purchasing price and the value of the defective item. This does not apply if TKG fraudulently caused the breach of contract. The option available to the customer to demand compensation under the conditions of § 10 remains unaffected.
7. The warranty period is 12 months from delivery or, if acceptance is required, from acceptance of the goods. This does not apply if the delivered product has been used for a building in accordance with its customary use and has caused its defectiveness.
8. The warranty does not apply if the technical data sheets or instructions from TKG have not been complied with or if changes to the products have been made. This does not apply if the customer proves that the defect reported is not based on these circumstances.
9. The agreed property of screws and cold-formed parts conforms basically only to that specified in the contract underlying concrete product description as well as the drawing of the item by TKG. The initial sample inspection, regardless of the procedure used, only serves as a check of the compliance between the item and the drawing. A specification of properties is not connected with the initial sample test. Public statements, promotions or advertising by the manufacturer or third parties do not represent any contractual information regarding the specifications of the goods.
10. If TKG has to make deliveries according to the customer's drawings, specifications, samples, etc., the customer assumes the risk of suitability for the intended purpose. If TKG recognizes that the customer's planning contains specifications that TKG recognizes as being critical or unfeasible in terms of production technology, TKG shall notify the customer of this - if necessary, by submitting a counter-proposal. In this case, the customer is obliged to check the proposed change for applicability in his production at his own responsibility. TKG is not liable for the suitability of the change proposal for the intended application by the customer.
11. The return of goods that are not caused by defects will only be accepted by TKG upon prior written consent. In this case, the costs of returning the goods are to be borne by the customer. Returned goods will be credited by TKG at the actual purchasing prices less a discount of 15% customary in the industry for incoming goods inspection, storage and commercial handling.
12. TKG is not liable for material defects if they are caused by a violation of operating, maintenance and installation instructions, unsuitable or improper use, faulty assembly, faulty or negligent handling, improper interventions, modifications or repair work carried out without the consent of TKG of the customer or a third party, unless the customer can prove that these circumstances have not been the cause of the damage.
13. An assignment of warranty claims is not possible.
14. Claims by the customer for damages or reimbursement of wasted expenditure exist only in accordance with § 10, even in the case of defects, and are otherwise excluded.
Liability, Compensation, Withdrawal
1. The customer's right to claim damages from TKG based on fault-based claims is limited to cases of intent, gross negligence on the part of the owner, the bodies, executive employees, legal representatives and contractual obligations (cardinal obligations), fraudulent concealment of defects, culpable injury to life, limb or health and the defect in a contractual object for which, according to the Product Liability Act for personal or property damage to privately used objects is limited. Major (cardinal) obligations are obligations for timely delivery and installation of the delivered item, absence of legal defects and such material defects that impair its functionality or usability more than insignificantly, as well as consulting, protection and care obligations, which require the customer to use the delivered item in accordance with the contract intended to enable or to protect the life and limb of the customer's personnel or the protection of his property against significant damage.
2. In the event of a negligent breach of essential contractual obligations (cardinal obligations), the contractor is limited to the amount of the contract-typical foreseeable damage. Indirect damage and consequential damage resulting from defects in the delivered item can only be replaced if such damage is expected to occur when the delivered item is used as intended.
3. If TKG manufactures products according to the customer's specifications, TKG’s liability for their suitability with regard to the customer's intended use, their proper construction, compliance with safety regulations and design regulations and the suitability of the material is excluded.
4. If, in the case of any damage, various causes (causal processes) cannot be proven, it is up to the customer to provide evidence that a damage/risk is due to a cause is to be traced back for which TKG is responsible.
5. Further claims for damages are excluded.
6. TKG is entitled to withdraw from the contract if an application is made against the customer's assets to institute an insolvency proceeding.
7. Due to a breach of duty that does not consist of a defect, the customer can only withdraw or terminate if TKG is responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.
Intellectual property rights / copyrights / secrecy etc.
1. All rights to patents, utility models and design models, trademarks, equipment and other industrial property rights as well as copyrights for the subject matter of the contract and services remain with the rights holders. This also applies in particular to the product designations and to name and trademark rights.
2. TKG retains ownership and copyrights, including the rights of exploitation, to all offers, cost estimates, illustrations, drawings, calculations, brochures, catalogues, calculations, models, templates, means of production and other documents and objects submitted by TKG. The customer undertakes to treat the aforementioned objects and documents as well as all non-obvious commercial and technical details of which he becomes aware as a result of the business relationship as confidential information and to treat them neither as such nor with regard to content to third parties without the prior written consent of TKG to make them accessible, to make them known, unless the customer is legally obliged to do so. This also applies in particular to the design work and suggestions for the production of sample screws and cold-formed parts. Furthermore, the customer must take suitable precautions to protect confidential information, but at least those precautions by which he protects particularly sensitive information about his own company. At the request of TKG, the customer must return these items and documents in full and destroy any copies that may have been made if they are no longer required by the contractual partner in the ordinary course of business or if the negotiations do not lead to the conclusion of a contract.
3. Documents and drawings provided to the customer as well as design services and suggestions for the design and manufacture of sample screws and cold-formed parts provided by TKG may only be used by the customer for the agreed purpose. He is prohibited from making them accessible to third parties or the subject of publications without the consent of TKG.
4. The customer is responsible for ensuring that goods to be manufactured by TKG according to his planning and design documents do not infringe third-party property rights. If a claim is made against TKG by a third party for the manufacture or delivery of such items with the allegation of an infringement of property rights, the customer must indemnify and hold harmless TKG from all claims. In such cases, TKG will only conduct defense proceedings if the customer requests TKG to do so with a binding declaration of the assumption of costs. In this case, TKG is entitled to demand security because of the legal costs.
5. Contractual partners of the customer have to be assigned with such duties accordingly.
6. If the customer is sued by third parties for the use of the goods delivered by TKG with the allegation of a direct violation of industrial property rights including copyrights, TKG shall indemnify the customer with regard to the claims for damages recognized against him or comparatively determined as well as with regard to the court and legal fees free under the following conditions:
a) There is no case as specified the above in § 11 Point 4.
b) The customer shall inform TKG immediately of any claims or warnings by third parties without first taking any steps to defend itself and/or hiring a lawyer. Exceptions to this are immediate measures that must be initiated before TKG can be informed.
c) Only TKG is authorized to initiate defensive measures and to entrust lawyers with the implementation of the defensive measures and/or to make declarations and/or to conduct other negotiations. If TKG so desires, the purchaser will commission a lawyer to represent the company at TKG's expense.
d) The customer shall inform TKG immediately and continuously about the matter and, in particular, provide the necessary information and documents.
7. The liability according to number 4 does not apply if the violation of rights is due to a change in the delivery item or parts thereof made by the customer or a third party outside of TKG's sphere of influence. Furthermore, there is no liability in the event that the customer, after being warned by a third party or aware of a possible infringement of third-party rights, has carried out further acts of use, unless TKG has consented to further acts of use in writing.
8. In the event that it is legally established that further use of the contractual object status violates the rights of third parties or, in the opinion of the customer, there is a risk of an infringement of property rights or if there is a copyright action, TKG can, at its own expense and at its own discretion, either procure for the customer the right to continue using the subject of the contract, or replace the subject of the contract or change it in such a way that it is no longer infringed upon. Measures of this kind do not in any way entitle the customer to assert claims - of any kind - against TKG.
9. The customer may only advertise his business relationship with TKG with the latter’s written prior consent.
Collision with Third Party Rights
1. The customer will inform TKG immediately in writing if there are any claims against him because of infringement of industrial property rights or copyrights.
2. In the event that it is legally established that further application of the contractual object is violating third-party property rights, including copyrights, or in the opinion of the customer there is a risk of legal action for property rights or copyrights, TKG can, at its own expense and at its own discretion, either procure for the customer the right to continue using the subject matter of the contract, or exchange or change the subject matter of the contract in such a way that an infringement no longer exists or is at least less likely, whereby the delivery item continues to fulfill the contractually agreed functions. Such measures in no way entitle the customer to assert claims - of any kind - against TKG.
Place of performance, place of jurisdiction, choice of law
1. The place of performance for all obligations arising from the contractual relationship is the headquarters of TKG in Ljubljana.
2. If the customer is a merchant, a legal entity under public law or a special fund under public law or if he does not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between TKG and the customer is to be determined at the discretion of TKG Bochum or the seat of the customer. In such cases, however, Bochum is the exclusive place of jurisdiction for lawsuits against TKG. Mandatory legal provisions on exclusive places of jurisdiction remain unaffected by this regulation.
3. Subject to § 14, the law of the Federal Republic of Germany shall apply exclusively, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). The contract language is German.
Supplementary regulations for customers based outside the Republic of Slovenia
In the event of a conflict, the following provisions of this § 14 shall take precedence over the other provisions of these contractual conditions.
1. The UN Convention on Contracts for the International Sale of Goods (UN Convention on Contracts for the International Sale of Goods) applies to transactions with customers who have their registered office outside the Republic of Slovenia, insofar as it is not amended or supplemented by the following clauses. The terms and condition of Purchase of the customer do not apply.
2. TKG's offers are binding unless they are expressly designated as non-binding.
3. Delivery is EXW according to Incoterms 2020.
4. Title of the contractual goods only passes to the customer after full payment has been made.
5. Unless otherwise agreed, payments are to be made in Euros. If the customer fails to pay by the due date interest at a rate of 5 percentage points above the respective base interest rate of the European Central Bank starting from the due date applies. In the event of default, the customer has to pay default interest at a rate of 8 percentage points above the respective base rate of the European Central Bank.
6. The delivered goods have to be examined immediately. Complaints about the non-conformity of the goods have to be made immediately. In any case, complaints about non-conformity lapse in 6 months after the receipt of goods, even in the case of hidden defects.
7. All claims by the customer due to non-conformity of the goods become time-barred after a deadline of 6 months, starting with the day of the timely filed complaint according to Section 6.
8. If the goods are not compliant with the contract, TKG has the right, notwithstanding Article 46 of the Convention, to deliver a replacement instead of repairing the goods. In this case, the customer has to make the non-compliant goods available to TKG at TKG's expense.
9. TKG only has to pay damages due to contractual non-compliance of the goods if TKG is at fault regarding this breach of contract. The amount of the claim for damages is limited to €25,000.00.
10. The invalidity of one of these clauses does not affect the legal validity of other parts of the contract.
11. Place of jurisdiction is Bochum. However, TKG is also entitled to sue the customer at his general court.