GTC Tesch of America Inc.

 

Hinweis zu den internationalen Geschäftsaktivitäten:

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Die Diamant-Gesellschaft Tesch GmbH (Deutschland) agiert unabhängig vom Unternehmen
Tesch of America Inc. (USA). Beide Unternehmen sind nach geltendem Recht eigenständige Rechtsträger.
 

Bitte stellen Sie sicher, dass Sie die für Ihren Rechtsraum maßgeblichen Allgemeinen Geschäftsbedingungen prüfen, bevor Sie eine Geschäftsbeziehung eingehen.
 

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TESCH OF AMERICA INC.

General Terms and Conditions of Sale 

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1. Scope; Applicability.

1. These General Terms and Conditions of Sale (these “Terms”) are the only terms that govern the sale of the goods (“Goods”) by Tesch of America Inc. (“Seller”) to business and commercial customers (“Buyer”) including Seller’s offers, order confirmations, deliveries, and any ancillary services expressly identified in Seller’s order confirmation. These Terms do not apply to consumer transactions. Collectively Buyer and Seller are referred to as the “Parties” and individually as “Party.”

2. The accompanying order confirmation and these Terms comprise the entire agreement between Seller and Buyer for the applicable sale (“Agreement”). Seller expressly rejects Buyer’s general terms and conditions of purchase and similar terms, regardless of whether or when Buyer submits them. Seller’s delivery, performance, or acceptance of payment does not constitute acceptance of any Buyer terms or serve to modify these Terms unless Seller expressly agrees in a separate writing signed by an authorized representative of Seller.

1. Contract Formation, Offers and Form.

1. Seller’s offers are non-binding unless expressly designated as binding. Orders placed by Buyer constitute an offer to purchase. A contract is formed only upon Seller’s written order confirmation, shipment of the Goods, or other written acceptance by Seller.

2. If a written agreement signed by both Parties covers the sale of the Goods, that written agreement prevails to the extent of any irreconcilable differences with these Terms. Amendments, waivers, and modifications are effective only if made in a writing that specifically states that it amends or waives these Terms and is signed by an authorized representative of each Party.

1. Documents, Samples and Technical Information. Seller retains all ownership, copyright, trade secret, patent, trademark, and other intellectual property and usage rights in all quotations, specifications, samples, patterns, designs, plans, drawings, documents, data, models, prototypes, software, firmware, configuration files, and other technical or commercial materials provided by Seller. Buyer may not copy, disclose, reverse engineer, decompile, disassemble, or use such materials for any purpose other than performing the applicable agreement unless authorized in advance by Seller in writing. Technical data, dimensions, weights, and other performance data are binding only if expressly confirmed by Seller in the order confirmation or another writing signed by Seller.

2. Price, Payment Terms.

1. Buyer shall purchase the Goods at the prices set forth in Seller’s Order Confirmation (the “Prices”). Unless otherwise agreed to in writing, Seller’s Prices are ex warehouse or ex works. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets. The Prices exclude packaging, freight and insurance costs which are the responsibility of the Buyer.

2. Buyer shall pay Seller all invoiced amounts due within 30 calendar days from the date of Seller’s invoice unless otherwise agreed in writing. All payments hereunder shall be in US dollars and made by ACH or wire transfer only.

3. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5 % per month or the highest rate permissible under applicable law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise unless otherwise agreed to in writing with Seller.

1. Credit Review and Advance Payment. Seller may conduct a credit review before entering into a contract or prior to shipment and may require security, a deposit, advance payment, full prepayment, a letter of credit, or other credit support if Seller has concerns regarding Buyer’s creditworthiness, solvency, or willingness to pay. If Buyer fails to provide requested payment or credit support when due, fails to pay any amount when due, becomes insolvent, or becomes subject to bankruptcy, receivership, reorganization, or assignment-for-benefit-of-creditors proceedings, Seller may suspend delivery, withhold shipment, cancel open orders, change payment terms, or withdraw from the contract without liability.

2. Shipping Terms; Title and Risk of Loss.

1. Unless otherwise agreed to in writing, delivery shall be made EXW (Ex Works, Incoterms® 2020) from Seller’s facility located in the United States (the “Delivery Point”).

2. Title and risk of loss pass to Buyer when Seller makes the Goods available at Seller’s facility located in the United States (the “Delivery Point”). If the Parties agree to a different delivery term, title and risk of loss pass in accordance with that term. If Buyer fails to take timely delivery, title and risk of loss pass when Seller tenders delivery or makes the Goods available to Buyer, and Buyer is responsible for any resulting storage and related costs.

3. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a “purchase money security interest” under the applicable Uniform Commercial Code. Buyer authorizes Seller to file UCC financing statements and amendments describing the collateral and shall take any action reasonably requested by Seller to create, perfect, maintain, and enforce Seller’s security interest.

4. Packaging will be taken back only where mandatory law requires it or where Seller expressly agrees in writing.

1. Delivery, Partial Deliveries and Dates.

1. Delivery periods and delivery dates are estimates only unless Seller expressly confirms them in writing as binding. Seller shall not be liable for delays, loss, or damage in transit except to the extent liability may not be limited under applicable law.

2. Seller may, in its sole discretion and without liability or penalty, make partial or advance shipments of Goods to Buyer. Each shipment constitutes a separate sale, and Buyer shall pay for the units shipped whether the shipment is in whole or partial fulfillment of Buyer’s order.

3. Delivery periods do not commence until all technical, commercial, compliance, and other execution details have been clarified, and Buyer has fulfilled its cooperation, payment, and documentation obligations. Delays caused by force majeure or other circumstances beyond Seller’s reasonable control are governed by Section 19.

1. Buyer’s Obligations. Buyer shall timely and fully provide all information, approvals, specifications, permits, tax documents, import information, end-use and end-user information, and other cooperation reasonably required for delivery, shipment, import, export, use, or resale of the Goods. Buyer is responsible for the accuracy and completeness of all information and approvals it provides. If delivery or performance is delayed due to Buyer’s failure to cooperate, deadlines will be extended for a reasonable period, and Buyer shall reimburse Seller for all resulting costs and expenses, including storage, demurrage, carrier charges, and similar expenses.

2. Inspection; Notice of Defects; Returns.

1. Buyer shall inspect the Goods within 10 calendar days after receipt (the “Inspection Period”). Buyer will be deemed to have accepted the Goods unless Buyer notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes the written evidence or other documentation reasonably required by Seller. “Nonconforming Goods” means Goods that are different from the Goods identified in the order confirmation, Goods whose label or packaging incorrectly identifies their contents, or Goods that otherwise materially fail to conform to specifications expressly accepted by Seller in writing. Hidden defects must be notified to Seller in writing promptly after discovery and in any event before expiration of the applicable Warranty Period. If Buyer fails to give timely notice, the Goods are deemed accepted and all related claims are waived, except to the extent waiver is prohibited by applicable law.

2. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable third-party shipping and handling expenses actually incurred and paid by Buyer in connection therewith. Returns are permitted only with Seller’s prior written approval and a valid return material authorization. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at Tesch of America Inc., 38800 Grand River Ave, Farmington Hills, MI 48335. Buyer must state the disputed items, order number, invoice number, serial or lot number if applicable, and reason for the claim. If Seller approves a return, Buyer must pack the Goods in a transport-safe manner, follow Seller’s return instructions, and ship the Goods. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.

3. Buyer acknowledges and agrees that the remedies set forth in Section 9(b) are Buyer’s exclusive remedies for Nonconforming Goods. Except as provided under Section 9(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

1. Limited Warranty.

1. Seller warrants to Buyer that for a period of 12 months from the date of delivery of the Goods (the “Warranty Period”), the Goods will materially conform to Seller’s specifications expressly accepted in writing; and Buyer will receive good and valid title to the Goods, free and clear of all encumbrances and liens except for Seller’s security interest securing payment of the purchase price.

2. A specification, performance requirement, regulatory requirement, quality characteristic, or other product attribute is part of the agreement only if expressly set out in Seller’s order confirmation, a specification accepted by Seller in writing, or another writing signed by Seller. Public statements, advertising claims, catalog descriptions, samples, prototypes, or industry-standard usage descriptions do not create any additional warranty, specification, or fitness obligation except to the extent expressly incorporated in writing by Seller. Buyer is responsible for determining whether the Goods are suitable and lawful for Buyer’s intended use, installation environment, resale, integration, labeling, marketing, and downstream distribution. Buyer shall not alter, relabel, misuse, combine, install, or resell Goods in a manner inconsistent with Seller’s instructions, specifications, warnings, or applicable law.

3. The warranty does not apply where the Goods have been subjected to abuse, misuse, neglect, negligence, accident, abnormal physical stress or environmental conditions, use contrary to Seller’s instructions, improper testing, installation, storage, handling, repair, or maintenance, alteration by anyone other than Seller or its authorized representative, use with any third-party product not approved by Seller in writing, or buyer-supplied specifications, materials, or instructions.

1. Buyer’s Exclusive Remedy for Breach of Warranty. During the Warranty Period:

1. Buyer shall notify Seller, in writing, of any alleged warranty claim within 10 days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim but in any event before the expiration of the applicable Warranty Period;

2. Upon Seller’s written request, Buyer shall, at its expense and risk of loss, ship the relevant Goods within 30 days from the date of the request to Seller’s facility located at Tesch of America Inc., 38800 Grand River Ave, Farmington Hills, MI 48335, for Seller’s inspection and testing;

3. If Seller’s inspection and testing reveals, to Seller’s reasonable satisfaction, that such Goods do not conform with the limited warranty set forth herein, Seller shall in its sole discretion, and at its expense either (i) repair or replace such Goods, or (ii) credit or refund the Price of such Goods less any applicable discounts, rebates, or credits; and

4. If Seller exercises its option to repair or replace, Seller shall, after receiving Buyer’s shipment of such Goods, ship to Buyer, at Buyer’s expense and risk of loss, the repaired or replacement Goods.

5. Buyer has no right to return for repair, replacement, credit, or refund any Goods except as set forth in this Section 11.

6. THIS SECTION 11 SETS FORTH THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10.

1. WARRANTIES DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER INDIVIDUAL OR ENTITY ON SELLER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 10 OF THIS AGREEMENT.

2. Limitation of Liability. 

1. IN NO EVENT SHALL SELLER OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

2. SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNTS PAID TO SELLER FOR THE GOODS GIVING RISE TO THE CLAIM UNDER THE APPLICABLE ORDER CONFIRMATION.

1. Liability for Data and Software. To the extent Seller provides software, firmware, digital content, configuration data, documentation, or other data in connection with the Goods, Buyer receives only a limited, non-exclusive, non-transferable right to use such items solely with the Goods and solely for Buyer’s internal business purposes unless otherwise agreed in writing. Seller assumes no liability for uninterrupted availability, error-free transmission, cybersecurity of Buyer’s systems, data backup, or compatibility with Buyer’s systems unless expressly warranted in writing. Buyer is responsible for adequate data backup, system compatibility, access controls, and IT security in its own environment.

2. Buyer Indemnity. Buyer shall indemnify, defend, and hold harmless Seller and its affiliates, and their respective officers, directors, employees, agents, representatives, successors, and assigns (each, an “Indemnified Party”) from and against any and all losses, damages, liabilities, claims, actions, judgments, settlements, penalties, fines, costs, and expenses, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification under this Agreement, incurred by any Indemnified Party arising out of or relating to any third-party claim to the extent resulting from Buyer’s specifications, drawings, materials, instructions, approvals, labeling, marketing, installation, integration, resale, export, import, modification, misuse, negligence, willful misconduct, breach of this Agreement, or violation of applicable law, except to the extent caused by Seller’s gross negligence or willful misconduct. Buyer shall not enter into any settlement without Seller's and any other applicable Indemnified Party's prior written consent.

3. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by Seller operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Seller precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Seller.

4. Confidential Information. All non-public, confidential, or proprietary information of Seller, including specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, rebates, software, technical information, and commercial information, disclosed or made available by Seller to Buyer, whether orally or in written, electronic, or other form or media and whether or not marked as confidential, is confidential, solely for use in performing the Agreement, and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller is entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (i) in the public domain, (ii) known to Buyer at the time of disclosure, or (iii) rightfully obtained by Buyer on a non-confidential basis from a third party.

5. Compliance with Law; Export Control; Sanctions. Buyer shall at all times comply with all laws applicable to this Agreement, Buyer’s performance of its obligations hereunder, and Buyer’s use of the Goods, including but not limited to all applicable export control, sanctions, customs, anti-corruption, anti-bribery, and other compliance laws and regulations. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Goods and (b) not engage in any activity or transaction involving the Goods, by way of shipment, use, or otherwise, that violates any law. Buyer shall not export, re-export, transfer, resell, or provide the Goods, software, technical data, or services to any prohibited jurisdiction, sanctioned or restricted party, or prohibited end use.

6. Force Majeure. 

1. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any obligation under this Agreement, when and to the extent such failure or delay is caused by or results from any event or circumstance beyond Seller’s reasonable control, whether or not foreseeable (each, a “Force Majeure Event”), including: (i) acts of God; (ii) flood, fire, earthquake, explosion, severe weather, or other natural disaster; (iii) war, invasion, hostilities, whether war is declared or not, terrorist threats or acts, riot, or other civil unrest; (iv) governmental order, law, action, restriction, delay, or failure to act; (v) embargoes, sanctions, export or import restrictions, or blockades; (vi) national or regional emergency; (vii) pandemic, epidemic, or public health emergency; (viii) strikes, labor stoppages, slowdowns, lockouts, or other industrial disturbances; (ix) telecommunication breakdowns, cyber incidents, power outages or shortages, energy shortages, lack of warehouse or storage space, inadequate transportation services, port delays, carrier delays, or customs delays; (x) shortage, allocation, unavailability, or delay in obtaining supplies, raw materials, components, labor, energy, equipment, or transportation; (xi) supplier or subcontractor delay, default, or nonperformance; or (xii) any other event or circumstance beyond Seller’s reasonable control.

2. Seller may postpone delivery or performance or withdraw from the affected order in whole or in part without liability for damages to Buyer.

1. Assignment. Buyer’s rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Buyer without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

2. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

3. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

4. Governing Law; Jurisdiction. This Agreement is governed by, and construed in accordance with the laws of the State of Michigan without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. All legal proceedings shall be instituted in the state courts located in Oakland County, Michigan or federal courts located in the State of Michigan. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.

1. Notices. All notices shall be in writing and addressed to the parties at the addresses set forth on the face of the Order Confirmation or to such other address for either party as that party may designate by written notice. All notices under this Agreement must be in writing and will be delivered in person, by nationally recognized courier service, or by registered or certified mail (postage prepaid, return receipt requested) or by email with confirmation of receipt.

2. Severability. If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.