General Terms and Conditions
GENERAL TERMS AND CONDITIONS of thermohauser GmbH
(as amended: March 15, 2021)
PART 1 GENERAL TERMS AND CONDITIONS
1. SCOPE OF APPLICATION, GENERAL PROVISIONS
1.1. These General Terms and Conditions ("GTC") apply to all current and future business relations with our customers ("Customers"). The GTC shall only apply if the Customer is an entrepreneur (Art. 14 BGB (German Civil Code)), a legal entity under public law or a special fund under public law.
1.2. These GTC apply in particular to business relations where the Customer commissions
- a. the sale and/or delivery of movable objects ("Products"), regardless of whether we manufacture the Products ourselves or acquire the Products from our suppliers (Art. 433, 651 BGB); and/or
- b. the provision of repair services or safety-related inspections ("Works").
Within the scope of these GTC, the term “Services” means any kind of our activities unless expressly described otherwise.
1.3. Our GTC comprise three parts. Part 1 governs the general terms and conditions, Part 2 the special terms and conditions for the sale and delivery of Products and Part 3 the special terms and conditions for Works.
1.4. Unless otherwise agreed upon, these GTC as amended at the time of Customer’s order or as last communicated to Customer in text form, shall further constitute a framework agreement applying also to all similar future contracts without having to refer to them in each individual case; we will immediately inform the Customer of any amendment of our GTC.
1.5. Our GTC shall apply exclusively. Any differing, conflicting or supplementary terms and conditions of the Customer will become part of the contract only if and to the extent we have expressly agreed to their applicability. Such approval requirement shall apply in any case, for example, even if we unconditionally perform our Services in knowledge of the Customer’s general terms and conditions. Any individual arrangements agreed upon with the Customer in individual cases (including side agreements, amendments and modifications) shall in any case prevail over these GTC. Subject to any counterevidence, a written agreement or our written confirmation shall be decisive for the content of such agreement.
1.6. Legally relevant declarations and notices by the Customer in connection with the contract (e.g., setting of deadlines, notifications of defects, declarations of rescission or reduction) shall be made in writing, i.e. in written form or text form (e.g., letter, email, fax). Legal form requirements and further evidence, in particular in connection with doubts as to the declaring party’s legitimation shall remain unaffected.
1.7. Any reference to the applicability of statutory provisions is only made for clarification purposes. Such statutory provisions shall thus be applicable even without such clarification unless they have directly been amended or expressly excluded by these GTC.
2. CONTRACT CONCLUSION
2.1. Our offers are subject to change and non-binding unless expressly designated as binding by us. We shall reserve the right to any amendments in terms of technical implementation, form, color and weight unless such amendments impair the Products’ functionality and are not reasonable for the Customer.
2.2. By placing the order, the Customer bindingly declares his intent to purchase the ordered Products or to commission the requested Works or other Services. Unless otherwise provided for by the contract offer established by the order or the request, we shall be entitled to accept such offer within a period of two (2) weeks after receipt. Acceptance shall be declared in writing, in text form, or by delivery of the ordered Products. Issuing an invoice shall be treated as an acceptance of the order.
2.3. The scope of the contractually owed delivery or service is subject to our confirmation of the order, if made, including these GTC. Oral side agreements made prior to the confirmation of the order are not binding unless confirmed by us in writing or in text form. The order confirmation shall replace any oral side agreements unless it is expressly clear from them that they are binding. Part 1 Section 1.6 of these GTC shall remain unaffected.
2.4. Every contract will be concluded by us subject to a correct and timely delivery by our suppliers. This shall, however, only apply if any non-delivery is not our fault and if we enter into a congruent hedging transaction with our supplier. If the Products should not be available, we shall immediately inform our Customer and, to the extent we already received a consideration, immediately refund such payment to the Customer.
2.5. We shall reserve all title, copyrights and other property rights in all catalogues, technical documentations (e.g., illustrations, drawings, service specifications, plans, calculations, references to DIN norms) as well as other Product descriptions or documents – also such in electronic form. Customer may transfer such documents to third parties only with our written consent, regardless of whether or not they have been marked by us as confidential.
2.6. To the extent we provide the Customer with any pictures and texts for catalogues and similar advertising materials, we shall also expressly reserve any copyrights and other property rights. Customer may provide such materials to any third party only with our written consent which can be revoked at any time. Any provided pictures or texts may only be used in the form of catalogues and customary advertising materials. Any amendment and/or modification shall be inadmissible without our consent.
3. DELIVERY PERIOD, DEFAULT
3.1. Delivery dates or service schedules which have not expressly been agreed upon as binding, shall solely be non-binding information.
3.2. Any delay in performance due to force majeure and due to events which make our performance significantly more difficult or impossible, in particular strikes, lockouts, administrative orders, epidemics or pandemics, shall release us, even if they occur with our suppliers or their subcontractors, from our obligation to a timely provision of services for the duration of such event and shall, to a reasonable extent, extend a bindingly agreed delivery period by the duration of interference. We shall not be responsible for the aforementioned circumstances even if they occur during an already existing delay. If the end of the disruption is not foreseeable or if it lasts longer than three (3) months, each party shall be entitled to withdraw from or terminate the contract. Claims for damages shall be excluded unless the damage is due to any willful intent or gross negligence on our part.
3.3. If the Customer should be in default of acceptance, we shall be entitled to demand the incurred damages and possible additional expenses. The same shall apply if the Customer culpably breaches any obligation to cooperate. Upon occurrence of the default of acceptance or debtor’s delay, the risk of accidental deterioration or accidental loss shall be transferred to the Customer.
4. PRICES, TERMS OF PAYMENT
4.1. Generally, our prices as currently applicable at the date of the contract conclusion shall apply, unless another price has been offered by us in each individual case. Such price offers shall only be binding for a period of thirty (30) days from their date. After conclusion of the contract, we shall reserve and shall be entitled to price changes in the event the cost of materials and production costs should have increased by more than 5 % since the contract conclusion.
4.2. Travel and accommodation expenses, costs for certain tools or materials and costs for third-party services as well as any further indirect expenses shall be refunded separately and in advance unless otherwise agreed upon in writing.
4.3. All prices for deliveries and services shall be in Euro ex works Uhingen plus applicable statutory VAT. Actually incurred packaging, shipment or transport costs of the delivery and, if applicable, transport insurance desired by the Customer shall be invoiced separately and shall be borne by the Customer. Any customs duties, fees, taxes and other public charges shall be borne by the Customer.
4.4. In case of first-time customers and current business relationships of less than six (6) months, services shall be performed against advance payment; after such period on account.
4.5. Cash discounts shall only be admissible in case of a special written agreement between us and the Customer. Customer undertakes to pay the purchase price within fourteen (14) days after delivery or receipt of the Products. Upon expiry of such period, Customer shall automatically be in default without any further reminder being required. Payment shall be deemed effected only when we can dispose of the amount. In case of payments per check, payment shall be deemed effected only when it has been cashed.
4.6. Apart from that, the statutory provisions shall apply if Customer should be in default with any payment.
4.7. If Customer should be in default, we shall be entitled to demand default interest at the currently applicable statutory rate (Art. 288 Sec. 2 BGB). We shall expressly reserve the right to prove and assert further damages caused by default. In relation to merchants, our entitlement to the commercial maturity interest (Art. 353 HGB) shall remain unaffected.
4.8. Customer’s set-off or retention rights shall only be admissible in case of legally established, acknowledged or undisputed claims.
4.9. If, after conclusion of the contract, we should become aware that our claim to the purchase price should be jeopardized by Customer's impossibility to perform (e.g., by filing for insolvency), we shall be entitled to refuse performance and, if applicable, after setting a deadline, to rescind the contract (Art. 321 BGB). In case of contracts for the manufacture of specific items (products made to specification), we may immediately declare our withdrawal; statutory regulations on the dispensability of setting a deadline shall remain unaffected.
5.1. Unless otherwise provided for by these GTC including the following provisions, we shall be liable for a breach of contractual and non-contractual obligations in accordance with applicable statutory provisions.
5.2. We shall be liable to pay damages – irrespective of the legal ground – within the scope of fault-based liability in case of intent and gross negligence. In the event of gross negligence, we shall only be liable for the foreseeable, typically occurring damage. In case of slight negligence, we shall only be liable, subject to a milder liability standard pursuant to legal requirements (e.g., for diligence for our own matters),
- a. for damages from an injury to life, limb or health,
- b. for damages resulting from a significant breach of a material contractual duty (a duty the compliance of which makes the proper execution of the contract possible in the first place and on which the contracting partner regularly relies and may rely); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
5.3. The limitation of liability pursuant to Part 1 Section 5.2 shall also apply to a breach of duty by or in favor of persons for whose fault we are responsible in accordance with statutory provisions. It shall not apply if we fraudulently concealed a defect or assumed a warranty for the quality of the Product as well as for Customers' claims under the German Product Liability Act (ProdHaftG).
5.4. The Customer may only rescind or terminate the Agreement due to a breach of duty not constituting a damage if we are responsible for such breach of duty. Customer’s free right of termination, in particular according to Art. 650, 648 BGB, shall be excluded. Customer’s right to termination for cause shall remain unaffected. Apart from that, the legal requirements and consequences shall apply.
5.5. If we should be in default with our delivery obligation, our Customer may demand – to the extent he can verify that he suffered a damaged resulting from such default – compensation for every full week of default of max. 0.5 %, however, no more than 5 % of the price for that part of the deliveries which could not be used for the intended purpose due to the delay. Both the Customer’s claims for damages due to delay in delivery and claims for damages in lieu of performance exceeding the aforementioned limits shall be excluded in the event of our delay, even after expiry of a deadline set for us for delivery. This shall not apply if the delay is due to our willful intent or gross negligence.
5.6. The Customer shall be obligated to take appropriate measures to defend or mitigate damages.
6. FINAL PROVISIONS
6.1. These GTC shall be governed by the laws of the Federal Republic of Germany; international conflict or uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
6.2. To the extent permitted by law, our place of business shall be the exclusive place of jurisdiction for any disputes under this contract. However, we shall also be entitled to take action at the Customer’s general place of jurisdiction.
6.3. These GTC have been provided to the Customer in German and English. In case of any deviation, the German wording shall prevail.
6.4. If the contract of these GTC should contain a gap, the contracting parties shall be deemed to have agreed upon such legally effective provisions in order to fill this gap which they would have agreed upon in accordance with the contract’s economic objectives and these GTC’ purpose if they had been aware of the gap.
PART 2 SPECIAL TERMS AND CONDITIONS FOR SALES AND DELIVERIES
1. SCOPE OF APPLICATION
1.1. These Special Terms and Conditions for Sales and Deliveries ("Sales Terms") shall apply in addition to the GTC to the extent we undertake to deliver Products to the Customer (Art. 433 et seq. BGB). The Sales Terms shall also apply to contracts the subject matter of which contains the delivery of movable items to be manufactured or produced (Art. 650 BGB).
1.2. In the event of any conflicts between the Sales Terms and the GTC in an individual case, the Sales Terms shall prevail to the extent required to resolve such conflicts.
2. PACKAGING, SHIPMENT, TRANSFER OF RISK
2.1. Unless otherwise agreed upon between the Parties, all deliveries shall be made ex warehouse, which is also the place of performance for the delivery and any subsequent performance.
2.2. We shall at any time be authorized to make partial deliveries and partial performances, to the extent this can be reasonably expected from the Customer.
2.3. Packaging shall be charged at cost, unless otherwise agreed upon. Furthermore, the statutory provisions pursuant to German Packaging Ordinance shall apply.
2.4. At the Customer’s request and expense, the Products will be delivered to another destination (“sale by delivery to a place other than the place of performance” (Versendungskauf)). In deviation of Part 1 Section 3.1, delivery dates in connection with sales by delivery to a place other than the place of performance shall refer to the date of the Product’s transfer to the freight forwarder, carrier or other person or institute engaged with the shipment’s performance (“Transport Person”). Unless otherwise agreed upon, we shall be entitled to freely determine the type of shipment, in particular transport companies, transport route, packaging. Loading and shipment shall generally be made uninsured at the Customer’s risk. However, at the Customer’s request and expense, we shall cover the delivery with transport insurance. We shall endeavor to take into account our Customer’s wishes and interests in connection with the type and route of shipment; any additional costs resulting therefrom – also in case of a delivery carriage paid as agreed upon in individual cases – shall be at the Customer’s expense.
2.5. Delivered items must be accepted by the Customer. The risk of accidental loss and accidental deterioration of the Products shall pass to the Customer upon the Product’s transfer to the Customer at the latest; however, in the case of sale by delivery to a place other than the place of performance, the risk shall pass to the customer when the goods are handed over to the Transport Person. If acceptance has been agreed, this shall be decisive for the transfer of risk. Apart from that, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The Products shall be deemed to have been handed over or accepted if the Customer is in default of acceptance. We shall not be liable for damage during transport. The consignee shall hold the railway company, post office or forwarding agent liable for such damage immediately upon receipt of the consignment. If we are notified of any shipping damage, these can only be taken into account for a corresponding notice to the Transport Person if we are notified no later than five (5) days after delivery of the shipment. To the extent the place of performance deviates from the principle stipulated in Part 2 Section 2.1 and/or transport to a place other than that specified in Part 2 Section 2.1 is made for any other reason at our expense and/or risk, the Customer shall be obliged to inspect the Products’ packaging for damage upon delivery by rail, post or carrier, to record any damage in writing and to have this confirmed by the Transport Person in order to preserve the rights to assert any transport damage.
2.6. The statutory provisions shall apply to the Customer's default in acceptance. If shipment is delayed at the request of or through the Customer’s fault, we shall store the Products at the Customer’s expense and risk. In this case, notification of readiness for dispatch shall be deemed equivalent to dispatch. Starting one (1) month after notification of readiness for dispatch, the Customer shall be charged for the costs incurred by the storage, at least in the amount of 0.5% of the net invoice amount for each month. We shall also be entitled to dispose of the delivery items after setting and fruitless expiry of a reasonable deadline. Further compensation for damages shall not be excluded.
2.7. If our delivery should be delayed, the Customer shall only be entitled to rescind the contract if we are responsible for the delay and if a reasonable grace period set by the Customer for delivery has expired to no avail.
3. QUALITY, CUSTOMER’S RIGHTS IN CASE OF DEFECTS, DUTY TO INSPECT
3.1. Unless otherwise stipulated below, the statutory provisions shall apply to the Customer's rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions).
3.2. Our liability for defects shall in particular be based upon the agreed quality of the Products. All product descriptions which are the subject of the individual contract or which have been publicly announced by us (in particular in catalogs or on our Internet homepage) shall be deemed to be an agreement on the quality of the Products.
3.3. To the extent the quality has not been agreed, the existence of a defect shall be assessed in accordance with the statutory provisions (Art. 434 Sec. 1 S. 2 and 3 BGB). However, we shall not assume any liability for any public statements made by the manufacturer, if any, or other third parties (e.g., advertising statements).
3.4. The Customer's claims for defects shall be subject to the condition that he has complied with his statutory obligations to inspect and give notice of defects (Art. 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or at any later time, we must be notified thereof immediately in writing or in text form. In any case, obvious defects shall be notified to us within five (5) working days from delivery at the latest, and defects which are not apparent upon inspection shall be notified to us within the same period from discovery in writing or in text form. If the Customer fails to duly inspect the Products and/or notify us of defects, our liability for the defect not notified or not notified in due time or not notified properly shall be excluded in accordance with the statutory provisions. The Customer shall have the burden of proof for all eligibility requirements, i.e. for the defect itself, the time of discovery of the defect and the timeliness of the notice of defect.
3.5. If the delivered item should be defective, we may initially choose whether to provide supplementary performance (Nacherfüllung) by remedying the defect (rectification of defect (Nachbesserung)) or by delivering an item free of defects (replacement delivery). Our right to refuse supplementary performance under the statutory conditions shall remain unaffected.
3.6. We shall be entitled to make the owed supplementary performance dependent upon Customer’s payment of the due purchase price. However, the Customer shall be entitled to retain a part of the purchase price that is reasonable in relation to the defect.
3.7. The Customer shall give us the time and opportunity required for the owed supplementary performance, in particular to hand over the rejected Products for inspection purposes. In the event of a replacement delivery, the Customer shall return to us the defective item in accordance with the statutory provisions.
3.8. We shall bear the expenses required for the purpose of inspection and supplementary performance, in particular transport, travel, labor and material costs, if there is actually a defect. Otherwise, we may demand reimbursement from the Customer of the costs incurred as a result of the unjustified request for rectification of the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Customer.
3.9. In urgent cases, for example, if there is a risk to operational safety or in order to prevent disproportionate damage, the Customer shall have the right to remedy the defect itself and to demand from us reimbursement of the objectively required expenses related herewith. We must be notified immediately, if possible, in advance, of any such self-remedy of defects. Customer shall not be entitled to remedy the defect himself if we would be entitled to refuse a corresponding supplementary performance in accordance with statutory provisions.
3.10. If the supplementary performance has failed or a reasonable period to be set by the Customer for the supplementary performance has expired unsuccessfully or is dispensable according to statutory provisions, the Customer may withdraw from the purchase contract or reduce the purchase price. In case of an insignificant defect, however, there is no right of withdrawal.
3.11. Customer’s claims for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with Part 1 Section 5 and shall otherwise be excluded.
3.12. We shall not be liable for the consequences of any improper modification or treatment of the Products or for the consequences of inadequate maintenance on the part of the Customer or third parties, or for defects due to normal wear and tear or caused by transport.
3.13. If the supplementary performance has failed or if a reasonable period to be set by the Customer for the supplementary performance has expired unsuccessfully or is dispensable according to statutory provisions, the Customer’ rights shall be governed by the statutory provisions taking into account Part 1 Section 5 of these GTC.
3.14. To the extent we should exceptionally - if there is no defect in the Products - agree to a reversal of the purchase transaction, the Customer shall return the Products to us in their original packaging and pay a compensation of 15% of the net purchase price plus the applicable statutory VAT. There is no entitlement to such a reversal; for custom-made products (i.e. goods that have been customized or individually manufactured according to the Customer's wishes) it will not be offered in any case.
4. RETENTION OF TITLE
4.1. We shall reserve title to the Products until full settlement of any and all current or future receivables from the Customer under the respective contract and a current business relationship (“Reserved Goods”).
4.2. If the Customer should act in breach of contract or should default on payment, we shall be entitled to withdraw from the contract and demand the return of the Reserved Goods after setting a reasonable deadline. If we take back the Reserved Goods, this shall constitute a withdrawal from the contract. The transport costs resulting therefrom shall be borne by the Customer. If we seize the Reserved Goods, this shall constitute a withdrawal from the contract. We shall be entitled to utilize the Reserved Goods after taking them back. After deduction of a reasonable amount for the utilization costs, the utilization proceeds shall be offset against the amounts owed to us by the Customer.
4.3. Customer shall in any case be obliged to treat the Reserved Goods with care and to insure them at its own expense against any damage by fire, water and theft at their replacement value until they become the Customer’s property through full payment.
4.4. The Customer shall be entitled to resell and/or use the Reserved Goods in the ordinary course of business as long as he is not in default of payment. Any pledges or transfers by way of security are not permitted. Contractor herewith fully assigns to us by way of security any claims arising from the resale or any other legal reason (insurance, tort) in connection with the Reserved Goods (including all balance claims from the current account); we hereby accept such assignment. We revocably authorize the Contractor to collect the claims assigned to us for its account in its own name. The direct debit authorization may be revoked at any time if the Contractor does not properly meet its payment obligations. The Contractor shall also not be authorized to assign this claim for the purpose of collecting the claim by way of factoring, unless the assignment concurrently establishes the factor’s obligation to effect the counter-performance in the amount of the claims directly to us, as long as we still have any claims against the Contractor. The Contractor undertakes to forward to us the collected amount in the amount of our invoice. At the same time, the Contractor authorizes us to collect the claim ourselves as soon as the Contractor defaults on any payment to us. However, we shall not be obliged to collect the claims ourselves.
4.5. The Customer shall be obliged to comply with the relevant laws, in particular the law against unfair competition, when reselling or handing over the Reserved Goods.
4.6. If the Customer processes or handles goods, he shall do so only in our name and on our behalf. He undertakes to point this out to his business partners. We shall acquire co-ownership of a new item created by processing with an external item. Our co-ownership shall correspond to the proportion of the value of the goods delivered by us (final invoice amount including VAT) to the other processed items. The same shall apply in case of mixing. If the Customer 's item is to be regarded as the main item as a result of the mixing, the Customer and we agree that the Customer shall transfer pro rata co-ownership of this item to us; we hereby accept the transfer. Our sole or co-ownership of an item thus created shall be held by the Customer in safe custody for us. In the event of the resale of an item which is therefore co-owned by us, the assignment of claims pursuant to Part 2 Section 4.4 shall be made proportionately in the ratio of our co-ownership share to the value of the co-ownership share of further suppliers of reserved goods. 4.7. The Customer shall immediately notify us in writing of any damage to or destruction of the Reserved Goods as well as any access by third parties to the Reserved Goods, in particular any seizure or every other impairment of our security interests by any third party, as well as any damage to or destruction of the Reserved Goods, so that we can enforce our property rights. He shall provide us with any documents required for such intervention, reasonably support us during such measures, and bear the intervention costs reasonably incurred by us. The same shall apply if the goods change into the possession of a third party. The Customer shall compensate us for all damages and costs arising from a breach of this obligation and from necessary intervention measures against any third-party access.
4.8. We shall be obligated to release the securities to which we are entitled to the extent the realizable value of our securities exceeds the claims to be secured by more than 25 %; in this context, we shall be responsible for selecting the securities to be released.
4.9. Without our prior written consent, Customer shall be prohibited from using our protected trademarks for goods of third-party manufacture or for processed goods.
5.1. The contracting parties’ mutual claims shall become time-barred in accordance with statutory provisions unless otherwise provided for below or in the Special Terms for “Thermo Tower”.
5.2. The aforementioned statutory limitation periods pursuant to sales law shall also apply to the Customer’s contractual and non-contractual claims for damages which are based on a defect of the Products, unless an application of the regular statutory limitation (Art. 195, 199 BGB) would result in a shorter limitation period in the individual case. Customer’s claims for damages and claims pursuant to German Product Liability Act, however, shall exclusively become time-barred in accordance with statutory limitation periods.
PART 3: SPECIAL TERMS AND CONDITIONS FOR WORKS
1. SCOPE OF APPLICATION
1.1. The Special Terms and Conditions for Contracts of Work ("Terms of Work") shall apply in addition to the GTC above, to the extent the Customer requests the creation of a Work as specific result (Art. 631 et seq. BGB) and we expressly undertake to effect such Work
1.2. In the event of conflicts between the Terms of Work and the GTC in individual cases, the Terms of Work shall prevail to the extent required in order to resolve such conflicts
2. ACCEPTANCE, TRANSFER OF RISK
2.1. The Customer shall bear the risk of accidental loss of or damage to the Work as from the time of its acceptance.
2.2. If the Customer should not accept the Work, even though the Work is in accordance with the contract, we shall be entitled to request the Customer to accept the Work within a reasonable additional period set by us. If the Customer should not accept the Work within the additional period, the Work shall be deemed to have been accepted. Apart from that, the statutory provisions regarding acceptance and Part 2 Sections 2.5 and 2.6 referring to a default of acceptance shall apply mutatis mutandis in case of failed acceptance.
2.3. If the manufacture of the Work to be manufactured by us should be delayed, the Customer shall only be entitled to rescind the contract if we are responsible for the delay and if a reasonable additional period set by the Customer to manufacture the promised Work has expired without results.
3. QUALITY, CUSTOMER’S RIGHTS IN CASE OF DEFECTS, DUTY TO INSPECT
3.1. We will use commercially reasonable efforts according to the current state of scientific and technical knowledge in order to provide the Work to the Customer as agreed upon by the Parties. Unless otherwise contractually agreed upon, we shall only owe a Work being suitable for the customary use and having the quality as is usual and customary for works of the same kind and which the Customer may expect from such kind of work. We exclusively warrant compliance with generally accepted engineering standards, application of scientific care and the provision of the agreed Services by qualified personnel but not the Work's fitness for a particular purpose or for further processing or use of the Work by the Customer, unless otherwise expressly agreed upon in the contract.
3.2. The unconditional acceptance of the Work excludes all other rights and claims of the Customer in connection with defects already identifiable at the time of acceptance. The assertion of claims for defects not identifiable at the time of acceptance is excluded unless the Customer notifies us in writing of the defect immediately upon identification of the defect.
3.3. The Customer's rights in case of defects of the Work are subject to the respective provisions pursuant to Part 2 Section 3.
4.1. The contracting parties’ mutual claims shall become time-barred in accordance with statutory provisions unless otherwise provided for below.
4.2. In deviation of Art. 634a Sec. 1 BGB, the general limitation period for claims based on defects of quality or title shall be one (1) year after acceptance.
4.3. The aforementioned statutory limitation periods pursuant to German law on contracts for work or services shall also apply to Customer’s non-contractual claims for damages which are based on a defect of the owed work, unless an application of the regular statutory limitation (Art. 195, 199 BGB) would result in a shorter limitation period in the individual case. Customer’s claims for damages and claims pursuant to German Product Liability Act, however, shall exclusively become time-barred in accordance with statutory limitation periods.
WARRANTY, REPAIR SERVICES AND SERVICE PACKAGE PLUS FOR “THERMO TOWER”
The following terms and conditions shall prevail over our General Terms and Conditions (“GTC”) in case of a purchase of a “Thermo Tower” from us. Our GTC shall continue to apply additionally, unless otherwise agreed upon in the following.
1.1. For our “Thermo Tower” products, we guarantee the “Thermo Towers’” conformity with the attached product information. We shall not be liable for any consequences resulting any improper modifications, treatment or inadequate maintenance by Customer or any third party (Part 2 Section 3.12 GTC).
1.2. In deviation from Art. 438 Sec. 1 No. 3 BGB (German Civil Code) and Part 2 Section 5.1 of our GTC, the general limitation period for claims from material defects and defects of title shall be twelve (12) months from the transfer of risk (“Warranty Period”).
1.3. If any defect should occur in a “Thermo Tower” during the Warranty Period, Customer shall inform us accordingly per telephone or the website www.Repair-24.de.
1.4. We shall strive to collect the defective “Thermo Tower” from the Customer within two (2) working days after receipt of notification.
1.5. Customer can check the repair’s service status at any time at www.Repair-24.de.
1.6. Repair and its processing shall be performed by a third party engaged by us. Our GTC shall apply accordingly.
1.7. At Customer’s request, we shall provide an equivalent replacement device for the duration of the respective repair.
1.8. Subsequently to the repair, the return of the repaired “Thermo Tower” and the collection of the replacement device shall be performed by us or a third party engaged by us.
1.9. Any expenses required for examination and supplementary performance purposes in connection with the “Thermo Tower”, in particular transport, travel, labor and material costs, incurred within the Warranty Period shall be borne by us. In particular, the “Thermo Towers” shall at any time be transported in safe transport containers at our expense.
2. SERVICES OUTSIDE THE WARRANTY PERIOD
2.1. If a defect should occur in a “Thermo Tower” after the Warranty Period’s expiry, the Customer may inform us about such defect via the website www.Repair-24.de or per telephone and may request a cost estimate for a repair of the defective “Thermo Tower”. Part 1 Section 4.1 of our GTC shall apply accordingly.
2.2. We shall strive to collect the “Thermo Tower” from the Customer within two (2) working days after the engagement pursuant to Section 1.8.
2.3. Upon Customer’s placing of the repair order, we shall provide the Customer, at his request and for the duration of the repair, with a replacement device against payment of a lump sum in the amount of EUR 190.00 plus VAT per device. Once the repair has been completed or after the final failure of a repair, we shall collect the replacement device from the Customer.
3. SERVICE PACKAGE PLUS
3.1. When purchasing a “Thermo Tower”, the Customer may also acquire the “Service Package Plus” for an additional payment of EUR 100.00 plus VAT per device.
3.2. Upon conclusion of the “Service Package PLUS”, we shall provide the Customer, at his request, with an equivalent replacement device free of charge in the event of a necessary repair of the respective "Thermo Tower" during the term of the Service Package Plus in accordance with Section
3.3, even after the Warranty Period’s expiry. Sec. 1.4, 1.5 and 1.8 shall apply accordingly. 3.3. The Service Package PLUS shall be concluded for a period of thirty-six months (36) months from the transfer of risk related with the respective “Thermo Tower”.