ALLGEMEINE GESCHÄFTSBEDINGUNGEN DER TICAD GMBH & CO. KG

General Terms and conditions of TiCad GmbH & Co. KG

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General Terms and Conditions of Business with our Commercial Partners

 

Section 1: Scope of Application; Amendment of these GTCs

(1) These General Terms and Conditions of Business (hereinafter: "GTCs") shall apply to the provision of services by TiCad GmbH & Co. KG, Heegwaldstr. 3-5, D-63674 Altenstadt, Germany (hereinafter "TiCad"), to parties ordering the Products manufactured and distributed by TiCad, particularly golf trolleys and accessories (hereinafter "Products"), provided that these parties are entrepreneurs as defined by Section 14 of the Bürgerliches Gesetzbuch (hereinafter "BGB") [German Civil Code], legal entities under public law or public funds. These GTCs shall not apply in relation to individuals concluding a contract for a purpose not attributable to either their trade or their self-employed profession (consumers).


(2) All agreements made between the ordering party and TiCad shall ensue from the following provisions, the ordering party's quotation and any order acknowledgement from TiCad. Terms and conditions of business of the ordering party that deviate from these GTCs shall not apply. Any possible counter-confirmations by the ordering party with reference to its own terms and conditions of business and/or purchase are hereby expressly objected to. These GTCs shall apply even if TiCad carries out services for the ordering party without any further reservations despite knowing of conflicting or deviating terms and conditions of business of the ordering party.

 

Section 2: Conclusion of a Contract

(1) The purchase order for the Products shall be deemed to be a binding offer of a contract, and shall normally be placed in writing or by fax. Except where otherwise agreed upon between the parties, TiCad shall be entitled to accept or decline the ordering party's offer of a contract within two (2) weeks of receipt thereof. Acceptance of such offer of a contract by TiCad shall occur either in writing (e.g. by sending an order acknowledgement) or, in the absence of an order acknowledgement,  by delivery of the Products to the ordering party). The descriptions and lists provided in the order acknowledgement shall form the basis for the provision of the services owed. The ordering party shall promptly inform TiCad (Section 121 (1),  sentence 1 BGB) of any deviations in the order acknowledgement compared to its original offer.


(2) TiCad hereby expressly reserves rights of title and copyrights to all Product descriptions or documents made available to the ordering party, including those in electronic form, within the framework of the business relationship, regardless of whether these are made available before or after the ordering party has made its offer of a contract.

 

Section 3: Delivery Period and Default in Delivery

(1) The delivery period shall be agreed upon on an individual basis or be specified by TiCad in its order acknowledgement when accepting the purchase order. If no such specification is made, the delivery period shall normally be two (2) weeks from the conclusion of the contract. In any event, the ordering party shall inform TiCad of any particular urgency in respect of purchase orders.


(2) Insofar as delivery periods agreed upon between the parties cannot be adhered to for reasons not imputable to TiCad (for example owing to non-availability), the ordering party shall be promptly informed thereof and, at the same time, be notified of the anticipated new delivery period. If it is also not possible to render performance within the new delivery period, TiCad shall be entitled to wholly or partly rescind the contract; TiCad shall promptly refund any counter-performance already rendered by the ordering party. The statutory rights of rescission and termination, as well as the statutory provisions on the winding-up of a contract in cases where one of the parties thereto is no longer obliged to perform shall remain unaffected.


(3) A prerequisite for the occurrence of default in delivery is that the ordering party must have issued a written reminder and set a reasonable time limit. If default in delivery occurs, the ordering party may demand liquidated damages as compensation for any loss incurred upon it as a result of default only if TiCad is at fault in this respect. Such liquidated damages shall amount to 0.5 % of the delivery value for every full calendar week of default, but in total no more than five (5) % of the delivery value of the Products delivered late. TiCad hereby reserves the right to prove that no loss, or a loss significantly lower than the above liquidated damages, has been incurred upon the ordering party.

 

Section 4: Delivery and Passage of Risk

(1) Delivery by TiCad shall occur ex warehouse, which shall also be the place of performance. At the ordering party's request and expense, Products ordered shall be dispatched to another destination (sale by dispatch). Except where otherwise agreed upon between the parties, TiCad shall be free to decide on the method of shipment, particularly as regards selection of the transportation companies, the route and the packaging.


(2) The risk of accidental destruction and accidental deterioration of the Products ordered shall pass to the ordering party at the time of hand-over. The same shall apply, if the goods are delivered to third parties at the ordering party's request, or if the ordering party defaults on taking receipt. In the case of a sale by dispatch, the risk of accidental destruction and accidental deterioration of the Products ordered, as well as the risk of delay shall already pass to the ordering party at the time when the Products are handed over to the third party appointed to deliver the Products (forwarder, carrier, etc.).


(3) Normally, the Products ordered shall be delivered as a complete delivery. TiCad shall make subdeliveries  only if (i) the sub-delivery can be used by the ordering party for the purpose intended under the contract, (ii) it has been ensured that the residual Products ordered will be delivered, and (iii) no significant extra expenditure or additional costs will be incurred upon the ordering party as a result thereof (unless TiCad agrees to bear these costs).


(4) If the ordering party defaults on taking receipt, or if delivery to the ordering party is delayed for any other reasons imputable to the ordering party, TiCad shall be entitled to demand compensation for the loss resulting therefrom, including extra expenditure (e.g. storage costs). In such case, TiCad shall be entitled to demand liquidated damages in the sum of 0.5 % of the contract price per calendar week, but in total no more than five (5) % of the contract price. TiCad's right to prove a higher loss, as well as its statutory claims (particularly to reimbursement of extra expenditure, appropriate compensation, termination) shall remain unaffected; in any event, the aforementioned liquidated damages shall be set off against any further monetary claims. The ordering party shall retain the possibility of proving that no loss at all, or a loss significantly lower than the above liquidated damages, has been incurred upon TiCad.

 

Section 5: Prices and Payment Terms

(1) Except where otherwise agreed upon in an individual case, the respective prices that are up-to-date at the time of the conclusion of the contract, ex warehouse plus value-added tax at the statutory rate, shall apply. The respective up-to-date prices shall be sent to the ordering party on request. In addition to the purchase price, the ordering party shall, in the case of a sale by dispatch, bear the transportation costs ex warehouse and the cost of any transportation insurance wished for. This shall also apply to customs duty, charges, taxes and other public levies in connection with the respective delivery. Insofar as the transportation costs actually incurred in an individual case are not invoiced by TiCad, an appropriate flat-rate charge for transportation costs (excluding transportation insurance) shall be deemed agreed upon. Transportation packaging and all other packaging shall become the ordering party's property and, except for pallets, shall not be taken back by TiCad.


(2) If the delivery is not made to Germany, or if the ordering party's registered office is not in Germany, delivery shall be made on an advance-payment basis. If the ordering party has its registered office in an EU member state and delivery is made to an EU member state, payment on an invoice basis may be agreed upon.


(3) The purchase price shall be due and payable within twenty (20) days of issuance of the invoice and delivery of the Products ordered. Deferment of the due date (value date) is hereby excluded in principle. TiCad shall have the possibility of allowing the ordering party a cash discount (price reduction in the event of payment within a specified period).


(4) In the case of contracts with a contract price in excess of € 10,000.00, TiCad shall be entitled to demand a down payment in the sum of 50 % of the purchase price. TiCad shall point out to the ordering party in its order acknowledgement the requirement to make a down payment. In such case, the goods ordered shall not be dispatched until the down payment has been received on the business account specified by TiCad.


(5) Loss or destruction of the contractual item occurring after the passage of risk through no fault of TiCad shall not affect the ordering party's obligation to pay.

 

Section 6: Default in Payment; Rights of Set-off and Retention

(1) The ordering party shall enter into default upon expiry of the payment time limit specified in Section 5 (3) of these GTCs. During default, the purchase price shall be subject to default interest at the respective rate applicable by law. TiCad hereby reserves the right to assert a claim for any further loss caused by default. In relation to merchants, the claim to commercial interest for failure to pay by the due date (Section 353 HGB [German Commercial Code]) shall remain unaffected.


(2) If the due purchase price is not paid, TiCad shall be entitled to rescind the contract in accordance with the statutory provisions and to reclaim the goods on the basis of its retention of title provided for under Section 7 of these GTCs and on the basis of rescission. If the ordering party fails to pay the due purchase price, TiCad may assert these rights only if the ordering party has been set beforehand to no avail a reasonable time limit for payment, or if the setting of such time limit is unnecessary under the statutory provisions.


(3) The ordering party shall be entitled to rights of set-off or retention only insofar as its claim has been determined by a final and non-appealable court judgement or is undisputed. The ordering party's further rights on the basis of defects shall remain unaffected hereby.


(4) Insofar as it becomes evident after the conclusion of the contract that the claim to the purchase price is jeopardised as a result of a lack of ability to pay on the part of the ordering party (e.g. as a result of an application for the institution of insolvency proceedings), TiCad shall be entitled, in accordance with the statutory provisions, to demand a down payment or the provision of collateral, to refuse to perform and, after having set a time limit if need be, to rescind the contract (Section 321 BGB [German Civil Code]). In the case of contracts for the manufacture of non-fungible goods (custom-made items), TiCad may immediately declare rescission; the statutory provisions on the dispensability of setting a time limit shall remain unaffected.

 

Section 7 Retention of Title

(1) Until all present and future claims have been fully paid, TiCad shall retain title to the Products ordered and handed over or delivered to the ordering party. Until the claims secured have been fully paid, the Products under retention of title shall not be pledged to third parties or be assigned as collateral. The ordering party shall promptly notify TiCad in writing, if and insofar as third parties seize these Products.


(2) If TiCad repossesses the delivery item in exercise of its right to retain title, this shall constitute rescission of the contract only if TiCad expressly declares so. TiCad may satisfy its claims by selling on the open market the goods under retention of title that have been repossessed.


(3) The ordering party shall have the possibility of on-selling and/or processing the Products that are under retention of title in the ordinary course of its business. In such case, the following provisions shall apply additionally:


(a) This retention of title shall extend to the Products, at their full value, resulting from any processing, mixing or combining of TiCad's Products; TiCad shall be deemed to be the manufacturer in this respect. If third-party rights of title remain in effect following any processing, mixing or combining with third-party Products, TiCad shall acquire joint title in the ratio of the invoiced values of the goods processed, mixed or combined. Moreover, the same terms as those applicable to the Products delivered under retention of title shall apply to such resulting goods.

 

(b) The ordering party hereby assigns to TiCad as collateral, in total or in the sum of any co-ownership share to which TiCad is entitled under the above subsection, the claims resulting against third parties from any on-selling of the Products or any resulting Product. TiCad hereby accepts this assignment. The ordering party's duties to notify under subsection (1) above shall also apply with regard to the claims assigned.


(c) The ordering party shall, along with TiCad, remain authorised to collect the claim. TiCad hereby undertakes not to collect the claim as long as the ordering party meets its payment obligations in relation to TiCad, is not in arrears with payment, no application for the institution of insolvency proceedings has been filed, and no other lack of ability to pay on the part of the ordering party exists. If this is the case, however, TiCad may demand that the ordering party inform it of the claims assigned and the debtors concerned, provide it with all information necessary for collecting the claim, hand over all relevant documents and notify the debtors (third parties) of this assignment.


(d) If the realisable value of the collateral exceeds TiCad's claims by more than ten (10) %, TiCad shall, at the ordering party's request, release collateral of its choosing.

 

Section 8: Claims of the Ordering Party Relating to Defects

(1) If the ordering party is a merchant as defined by the Handelsgesetzbuch [German Commercial Code], a prerequisite for defect-related claims of the ordering party shall be that the ordering party must have met its statutory duties to inspect the goods and give notification of any defects. If a defect becomes apparent during such inspection or at a later date, TiCad shall be promptly notified thereof in writing. Such notification shall be deemed to have been given promptly, if given within five (5) business days; sending off such notification in due time shall suffice to meet this time limit. Notwithstanding this duty to inspect the goods and give notification of any defects, the ordering party shall give written notification of obvious defects (including incorrect delivery or under-delivery) within five (5) business days of delivery; sending off such notification in due time shall, also in this case, suffice to meet this time limit. If the ordering party fails to properly inspect the goods and/or give notification of defects, any warranty and liability for the defect not reported shall be excluded.

 

(2) If the Products are defective, the ordering party may demand, as supplementary performance, that the defect be eliminated (rectification) or a defect-free item be delivered (replacement delivery). If the ordering party fails to declare which of the two rights it chooses, TiCad may set the ordering party a reasonable time limit for this. If the ordering party does not choose within this time limit, the right to choose shall pass to TiCad when this time limit expires. The ordering party shall be entitled to rescind the purchase contract or reduce the purchase price only if supplementary performance has failed, or a reasonable time limit set by the ordering party for supplementary performance has expired to no avail, or the setting of such time limit is unnecessary under the statutory provisions. No right of rescission shall exist in the case of an insignificant defect.


(3) TiCad shall be entitled to demand, as a precondition for its rendering of the supplementary performance owed, that the ordering party pay the purchase price due. However, the ordering party shall be entitled to retain a portion of the purchase price that is proportionate to the defect.

 

(4) The ordering party shall give TiCad the time and opportunity necessary to render the

supplementary performance owed, particularly by handing over for test purposes the Products complained of. In the event of a replacement delivery, the ordering party shall return the defective item in accordance with the statutory provisions.

 

(5) The warranty shall cease to apply, if, without TiCad's consent, the ordering party alters a Product ordered, or causes a third party to alter a Product ordered, and this makes it impossible or unreasonably more difficult to eliminate defects. In any event, the ordering party shall bear the extra defect elimination costs arising as a result of such alteration.


(6) Insofar as a defect actually exists, TiCad shall bear the expenditure necessary for the purpose of testing and supplementary performance, particularly transportation costs, transport infrastructure costs, labour costs and the cost of materials. If the ordering party makes an unjustified request for defect elimination, TiCad may demand reimbursement of the costs incurred as a result thereof.

(7) Leather is a natural Product. For this reason, the colour, shade, structure, smoothness and surface texture of the leather components of the Product supplied to you may differ from any colour samples you may have seen. These kinds of differences can also be the result of the tanning and dying process and/or the way the leather is processed. These kinds of differences do not constitute a material defect and do not entitle customers to refuse acceptance of the Product, to complain, or to a repair and/or replacement of the Product, and/or to return the Product. These kinds of differences furthermore do not entitle customers to demand a reduction of the purchase price or to withdraw from their sales contract.

 

Section 9: Liability

(1) Except where otherwise ensues from these GTCs, including the following provisions, TiCad shall be liable in accordance with the relevant statutory provisions in the event of any breach of contractual or extracontractual duties. TiCad shall be liable for damages in the event of wrongful intent or gross negligence, regardless of the legal basis. In the event of ordinary negligence, TiCad shall be liable only (a) for loss arising from mortal injury, physical harm or health damage, (b) for loss arising from any breach of a material contractual duty (an obligation that needs to be fulfilled in order for the contract to be implemented in the first place and upon the performance of which the other party to the contract normally relies and may rely); in such case, however, liability shall be limited to compensation for the foreseeable loss typically occurring.


(2) The above limitations of liability shall not apply insofar as TiCad has fraudulently concealed a defect or has given a guarantee for the qualities of the Products. The same shall apply to claims of the ordering party under the Produkthaftungsgesetz [Product Liability Act].

 

(3) If any loss is attributable to fault on the part of both TiCad and the ordering party, the ordering party shall allow its share of fault to be taken into account. The ordering party shall be regarded as being predominantly at fault particularly if the ordering party failed to point out to TiCad the risk of any unusually high loss.


(4) TiCad is not liable for damages to trolleys and consequential damages caused by fall, collision and water damages resulting from the utilization of the optional remote control.

 

(5) The buyer is obligated to include the liability in the respective contractual relationship when reselling the products to end customers.

 

Section 10: Limitation

(1) Contrary to Section 438 (1), No. 3 BGB [German Civil Code], the general limitation period for claims arising from defects in quality or title shall be one (1) year from the passage of risk. Insofar as an acceptance inspection has been agreed upon, the limitation period shall begin at the time of acceptance. Special statutory provisions concerning third-party claims to in-rem repossession, concerning cases of fraud and concerning claims in recourse against the supplier in cases where the final delivery is made to a consumer (Section 479 BGB) shall remain unaffected.

 

(2) The above limitation periods under sales law shall also apply to contractual and extra-contractual damage claims of the ordering party that are based on a defect in the Products, unless the application of normal statutory limitation would lead to a shorter limitation period in an individual case. In any event, the limitation periods under the Produkthaftungsgesetz shall remain unaffected.

 

Section 11: Data Protection

(1) TiCad shall observe the provisions of data protection law when processing the ordering party's data necessary for handling transactions.

 

(2) TiCad's employees shall maintain data secrecy in accordance with Section 5 BDSG [German Federal Data Protection Act]. Thereunder, employees are prohibited from processing or using personal data outside of the legitimate performance of their remit. This shall also apply in cases where employees obtain knowledge of data on account of their activities for customers or suppliers. This obligation shall also remain in effect in the event that the employee's remit changes or the employment relationship ends. It shall be pointed out to employees that breaches of data secrecy are punishable by law and could have consequences under labour law.

 

Section 12: Amendment of these GT&Cs

(1) TiCad shall be entitled to amend or supplement these GTCs with one (1) month's prior notice and to take the amended GTCs as a basis for the ongoing business relationship. The amended and/or supplemented GTCs, as well as the ordering party's corresponding right to object shall be pointed out to the ordering party by means of a specifically designated note in the invoice. If the ordering party does not object to the amended GTCs within one (1) month of receipt of the notification of amendment, and if the ordering party continues the business relationship with TiCad in the form of further purchase orders, the amendments shall enter into effect.


(2) Insofar as the ordering party objects to any amendment and/or supplementation of these GTCs, the business relationship and the delivery of Products shall be continued on the terms and conditions applicable hitherto. In such case, however, TiCad shall be entitled to decline offers from the ordering party and discontinue delivering Products, insofar as Products are ordered after the aforementioned one-month time limit has expired.

 

Section 13: Miscellaneous

(1) These GTCs and all legal relations between TiCad and the ordering party shall be governed by the laws of the Federal Republic of Germany, excluding all international and supranational contracting rules and legal systems, particularly UN sales law. However, the prerequisites and effects of the retention of title under Section 7 of these GTCs shall be subject to the laws applicable at the respective place where the item is stored insofar as the choice of law in favour of German law is impermissible or ineffective thereunder.

 

(2) If the ordering party is a merchant as defined by the Handelsgesetzbuch [German Commercial Code], a legal entity under public law or a public fund, Hanau shall, also internationally, be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.


(3) If any individual provisions of these GTCs are or become wholly or partly ineffective or inoperable, the effectiveness and operability of the other provisions shall remain unaffected. Any ineffective or inoperable provision shall be replaced with a provision that, in a permissible manner, achieves as far as possible the commercial outcome aimed at with the ineffective or inoperable provision. This shall apply equally to omissions in these GTCs.