General Terms and Conditions
(“AGB”) of TALAMON GmbH (“TALAMON”)
1. TALAMON delivers its goods exclusively on the basis of these general terms and conditions.
2. These general terms and conditions apply exclusively to business undertakings (“Unternehmern”) as well as to legal entities under public law.
3. These general terms and conditions also apply to all future contracts between TALAMON and the Buyer even if they are not separately agreed again. They replace all terms and conditions that were previously agreed between TALAMON and the Buyer.
4. Terms and conditions of the Buyer that are contrary to or deviate from these general terms and conditions are not part of any contract between TALAMON and the Buyer. TALAMON expressly rejects their applicability. This also applies if TALAMON carries out an order without reservation whilst being aware of contrary or additional terms and conditions of the Buyer. TALAMON equally does not accept terms and conditions even if TALAMON refers or replies to correspondence that contains terms and conditions of the Buyer or a third party or that makes reference to such.
5. Separate agreements, additions, modifications and supplementary agreements only apply if confirmed in writing by TALAMON; that means by the organs of TALAMON and/or their authorized representatives (in the number of competent representation).
II. Offer and conclusion of contract
1. Offers and Prices of TALAMON are not binding and subject to change. TALAMON reserves the right to make technical changes and changes in shape, colour, and/or weight to goods already ordered; any such changes will be within reasonable limits. Technical changes are in reasonable limits, if they do not affect the functionality and the technical specifications of the delivered good.
2. Neither illustrations, drawings, prospectuses, advertising literature, directories etc. relating to the products, nor details contained therein, shall be binding. They shall only become a binding part of the contract upon their explicit incorporation into the contract.
3. TALAMON can accept a contract offer made through an order by means of an order confirmation within two weeks following receipt of such order. The order confirmation can be made in writing or by delivering the goods, no matter in which form TALAMON submitted his contract offer (by fax, telephone or by e-mail). Confirmation of receipt of an order does not constitute a binding acceptance of such order by TALAMON.
4. The clause „as already delivered“ – or any comparable clause – shall invariably only relate to the quality of the goods delivered, but not to the price.
III. Delivery time, deadlines, force majeure
1. Dates for dispatch or delivery and periods for dispatch or delivery stated by TALAMON are to be understood as indicative, non-binding, subject to change and shall not trigger default. Compensation for damages due to default are excluded. An exception is made in cases where dates for delivery and/or periods for delivery have been agreed as “binding” or “fixed” expressly and in writing.
2. The dates and periods that are binding pursuant to section III. 1 shall be subject to proper and timely delivery on the part of TALAMON‘s suppliers.
3. The dates and periods that are binding pursuant to section III. 1 shall be extended by any period which the Buyer requires for, among other things, obtaining the documents, permits and clearances to be procured by it following acknowledgement of the order.
4. If with respect to TALAMON, circumstances (e.g. force majeure, operational disruptions, official orders) prevail, for which TALAMON is not responsible and which make delivery impossible by the agreed dates or within the agreed period, the dates and periods that are binding pursuant to section III. 1. shall likewise extend by the duration of the disruptions in performance caused by such circumstances. This shall even apply if such circumstances occur whilst a default of TALAMON. TALAMON will without undue delay (“unverzüglich”) notify the Buyer about these circumstances as referred to in section III. 4. Sentence 1. If such disruptions cause performance to be deferred for longer than four months, the Buyer may cancel the contract. Other rights of cancellation shall remain unaffected by this.
5. The fixed date and the fixed period for dispatch shall be deemed complied with, if the goods are ready to dispatch and provided that notice of readiness to dispatch has been given to the Buyer. Something else applies only, if a period for delivery was agreed as binding or fixed. In this case the delivery time has been observed, if the goods have left the factory by the expiry of the said period, especially if the goods are transferred to the carrier, freight forwarder or other companies
6. Partly delivery (“Teillieferung”) shall be permissible, if and insofar as this is reasonable for the Buyer.
7. If circumstances within the meaning of Section III. 4 materially alter the commercial significance or the object of the performance (Leistungsgegenstand) to be rendered by TALAMON or have a material impact upon TALAMON ‘s business, or if it subsequently becomes apparent that execution is impossible, the contract shall be appropriately adapted. If and insofar as this is not commercially viable, TALAMON shall have the right to withdraw (“zurückzutreten”) from the contract. If TALAMON wishes to exercise such right of withdrawal, it shall notify the Buyer thereof without undue delay upon becoming aware of the consequences of the event, even if an extension of the fixed period for delivery has initially been agreed upon.
8. If the Buyer sets a reasonable grace period with a minimum of two weeks, after TALAMON is already in default (Section III. 1. Sentence 2), then the Buyer is entitled, after the fruitless expiration of this grace period,
to withdraw from the contract. In this case all legal claims shall apply for the consideration as well as for the claims of the Buyer, but only accordingly to Section VIII. TALAMON is not liable if the damage would have occurred even with delivery on time.
IV. Dispatch and transfer of risk
1. The dispatch is ex works and on the account of the Buyer.
2. The risk of accidental loss or accidental deterioration of the goods passes, in the case the date of delivery and the period for delivery are agreed as binding or fixed, to the Buyer when the object for delivery is handed over to the carrier, freight forwarder or to other companies charged with carrying out the dispatch. In all other cases the risk of accidental loss or accidental deterioration of the goods passes to the Buyer 10 days after the notification for readiness to dispatch. Storage costs incurred after the transfer of the risk shall be borne by the Buyer.
3. If the Buyer is in default with the acceptance, this is deemed equivalent to the handover or acceptance.
4. The mode of dispatch and the packaging take place according to the free judgement of TALAMON.
5. The aforementioned also applies for partly deliveries. If acceptance inspection of partly deliveries is agreed upon, the Buyer shall call off and inspect the goods in quantities which are spread approximately evenly over the acceptance inspection period. If the Buyer defaults on calling off the performance or on accepting the performance, TALAMON shall, after having set an extension period to no avail, be entitled to itself fix the quantity to be inspected and to deliver that quantity. Rights over and above the foregoing, particularly the right to compensatory damages in lieu of performance, shall not be affected by this.
V. Prices and payment
1. Only the prices that are agreed in writing shall apply. If more than six weeks passed by between the agreement on the prices and the delivery, TALAMON is entitled to pass on to the Buyer any increase of prices, costs and/or wages that occurred during this period.
2. TALAMON is entitled, to withdraw from the contract, if the prime cost and/or the currency relations change, not just insignificantly, to the disadvantage of TALAMON, unless the Buyer agrees to pay the price then reasonable.
3. Prices shall be denominated ex works and shall not include packing and the statutory value added tax. All prices are quoted without cash discount or other discount.
4. Invoices shall be payable, without any deduction, on no later than the 30th day after the invoice date.
5. Bills of exchange and/or cheques shall only be accepted by TALAMON on the basis of an explicit agreement and, in any event, only on account of performance. Bills of exchange must be discountable and any tax thereon must have been properly paid.
6. If the Buyer wholly or partly defaults on a payment, all receivables still outstanding against the Buyer shall become immediately due and payable. The same shall apply, if and in so far as unfavourable credit reports on the Buyer are received. Immediate pay ability shall also apply to cheques or bills of exchange which have been accepted on account of performance and to delays in payment which have been granted. In the aforementioned cases, TALAMON may demand, for all deliveries still outstanding from all contracts concluded, cash payment before the delivery of goods or may, following a corresponding warning, cancel the contract. At TALAMON‘s option, security may be provided instead of advance payment.
7. The Client can assert a right of retention on the basis of counterclaims, only if such counterclaims result from the same business relationship and are awarded to the Buyer by a final judgement or acknowledged by TALAMON. The Buyer is only entitled to set-off, if the counterclaims are awarded to the Buyer by a final judgement or are uncontested or are acknowledged by TALAMON.
VI. Retention of title
1. TALAMON reserves his title to the delivered goods until all claims against the Buyer („Reserved Goods”) arising out of the current business relationship have been met in full. The Buyer is entitled to process and sell the Reserved Goods in proper business dealings as long as he is not in default. If the Buyer processes goods under retention of title with other goods not belonging to TALAMON, TALAMON shall be entitled to co-title to the new item in the ratio of the value of the goods under retention of title to the value of the other processed products at the time of processing. Pledging or assigning security on Reserved Goods is not permitted.
2. All claims (including all claims from the current account) arising out of the onward sale or of another legal ground with regard to the Reserved Goods are hereby assigned now by the Buyer to TALAMON to the amount of the invoice value by way of security. TALAMON grants the Buyer revocable authority to collect in its own name for the account of TALAMON claims assigned to TALAMON. This authorization to collect can only be revoked if the Buyer does not fully comply with his payment obligations. If the value of the security items existing for TALAMON exceeds TALAMON‘s total receivables by more than 10 %, TALAMON shall, to this extent, release security items of its choosing at the Buyer‘s request.
3. If third parties seize the Reserved Goods, the Buyer will allude to the ownership of TALAMON and will notify TALAMON without undue delay. Where the Buyer fails to comply with the terms and conditions of the contract – in particular in the case of payment arrears – TALAMON is entitled to take back the Reserved Goods or, where necessary, to demand the assignment of the Buyer’s right to possession in respect of third parties and/or to withdraw from the contract without any deadline extension. The Buyer is liable jointly and severally with the third party for the reimbursement of the court and out of court costs of legal action pursuant to § 771 German Code of Civil Procedure (“Zivilprozessordnung –ZPO”). The repossession (“Zurücknahme”) or the attachment (“Pfändung”) of the Reserved Goods by TALAMON does not in itself constitute a withdrawal (“Rücktritt”) from the contract.
4. It is agreed between TALAMON and the Buyer that if, beyond the foregoing, TALAMON is entitled to compensatory damages in lieu of performance and TALAMON takes back the Reserved Goods pursuant to section VI. 2. Sentence 2, TALAMON shall compensate for the usual sales value of the purchase item at the time of repossession. At the Buyer‘s request, which may only be expressed without undue delay after repossession of the purchase item, a publicly appointed and sworn appraiser shall ascertain a usual sales value. The Buyer shall bear all costs in connection with repossession and realisation of the purchase item. Realisation costs shall, without proof, amount to 5 % of the usual sales value. They shall be set higher, if TALAMON proves higher costs, or lower, if the Buyer proves lower costs
5. The Buyer shall be obliged to insure the Reserved Goods for the duration of the retention of title against theft, destruction, fire, transportation damages and the like. The Buyer assigns to TALAMON the rights arising from the insurance contract, the conclusion and continuation of which shall be proven at the request of TALAMON. If the Buyer fails to furnish proof of insurance, TALAMON shall be entitled, but not obliged, to insure the delivered goods at the Buyer‘s expense.
6. If the retention of title is ineffective under the law of a foreign country where the delivered items are situated, security commensurate with the retention of title in the said territory or most closely reflecting the retention of title in terms of its effects shall be deemed agreed upon. If the Buyer‘s co- operation is required for the existence of the respective right, the Buyer shall be obliged to take, at its expense, all measures necessary for establishing and preserving the said right.
1. TALAMON will perform its contractual obligations with the diligence of a prudent merchant (“ordentlicher Kaufmann”) and with due regard to the applicable norms and stipulations. Claims made by the Buyer in respect of defects are only valid if it has properly observed its due obligations to check and complain under § 377 of the German Commercial Code (“Handelsgesetzbuch – HGB”).
2. The warranty period is one year.
3. Complaints in respect of defects or complaints in respect of missing quantities or incorrect deliveries must be lodged in writing without undue delay, precisely stating the reasons. Complaints in respect of obvious defects which are not received at TALAMON‘s address within eight days from acceptance and/or delivery, as well as defects in respect of hidden defects which are not received at TALAMON‘s address within eight days from discovery of the defect shall be excluded and time-barred in any event.
4. The Buyer shall be obliged to make the goods complained about as being defective available to TALAMON for inspection. If the Buyer does not give TALAMON the opportunity to satisfy itself that a defect exists, particularly if the Buyer fails to make available the goods complained about or samples thereof, all claims in respect of defects shall lapse after the expiration of a set period.
5. Except where otherwise agreed upon, no warranty shall be assumed for used purchase items.
6. The Buyer shall be solely responsible for deciding on the use of the product delivered. Except where TALAMON has confirmed in writing specific features and/or suitability of the products for a purpose of use designated by the contract, any technical advice on applications shall, despite having been given according to best knowledge, not be binding in any event. TALAMON‘s liability for any advice given, or omitted to have been given, which does not relate to the features or usability of the product delivered shall be limited, subject to the conditions set forth under section VIII.
7. Furthermore, statutory provisions shall apply subject to the condition that the Buyer grants TALAMON, at its option, initially to render supplementary performance (including the deliveries) by rectifying the defect or delivering an item free of defects. Only if the second attempt to render supplementary performance fails or if TALAMON has declared to refuse any repair or warranty claims or does not fulfil in an appropriate time, the Buyer shall be entitled to the other statutory warranty claims but only to the extent as set forth under section VIII.
1. TALAMON is liable for intent or gross negligence. For slight negligence, TALAMON is only liable if it culpably fails to fulfil an essential contractual obligation (“wesentliche Vertragspflicht”), whereas the liability is limited to the damage that is predictable and would typically occur.
2. The mere delivery of defective goods as such does not constitute a failure to fulfil essential contractual obligations (“wesentliche Vertragspflichten”).
3. Further claims against TALAMON irrespective of the legal nature of the claim are excluded, in particular claims based on violations of contract or tort.
4. TALAMON is not liable for consequential damages (“Folgeschäden”), particularly due to lost profits or intangible damages (“immaterielle Verluste”).
5. Claims for damages against TALAMON are statute-barred one year after delivery of the goods, unless TALAMON is charged with intent or gross negligence. The statute of limitations for claims based on tort remains unaffected by this.
6. Liability due to culpable harm to life and limb remains unaffected. This also applies to mandatory liability in accordance with the German Product Liability Act (“Produkthaftungsgesetz”).
7. Insofar as the liability of TALAMON is excluded or limited pursuant to the aforementioned section VIII.1. to section VIII.6., this also applies in respect of the personal liability of employees, staff, fee-lancers, representatives and agents of TALAMON.
IX. Final Provisions
1. The Buyer may transfer to third parties rights and duties arising from the contract only with TALAMON‘s written consent.
2. Place of fulfilment and performance is Düsseldorf.
3. These conditions and terms as well as all legal relations and legal acts in the relationship between TALAMON and the Buyer shall be exclusively subject to the law of the Federal Republic of Germany, excluding the provisions of the UN Sales Law Convention (CISG).
4. The exclusive place of jurisdiction is Düsseldorf, also in legal proceedings relating to a bill of exchange or a cheque. TALAMON shall however be entitled to also bring an action before the courts which have jurisdiction over the place where the Buyer‘s registered office is situated or at the Buyer‘s principal place of business.
5. Should a provision in these general terms and conditions or a provision within the context of other agreements with the Buyer be or become invalid, the validity of all other provisions in these general terms and conditions or other agreements is, in cases of doubt, unaffected. Invalid provisions shall be replaced by provisions in compliance with the law which most approximate the objective originally pursued.
Status: November 2020