For any present or future supplies of goods and services, our terms and conditions of sales shall apply as set forth herein. Any General Terms and Conditions of Buyer diverging from or contradicting our Terms and Conditions of Supply shall not be binding, even if we have not expressly excluded them. When carrying out installation works, our General Terms and Conditions for Installation Works shall prevail.
2.1. Our quotations shall not be binding. The agreement shall not come into effect before we have confirmed the order in writing. Our written order confirmation shall prevail for the terms and scope of the order.
2.2. We reserve ownership and copyright in cost estimates, illustrations, drawings, and other documents; Buyers hall treat them confidentially and shall not disclose them to third parties.
2.3. We may change the design of the ordered goods provided that no such change will result in a substantial change of the goods' function or Buyer furnishes evidence that such change is intolerable.
2.4. Quantities – particularly yard goods – may exceed 10% or be 5% short of the agreed delivery amount and shall not constitute a defective delivery.
2.5. We guarantee the quality or durability of goods only as expressly guaranteed in our order confirmation or advertisements.
3.1. Unless otherwise provided, our prices shall apply ex distribution center including loading, but excluding packaging, freight, insurance and statutory value-added tax. These Items will be invoiced separately.
3.2. We reserve the right to adjust our prices in the event of cost reductions or increases occurring after the conclusion of the Agreement and which are due in particular to wage settlements or material price changes. At Buyer's request, we will provide evidence for such adjustments. If the parties conclude an agreement where the delivery time exceeds four months and a new price list enters into force between the closing of the agreement and the delivery, we may charge the price valid on the delivery date.
3.3. For orders with a value of less than 200.00 € net, we reserve us the right to decline the order.
3.4. Should we incur taxes, customs duties or similar expenses due to exports or should any fees or charges, in particular customs duties or taxes, be introduced or increased after the conclusion of the agreement, Buyer shall assume said additional expenses.
3.5. Unless expressly agreed otherwise, cable reels shall remain our property. If Buyer has paid a security deposit for cable reels, said deposit will be forfeited if Buyer fails to return the cable reels postage paid to the place of performance and free from defects within one year following delivery.
4.1. Payment of invoices shall be made net within 30 days of the date of invoice. We allow a 2% discount if payment is received within two weeks.
4.2. Provided that they are discountable, cheques and bills of exchange are only accepted, if specially agreed and exclusively as conditional payment. Buyer shall assume any expenses and bank charges. The amount will be credited on the date when we have the equivalent available.
4.3. Should Buyer default in payment we shall be entitled to immediately declare due and payable all outstanding accounts arising from any previous business with Buyer. In such case discount agreements, quantity discounts, rebates etc. shall be deemed forfeited.
4.4. If part shipments are possible because the parties agreed on them or because Buyer can reasonably be expected to accept them we may make out a separate invoice for every part shipment which shall be paid pursuant to the aforementioned terms and conditions.
4.5. Should we become aware of circumstances allowing the conclusion that Buyer is in reduced circumstances or doubts about Buyer’s creditworthiness, we may suspend any outstanding deliveries resulting from any existing agreement with Buyer or to make said deliveries only upon cash with order or by security. If Buyer fails to meet such a request within a reasonable period of time, we may cancel the agreement and demand damages.
5.1. Meeting the delivery date requires that all commercial and technical questions have been cleared up and that Buyer has met all duties incumbent upon it in a timely and orderly fashion.
5.2. Should Buyer default in accepting the delivery of goods or should it violate any other obligation to cooperate, we may demand damages for any loss and additional expenditure. We reserve the right to claim damages.
5.3. Should we fail to meet the delivery date due to force majeure, industrial conflict or any other incident beyond our control or which we have not caused, the delivery term shall be reasonably extended. In such case, we will inform Buyer as soon as possible about the beginning and the end of such circumstances.
5.4. Should we fail to meet the delivery date and in the event of any damage arising hereof for Buyer, Buyer may demand a lump-sum compensation for delay. For each full week of delay said compensation shall amount to 0.5% but no more than 5% of the value of each part of the complete delivery which cannot be used in time or as agreed due to the delay. Buyer’s right to cancel the agreement when meeting the legal requirements shall not be affected. Any other claims arising from default of delivery shall be excluded, unless it had been stated that time was of the essence or that the interest in the performance of the agreement ceased to exist.
6.1. The risk shall pass to Buyer as soon as the delivery item leaves the plant; this provision shall also apply for part deliveries or when Seller agreed to provide additional services such as delivery or installation, payment of shipping costs. Any acceptance shall be decisive for the transfer of risk. Such acceptance shall be made immediately on the acceptance date, or alternatively after the Seller has indicated that the goods are ready for acceptance. Buyer may not refuse to accept the goods in case of a non-substantial defect.
6.2. Should the shipment or acceptance be delayed or
stopped due to circumstances beyond our control, the risk shall pass to Buyer on the day when the goods were ready to be shipped or accepted. In such case, we may insure the goods and charge Buyer with the expenses incurred for such insurance.
In case of cancellation of an order by Buyer we will charge the following cost:
7.1. For cancellation of finished material without de-sign we will charge up to 10 days after receipt of Buyer´s order 10%, between 10 and 20 days we will charge 25% and afterwards 35% of the total order value as cancellation fee.
7.2. For customized orders with design and or nec-essary samples we charge 15% immediately af-ter cancellation, in case of already by Buyer ap-proved design documents 50% and for already produced orders 100% of the total order value as cancellation fee.
8.1. Deliveries are always made under retention of title. We retain a right of possession in the goods until Buyer makes full payment of all claims arising from the business relation with Buyer. In the case of an open account, retained title to the goods shall serve as security for the outstanding account balance.
8.2. Buyer shall be entitled to resell the delivered goods in its ordinary course of business. It may not pledge or charge by way of security any of the retained goods.
8.3. Buyer hereby assigns to Seller all claims and all ancillary rights arising for Buyer from the resale of the goods. This provision shall apply irre-spective of whether Buyer sells the retained goods without processing them, after pro-cessing them, or combined with other goods. Should Buyer sell the retained goods together with goods that are not our property, the as-signment shall correspond to the amount result-ing from the sale of the retained goods. This amount shall be calculated according to our sales prices.
8.4. Processing of the retained goods shall be car-ried out at all times for us as manufacturers within the meaning of §950 BGB (German Civil Code), however, without any obligations arising for us. Processed goods shall be regarded as goods sold under retention of title within the meaning of these provisions. If the goods deliv-ered under retention of title are incorporated into or mixed with other goods not owned by us, and are not separable from the resulting mixed goods, title to the new goods shall pass to us and we shall receive any resale proceeds on a pro rata basis which shall be determined in proportion to the invoice value of our goods and the other processed goods at the moment when said goods were processed or mixed. Within the meaning of these provisions, the re-sulting title to the processed goods shall be re-garded as retained goods. Upon our request, Buyer shall be obliged to inform any purchasers of the retained goods about our title in said goods.
8.5. Buyer shall be authorized to collect any receiv-ables arising from the resale of goods without prejudice to our authority to collect. Provided that Buyer meets its payment obligations, we will not assert any claims. At our request, Buyer shall disclose the debtors of the assigned claims and notify said debtors of the assign-ment. Our right to independently inform gar-nishees about the assignment shall not be af-fected. Buyer may not assign the claim against the garnishee to third parties or agree with the garnishee not to assign the claims.
8.6. Buyer undertakes to advise us immediately and as soon as possible of any attachment or any other impairment of its security interests by third parties. Buyer undertakes to furnish all records that we require to protect our rights and to reimburse any expenses that we might incur due to any intervention that might be required.
8.7. Should the realizable value of the securities exceed our claims by more than 10%, we will, at Buyer’s request, select and release securi-ties to this extent.
8.8. Should Buyer act contrary to the terms of the agreement, in particular by being in default of payment, we may cancel the agreement and re-possess the items delivered under retention of title, and Buyer shall be obliged to return said items.
9.1. Buyer undertakes to inspect the goods immedi-ately upon receipt. Buyer shall give notice of defect in writing immediately after receipt of goods and at the latest within two weeks after Buyer's receipt. The same period shall apply for hidden defects following discovery of such de-fect. Failure to notify us about any defects may result in Buyer's loss of right to have the defect remedied.
9.2. In the case of justified complaints, we will rem-edy the defect at our discretion, or deliver a re-placement. Should we fail to remedy the defect within a reasonable period of time or deliver a replacement, Buyer shall have the right to can-cel the agreement, or to demand an abatement of the purchase price. Buyer may not cancel the Agreement if our breach of obligations was neg-ligible.
9.3. The period of limitation for warranty claims shall be:
9.3.1. 5 years for delivered items that were used for abuilding according to their normal purpose of use and have caused defects in a building.
9.3.2. 1 year for any other new goods delivered to businesspersons. The period of limitation shall commence upon delivery of the item.
9.4. Warranty claims will not be considered for de-fects occurring after transfer of risk due to un-suitable or improper use, wrong assembly or start-up by Buyer or third parties, invalid mode of operation, normal wear and tear, improper maintenance, unsuitable equipment defective construction work, unsuitable sub-grade or due to special external factors which are not provid-ed for in the agreement or non-reproducible software errors. If Buyer or third parties rectify defects with improper remedies, we shall not be liable for the resulting consequences. The same shall apply for any changes to the delivery item without our prior consent.
10.1. In the event of death, physical injury, or any health impairments attributable to us, we shall be held liable under the provisions of law.
10.2. The following shall apply for any other dam-ages:
10.2.1. We shall be liable under the provisions of law for any willful or gross breach of duty committed by legal representatives, our vicar-ious agents, or us.
10.2.2. For any damages due to a material breach of the Agreement caused by slight negligence by us, our legal representatives or vicarious agents, liability shall not exceed the foreseea-ble damage that may typically arise hereun-der.
10.2.3. We will not be liable for any claims or dam-ages arising from the breach of collateral du-ties or non-essential duties caused by slight negligence.
10.2.4. Limitation or exclusion of liability shall not apply in the event of us having fraudulently concealed defects, or assumed guarantee re-sponsibilities for the quality of goods.
10.3. Buyer's claims to reimbursement of wasted expenditure in lieu of indemnity, and liability pursuant to the Product Liability Act (Produk-thaftungsgesetz) shall remain unaffected.
10.4. Our products are used for a broad range of applications. If Buyer intends to use our prod-ucts in such a way or for such a purpose that is not expressly specified in our product documen-tation or for which we have set forth a separate, written release, Buyer shall verify the product’s suitability for the intended purpose with its own tests. We accept no liability in this respect.
11.1. Buyer shall not be entitled to assign to third parties its rights resulting from the agree-ments concluded with us.
12.1. This agreement shall be governed exclusively by German law, to the exclusion of the United Nations Convention on International Sale of Goods (CISG).
12.2. Heidelberg shall be the place of performance for any liabilities arising from the agreements we concluded with Buyer.
12.3. The legal venue is Heidelberg. We shall also be entitled to bring charges against Buyer at its place of registered office.
Thermocoax Isopad GmbH - April 2018