General Terms and Conditions of the company ThermoDyn Produktion & Handel Kern
ThermoDyn Produktion & Handel Kern
D – 87629 Füssen-Weißensee
Our purchaser are hereby expressly requested to read these GTC.
The contractual partner of the purchaser is the company ThermoDyn Produktion & Handel Kern (hereafter referred to as ThermoDyn) Roßmoos 20, D-87629 Füssen. The following conditions apply exclusively to the offers made by ThermoDyn and contracts concluded with ThermoDyn. Different conditions of the purchaser are valid only if ThermoDyn confirms these in writing.
2. Conclusion of Contract
The offers of ThermoDyn are without obligation and non-binding. The offers of ThermoDyn are to be qualified as an invitation to place orders by the purchaser. Orders are only deemed to have been placed by the purchaser and accepted by ThermoDyn if they are either confirmed in writing or executed immediately (i.e. within three working days) after the order has been received or on schedule.
It is insignificant whether the order was placed by the purchaser with ThermoDyn in writing, verbally or by phone.
The agreed prices are to be understood as net prices plus the respective legally valid value added tax plus any freight and packaging costs incurred.
In case of doubt, the content of the contract is based on the order confirmation of ThermoDyn, if no such confirmation is issued, on the data of the respective delivery note.
Verbal ancillary agreements shall be deemed not to have been made. If oral ancillary agreements are made, these must be in writing in order to be valid.
3. Data Storage
The personal data obtained in the course of the business relationship are stored and processed by ThermoDyn. The content and the use are subject to the regulations of the federal data protection.
4. Delivery, transfer of risk
The observance of delivery periods presupposes the fulfilment of the purchaser’s contractual obligations. In case of delays in delivery and performance due to force majeure and due to events for which ThermoDyn is not responsible, which make delivery considerably more difficult or impossible (this includes in particular strike, official orders, lockout, transport disturbances etc., also if they occur with our suppliers and subcontractors) the agreed period extends in the appropriate extent. ThermoDyn endeavours to comply with agreed delivery periods. If delivery periods are not kept culpably, the purchaser is obliged to set an appropriate extension. After effectless expiry of the extension period, the purchaser may withdraw from the contract. Any compensation claims by the purchaser shall be limited in according to the general liability regulations. Partial deliveries are permissible to a reasonable extent.
Delivery is ex factory. Transport is always on account, cash payment or payment in advance and at the purchaser’s risk.
Unless otherwise agreed in writing, the shipping route and means of shipment are left to the choice of ThermoDyn. In all other respects the risk is transferred to the purchaser with the handing over of the goods to a suitable transport person. This also applies if ThermoDyn has the transport carried out by its own personnel.
If the purchaser is a consumer within the meaning of § 13 of the German Civil Code (BGB), the risk is not transferred until the goods are handed over to him.
In the case of delivery of old materials for recycling, this is to be carried out in a suitable form (see table of impurities). All impurities that cannot be further processed by ThermoDyn will be returned or disposed of at the supplier’s expense.
The total gross amount stated in the invoices of ThermoDyn is in principle due for payment immediately without deduction. The purchaser is in default at the latest if he does not make payment within 7 days (receipt of payment by ThermoDyn) from receipt of the delivery. In order to enforce ThermoDyn’s claims, the purchaser waives the defence of action in advance in the event of default.
Otherwise the legal regulations to the delay of payment in the valid version in each case apply additionally. Any agreed discounts are not granted if the purchaser is in arrears with a payment for earlier deliveries.
Credit notes for cheques are made subject to receipt and less expenses and the value date of the day on which ThermoDyn can dispose of the equivalent value. Bills of exchange are not accepted for payment. The purchaser may only set off claims which are undisputed by ThermoDyn or which have been finally adjudicated. The assertion of a right of retention on account of disputed or not legally established counterclaims is excluded. Claims must always be based on the same contractual relationship. The return of custom-made products and used goods is generally not possible and has no reducing effect on our claim against the purchaser.
The purchaser has to check the received goods immediately for defects and quality. Recognisable defects are to be reported immediately, at the latest however within 7 days, by written notification to ThermoDyn. If the delivered goods are defective or lacking in quality, ThermoDyn can at its discretion remedy the defect (rectification) or deliver a defect-free item (subsequent delivery). Slight colour deviations and/or model changes as well as technical changes, which serve the progress, do not entitle to the complaint. If defects occur in goods which were not manufactured by ThermoDyn, ThermoDyn is entitled to rectify the defects twice. If the second rework fails, the purchaser can require a price reduction or the cancellation of the contract. Hidden defects can be notified in writing by private persons within the statutory period. For persons within the meaning of § 24 of the General Terms and Conditions Act, a notice period of 14 days shall apply. If the notice of defects is not made in writing within the time limit, the goods shall be deemed to have been approved and accepted.
In the event of incorrect use of the products supplied by ThermoDyn, all warranty claims shall lapse as well as in the case of deliveries of product components which are ordered for independent further processing by the purchaser.
7. General liability
Claims for damages on the part of the purchaser, irrespective of the legal grounds, shall only exist:
a) if the damage has been caused by culpable breach of a contractual obligation in a way that compromises the achievement of the purpose of the contract or
b) if we have warranted a characteristic of the object of sale or guaranteed a quality for a certain period of time, or
c) insofar as the damage is insurable and it was possible and reasonable for us to take out insurance, or
d) damage is based on intent or gross negligence.
If ThermoDyn is liable in accordance with Clause 7.1.a) for the breach of a material contractual obligation without gross negligence or intent, the amount of the liability is limited to the loss or damage which ThermoDyn could typically expect at the time of the conclusion of the contract on the basis of the circumstances known to it at that time.
ThermoDyn is not liable for loss of profit or other non-pecuniary losses of the customer.
The above limitations of liability apply mutatis mutandis to actions as well as to the personal liability of the employees, representatives, vicarious agents or other agents of ThermoDyn.
The foregoing limitation of liability does not apply to the extent that ThermoDyn is liable under the Product Liability Act.
ThermoDyn is not liable for improper use of the goods.
8. Retention of title
The goods delivered in each case remain the property of ThermoDyn as goods subject to retention of title until payment of the purchase price and settlement of all claims existing from the business relationship and the claims still arising in connection with the object of purchase. The inclusion of individual claims in a current account or the balancing as well as their recognition do not cancel the retention of title. If the purchaser is in default of payment, ThermoDyn is entitled without further reminder to demand the surrender of the goods subject to retention of title at the expense of the purchaser without prior withdrawal on its part.The processing and transformation of the goods is deemed to have been carried out. ThermoDyn is in this respect deemed to be the manufacturer within the meaning of § 950 BGB. In the case of processing with goods not belonging to the seller, ThermoDyn acquires co-ownership of the new item in proportion to the value of the goods subject to retention of title to the value of the other goods at the time of processing. If the goods subject to retention of title are combined with goods not owned or possessed by ThermoDyn in accordance with $ 947, 948 BGB, ThermoDyn becomes co-owner in accordance with the statutory provisions. If the purchaser acquires sole ownership after combination, it transfers this ownership in proportion to the value of the goods subject to retention of title to the other goods at the time of combination.
In these cases the purchaser must keep in safe custody for ThermoDyn free of charge the goods which are co-owned by ThermoDyn and which are also goods subject to retention of title within the meaning of the above conditions. The purchaser is entitled to resell the goods subject to retention of title in the ordinary course of business. However, he already assigns to ThermoDyn on delivery the claims in the amount of the value of the goods subject to retention of title with all ancillary rights. ThermoDyn accepts the assignment at the same time. The value of the reserved goods corresponds to the respective invoice amount. If the resold goods subject to retention of title are co-owned by the purchaser, the assignment of the claim shall extend to the amount corresponding to the purchaser’s share value in the co-ownership. If the goods subject to retention of title are built into or attached to a movable property, immovable property or vehicle of any kind as an essential component, the buyer hereby assigns the claim arising from the sale of the movable property, immovable property or vehicle in the amount of the value of the goods subject to retention of title. The purchaser shall not be entitled to pledge the reserved goods or to assign them as security. The purchaser remains entitled to collect the assigned claim until revoked. As long as the buyer duly fulfils his payment obligations towards ThermoDyn, ThermoDyn will not make use of its collection authority. On request the purchaser is obliged to name the debtor of the assigned claim to ThermoDyn and to notify him of the assignment, without prejudice to the right of ThermoDyn to notify the assignment to the debtor itself. In the case of seizure or other interventions by third parties, the purchaser must inform ThermoDyn immediately in writing so that ThermoDyn can bring an action in accordance with § 771 ZPO (German Code of Civil Procedure). If the third party is not in a position to reimburse ThermoDyn for the court and out-of-court costs of an action in accordance with § 771 ZPO, the purchaser is liable for the loss incurred by ThermoDyn as a result.
9. General issues
All legal transactions carried out with ThermoDyn are exclusively governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for any actions on cheques and for all disputes arising directly or indirectly from the legal relationships is Kaufbeuren. ThermoDyn is, however, entitled to take legal action at the purchaser’s head office.
10. Succesive Delivery Contracts
ThermoDyn is not obliged to observe delivery periods and dates if earlier partial deliveries have not been paid for in due time. In this case ThermoDyn can demand the complete payment of the total quantity agreed in the successive contract before further partial deliveries.
Successive contracts always refer to the current calendar year. If the purchaser does not take delivery of the goods in full by 20 December of a year, ThermoDyn can deliver the remaining quantity not yet called up to the purchaser at his company headquarters by the end of the year.
If parts of these GTC’s should be or become ineffective, then the effectiveness of the remaining conditions is not affected by it.