General Terms and Conditions of

TM-Petroleum

Status: 01 October 2020

1. scope of application

1. These terms and conditions shall apply exclusively. We shall only recognise terms and conditions of the customer that conflict with or deviate from our terms and conditions if we expressly agree to their validity in writing or in text form. Our terms and conditions shall also apply if we carry out the delivery to the purchaser without reservation in the knowledge that the purchaser’s terms and conditions conflict with or deviate from our terms and conditions.

2. These terms and conditions shall also apply to all future transactions with the buyer.

3. individual agreements made with the buyer in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these terms and conditions. Subject to proof to the contrary, a contract concluded at least in text form or our confirmation at least in text form shall be authoritative for the content of such agreements.

2. Offer, documents

1. if an order is to be regarded as an offer in accordance with § 145 BGB (German Civil Code), we may accept it within two weeks.

2. We reserve the property rights and copyrights to all documents provided to the customer in connection with the placing of the order – also in electronic form – such as calculations, drawings, etc. These documents may not be made accessible to third parties. These documents may not be made accessible to third parties unless we give the purchaser our express consent to this, at least in text form. Insofar as we do not accept the orderer’s offer within the period of § 2, these documents must be returned to us immediately.

3. prices, terms of payment, set-off, Right of retention

1. Unless otherwise agreed at least in text form, our prices shall apply ex our warehouse excluding packaging and plus value added tax at the applicable rate. Packaging costs will be invoiced separately.

2. the deduction of a discount is only permissible in the event of a special agreement at least in text form.

3. Unless otherwise agreed, the purchase price shall be paid within 10 days of delivery. The statutory default regulations shall apply.

4. unless a fixed price agreement has been made, reasonable price changes due to changes in wage, material and distribution costs for deliveries which take place 3 months or later after conclusion of the contract shall be reserved.

5. the customer shall only be entitled to set-off if his counterclaims have been legally established, are undisputed or have been acknowledged by us.

6. the customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

4. Delivery time
1. the start of the delivery time stated by us presupposes the timely and proper fulfilment of the purchaser’s obligations as well as the completed clarification of all technical questions. We reserve the right to plead non-performance of the contract.

2. If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims. If the above conditions are met, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.

3. Further legal claims and rights of the purchaser due to a delay in delivery remain unaffected.

5. Transfer of risk in case of shipment
1. If the goods are shipped to the customer at the customer’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to the customer, at the latest upon leaving the warehouse. This applies irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs. 2.

2. if the customer so wishes, we shall cover the delivery by transport insurance. The costs incurred in this respect shall be borne by the customer.

6. Retention of title

1. We retain title to the delivered goods until full payment of all claims arising from the delivery contract. This also applies to all future deliveries, even if we do not always expressly refer to this. We shall be entitled to take back the object of sale if the customer acts in breach of contract.

2. The purchaser is obliged to treat the object of sale with care as long as ownership has not yet passed to him. In particular, he is obliged to insure it adequately at his own expense against theft, fire and water damage at the replacement value. If maintenance and inspection work has to be carried out, the customer shall carry this out in good time at his own expense.

As long as ownership has not yet been transferred, the customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with § 771 of the German Code of Civil Procedure (ZPO), the purchaser shall be liable for the loss incurred by us.

3. The customer is entitled to resell the reserved goods in the normal course of business. The purchaser hereby assigns to us the claims against the customer arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the purchased goods have been resold without or after processing. The customer remains authorised to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we shall not collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.

4. The processing or transformation of the object of sale by the customer shall always be carried out in our name and on our behalf. In this case, the purchaser’s expectant right to the object of sale shall continue to apply to the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the item of the customer is to be regarded as the main item, it shall be deemed agreed that the customer shall transfer co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created in safe custody for us. In order to secure our claims against the purchaser, the purchaser also assigns to us such claims against a third party which accrue to him through the combination of the reserved goods with a property; we accept this assignment already now.

5. We undertake to release the securities to which we are entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 20%.

7. Warranty and notice of defects, recourse, Manufacturer’s recourse

1. the purchaser’s warranty rights presuppose that he has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).

2. If, despite all due care, the delivered goods show a defect which was already present at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We shall always be given the opportunity to remedy the defect within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the above provision without restriction.

3. subsequent performance shall be deemed to have failed at the earliest after the third unsuccessful attempt. If the subsequent performance fails, the customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration, provided that the other statutory requirements are met.

4. claims for defects shall not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear as well as in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or due to special external influences which are not assumed under the contract. If the purchaser or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences.

5. Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a place other than the customer’s place of business, unless the transfer is in accordance with their intended use.

6. the purchaser’s right of recourse against us shall only exist insofar as the purchaser has not entered into any agreements with its customer that go beyond the statutory mandatory claims for defects. Furthermore, paragraph 5 shall apply accordingly to the scope of the purchaser’s right of recourse against the supplier.

7. claims for defects shall become statute-barred 12 months after delivery of the goods supplied by us to our purchaser. The statutory limitation period shall apply to claims for damages in the event of intent and gross negligence as well as in the event of injury to life, body and health which are based on an intentional or negligent breach of duty by the user. (Note: in the case of the sale of used goods, the warranty period may be excluded altogether with the exception of the claims for damages mentioned in sentence 2). Insofar as longer periods are prescribed by law in accordance with § 438 para. 1 no. 2 BGB (buildings and items for buildings), § 445 b BGB (right of recourse) and § 634a para. 1 BGB (construction defects), these periods shall apply. Our consent must be obtained before any goods are returned.

8. claims for damages

1. in the case of slightly negligent breaches of duty, our liability shall be limited to the direct damage which is foreseeable and typical for the contract according to the type of goods.

This also applies to slightly negligent breaches of duty by our legal representatives and vicarious agents. However, we shall not be liable in the event of a slightly negligent breach of immaterial contractual obligations.

2. Furthermore, we shall not be liable for gross negligence of simple vicarious agents, unless they violate essential contractual obligations. If a simple vicarious agent violates essential contractual obligations through gross negligence, our liability shall be limited to the direct damage that is foreseeable and typical for the type of goods.

3. The above limitations of liability do not apply to claims of the customer arising from product liability. Furthermore, the limitations of liability shall not apply in the event of bodily injury or damage to health attributable to us or in the event of loss of life of the customer.

4. if the customer withdraws from the contract after the conclusion of the contract, which, with the exception of withdrawal due to defects, is only permissible in the event of a breach of duty for which we are responsible, the customer shall not be entitled to any additional claims for damages.

9. Applicable law, place of fulfilment and jurisdiction place of jurisdiction, partial invalidity

1. This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

2. The place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our registered office, unless otherwise stated in the order confirmation.

3. Insofar as individual provisions of this contract should be invalid or unenforceable, the validity of the other contractual provisions shall not be affected thereby.