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: February 2018)

 

§1 Scope and General Conditions

  1. These General Terms and Conditions (“GTC”) shall apply to all current and future business relationships with our customers. The GTC shall only apply if the customer is an entrepreneur pursuant to Art. 14 BGB (German Civil Code), a legal entity under public law or a special fund under public law.

  2. The GTC shall in particular apply to agreements on the sale and/or supply of movables (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from subcontractors (Secs. 433, 651 BGB). Unless otherwise agreed upon, the GTC shall apply, as amended at the date of Customer’s order or as last communicated to the Customer in text form, as framework agreement also to similar future contracts without any reference to such GTC being required in each individual case.

  3. Our GTC shall apply exclusively. Any deviating, conflicting or supplementing general terms and conditions of the customer shall only become part of the contract with our explicit consent to their applicability. Such consent requirement shall apply in any case, for example, even if we unconditionally perform delivery to the customer being aware of the Customer’s GTC.

  4. Individual agreements made between us and the Customer in each individual case (including collateral agreements, amendments and modifications) shall always prevail over these GTC. Such agreements’ content shall, subject to any proof to the contrary, require a written contract or our confirmation in writing.

  5. Legally relevant declarations and notifications by the Customer in connection with the contract (such as setting of deadlines, reminders, notice of withdrawal) shall be made in writing, i.e. in written or text form (e.g., letter, email, fax). Statutory formal requirements and further evidence, in particular in case of doubt as to the declaring party’s legitimation, shall remain unaffected.

  6. Any references to the application of statutory provisions shall be made for clarification purposes only. Therefore, even without such reference, the legal provisions shall apply unless directly amended or explicitly excluded within these GTC.

§2 Contract Conclusion

  1. Our offers shall be non-binding unless they have been explicitly indicated by us to be binding. We shall reserve amendments as to technical design, form, coloring and weight, to the extent such amendments do not impair the Goods’ functionality and can reasonably be expected from Customer.

  2. Purchaser’s orders shall be deemed as binding contract offer. Unless otherwise provided for by the order, we shall be entitled to accept it within two weeks from our receipt. Such acceptance shall be made in written or in text form or by delivering the ordered Goods. Oral collateral agreements shall not be binding, unless they have been confirmed by us in writing or in text form. Issue of an invoice shall be equivalent to the order’s acceptance.

  3. Every contract conclusion on our part shall always be subject to the correct and timely delivery by our suppliers. This shall, however, only apply if any non-delivery is not our fault, in particular if we conclude a congruent hedging transaction with our supplier.

  4. We shall reserve our ownership rights, copyrights and other property rights to all catalogues, technical documentations (such as illustrations, drawings, plans, calculations, estimates, references to DIN norms) as well as other product descriptions or documents – including those in electronic form. Customer may disclose them to a third party only with our written consent, irrespective of whether we have marked them as confidential or not.

  5. To the extent we provide to Customer pictures and text material for catalogues and similar advertising material, we shall also explicitly reserve any copyrights and other property rights. Customer may disclose such material to third parties only with our, at any time irrevocable, written consent. The disclosed pictures and text material may only be used in the form of catalogues and customary advertising material in order to distribute our products. Any modification and/or amendment shall be inadmissible without our consent.

§3 Retention of Title

  1. We shall retain title to the Goods until all claims against customer under the relevant contract and a current business relationship to which we are entitled now or in future have been fully settled.

  2. If Customer should behave contrary to the contract or should be in default with any payment, we shall be entitled, after having set a reasonable period, to withdraw from the contract and to demand that the Goods shall be returned. If we take back the reserved Goods, this shall constitute a withdrawal from the contract. The transport costs arising thereof shall be borne by the Customer. If we should seize the reserved Goods, this shall constitute a withdrawal from the contract. We shall be entitled to realize the reserved Goods after taking them back. After deducting a reasonable amount for the utilization costs, the utilization proceeds shall be offset against the amounts owed to us by Customer.

  3. Customer shall in any case be required to handle the Goods with care and to adequately insure them at his own expense against damage caused by fire, water and theft in an amount sufficient to cover the reinstatement value, until he fully obtains title to the Goods by means of full payment.

  4. Customer shall be entitled to resell and/or use the Goods during the ordinary course of business unless he should be in default of payment. Any pledges or chattel mortgages shall be inadmissible. Any claim arising from the resale or another legal ground (insurance, tort) in connection with the reserved Goods (including any current-account balance claims) shall already now be fully assigned to us by entrepreneur; we herewith accept such assignment. We revocably authorize the Customer to collect the receivables assigned to us for Customer’s account and on his own behalf. Such authorization may be revoked at any time if Customer should not properly satisfy his payment obligations. Customer shall also not be entitled to assign such claim for debt collection purposes by way of factoring, unless the factoring party simultaneously undertakes to effect the consideration in the amount of the receivables directly to us as long as our claims against the Customer continue to exist. Customer undertakes to forward to us the collected amount in the amount of our invoice amount. At the same time, Customer shall authorize us to collect the receivables ourselves as soon as the Customer should be into default with his payments to us. We shall, however, not be obliged to collect the receivables ourselves.

  5. If the Customer should edit or process the Goods, he shall do so only on our behalf. He undertakes to notify his business partners accordingly. We shall obtain co-ownership to a new item which was created by means of processing with goods of others. Our co-ownership shall correspond to the proportion of the value of goods delivered by us (final invoice amount incl. VAT) to the other processed items. The same shall apply in case of commingling. If the Customer’s item must be considered as principal item due to the commingling, Customer and we agree that the Customer shall transfer to us a proportionate co-ownership to that item; we herewith accept such transfer. Customer shall retain on our behalf our sole or co-ownership to an item resulting therefrom. In case of a resale of an item co-owned by us, the assignment of a claim pursuant to Section  above shall be made according to the proportion of our co-ownership to the co-ownership of further retention-of-title suppliers.

  6. Customer shall immediately inform us about any damage to or destruction of the Goods as well as any third-party access to the Goods so we can assert our ownership rights. The same shall apply if the Goods come into third-party possession. Customer shall compensate to us any damage and costs arising from a violation of such obligation and from intervention measures required against third-party access.

  7. We shall be obliged to release the securities to which we are entitled insofar as the realizable value of our securities exceeds the claims to be collateralized by more than 10 %; with regard hereto, we shall be responsible to select the securities to be released.

§4 Exceptional Return of Goods

If we should exceptionally agree – in case there is no defect to the goods – to a rescission of the purchase transaction, Customer shall return the Goods to us in their original packaging and shall pay compensation in the amount of 15 % of the net purchase amount. There is no entitlement to such rescission; with regard to custom-made products (i.e. goods which have been adjusted or individually manufactured according to Customer’s specifications) it shall not be available in any case.

§5 Prices / Terms of Payment

  1. Unless otherwise agreed upon at the contract conclusion, our prices are ex work (EXW, Incoterms 2010) Uhingen, Germany, exclusive of packaging and exclusive of applicable VAT.

  2. In general, our prices valid at the date of the contract conclusion shall apply, unless we have offered a different price in the individual case. Such price quotes shall only be binding for a period of 30 days from their offer date. After contract conclusion, price changes shall be reserved and admissible in case the material and production costs should have increased by more than 5 % since the contract conclusion.

  3. In case of new Customers and current business relationships of less than 6 months, the Goods shall be delivered against cash in advance, after such date on account. In case of a contract of sale involving the carriage of Goods (Versendungskauf; Section 6.1), Customer shall bear the transport costs ex works as well as the costs of a transport insurance requested by Customer, if applicable. Any customs, fees, taxes and other public charges shall be borne by Customer.

  4. Cash discount shall only be allowed in case of a separate written agreement between us and the Customer. Customer undertakes to pay the purchase price within 14 days from delivery or receipt of Goods. Upon expiry of such deadline, Customer shall automatically be in default without any further reminder being required. Payment shall be deemed effected only when we are able to dispose of the amount. In case of a payment by check, payment shall be deemed effected only when the check has been cashed.

  5. Apart from that, the statutory provisions shall apply if Customer should be in default with any payment.

  6. Offsetting by the Customer shall be excluded unless his claims have been established by a court of law or have been acknowledged by us.

  7. Any retention right shall be excluded, unless Customer’s counterclaim should be based on the same contractual relationship.

  8. If, after conclusion of the contract, it should become apparent (e.g., by application for opening of insolvency proceedings) that our claim to the purchase price should be endangered due to Customer’s lack of solvency, we shall be entitled, pursuant to statutory provisions, to refuse service and ‑ after setting a deadline, if applicable ‑ to withdraw from the contract (Sec. 321 BGB). With regard to contracts on the manufacture of specific items (custom-made items) we may immediately declare our withdrawal; statutory provisions concerning the dispensability of setting a deadline shall remain unaffected.

§6 Transfer of Risk, Dispatch and Packaging

  1. Delivery shall be made are ex work (EXW, Incoterms 2010) Uhingen, Germany, which is also the place of performance of the delivery and a possible supplementary performance. At Customer’s request and expense, the Goods will be delivered to a different destination (sale involving the carriage of goods; Versendungskauf). Unless otherwise agreed upon, we shall be entitled to determine the type of delivery (in particular carrier, route, and packaging). The Goods will generally be loaded and shipped uninsured at Customer’s risk. We shall take reasonable efforts to take into account Customer’s requests and interests with regard to the shipping method and route; any additional costs arising thereof ‑ even in case of a CPT delivery agreed upon in the individual case ‑ shall be at Customer’s expense.

  2. We shall not be obliged to take out insurance. At Customer’s request and expense, we shall, however, insure delivery by means of transport insurance.

  3. Unless otherwise agreed upon, packaging shall be charged at cost. Furthermore, the statutory provisions pursuant to the German packaging ordinance shall apply.

  4. The risk of accidental loss and accidental deterioration of the Goods shall be transferred to the Customer upon delivery at the latest; in case of a sale involving the carriage of goods, however, already upon transfer of the Goods to the freight forwarder, the carrier or other person or institution engaged to perform the delivery. If an acceptance has been agreed upon, such acceptance shall be decisive for the transfer of risk. Apart from that, statutory provisions under the law on contracts for work and services shall apply accordingly for an agreed acceptance. Purchaser’s being in default with acceptance shall be equivalent to the transfer or acceptance. We shall not be liable for any damages during transport. With regard hereto, recipient shall hold liable the railway company, postal service, or carrier immediately upon receipt of shipment. If we have been notified about any shipping damage, such damage can only be taken into account for referral to the transport person if we have received the notification no later than five days after shipment of the consignment.

  5. Delivered items must be accepted by the Customer. To the extent the place of performance should deviate from the principle determined in Section 5.1 and/or the items should be transported at our costs and/or risk to a place other than stipulated in Section 5.1 for another reason, Customer shall be required to inspect the Goods upon delivery by rail, post or carrier (collectively referred to as “Transport Person”) as to damaged spots, to record in writing any damages and to have this confirmed by the Transport Person in order to maintain the rights to assert possible transport damages.

  6. We shall at any time be entitled to perform partial deliveries and partial services, to the extent this can reasonably be expected from Customer.

  7. If the dispatch should be delayed upon Customer’s request or due to Customer’s fault, we shall store the Goods at Customer’s costs and risk. In such case, notification of readiness to dispatch shall be equivalent to dispatch. Starting one month after notification of readiness to dispatch, costs arising due to the storage shall be charged to Customer at an amount of at least 0.5 % of the invoice net amount for each month. We shall also be entitled, after a reasonable deadline has been set and expired without result, to dispose of the delivery items. Any further compensation for damages shall not be excluded.

§7 Delivery Period and Delay in Delivery

  1. Delivery dates or periods which have not been expressly agreed upon as binding shall only constitute non-binding statements.

  2. Delays in delivery due to force majeure and due to events which make the delivery significantly difficult or impossible (such as strike, lockout, administrative order, etc.), even if they occur at the level of our suppliers or their subcontractors, shall extend, to a reasonable extent, a delivery period which has been agreed upon with binding effect. We shall not be liable for the aforementioned circumstances even if they arise during an already existing delay.

  3. If Customer should be in default of acceptance, we shall be entitled to demand compensation of the incurred damages and possible additional expenses. The same shall apply if Customer culpably violates his duty to cooperate. Upon occurrence of default of acceptance or default of the debtor, the risk of accidental loss and accidental deterioration shall be transferred to the Customer.

§8 Warranty

  1. With regard to Customer’s rights in connection with any defects of quality and title (including wrong and short delivery as well as improper installation or insufficient assembly instructions), the statutory provisions shall apply unless otherwise provided for by the following provisions.

  2. Our warranty liability is in particular based on the agreement made on the Goods’ quality. Any product descriptions which are part of the individual contract or which are publically disclosed by us (in particular in catalogues or on our internet homepage) are deemed as an agreement on the quality of the Goods.

  3. If no quality has been agreed upon, the determination as to whether there is a defect or not must be based upon statutory provisions (Secs. 434 para. 1 sentence 2 and 3 BGB). We shall, however, not accept any liability for public statements (such as advertising statements) by the potential manufacturer or other third parties.

  4. Customer’s claims for defects require for Customer to have met his statutory obligation of examination and notification of defects (Secs. 377, 381 HGB). If a defect becomes apparent upon delivery, during the examination or at any later date, we must immediately be informed about such defect in writing or in text form. In any case, obvious defects must be communicated no later than 5 working days from delivery and defects not visible during examination within the same period from their discovery in writing or in text form. Customer’s failure to examine and/or give notice of defect will result, pursuant to statutory provisions, in an exclusion of our liability for any defect which has not been communicated in a timely or proper manner. Customer shall have the burden of proof for all eligibility requirements, i.e. for the defect per se, the time of detection of the defect and the timeliness of the notice of defect.

  5. If the delivered item should be defective, we may select whether we provide supplementary performance by eliminating the defect (rectification) or by delivering a non-defective item (replacement). Our right to refuse supplementary performance under the statutory requirements shall remain unaffected.

  6. We shall be entitled to make the owed supplementary performance contingent upon Customer’s payment of the due purchase price. Customer shall, however, be entitled to retain a part of the purchase price being reasonable in proportion to the defect.

  7. Customer shall grant to us the time and opportunity required for the supplementary performance, in particular to return to us the objected Goods for examination purposes. In case of a replacement, Customer shall return to us the defective item in accordance with statutory requirements. Supplementary performance shall neither include the defective item’s disassembly nor its re-installation if we had not been responsible for the installation in the first place.

  8. The expenses required for examination and supplementary performance purposes, in particular transport, infrastructure, labor and material costs (not: disassembly and installation costs) shall be borne by us in case of an actual defect. Otherwise we may demand from the Customer reimbursement of costs arising from the unjustified request for rectification of defects (in particular examination and transport costs) unless the lack of defectiveness was not apparent to the Customer.

  9. In urgent cases, such as risk to operational safety or for the aversion of disproportionate damage, Customer shall be entitled to remedy the defect himself and to demand from us compensation of the expenses objectively required for that purpose. Such self-performance must be communicated to us without undue delay, if possible in advance. The right to self-performance shall not apply if we would be entitled to deny a corresponding supplementary performance in accordance with statutory provisions.

  10. If supplementary performance has failed, or a deadline to be set by Customer for supplementary performance has expired unsuccessfully or is dispensable pursuant to statutory provisions, Customer may withdraw from the purchase contract or may reduce the purchase price. In case of a minor defect, however, there is no right of withdrawal.

  11. Customer’s claims to damages or compensation for wasted expenditure shall apply, also with regard to defects, only in accordance with Section 11 and shall otherwise be excluded.

§9 Low-Quantity Surcharge

In case of orders below an order volume of EUR 100.00 net, we shall charge a low-quantity surcharge of EUR 10.00 net.

§10 Excess and Short Deliveries

We shall be entitled to render excess or short deliveries with regard to each order and to correspondingly adjust the sales price to the delivered quantity. An excess or short delivery of 10 % of the ordered volume shall be deemed free from defects.

§11 Liability

  1. Unless otherwise provided for by these GTC including the following provisions, we shall be liable for any violation of contractual and non-contractual obligations in accordance with statutory provisions.

  2. We shall be liable for damages – irrespective of legal grounds – within the scope of fault-based liability in case of willful intent and gross negligence. In cases of gross negligence we shall only be liable for foreseeable, typically occurring damage. In case of slight negligence we shall be liable, subject to a more lenient standard of liability, pursuant to statutory provisions (e.g., for diligence in own affairs) only

 

  1. for damages from an injury to life, limb or health,
  2. for damages from a considerable violation of a material contractual obligation (an obligation the fulfillment of which enables the contract’s proper performance and upon which the contractual partner does and may regularly rely); in such case, however, our liability shall be limited to a compensation of the foreseeable, typically occurring damage.

  3. The liability limitations resulting from Section 11.2 above shall also apply in case of a breach of duty by or in favor of persons which is, pursuant to statutory provisions, our fault. They shall not apply if we maliciously conceal a defect or if we have accepted a guarantee for the Goods’ quality as well as for Customer’s claims pursuant to product liability law.

  4. Customer may only withdraw from or terminate the contract due to a breach of duty which does not constitute a defect, if we are responsible for the breach of duty. Customer’s free right of termination (in particular pursuant to Secs. 651, 649 BGB) shall be excluded. Otherwise, the statutory provisions and legal consequences shall apply.

  5. If we should be in default with our delivery obligation, our Customer may demand ‑ provided he can furnish prima facie evidence that he has suffered a damage resulting thereof ‑ compensation for every full week of delay of max. 0.5 %, all in all, however, no more than 5 % of the price for that part of the deliveries which could not be used appropriately due to the delay. Both Customer’s claims for damages due to a delayed delivery and claims for damages in lieu of performance which exceed the aforementioned limits shall be excluded in all cases of default, also after expiry of a delivery period granted to us.

§12 Limitation

  1. In deviation from Sec. 438 para. 1 No. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If an acceptance has been agreed upon, the limitation period shall start upon acceptance.

  2. The aforementioned limitation periods pursuant to sales law shall also apply to Purchaser’s contractual and non-contractual claims for damages resulting from a defect of the Goods, unless an application of the regular statutory limitation period (Secs. 195, 199 BGB) would, in the individual case, result in a shorter limitation period. Customer’s claims for damages pursuant to Section 11.2 sentence 1 and sentence 2 lit. a and pursuant to product liability law shall, however, exclusively lapse in accordance with statutory limitation periods.

§13 Final Provisions

  1. The laws of the Federal Republic of Germany shall apply to the exclusion of international conflict-of-law rules or international uniform law, in particular the United Nations’ Convention on Contracts for the International Sale of Goods (“CISG”).

  2. To the extent permitted by law, the exclusive place of jurisdiction for any disputes arising from this contract shall be our place of business. We shall, however, also be entitled to file an action at Customer’s place of general jurisdiction.

  3. Customer has been provided with a German and an English version of these GTC. In case of any deviations, the German wording shall prevail.

§14 Severability Clause

If an individual provision of the contract with the customer including these GTC should be or become ineffective or unenforceable in whole or in part, the other provisions’ effectiveness shall remain unaffected thereby. The partially or completely ineffective or unenforceable provisions shall be replaced by an effective and enforceable provision which most closely approximates the economic purpose of the ineffective or unenforceable provision.