Skip Navigation

Legal Notes

General Sales, Lease, Supply and Payment Terms and Conditions of thyssenkrupp Infrastructure GmbH, Essen

I. Application

  • 1. Insofar as nothing different is expressly agreed upon, our general Sales, Supply and Payment Terms and Conditions are a part of any purchase contract entered into by us. Our general Sales, Supply and Payment Terms and Conditions exclude the application of contrary conditions of our contract partner. Such conditions are not recognised by us and are not binding for us even without specific contradiction.
  • 2. All agreements which are entered into for the purpose of the performance of a purchase contract between us and our contract partner must be recorded in writing in the contract itself; this particularly also applies for supplementary agreements entered into orally before entry into the contract.
  • 3. Our sales employees are not authorised to enter into oral supplementary agreements or to make oral promises which go beyond the content of the written contract.

II. Offer and Entry

  • 1. Our offers are non-binding and are subject to change without notice; Acceptance declarations and all orders require our written confirmation or our confirmation by telex in order to be legally valid.
  • 2. We hereby reserve the ownership rights and copyright in illustrations, diagrams, brochures, catalogues, forms, templates and samples, models and other comparable documents which we include with our offers. Where such deviations have no impact on the contractual usability of the goods, minor deviations are possible from illustrations, diagrams, brochures, catalogues, forms, templates and samples, models, weight and dimension information which we include with our offers, and such deviations do not give rise to any warranty claims. Information of that kind is always conveyed in the best possible manner, but can always only be approximately authoritative.
  • 3. Deviations from the contractually-agreed performance are permissible if they are reasonable for our contract partner, taking account of the latter’s interests. This is particularly the case in connection with commercially-standard or technically unavoidable deviations pertaining to quality, superficial characteristics, colour, weight, measured values and piece numbers.

III. Price and Payment

  • 1. If nothing different is expressly agreed upon, we charge the prices valid on the day of entry into contract, plus the respectively-valid statutory VAT. Our prices are “ex works prices”. Our disposable packaging usual in the business is free. The disposal of the packaging is done by our contract partner.
  • 2. We hereby reserve the right to correspondingly increase our prices if cost increases occur after entry into the contract, particularly due to tariff agreements or increased prices for materials. We will provide evidence of the cost increases to our contract partner upon request. If our contract partner is not a fully-qualified merchant or a public-law legal entity or a public-law special fund, then the foregoing provision only applies if there are more than 4 months between entry into contract and the delivery becoming due. If in the individual case the price increase amounts to more than 5%, then our contract partner is entitled to rescind the contract.
  • 3. Payments must be made in cash, by bank transfer or giro check transfer. If a transfer is made, then only the crediting of the amount to our bank account is deemed to be payment. We are not obliged to accept bills of exchange and cheques. If we accept them, then the acceptance is done in payment pending full discharge of the debt; only their redemption shall be deemed to be payment. Bank, discount and collection fees are always borne by our contract partner and are immediately due. In all cases, bills of exchange are only accepted without guarantee of correct presentation and protest. Payments by cheque/bills of exchange always require an express prior agreement.
  • 4. Payments must be made within 30 days of invoice date, without discount. We grant cash discount in the case of payment in advance, COD delivery, or cash payment within 8 days, insofar as our contract partner has always made its payments punctually under all of the purchase contracts entered into with us up until that point in time. We state on the invoices the amount of the cash discount granted in the individual case. The general calculation basis for cash discount is the value of the goods - invoice amount including VAT after deduction of any rebates or other special allowances, without taking account of any freight or packaging costs. If a payment deadline is exceeded, we charge maturity interest in the amount of 5% above the basic interest rate, insofar as our contract partner is a fully-qualified merchant, public-law legal entity or public-law special fund. In the event of default in payment, we are entitled to charge default interest in the amount of 9% above the basic interest rate, insofar as a consumer is involved in the legal transaction, in the amount of 5% above the basic interest rate or to claim the default loss actually suffered by us, which can also result in higher default interest. Our contract partner is free to produce counter-evidence that we have suffered a lower amount of loss. If there are facts and circumstances which make our purchase price claim appear jeopardised, then upon request our contract partner is obliged first to pay the purchase price under the current order which has not yet been executed, before the goods are delivered. Our contract partner is free to produce counter-evidence that our claim is not jeopardised.
  • 5. Our contract partner shall only be entitled to set-off rights if its counterclaims have been finally determined in a legally-binding manner, are undisputed or have been acknowledged by us. Our contract partner shall not be entitled to any right of retention due to disputed counter-claims, unless our contract partner is not a fully-qualified merchant or a public-law legal entity or a public-law special fund. In such cases, our contract partner has the possibility of exercising a right of retention insofar as its counterclaim arises out of the same contract relationship.
  • 6. On the basis of the authorizations granted to us by the companies belonging to our Group (sec. 18 Stock Corporation Act, AktG)*, we shall be entitled to offset all the Seller’s accounts receivable from us or from the aforementioned Group companies, irrespective of their basis in law. This also applies if a cash payment has been agreed in one case and, in another case, payment in bills of exchange or other services on account of performance. If appropriate, these agreements shall only relate to the balance. In the event that the accounts receivable are due at different dates, our accounts receivable shall fall due at the latest when our liability is due and is settled on the value date.

IV. Delivery, Dispatch, Transfer of Risk

  • 1. Delivery dates or deadlines, which can be agreed bindingly or non-bindingly, always require the written form.
  • 2. We are not responsible for delivery and performance delays due to force majeure and due to events which significantly make the delivery more difficult for us or make the delivery impossible for us (e.g. strike, lock-out, official decree, etc., even if they occur at our suppliers or sub-suppliers), even in the case of bindingly-agreed deadlines and dates. They entitle us to defer our delivery for the duration of the impediment plus a reasonable lead time, or to rescind the contract in whole or in part with respect to the portion which has not yet been performed. If the impediment endures for longer than two months, then after setting a reasonable supplementary period for performance, our contract partner is entitled to rescind the contract in whole or in part with regard to the potion which has not yet been performed. Compensation claims cannot be made by our contract partner in the event of an extension of the delivery time or our delivery obligation ceasing to exist due to the above-named reasons. We can only rely on the named impediment circumstances if we have informed our contract partner without undue delay in the respective case.
  • 3. If we are responsible for the non-adherence to bindingly-promised delivery dates or deadlines or if we are in default, then our contract partner can demand a default compensation sum in the amount of 0.5% for every completely-elapsed week of the default, however a total of not more than 5%, in each instance calculated from the value of the goods of the deliveries affected by the default. More extensive claims of our contract partner are excluded unless the default is due to intentional behaviour or gross negligence on our part or on intentional behaviour or gross negligence on the part of our legal representatives, executive employees, vicarious agents, etc., or if it is a commercial transaction where time is of the essence, or if our contract partner is able to provide evidence that due to the default attributable to us, interest in the performance of the contract has ceased to exist.
  • 4. The risk is transferred to our contract partner as soon as the consignment has left our warehouse or as soon as the consignment has been handed over to the person performing the transport; the latter is the case irrespective of who is bearing the freight costs. The foregoing risk transfer provisions also apply in the case of shipments within the same location. They also apply if shipment is carried out by our vehicles or by our personnel.
  • 5. If our contract partner is in default in acceptance, we are entitled to demand compensation of the loss suffered by us. In all cases, upon the occurrence of the default in acceptance, the risk of accidental deterioration and accidental loss of the goods is transferred to our contract partner. If we demand compensation, the amount of the loss to be compensated is 20% of the value of the goods. The loss is to be set higher if we provide evidence of higher loss; it is to be set lower if our contract partner provides evidence of lower loss.

V. Warranty

  • 1. Defect complaints must be made in writing, specifying the individual defects complained of and with an express warranty claim.
  • 2. In the case of obvious defects, we can only take a defect notification into account if it is received by us in writing at the latest within 14 days after the arrival of the goods; in the case of hidden defects, only when it is received by us in writing at the latest within 14 days after the discovery of the defect.
  • 3. In the event of the existence of a defect, we perform under the warranty in the form of subsequent performance, in which regard we are free to remove the defect or to supply flawless replacement goods. If at least one subsequent performance attempt by the vendor has failed, then, insofar as nothing to the contrary arises out of the following provision, a compensation claim or reduction or rescission right also comes into consideration.
  • 4. For all instances of simple negligence, we are only liable if this results in a loss of life, personal injury or damage to health, or if in other cases the accusation of simple negligence pertains to our managing directors or executive employees. Compensation claims for any consequential loss also only exist in the amount of the loss which is typically foreseeable in connection with contracts of this nature according to the usual course of events.

VI. Reserved ownership rights

  • 1. The goods shall remain our property until all our claims against the Buyer under the contract have been satisfied.
  • 2. Should this retention of title provision be invalid under the law of the country in which the goods are situated, such security which corresponds to the above retention of title provision shall be deemed to have been agreed upon. The Buyer shall take all measures necessary for such security to come into effect and/or to be maintained.
  • 3. Should a more extensive retention of title clause be permitted by the law of the country in which the goods are situated (such as – without prejudice to the generality of the foregoing – the assignment of the Buyer’s future claims resulting from the resale of the goods delivered by us), the Buyer shall, upon our request, implement such clause.

VII. Other Contractual or Extra-Contractual Liability

  • Compensation from the perspective of fault in connection with the contract negotiations, compensation due to deterioration or breach of ancillary obligations, other contractual or extra-contractual compensation is owed by us only in the amount of the loss typically foreseeable for contracts of this nature according to the usual course of events. For all instances of simple negligence, we are only liable if this results in a loss of life, personal injury or damage to health, or if in other cases the accusation of simple negligence pertains to our managing directors or executive employees. The foregoing limitations of liability do not apply for claims pursuant to § 1.4 of the German Product Liability Act.

VIII. Applicable Law, Place of Performance, Legal Venue,

  • 1. The legal relations between us and our contract partner are exclusively subject to the law of the Federal Republic of Germany, and the application of the CISG (UN Convention on Contracts for the International Sale of Goods) is hereby excluded.
  • 2. Insofar as nothing different is agreed upon, our registered office is the place of performance.
  • 3. If our contract partner is a fully-qualified merchant, public-law legal entity or public-law special fund, then Essen is the legal venue. However, we are also entitled to sue the purchaser at the court having jurisdiction over its place of residence.

General Lease Terms and Conditions

I. Application

  • 1. Insofar as nothing different is expressly agreed upon, our general Lease Terms and Conditions are a part of any lease contract entered into by us. Our general Lease Terms and Conditions exclude the application of contradictory terms of our contract partner. Such conditions are not recognised by us and are not binding for us even without specific contradiction.
  • 2. All agreements which are entered into for the purpose of the performance of a lease contract between us and our contract partner must be recorded in writing in the contract itself; this particularly also applies for supplementary agreements entered into orally before entry into the contract.
  • 3. Our employees to whom the leasing is entrusted are not authorised to enter into oral supplementary agreements or to make oral promises which go beyond the content of the written contract.
  • 4. Contract amendments require the written form.
  • 5. Our offers are non-binding and are subject to change without notice. Acceptance declarations and all other declarations by the tenant require our written confirmation or our confirmation by telex in order to be legally valid.

II. Lease Term

  • 1. The lease term commences upon the day that the leased item or items are handed over to our contract partner.
  • 2. The lease term comes to an end upon the return of the leased item or items to us, however not before the expiry of the contractually-agreed lease term, irrespective of any contract terminations for important reasons.

III. Price and Payments

  • 1. If nothing different is agreed upon, we charge the prices valid on the day of entry into contract, plus the respectively-valid statutory VAT.
  • 2. Transport of the leased item or items as well as the loading of the leased item or items are done at our contract partner’s cost and risk. Our contract partner is obliged to make machines available on the agreed transport days by means of which the loading of the leased item or items is safe and guaranteed within a reasonable period.
  • 3. Payments must be made in cash, by bank transfer or giro check transfer. If a transfer is made, then only the crediting of the amount to our bank account is deemed to be payment. We are not obliged to accept bills of exchange and cheques. If we accept them, then the acceptance is done in payment pending full discharge of the debt; only their redemption shall be deemed to be payment. Bank, discount and collection fees are always borne by our contract partner and are immediately due. In all cases, bills of exchange are only accepted without guarantee of correct presentation and protest. Payments by cheque/bills of exchange always require an express prior agreement.
  • 4. The rent is due in advance, and if it is calculated according to time periods, in each instance as of the commencement of the individual time periods.
  • 5. Payments must be made within 10 days of invoice date, without discount. If a payment deadline is exceeded, we charge maturity interest in the amount of 5% above the basic interest rate, insofar as our contract partner is a fully-qualified merchant, public-law legal entity or public-law special fund. In the event of default in payment, we are entitled to charge default interest in the amount of 9% above the basic interest rate, insofar as a consumer is involved in the legal transaction, in the amount of 5% above the basic interest or to claim the default loss actually suffered by us, which can also result in higher default interest. Our contract partner is free to produce counter-evidence that we have suffered a lower amount of loss.
  • 6. We hereby reserve the right to correspondingly increase our prices if cost increases occur after entry into the contract, particularly due to tariff agreements or increased prices for materials. We will provide evidence of the cost increases to our contract partner upon request. If in the individual case the price increase amounts to more than 5%, then our contract partner is entitled to rescind the contract.
  • 7. Our contract partner is only entitled to the right to set-off and reduction if the claims made by it have been determined in a legally-final and binding manner, if they are undisputed, or if they have been acknowledged by us. Our contract partner shall not be entitled to any right of retention due to disputed counter-claims either, unless our contract partner is not a fully-qualified merchant or a public-law legal entity or a public-law special fund. In such cases, our contract partner has the possibility of exercising a right of retention insofar as its counterclaim arises out of the same contract relationship.
  • 8. The leasing is done without personnel. If in the individual case a demonstration of or instruction in the use of a leased item is necessary, we will carry out the demonstration or the instruction through our personnel. The costs associated with this are to be borne by our contract partner.

IV. Liability, Transfer of Risk

  • 1. Our contract partner is obliged to carefully follow our installation and assembly instructions and to keep the leased item or items in proper and functional condition.
  • 2. Our contract partner will only not be liable for destruction, loss and damage as well as for deterioration which goes beyond the usual or the contractually-owed degree if our contract partner is able to provide evidence that no fault is attributable to it.
  • 3. If our contract partner is liable pursuant to paragraph 2 above, then it is obliged to return the leased item or items to us and to compensate us for the costs which must be expended in order to professionally repair the leased item or items. If repair is not possible or is only possible with disproportionately high expenditure, then our contract partner is obliged to bear the costs which are necessary in order to procure an equivalent replacement for the leased item or items.
  • 4. In cases of paragraph 2 above, our contract partner remains liable for performance of the lease contract, particularly for the payment of the rent.
  • 5. The tenant collects the work parts at the warehouse of ThyssenKrupp Bauservice GmbH, and shall return them to this location after termination of the contractual relationship (debt payable to the creditor). Place of performance and delivery thus shall be the warehouse of ThyssenKrupp Bauservice GmbH. This shall apply also when ThyssenKrupp Bauservice GmbH carries out the transport and / or return transport of the leased property by a forwarding agent or by own staff upon request of the tenant. If upon request of the lessee the return transport of the leased property is carried out by a forwarding agent or by the own employees of ThyssenKrupp Bauservice GmbH, the lessee shall be obligated to guard the leased property until the said is picked up by ThyssenKrupp Bauservice GmbH, in particular guarding against theft, damage and destruction. The liability of the lessee in keeping with Figure (2) of this section shall remain unaffected.
  • 6. For all instances of simple negligence, we are only liable if this results in a loss of life, personal injury or damage to health, or if in other cases the accusation of simple negligence pertains to our managing directors or executive employees. Compensation claims for any consequential loss also only exist in the amount of the loss which is typically foreseeable in connection with contracts of this nature according to the usual course of things.
  • 7. Our contract partner indemnifies us for the duration of the lease term against third-party claims arising out of the breach of the public safety obligation or out of other legal reasons with regard to the leased item.

V. Termination

  • 1. We are entitled to terminate the tenancy for an important reason.
  • 2. An important reason shall particularly exist if our contract partner is in default for two successive dates with the payment of the rent or a not insignificant part of the rent, or in a time period which extends over more than two dates is in default with the payment of the rent in a sum which amounts to the rent for two months, unless an application has been filed for the initiation of insolvency proceedings concerning the contract partner’s assets and the default occurred in the time before the initiation application.
  • 3. An important reason is also in particular if a deterioration in the financial circumstances of our contract partner occurs which jeopardises our claim for payment of the rent. Significant deteriorations in the financial circumstances of our contract partner which jeopardise our claim for payment of the rent are the following sets of circumstances in particular: Discontinuation of payment by our contract partner; non-timely redemption of bills of exchange or cheques of our contract partner. If such a set of circumstances exists and if for that reason we terminate the tenancy, then our contract partner is free to produce counter-evidence that there has not been a deterioration in its financial circumstances which jeopardises our claim for payment of the rent. Moreover, an important reason for termination of the contract relationship exists if the initiation of insolvency proceedings concerning the assets of the contract partner is applied for, unless the termination is effected due to a default in payment of the rent which occurred in the time before the initiation application or due to a deterioration in the debtor's financial circumstances.

VI. Substitution

  • In the event of a substitution, the original leased item or items are replaced by the new leased item or items. Otherwise, the respective tenancy continues unchanged.

VII. Sub-Leasing

  • Our contract partner is only entitled to sub-lease or to other hand-over of the leased item or items to third parties with our prior written consent. In the case of sub-leasing or hand-over of the leased item or items to a third party by our contract partner, we remain the indirect holder of the leased item or items in addition to our contract partner. Our contract partner hereby assigns to us now its replevin claims and any remuneration claims against the third party under the sub-lease or other hand-over of the leased item or items.

VIII. Applicable Law, Place of Performance, Legal Venue

  • 1. The legal relations between us and our contract partner are exclusively governed by the law of the Federal Republic of Germany.
  • 2. If our contract partner is a fully-qualified merchant, public-law legal entity or public-law special fund, then Essen is the legal venue. However, we are also entitled to sue the purchaser at the court having jurisdiction over its place of residence.
up to top