thermohauser General terms and conditions

General Terms and Conditions

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General Terms and Conditions of Sale, Delivery and Payment of thermohauser GmbH, Bleichereistr. 28, 73066 Uhingen, Germany (Status: September 2015)

 

§ 1 Scope and general provisions

1. The following terms and conditions apply to all current and future business relations, even if they are not expressly agreed again.

2. Contractors in terms of these business conditions are natural persons, legal entities or partnerships with legal capacity with which thermohauser GmbH will enter into a business relationship and which act in commercial or professional activities.

3. General terms and conditions which deviate from the above conditions, preclude them or they are intended to supplement them will not become part of the contract at any time unless their validity is expressly agreed in writing.

§ 2 Conclusion of a contract

1. Our offers are subject to change and non-binding unless we have expressly designated them as binding. We reserve the right to alter technical design, form, color and weight as far as this does not impair the functionality of the goods and is reasonable for the customer.

2. Orders are only binding for us if we confirm them in writing within two weeks or if we comply with the order by delivering the goods. Verbal agreements are only binding if they are confirmed by us in writing. The invoicing can be equated to an order confirmation.

3. Every contract is concluded on our part subject to the correct and timely self-delivery by our suppliers. However, this applies only if a non-delivery is not attributable to us, especially when we complete a congruent covering transaction with our supplier.

4. We reserve our property rights, copyrights and other intellectual property rights for all illustrations, calculations, drawings and other documents. The customer may pass them on to third parties only with our written consent, regardless of whether we have marked them as confidential.

5. If we provide the customer with images and texts for catalogs and similar promotion materials, we explicitly reserve the copyright and other intellectual property rights. The customer may pass on this material only with our written consent which is revocable at any time. The transfer of image and text material may only be carried out for the distribution of our products in the form of catalogs and promotion materials in line with usual business practices. Changes and/or supplements are not permitted without our approval.

§ 3 Retention of title

1. We reserve title to the goods until the full settlement of all claims against the customer arising from an ongoing business relationship, due to us now or in the future, has been made.

2. If the customer breaches the contract or is in default of payment, we are entitled, after setting a reasonable time limit, to rescind the contract and to reclaim the goods. If we take back the reserved goods, this represents a withdrawal from the contract. The transport costs arising from this are borne by the customer. If we seize the reserved goods, this is a withdrawal from the contract. We are entitled to dispose of the goods after seizing them. After deduction of a reasonable amount for the exploitation costs, the exploitation proceeds will be offset against the amounts owed by the customer.

3. The buyer is in any case obliged to treat the goods with care and to insure them sufficiently at his own expense against fire, water damage and theft at replacement value until they are transferred to his ownership by full payment.

4. The customer is entitled to resell the goods in the ordinary course of business and/or to use them as long as he is not in default of payment. Pledges or security transfers are not permitted. The claims resulting from the resale or any other legal grounds (insurance, tort) with respect to the conditional goods (including all balance claims from current accounts) are transferred to us by the contractor by way of security in full extent to us; we herewith accept the transfer. We revocably authorize the contractor to collect the receivables transferred to us for his own account in his own name. The collection authorization can be revoked at any time if the contractor does not properly fulfill his payment obligations. The contractor is also not authorized to transfer the claim for the purpose of debt collection by way of factoring, unless at the same time an obligation is established for the factor to effect the consideration in the amount of the claims directly to us as long as claims by us against the contractor remain. The contractor undertakes to forward the collected amount to us in the amount of our invoice. At the same time the contractor authorizes us to collect the claim ourselves as soon as the customer is in default of payment to us. We are, however, not obligated to collect the claim ourselves.

5. If the contractor processes the goods, he shall do this only in our name and on our behalf. He undertakes to inform his business partner of this. We acquire co-ownership of a new object resulting from processing with an external object. Our co-ownership corresponds to the ratio of the value of the goods supplied by us (final invoice amount including VAT) to the other processed items. The same applies in the case of mixing. If the object provided by the contractor is to be considered the principal object as a result of mixing, the contractor and we agree that the contractor shall transfer proportionate co-ownership of the object to us; we hereby accept the transfer. Our thus created sole or joint ownership of one object is held by the contractor for us. In the event of a resale of an object thus under our ownership, the transfer of claims is carried out in terms of paragraph 5 in proportion of the value of our co-ownership to the value of the co-ownership of other suppliers claiming retention of title.

6. We are to be notified immediately of any damage to or destruction of the goods as well as third-party access to the goods so that we can enforce our ownership rights. The same applies if the goods are transferred to the possession of a third party. The customer shall reimburse us for all damages and costs arising from a breach of this obligation and from necessary intervention measures against accesses of third parties.

7. We are obliged to release the securities as far as the realizable value of our securities exceeds the secured claims by more than 10%; it is incumbent upon us to select the securities to be released.

§ 4 Consent to a return of goods

Exceptionally, we can – if there is no shortcoming of the goods – agree on a reversal of the sale within 6 months from the date of delivery of the goods. In this case, the customer is obligated to return the goods in their original packaging and to pay a compensation of 15% of the net selling price plus the applicable VAT. The above shall not apply to special designs.

§ 5 Prices / conditions of payment

1. Our prices are ex works Uhingen excluding packaging unless otherwise specified in the order confirmation. VAT is not included in our prices.

2. Prices contained in order confirmations are binding for a period of 30 days from their date. After that, price changes are reserved and permitted for the case that the material and production costs have increased by more than 5% since order confirmation.

3. For first-time customers or ongoing business relationships of less than six months, the shipment of goods is made against advance payment, from then on against invoice. In the case of a sale to destination, the shipping is done at the expense of the purchaser.

4. A discount is only permitted if there is a special written agreement between us and the customer. The customer agrees to pay the purchase price within 14 days after receiving the goods. After expiration of this period, the customer is in default of payment. A payment is considered to have been made when we can dispose of the amount. In the case of payment by check, the payment is considered made only when the check is cashed.

5. If the customer is in default of payment, the statutory regulations apply for all other purposes.

6. Any set-off by the customer is excluded unless his claims are legally established or recognized by us.

7. A right of retention is excluded unless the counterclaim of the customer is based on the same contract.

§ 6 Delivery and Performance periods

1. Delivery dates or deadlines that have not been expressly agreed as binding, are exclusively non-binding.

2. Delivery delays due to force majeure and due to events that substantially complicate the delivery or make it impossible (e.g. strike, lockout, official directives, etc.), even if they occur with our suppliers or their subcontractors, extend the agreed binding delivery period within reasonable limits. The aforementioned circumstances are also not our responsibility if they occur during an already existing delay.

3. We are entitled to provide partial deliveries and partial services at any time to the extent that this is reasonable for the customer.

4. If the customer is in default of acceptance, we are entitled to demand compensation for the resulting damage and any additional expenses. The same applies if the customer violates his obligation to cooperate. Upon occurrence of acceptance or debtor default, the risk of accidental deterioration and accidental loss passes to the customer.

§ 7 Passing of Risk – Shipping / Packaging

1. Loading and dispatch are uninsured at the risk of the customer. We will endeavor to take into account the needs and interests of the customer in terms of type and route of shipment; any additional costs – even at agreed free delivery – shall be borne by the customer.

2. An insurance obligation on our part does not exist. At the request and expense of the customer, however, we will secure the delivery by a transport insurance.

3. Packaging is, unless otherwise agreed, charged at net cost price. In addition, the statutory provisions of the packaging ordinance shall apply.

4. The risk of accidental loss and accidental deterioration of the goods passes upon transfer, in the case of sale to destination with the delivery of the object, to the shipping agent, the carrier or any other person or institution designated to execute the dispatch to the customer. We are not liable for damage in transit. Instead, it is incumbent upon the recipient to immediately impose liability upon receipt of the shipment on the railway company, postal service or freight forwarder. If shipping damage is reported to us, this can only be considered for transfer to the transportation person insofar as we have received the notification no later than five days after delivery of the shipment.

5. Delivered objects are to be taken over by the customer. The customer is obligated to accept the goods by rail, postal service or freight forwarder only conditionally in order to protect the rights to assert damage in transit.

6. The goods are transferred even if the customer is in default of acceptance.

7. If the shipment is delayed at the request or due to a fault of the customer, we shall store the goods at the expense and risk of the customer. In this case, the notification of readiness for dispatch is considered equal to dispatch. Beginning one month after notification of readiness for shipment, the costs incurred for storage, at least in the amount of 0.5% of the invoice net amount for each month are invoiced to the customer. After setting and fruitless expiry of a reasonable period of time, we are also entitled to dispose of the delivery items. Further damages are not excluded.  

§ 8 Warranty

1. Warranty claims by the customer shall only exist if the customer has properly fulfilled his inspection and complaint duties in accordance with § 377 HGB.

2. The customer shall give written notice of obvious defects within two weeks after receipt of the goods, otherwise the assertion of the warranty claim is excluded. To safeguard the deadline, the timely dispatch of the complaint is sufficient. The customer has the burden of proof for all claim requirements; that is, for the defect itself, the time of discovery of the defect and the timeliness of the complaint.

3. If there is a defect in the goods that we are responsible for, we are excluding the rights of the customer to rescind the contract or reduce the purchase price (reduction), and are obliged to a subsequent performance, unless we are entitled to refuse subsequent performance due to statutory regulations. The customer has to grant us a reasonable time period for subsequent performance. The subsequent performance can be carried out at the customer's discretion by rectifying the defect (improvement) or delivery of new goods. In case of rectification of defects, we shall bear the necessary expenses, provided these are not increased because the subject matter is located at a location other than the place of performance. If the subsequent performance fails, the customer can at his discretion demand a reduction of the purchase price or declare withdrawal from the contract. The subsequent performance is considered to have failed after the second unsuccessful attempt unless further attempts are sensible and can be reasonably expected by the customer due to the object of the contract. Claims for damages under the following conditions because of a defect can only be asserted by the customer if the subsequent performance has failed. The customer's right to assert further claims for damages under the conditions named hereafter remains unaffected.

4. The warranty claims of the customer expire one year after delivery of the goods to the customer, unless we have fraudulently concealed the defect; in this case, the legal regulations apply. Our obligations under paragraphs 5 and 6 shall remain unaffected.

5. In accordance with the legal requirements, we are obligated to withdraw new goods or to reduce the purchase price even without the formal notice otherwise required if a buyer of the customer as a consumer of the new movable thing (consumer sales) could demand the return of the goods or a reduction of the purchase price due to a fault in these goods, or if the customer faces this type of recourse claim. Furthermore, we are obliged to reimburse expenses of the customer, in particular transport, travel, labor and material costs that he had to bear in relation to the end-user within the framework of subsequent performance due to a defect in the goods present at the transfer of risk from us to the customer. The claim is excluded if the customer has failed to properly fulfill his inspection and complaint duties in accordance with § 377 HGB.

6. The obligation in accordance with clause 5 is excluded unless it concerns a defect due to advertising statements or other contractual agreements that do not originate from us, or if the customer has given a special guarantee to the final consumer. The obligation is also excluded if the customer himself was not obliged to exercise the warranty rights towards the final consumer according to legal regulations or had not made this complaint concerning a claim placed against him. This also applies if the customer has assumed warranties towards the final consumer which go beyond the statutory requirements.

7. Changes in the composition of the materials used and the use of other materials do not constitute a defect with an otherwise unchanged functionality of the goods.

§ 9 Liability

1. Claims not expressly granted in these terms and conditions, in particular claims by the customer for damages for any form of improper performance of the contract as well as cases of tort, are excluded. The exclusion of liability does not apply to intent or gross negligence. We are also liable for slight negligence insofar as they concern obligations which are essential for achieving the purpose of the contract and on the strict adherence of which the customer can rely ("cardinal obligations").

2. Should we come into default regarding our delivery obligations, our customer – if he proves that loss or damage has arisen from it – can claim a compensation for each full week of delay of max. 0.5%, but in total a maximum of 5% of the price of that part of the deliveries which could not be used appropriately due to the delay. Claims for damages by the customer due to delayed deliveries as well as claims for damages in lieu of performance that go beyond the above-mentioned limits are excluded in all cases of delayed delivery, even after expiry of a deadline to deliver extended to us.

3. This exclusion of liability does not apply to damage to life, limb or health, damaged based on malice, a negligent or intentional breach of duty by us, our legal representatives or our vicarious agents, as well as for damages covered by liability under the Product Liability Act.

4. The amount of our liability for damages is limited to damages which are typical for the type of contract and foreseeable; damages which are untypical for the contract and unpredictable shall not be accepted in any case.

§ 10 Surcharge for small quantities

For orders that do not reach a contract price of EUR 100.00 net, we charge a surcharge of EUR 10.00 net.

§ 11 Excess or short deliveries

We are authorized to provide excess or short deliveries per order and adjust the sales price of the delivery quantity accordingly. An excess or short delivery of 10% of the order shall be deemed free of defects.

§ 12 Final Provisions

1. The law of the Federal Republic of Germany is applicable.

2. To the extent permitted by law, the exclusive jurisdiction for disputes arising from this contract shall be our place of business. However, we are entitled to sue at the general jurisdiction of the customer.

§ 13 Severability clause

Should individual provisions of the contract with the customer including these general terms and conditions be or become totally or partly ineffective, the validity of the remaining provisions is not affected. The wholly or partially invalid provision shall be replaced by a provision which resembles the invalid provision as closely as possible in terms of economic success.