Section 1 Scope of application of these terms and conditions
- These General Terms of Business apply exclusively for all business dealings between us, Rehm Thermal Systems GmbH, as the Supplier, and our customers, even if they are not mentioned in the course of subsequent orders or contracts between us and the Customer. They apply analogously for performances of work or services. In the case of work performance approval, and in the case of services acceptance of the service, shall be equivalent to receipt of delivered goods. Conflicting, supplementary or deviating terms and conditions of the Customer shall not form any content of this contract, unless we have expressly agreed to their validity in writing. These Terms and Conditions of Sale and Delivery shall also apply if we provide the service without reservation in the knowledge of conflicting, supplementary or deviating conditions of the Customer.
- Agreements that conflict with, are supplementary to or deviate from these Terms and Conditions of Sale and Delivery that are concluded between us and the Customer for the performance of a contract must be agreed in writing. This also applies to the revocation of this requirement of the written form.
- These Terms and Conditions of Sale and Delivery apply exclusively to companies within the meaning of Section 14 of the German Civil Code (BGB) in the exercising of their commercial or freelance professional activity and to legal entities under public law.
- Any rights that remain to us under statutory provisions or under other agreements beyond these Terms and Conditions of Sale and Delivery remain unaffected.
Section 2 Conclusion of the contract, offer documents, scope of delivery and delivery
- An order does not become binding until we have confirmed it in an order confirmation in text form within three weeks of the order date or if we perform the order within two weeks of the order date, in particular by delivering the goods ordered by the Customer. Where the order confirmation contains obvious mistakes, clerical or calculation errors, it shall not be binding on us.
- Our offerings are non-binding and subject to alteration, unless we state anything to the contrary. Offers given with a deadline for acceptance also remain non-binding; the time limit is set solely for purposes of improving the planning of our capacities and does not bind us to the offer during the acceptance period.
- Lack of response on our part to offers, orders, requests or other communications of the Customer shall only be deemed to be approval where this has previously been agreed in writing.
- Our order confirmation shall be decisive for the scope of delivery. Any requests by the Customer for changes to the scope of delivery shall require our written confirmation to be effective. We reserve the right to make changes to the design and form of the products where such changes are customary in the industry or where the changes lie within the normal tolerances (e.g. DIN tolerances, EN tolerances, ASTM tolerances or other tolerances) or where the changes are not substantial and are reasonable for the Customer. The same applies analogously to the selection of material, the specification and the type of construction.
- Delivery in parts is permissible unless delivery in parts is not reasonable for the Customer in consideration of our interests.
- For technical reasons linked to production we reserve the right to oversupply or undersupply by up to 15% of the scope of delivery. This shall apply both for supply of the product in a single delivery and for supply of the product in parts, where this is permissible. To this extent, claims for defects are excluded. The supply price shall remain unaffected.
- We retain ownership, copyright and other property rights to illustrations, drawings, calculations and other documentation. The same applies to documents that are expressly marked as ‘confidential’. The Customer is only entitled to make our illustrations, drawings, calculations and other documents accessible to third parties or to pass them on to third parties with our express written consent. If we so request, the Customer shall return to us all offer documentation without delay, provided that this is no longer required for normal business purposes. The same shall also apply in particular for all other documentation, drafts, specimens, samples, models and tools. This shall also apply where the Customer has shared in the costs for the specimens, samples, models or tools, etc.
- Illustrations, drawings, calculations, other documentation and descriptions of the products in the offer documentation shall only be approximate, unless they have been expressly designated as binding. They do not constitute any agreement or guarantee of a particular quality or durability of the products or services, unless they have been expressly agreed as such in writing. Expectations of the Customer in respect of the products or services shall also not constitute any agreement or guarantee. Testing and evaluation of whether the product or service is suitable for the Customer’s intended purpose is the responsibility of the Customer. We shall not be obliged to test the suitability of the products for the intended purpose, unless otherwise agreed in writing. Any test of suitability agreed by us shall not release the Customer from his obligation to test the suitability of the product for the intended purpose.
- If the financial circumstances of the Customer deteriorate significantly or if the application for the opening of insolvency or comparable proceedings is declined owing to lack of assets, we shall be entitled to withdraw wholly or partially from the contract.
- If products that have been damaged in transport are delivered to the Customer, the Customer shall notify the carrier of the damage immediately in writing and shall note the transport damage on the shipment documents. This shall also apply if the wrong products are delivered to the Customer by the carrier as the result of a mistake.
Section 3 Delivery time
- The agreement of delivery times (delivery periods and dates) must be in writing. Delivery periods and dates are non-binding, unless they have been designated by us in writing in advance as binding.
- The delivery period begins with the conclusion of contract, but not before the Customer has produced all the documents, authorisations and approvals that he must obtain, all technical questions have been clarified and the agreed payment has been received. In the case of a delivery date, the delivery date shall be deferred accordingly if the Customer does not produce the documents and authorisations required of him, does not issue approvals in good time, if not all technical questions are fully clarified in good time or the agreed payment has not been received by us. Compliance with the delivery period is on the condition that the Customer satisfies his other obligations correctly and in good time.
- The delivery period is complied with if the products leave the factory or warehouse before the period expires or if we have given notice that the products are ready for collection or despatch, or if we have agreed acceptance, given notice of readiness for acceptance. Compliance with the agreed delivery period is subject to our own suppliers delivering to us in an orderly fashion, in particular on time and correctly, unless the reason for their not delivering in orderly fashion is within our control. If deliveries by our own suppliers do not occur in an orderly fashion, we shall be entitled to withdraw from the contract. We shall notify the Customer without delay if we exercise our right to withdraw and in this case will refund to the Customer any payments already made up to that point.
- If delivery is delayed and has not been received even after the expiry of a reasonable grace period that he has allowed us, the Customer shall be entitled to withdraw from the contract.
- To the extent that we are prevented by force majeure from fulfilling our contractual obligations, in particular the supply of the products, we shall be released from the obligation to perform for the duration of the interruption plus a reasonable start-up period without being obliged to compensate the Customer for damages. The same shall apply where due to unforeseeable circumstances beyond our control, in particular from industrial action, war, pandemic, official measures, energy shortage, problems with delivery from a supplier or significant operational malfunctions, the fulfilment of our obligations is made unreasonably difficult or temporarily impossible. This shall also apply if these circumstances occur to one of our subcontractors. This shall also apply if we are already in default. To the extent that we are freed from our obligation to perform, we shall refund to the Customer any payments already made.We are entitled to withdraw from the contract after a reasonable grace period if such an interruption lasts for longer than four months and we no longer have an interest in fulfilling the contract owing to the interruption. If the Customer so requests, we will state following the end of the grace period whether we are making use of our right to withdraw or whether we intend to supply the products after a reasonable period.
Section 4 Cross-border deliveries
- For cross-border deliveries, the Customer must submit all necessary declarations for export from Germany and import into the destination country to the relevant authorities and must carry out all actions necessary, in particular to obtain the documents necessary for customs clearance and to satisfy the requirements of any export controls or other restrictions on marketability.
- Deliveries are made subject to the reservation that their fulfilment is not prevented by any obstacle arising from national or international provisions, in particular export control provisions, embargos or other sanctions.
- Delays caused by export controls shall extend the delivery periods accordingly; delivery dates shall be deferred by a reasonable period.
Section 5 Prices and terms of payment
- Unless otherwise expressly agreed, our prices apply ex works or ex warehouse, i.e. exclusive of packaging, shipping or transport costs, insurance, statutory taxes, customs duties or other charges and any installation costs that may be separately agreed between the parties. The costs incurred in these aspects, in particular the costs of packaging and transporting the products and the installation costs, shall be invoiced separately. Statutory value added tax is not included in our prices and shall be explicitly stated on the invoice at the time of invoicing.
- If the price is based on weight, volume or quantity, the weight, volume or quantity determined by us shall be decisive. Additionally specified units are non-binding.
- Orders for which the agreed prices are not expressly fixed and for which the delivery time stated is at least three months after the conclusion of the contract shall be charged at our respective list prices applicable on the day of delivery. Entry into an order form or order confirmation of the list price applicable on the date of ordering does not constitute the agreement of a fixed price. If prices rise by more than 5%, the Customer shall be entitled to this extent to withdraw from the contract. If so requested by us, the Customer shall state without delay whether he intends to exercise his right to withdraw. If price increases occur for production reasons before the delivery date, we shall be entitled to raise the price accordingly, regardless of the offer and the order confirmation and regardless of the period between conclusion of contract and delivery time.
- Unless otherwise expressly agreed, the price shall become due for payment within 14 days of receipt of the invoice, net and without deductions. The deduction of discounts and other rebates is only permissible where this has been agreed in writing. Deduction of an agreed discount and other agreed rebates is on the condition that the Customer has fulfilled all claims arising from the business relationship in good time. The date of payment shall be deemed to be the date on which the payment amount becomes available to us. In the event of a delay in payment, the orderer shall pay default interest at a rate of 9 percentage points above the respective base rate per annum. Further claims on our part remain unaffected.
Section 6 Acceptance
- The Customer is obliged to accept the products and services where an approval is agreed in writing or required by law. In this case each party is entitled to request partial acceptances. The parties shall create an acceptance report in respect of the acceptance, which shall be signed by both parties.
- If we have granted the Customer a reasonable grace period following completion and the Customer has not declined acceptance within this period stating at least one defect, this in particular shall be deemed to be equal to acceptance in writing. Additionally, if the Customer makes use of the products or sells them on or if the Customer waives acceptance, this in particular shall be deemed to be equal to acceptance in writing.
- Acceptance cannot be declined due to immaterial defects. In particular the Customer may not waive acceptance if any agreed acceptance criteria have been met.
Section 7 Transfer of risk
- Unless otherwise expressly agreed, delivery is ex works or ex warehouse.
- The risk of accidental loss or accidental deterioration shall pass to the Customer as soon as the products are handed to the person providing the transport or as soon as they leave our factory or warehouse for purposes of shipment. Where an acceptance is agreed in writing, the risk is transferred to the Customer at the time of acceptance. If the goods are collected by the Customer, the risk is transferred to the Customer on notification that the goods are ready for collection, unless the risk has already passed to him under sentence 2. Sentences 1 to 3 shall also apply where the delivery is in parts or where we have undertaken additional performances such as the transport costs.
- If the Customer falls into default of acceptance, we may demand compensation for the damages incurred, unless the Customer’s failure to accept the products is for reasons beyond his control, and also the refund of any additional outlays. We shall be entitled in particular to place the products into store at the Customer’s expense during the period of default of acceptance. The costs of the storage of the products shall be charged at a rate of 0.5% of the net invoice value per calendar week started. Further claims on our part remain unaffected. The Customer is entitled to submit evidence that the costs incurred by us are significantly less or zero. The same shall apply if the Customer is in breach of other obligations to cooperate, unless the Customer is in breach of other obligations to cooperate for reasons beyond his control. The risk of accidental loss or accidental deterioration of the products shall pass to the Customer not later than the time at which he goes into default of acceptance. Following expiry without result of a reasonable grace period granted by us, we shall be entitled to dispose of the products elsewhere and to supply to the Customer with a reasonably extended grace period.
- If shipment or acceptance is delayed, where an acceptance is agreed in writing, for reasons that are beyond our control, the risk shall pass to the Customer at the time of notification of readiness for shipment or collection.
- The products must be accepted by the Customer, regardless of his claims for defects, even if they have immaterial defects.
Section 8 Retention of title
- The supplied products shall remain our property until full payment is received of the price and all claims arising to us from our business relationship with the Customer. The Customer must treat products that are subject to retention of title with care for the duration of the retention of title. He is obliged in particular to adequately insure the products at his own expense against fire, water and theft damage at replacement value. If so requested by us, the Customer must provide evidence of the insurance cover provided. The Customer assigns to us all claims for compensation from this assurance already now. We hereby accept the assignment. Should the assignment not be permissible, the Customer hereby instructs the insurer to make any payments only to us. Further claims on our part remain unaffected.
- Disposal of the products subject to retention of title by the Customer is only permitted within the ordinary course of business. Other than this, the Customer is not entitled to pledge the products subject to retention of title, to assign them as security or to make any other dispositions that would endanger the Supplier’s property. In the event of seizures or any other interventions by third parties, the Customer must notify us in writing without delay and provide all necessary information, inform the third party of our property rights and cooperate with us in defending the products that are subject to our retention of title. If the third party is not in a position to compensate us for the court and out-of-court costs for the enforcement of our property rights, the Customer shall be obliged to make good the resultant shortfall, unless the breach of obligation is for reasons beyond the Customer’s control.
- The Customer assigns to us already now the claims from the further sale of the products together with all ancillary rights, irrespective of whether the products subject to retention of title are resold after processing or not. We accept this assignment already now. Should an assignment not be permissible, the Customer hereby instructs the third-party debtor to make any payments only to us. The Customer is revocably authorised to collect the assigned claims for us in trust in his own name. The amounts collected must be paid to us without delay. We can revoke the Customer’s authorisation to collect and the Customer’s right to resale for an important reason, in particular if the Customer fails to properly comply with his payment obligations towards us, falls into payment default, suspends his payments or if an application is made by the Customer to open insolvency proceedings or comparable proceedings for the settlement of debts in respect of the Customer’s assets or if a reasoned request by a third party to open the insolvency proceedings or comparable proceedings for the settlement of debts in respect of the Customer’s assets is declined owing to lack of assets. In the event of a blanket assignment by the Customer, the claims assigned to us shall be expressly excluded.
- If so requested by us, the Customer must notify the third-party debtor of the assignment without delay and provide us with the information and documentation required for collecting it.
- If the Customer acts in a way that is contrary to the contract, in particular if he is in payment default, we shall be entitled, regardless of our other rights, to withdraw from the contract following expiry of a reasonable grace period set by us. The Customer must grant us or his representative access without delay to the products subject to retention of title and release them to us. Following an appropriate notice given in due time, we may make other use of the products subject to retention of title to satisfy our claims due against the Customer.
- Any processing or alteration of the products subject to retention of title performed by the Customer shall always be carried out for us. The expectant right of the Customer to the products subject to retention of title shall be continued on the processed or altered products. If the products are processed or altered together with other items that do not belong to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivered products to the other processed items at the time of processing or alteration. The same shall apply if the products are combined or mixed with items that do not belong to us in such a way that we lose our outright ownership. The Customer shall keep the new items securely for us. Otherwise, the same provisions shall apply to the items obtained through processing or alteration or combination or mixing as for the products that are subject to our retention of title.
- At the Customer’s request we shall be obliged to release the securities to which he is entitled to the extent that the realisable value of the securities exceeds our claims arising from the business relationship with the Customer by more than 10%, taking into account the valuation discounts common in banking practice. In performing the valuation, the invoice value of the products subject to retention of title and the nominal value for claims should be assumed. The selection of the items to be released is incumbent on us in detail.
- In case of deliveries in other legal systems in which this retention of title provision does not have the same securing effect as it does in the Federal Republic of Germany, the Customer shall hereby grant us an appropriate security interest. If further actions are required for this, the Customer shall do everything necessary to grant us such a security interest without delay. The Customer shall cooperate in all actions that are necessary and helpful for the effectiveness and enforceability of such security interests.
Section 9 Claims for defects
- The defect rights of the Customer presuppose that the Customer examines the supplied products on delivery, including a trial processing or trial use where reasonable, and has notified us in writing of any obvious defects without delay and in any case not later than within eight calendar days from delivery of the products. Hidden defects must be communicated to us in writing without delay when discovered. In his notification, the Customer must provide a written description of the defects. Additionally, during the planning, construction, assembly, connection, installation, commissioning, operation and maintenance of the products the Customer must comply with the requirements, advice, guidelines and conditions set out in the technical information, assembly, operating and user manuals and other documentation of the individual products, in particular must carry out the proper maintenance and document it, and must use recommended components. Defect claims for defects arising through failure to comply with this obligation are excluded.
- Where products are defective, we are entitled at our discretion either to supplementary performance by remedying the defect or to supply a defect-free product. In the case of supplementary performance, we shall be obliged to bear all expenditures necessary for the purpose of such supplementary performance, in particular transport, travel, labour and materials costs, with the exception of removal and reinstallation costs, which are not refunded. Personnel and materials costs that the Customer asserts in this connection should be calculated on a cost price basis. Replaced parts become our property and must be returned to us.
- If we are not willing or able to perform supplementary performance or if the supplementary performance fails twice, the Customer can at his own discretion, and regardless of any claims for damages or reimbursement of expenses, either withdraw from the contract or reduce the supply price. The same applies if the supplementary performance fails, is unreasonable for the Customer or entails delays that are longer than a reasonable grace period for reasons that are within our control.
- The Customer’s right to withdraw is excluded if he is not capable of the restitution of the performance received and this is not because restitution is impossible owing to the nature of the performance received, because is our responsibility, or because the defect only became apparent during processing or alteration of the product. The right to withdraw is further excluded if the defect is beyond our control and where the Customer is required to provide value replacement instead of restitution.
- No defect claims shall arise for defects due to natural wear and tear, particularly in wear parts, or due to improper handling, assembly, use or storage or improperly carried out modifications or repairs to the products by the Customer or third parties. The same applies for defects that are attributable to the Customer or to a different technical cause to that of the original defect.
- Claims of the Customer for reimbursement of expenses instead of compensation for damage in lieu of performance are excluded to the extent that the expenses would not also have been incurred by a reasonable third party.
- We assume no guarantees, and in particular no guarantees of quality or durability, unless otherwise agreed in writing in individual cases.
- The limitation period for defect claims of the Customer is one year, unless a consumer goods purchase occurs at the end of the supply chain (where the end customer is a consumer). Where the defective products have been used in accordance with their intended purpose for a building and have resulted in defectiveness of the building or there is a defect in a building, the limitation period shall be five years. The limitation period of one year shall also apply for claims arising from an unlawful act that are based on a defect in the products. The limitation period begins with the delivery of the products. The limitation period of one year shall not apply for our unlimited liability for damages arising from violation of a guarantee or from injury to life, limb or health, for wilful intent or gross negligence or where we have assumed a procurement risk. A statement by us in respect of a defect claim asserted by the Customer should not be regarded as an entry into negotiations regarding the claim or the circumstances on which the claim is based, insofar as the defect claim has been rejected by us in full.
Section 10 Limitation of liability
- We shall be liable without limit for the violation of a guarantee or for injury to life, limb or health. The same shall apply for wilful intent or gross negligence or to the extent that we have assumed a procurement risk. We shall only be liable for slight negligence in cases where essential obligations are violated that arise from the nature of the contract and that are of particular importance for achieving the objective of the contract. In cases of violation of such obligations, default or impossibility, our liability shall be limited to such damages, the occurrence of which must typically be allowed for within the context of this contract. Any mandatory statutory liability for product defects remains unaffected.
- Where our liability is excluded or limited, this shall also apply for the personal liability of our employees, workers, staff, representatives and vicarious agents.
Section 11 Product liability
- The Customer shall not modify the products, and in particular he shall not modify or remove any warnings provided about the dangers of improper use of the products. If this obligation is violated, the Customer shall indemnify us internally against product liability claims of third parties, unless the modification of the products was beyond the Customer’s control.
- If we are required to recall a product or issue a product warning owing to a defect in the products, the Customer shall cooperate to the best of his ability with the measures that we deem to be necessary and expedient and shall support us in this, particularly in supplying the necessary customer data. The Customer shall be obliged to bear the costs of the product recall or product warning, unless he is not responsible for the product defect according to the principles of product liability law. Further claims on our part remain unaffected.
- The Customer must notify us in writing without delay of risks that become known to him in using the products and of potential product defects.
Section 12 Property rights of third parties
- The Customer guarantees that the supply and use of the products is not in breach of any domestic or foreign patents, utility models, licences or other intellectual property rights, where the products are manufactured according to the drawings or other specifications of the Customer. If claims are made against us by a third party for the supply or use of the products owing to the violation of such rights, the Customer shall be obliged to release us from these claims. Sentence 1 and sentence 2 do not apply where the violation of such rights is beyond the Customer’s control.
Section 13 Non-disclosure
- The parties are obliged to protect all commercial secrets of the other party that are made available to them for a period of five years after delivery by means of suitable and appropriate measures and, except where offered for the business relationship, not to record them, nor to pass them to third parties, to use them or to exploit them. The parties shall ensure in particular that the commercial secrets of the other party are only made available to those employees and to the extent that this is offered for the business relationship. The non-disclosure obligation also applies to objects that embody commercial secrets. It is particularly forbidden for the receiving party to obtain the commercial secrets embodied in a product or object by means of reverse engineering. Commercial secrets are all information that is designated as confidential or secret or that can be recognised as a commercial secret by other circumstances, in particular technical information (e.g. drawings, product or development descriptions, methods, processes, formulae, techniques and inventions) and commercial information (e.g. price or financial data and sources of supply).
- The non-disclosure obligation does not apply where the commercial secrets of the recipient party were demonstrably known before the contractual relationship was entered into or were generally known or generally accessible before the contractual relationship was entered into or were generally known or accessible without any fault on the part of the recipient party. The burden of proof is borne by the recipient party.
- The parties shall make appropriate contractual arrangements with the employees working for them, other employees and third parties to whom the commercial secrets of the other party are accessible under paragraph 1 above to ensure that these are also obliged to the appropriate secrecy for the period of five years from the time of delivery.
- If the recipient party, its employees or other persons for whom the recipient party is liable is in breach of the above-stated non-disclosure obligations, the recipient party shall be obliged to pay a contractual penalty of an appropriate amount. The amount of the contractual penalty shall be determined by the other, information-providing party, at its reasonable discretion. The recipient party can have the appropriateness of the contractual penalty reviewed by the competent court.
Section 14 Data protection
- The parties shall observe the statutory provisions in regard to data protection, in particular the EU General Data Protection Regulation (GDPR) in the execution of the contract and shall oblige their employees to comply with these provisions.
- The parties shall process the personal data contained (name and contact details of the respective contact partners) exclusively for the purpose of executing the contract and shall protect these by means of technical and organisational measures (Article 32 GDPR) appropriate to the state of the art. The parties shall delete the personal data as soon as its processing is no longer necessary. Any statutory retention obligations are not affected by this.
- Should one party process personal data on behalf of the other party within the framework of the execution of the contract, the parties shall conclude an agreement on the processing pursuant to Article 28 GDPR.
Section 15 Final provisions
- The place of fulfilment for all performances of the Customer and from us arising from the contractual relationship is our place of business, unless otherwise agreed.
- The legal relationship between us and the Customer shall be governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
- If the Customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contractual relationship shall be the competent court for our place of business. However, we shall also be entitled to sue the Customer at the competent court for his place of residence/business or at any other permissible place of jurisdiction. Arbitration clauses are excluded.
- The transfer of rights and obligations of the Customer to third parties is only possible with our prior written agreement.
- Counterclaims of the Customer shall only entitle him to offset where these are legally established or undisputed. The Customer can only assert a right of retention if his counterclaim is based on the same contractual relationship.
- The contractual language is German.
- Should a provision of these Terms and Conditions of Sale and Delivery be or become wholly or partially ineffective or unenforceable or should a loophole be present in these Terms and Conditions of Sale and Delivery, the validity of the remaining provisions shall not be affected. In place of the ineffective or unenforceable provision, that effective or enforceable provision shall be deemed to be agreed that comes as close as possible to the purpose of the ineffective or unenforceable provision. In the case of a loophole, that provision shall be deemed to be agreed that corresponds to what would have been agreed as per the purpose of these Terms and Conditions of Sale and Delivery if the parties had considered the situation from the outset.
In addition to the terms and conditions of sale and delivery, our general terms and conditions for services apply to all services, maintenance, repair or installation work carried out by Rehm Thermal Systems GmbH, including consulting and training. These can be requested from Rehm Thermal Systems GmbH at any time.
Rehm Thermal Systems GmbH Version: 07/2022