Terms and Conditions of Sale and Delivery

§ 1  Scope of these conditions

1.    These Terms and Conditions shall apply exclusively. Conflicting or deviating terms and conditions shall not be recognised by us, unless we have expressly agreed to their validity in writing. These General Terms and Conditions shall also apply if we provide the service without reservation in the knowledge of conflicting or deviating conditions of the customer.

2.    These Terms and Conditions shall apply exclusively to entrepreneurs within the meaning of § 14 German Civil Code (“Bundesgesetzbuch”).

§ 2  Conclusion of the contract, quotation documents

1.    A contract shall only be deemed to be concluded with our written order confirmation or upon delivery of the goods ordered by the customer.    

2.    Our quotations are subject to change.

3.    We reserve ownership and copyrights to all illustrations, drawings, calculations and other documents. 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. 

§ 3  Delivery time

1.    Adherence to the agreed delivery times is conditional upon the customer fulfilling its obligations in a timely and correct manner, and in particular upon the customer providing documents, parts etc. in a timely and correct manner.

2.    Compliance with the agreed delivery times is conditional upon timely and correct delivery being made.

3.    Force majeure, as well as operational disruptions (such as riots, strikes, lockouts) suffered by us or our suppliers, which temporarily prevent us, through no fault of our own, from delivering by the agreed time or within the agreed deadline, shall change the agreed delivery times and delivery dates by the duration of the disruption caused by these circumstances.

4.    In the event that we are in default of delivery, any claim by the customer for damage caused by default shall be excluded, unless otherwise specified below. If the delay in delivery is based on intent or gross negligence on our part or on the part of our legal representatives and vicarious agents or if the default constitutes breach of an obligation, the fulfilment of which makes the proper execution of the contract possible and the fulfilment of which the purchaser may regularly rely on (essential contractual obligation), our liability for damages caused by delay shall be governed by the statutory provisions. If the delay represents a breach of an essential contractual obligation and if we or our legal representatives and vicarious agents are only guilty of slight negligence with regard to the default, our liability shall be limited to foreseeable damages that are typical for the contract.

5.    If the customer is in default of acceptance or if he violates other obligations to cooperate, we shall be entitled to demand compensation for losses incurred, including any additional expenses. If the customer is in default of acceptance, the risk of accidental loss or accidental deterioration of the goods is transferred to the customer at this time.

§ 4  Terms of payment

1.    Unless otherwise expressly agreed, our prices are “ex works”, i.e. they exclude packaging and transport costs and, where applicable, assembly costs which may have been separately agreed by the parties. The legal value added tax is not included in our prices and shall be explicitly stated on the invoice at the time of invoicing.    

2.    Unless otherwise expressly agreed, the purchase price shall become due without deductions upon receipt of the invoice.

§ 5 Restrictions on the right to offsetting and retention

1. The customer shall not be entitled to offset our claims to payment with counterclaims unless the counterclaim with which the customer declares offsetting is undisputed or legally established as final and absolute. The customer shall continue to be entitled to offset if the claim with which he declares offsetting is directly related to our payment claim.   

2.    The customer shall only be entitled to a right of retention in the case of undisputed or legally established counterclaims if the right of retention is based on the same contractual relationship.

§ 6  Transfer of risk

Unless otherwise expressly agreed, delivery shall be “ex works”.

§ 7  Retention of title

1.    We reserve title to the purchased item until all payments resulting from the delivery contract have been received. The customer is obliged to store the purchased item free of charge with the due care of a prudent businessman and to adequately insure it, at his own cost, to its original value against damage by fire, water and theft. If maintenance and inspection work is required, the customer shall carry this out at his own expense in a timely manner.

2.    The customer shall not be entitled to pledge or transfer ownership of the reserved goods. In the case of seizure or other access by third parties to the reserved goods, the customer must notify us in writing immediately and provide us with all the documents required to safeguard our rights, in particular with regard to instituting third-party intervention pursuant to § 771 Code of Civil Procedure (“Zivilprozessordnung”).    

3.    The customer shall be entitled to resell the reserved goods in the ordinary course of business. However, he hereby assigns to us at this point in time all claims accruing to him as a result of resale of the reserved goods vis-à-vis his customers or third parties, in the amount of the gross purchase price agreed with us. This applies irrespective of whether the reserved goods were resold without or after processing. The customer shall remain entitled to collect the claims even after this assignment. However, our right to collect the claims ourselves shall remain unaffected. However, we undertake not to collect the claims ourselves, as long as the customer duly fulfils his payment obligations, is not in default of payment and, in particular, has not filed an application for opening insolvency proceedings or has ceased to make payments. In the event of late payment, cessation of payments or the filing of a petition for insolvency, the right of the customer to sell the reserved goods as well as the right to collect the assigned claims vis-à-vis the customers’ buyers shall cease. In this case, the customer is obliged to provide us with all information necessary to collect the claim, to hand over to us the necessary documents and to disclose the assignment to the third party.    

4.    Sums of money that the customer draws on assigned claims must be kept in a separate account until transferred to us so as to exclude settlements of accounts and/or set-offs with in-debt bank accounts.   

5.    Any processing or alteration of the reserved goods performed by the customer shall be deemed to be performed on our behalf. If the purchased item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the objective value of our purchased item to the other processed items at the time of processing. Furthermore, the same applies to the item resulting from processing as to the purchased item delivered under reservation.    

6.    If the reserved goods are inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the objective value of our purchased goods to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it shall be agreed that the customer assigns proportional co-ownership to us. The customer shall keep the sole ownership or co-ownership created in this manner safe for us.    

7.    The retention of title shall remain even if individual claims are included in a current account and the balance is drawn and acknowledged, unless the balance is settled.   

8.    We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realisable value of the securities granted exceeds our claims by more than 10%. The selection of the securities to be released is at our discretion.

§ 8  Warranty 

1.    The customer is obliged to examine the purchased goods for defects – even in the case of resale – and to report any obvious defects without delay, at the latest within one week. If the customer does not meet its obligations to inspect the goods and to report any defects, the goods shall be deemed to be in accordance with the contract.

2.    Warranty claims shall not arise for natural wear or normal wear and tear nor for defects or damage to the purchased item which arise after the transfer of risk as a result of incorrect or careless handling, excessive use, unsuitable equipment or special external influences which are not predisposed by the contract. If the customer or a third party improperly undertakes repair work or alterations, there are no warranty claims for these or for any errors or damage to the purchased items on which they are based.   
3.    In the case of not insignificant material and legal defects, we are in principle entitled to make repairs twice. Should the nature of the item or of the defect or the other circumstances indicate that the improvement has not yet failed and this is acceptable to the contractual partner, we shall be entitled to make further improvements. If the improvement has failed, the contractual partner shall be entitled to reduce the purchase price or, at its discretion, withdraw from the contract and assert the right to claim damages in accordance with the statutory provisions and the provisions of § 9 of these General Terms and Conditions.
   

4.    The limitation period for warranty claims is 12 months from delivery of the purchased item. This shall not apply to claims of the customer from injury to life, limb or health nor to other damages of the contractual partner, which are based on an intentional or grossly negligent breach of duty on our part or on an intentional or grossly negligent breach of duty by our legal representatives or vicarious agents, nor for claims under the Product Liability Act.

§ 9  Limitation of liability

1. Our liability for damages shall be excluded, unless otherwise stated in the following provisions.    

2.    According to the legal provisions, we shall be liable for damages resulting from injury to life, limb or health, for damages resulting from breach of duties, the fulfilment of which enable the proper execution of the contract and the fulfilment of which the purchaser may regularly rely on (essential contractual obligations), as well as for other damages that are based on an intentional or grossly negligent breach of duty on our part or on an intentional or grossly negligent breach of duty by one of our legal representatives or vicarious agents. The same shall apply to claims for damages according to the Product Liability Act (“Produkthaftungsgesetz”).    

3.    In the case of negligent breach of essential contractual obligations, our liability is limited to the damage typically foreseeable upon conclusion of the contract.    

4.    Insofar as our liability is excluded or limited in accordance with the above provisions, this shall also apply to the personal liability of our employees, representatives or vicarious agents.    

§ 10  Place of performance, choice of law, place of jurisdiction

1.    The place of performance for all mutual claims arising from the contractual relationship shall be our place of business.

2.    The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

3.    If the customer is a merchant, the exclusive place of jurisdiction for all disputes arising from this contract shall be the competent court of our place of business. However, we shall also be entitled to sue the customer at the competent court of his place of residence/business.


Rehm Thermal Systems GmbH                              Version: 08/2015