General terms and conditions
I. Validity of the General Terms and Conditions
All services and deliveries of ThermoExpert Deutschland GmbH are provided exclusively on the basis of the specific contract in conjunction with these General Terms and Conditions (hereinafter referred to as GTC). With the placing of the order by the customer, at the latest with the acceptance of the delivery items, the customer recognizes the sole binding force of these GTC. Deviating terms and conditions of our customers shall not apply, even if we do not expressly object to them or if we unconditionally perform or accept deliveries and services in the knowledge of conflicting GTC.
These GTC shall apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
Offers, conclusion of contract and content of contract
1) Our contractual offers are subject to change and are to be understood merely as an invitation to place an order.
2) A contract shall only be concluded by our written confirmation of the order, which is consistent with the customer's order, at the latest by a delivery by us. In this respect, oral declarations require confirmation in text form in order to be effective.
Our order confirmation (including these GTC) shall be exclusively authoritative for the scope of the performance owed by us. An order confirmation which differs in content from the customer's order shall be deemed to have been accepted by the customer unless the customer objects to it within three working days of receipt.
If the delivery item is to serve special purposes of the customer or have special requirements, this purpose or the requirements shall only become part of the contract if they are expressly and completely designated by the customer in the order and expressly confirmed by us in the order confirmation.
We shall only be obliged to commission the items delivered by us if this is expressly confirmed in the order confirmation.
We reserve the right to make changes to the technical concept on which the offer is based, provided that this does not affect the performance and quality of the delivery item offered or any agreed purpose. We shall inform the customer of such changes in writing within one week of the change in the concept.
III. documents / documentation
We reserve all rights to illustrations, drawings, calculations, technical information and other documents made available to us, unless these are expressly intended for the commissioning or operation of the subject matter of the contract or for advertising purposes. Illustrations, drawings, calculations, technical information and other documents which are not expressly intended for the commissioning or operation of the subject matter of the contract or for advertising purposes may not be reproduced or made available to third parties without our express written consent. They may only be used for the contractual purposes and returned to us at our request insofar as they are no longer required by the customer in the ordinary course of business and in compliance with any existing retention obligations. Existing copies are to be destroyed by the customer.
All illustrations, drawings, calculations, technical information, other documents and weights and dimensions provided by us contain approximate data. They are therefore not binding unless they are expressly designated by us as binding.
IV. Terms of delivery
Unless otherwise agreed, our deliveries shall be made FCA Stapelfeld (Brookstieg 1) in accordance with Incoterms 2020. The risk of accidental loss and accidental deterioration shall pass to the customer upon handover of the delivery items to the logistics service provider (freight forwarder or carrier).
If, at the customer's request, we agree to organize the transport of the delivery items to another place of delivery, our delivery shall continue to be made FCA in accordance with Incoterms 2020. The buyer shall bear the costs and risk of such transport of the delivery items to the place of delivery. On our part, the price of the goods shall be increased by a flat-rate shipping charge valid at the time of shipment on the basis of standard packaging; special packaging and special transports (e.g. express shipping) shall be charged separately. Insurance against transport and fire damage as well as destruction of the delivery items during transport shall only be taken out in the event of a request to this effect by the customer at the customer's expense; we shall not be obliged to insure the delivery items in this respect.
Shipments abroad shall be made exclusively on the basis of the following conditions:
If the place of destination is within the European Economic Area, the delivery shall be made carriage paid in accordance with clause CPT of the INCOTERMS.
If the place of destination is outside the European Economic Area, the delivery shall be made duty unpaid, in accordance with the clause DAP of the [■].
Partial deliveries are permissible insofar as (i) the partial delivery is usable for the Customer within the scope of the contractual purpose, (ii) the delivery of the remaining ordered delivery items is ensured, and (iii) the Customer does not incur any significant additional expenses or additional costs as a result.
V. Delivery time and delay
Delivery times communicated by us shall only be binding if (i) they are marked as binding by us in the order confirmation, the customer has provided us with all information/documents required for the execution of the delivery in due time and he has made any agreed down payments in accordance with the agreement.
The delivery time shall be deemed to have been complied with if the consignment has been made available for collection at the agreed delivery time If shipment to the customer has been agreed, the delivery time shall be deemed to have been complied with if the consignment has been made available at the agreed delivery time and the transport company has been commissioned to collect it. In the event of additional or extension orders placed by the customer at a later date, the deadlines shall be extended accordingly.
Disruptions in our production, in the provision of our services and/or in the transport of the consignment to the customer, which are based on the Corona virus or other events of force majeure (for example, war, acts of terrorism, epidemics, natural disasters, strikes, lockouts, occupation of factories and premises, official measures, energy, shortage of materials or raw materials, fire and explosion damage, traffic and operational disruptions, acts of sovereignty (whether lawful or unlawful), are beyond our control and make it temporarily impossible or considerably more difficult for us to fulfill our delivery obligation, shall release us from our obligation to deliver on time for the duration of the disruption. This shall also apply if the aforementioned circumstances occur at our suppliers. We shall not be obliged to procure replacement goods from third parties during the disruption. Any agreed delivery periods shall be extended by the duration of the disruption. We shall inform the customer of the occurrence and end of the disruption in an appropriate manner as soon as possible. If the end of the disruption is not foreseeable or if it lasts longer than three months, the customer and we shall be entitled to withdraw from the contract without notice with regard to the affected scope of performance.
Our obligation to deliver such delivery items for which we procure raw materials and/or components from suppliers shall be subject to correct and timely self-supply.
The customer shall bear the additional costs of any interruption or delay in the services owed by us caused by him.
If the customer is in default of acceptance or if he violates other cooperation obligations incumbent upon him, we shall be entitled - without prejudice to our other rights - to store the delivery item appropriately at the risk and expense of the customer or - in the event of a breach of obligation by the customer - to withdraw from the contract. In this case, the warehouse receipt or the acceptance certificate of the forwarder shall be deemed to be evidence of delivery in accordance with the contract.
VI. prices and terms of payment
If, in the case of call-off or forward orders, only part of the agreed quantity is accepted by the customer within the agreed period, we shall be entitled, at our discretion, either to charge the price applicable to this batch size for the part delivered or to additionally deliver and charge for the quantity not yet called off.
Unless otherwise contractually agreed, our invoices are due for payment without deduction within 14 days of the invoice date. In the event of late payment, we shall be entitled to demand interest on arrears from the customer at the statutory rate. We shall also be entitled to claim the lump-sum damages pursuant to Section 288 (5) of the German Civil Code (BGB) and any higher damage caused by default.
Payment by bank transfer shall not be deemed to have been made until the amount has been irrevocably credited to us without any deduction in the account specified by us.
If the customer is in default with its obligations and our delivery or performance is delayed as a result, payments shall be made as if the delay had not occurred.
The customer shall only be entitled to set off counterclaims or to withhold payments on account of such claims if its counterclaims are undisputed or have been finally adjudicated or arise from the same contract under which the relevant delivery was made.
If, after the conclusion of the contract, the risk of the customer's inability to perform becomes apparent to us, we shall be entitled to make any outstanding or future deliveries only against advance payment or other provision of security. If the advance payments or other securities have not been provided even after expiry of a reasonable grace period, we may suspend deliveries until the advance payments or securities have been provided or withdraw in whole or in part from individual or all affected contracts. We shall be entitled to assert further rights.
We shall be entitled to issue partial invoices for partial deliveries within the meaning of Section IV.4 of these GTC.
Retention of title
We retain title to the items delivered by us ("reserved goods") until all claims against the customer to which we are entitled under the business relationship have been satisfied. If the customer does not fulfill one of our claims resulting from the business relationship within the agreed time or not completely, we shall be entitled to demand the surrender of the reserved goods. The customer shall then be obliged to surrender the reserved goods to us at his risk and expense at our place of business (Stapelfeld).
The customer shall be entitled to sell the goods subject to retention of title in the ordinary course of business. Insofar as the customer resells the items subject to retention of title, he hereby assigns to us the claim arising from this, limited to our claims from the delivery of the goods subject to retention of title, irrespective of whether the sale takes place without or after processing, mixing or combining ThermoExpert Deutschland GmbH accepts the assignment. The customer is revocably entitled to collect the claims assigned to us independently, but is obliged to continue to make the payments received in this respect to us without delay, whereby in the case of partial payments the payments are deemed to have been made on the assigned part of the claim until our claims have been met in full. We may revoke this authorization as well as the right to resell if the customer defaults on material obligations, such as payment, towards us; in the event of revocation of the authorization, we shall be entitled to collect the claim ourselves.
The customer shall not be entitled to pledge the goods subject to retention of title, to assign them by way of security or to make any other dispositions endangering our ownership.
For the duration of the retention of title, the customer is obliged to insure the goods subject to retention of title against loss and destruction to the customary extent, to mark them - as far as possible - as our property and to handle them with care.
The customer is obliged to inform us immediately of all events that endanger our property (in particular seizures, injunctions, confiscations) and to provide us immediately with all information and documents that are necessary to protect our rights. Third parties are to be informed of our ownership.
The processing of the goods subject to retention of title shall be carried out for us as manufacturer without any obligations arising for us from the processing. If the goods subject to retention of title are processed, mixed or combined with other items not owned by us, we shall be entitled to co-ownership of the newly produced item in the ratio of the value of the goods subject to retention of title to the other items at the time of processing, mixing or combining. If the customer acquires sole ownership of the newly produced item, it is agreed that the customer shall grant us co-ownership of the new item in the ratio of the value of the reserved goods to the value of the other processed, mixed or combined items and shall hold this co-ownership share in trust for us free of charge.
If the value of our security in accordance with the provisions of this Section VII exceeds the amount of our claim by more than 30%, we shall, at the customer's request and at our discretion, immediately release security to such an extent that the remaining security amounts to a maximum of 130% of our claims.
If the customer defaults on material obligations to us, such as payment, we may - without prejudice to other rights - withdraw from the contract in accordance with the statutory provisions. If we withdraw from the contract, we shall be entitled to demand the return of the goods subject to retention of title and to dispose of them elsewhere for the purpose of satisfying due claims. In the event of a demand for surrender, the customer shall immediately grant us or our representative access to the reserved goods and surrender them.
The delivery items supplied by us are already free of material defects if they correspond to a quality agreed between us and the customer at the time of transfer of risk. The agreed quality shall be measured exclusively in accordance with the specific agreements made in text form regarding the properties, features and performance characteristics of the delivery item.
Defects in the delivered items shall be remedied at our discretion by rectification or subsequent delivery. We shall bear all expenses necessary for the purpose of remedying the defect, unless such expenses result from the fact that the item has been taken to a place other than the place of performance.
If heatsealing bands, thermocouples and heating solutions become unusable or their usability is considerably impaired after the passing of risk, it shall be presumed that the impairment is due to normal wear and tear, unless this presumption is incompatible with the nature of the item or the nature of the impairment. A warranty is excluded if increased wear and tear results from the fact that the products supplied by us are operated outside their limits.
We only provide a warranty for application-related functions if this has been expressly agreed in writing. Information in catalogs, price lists and other information material provided to the customer by us as well as product-describing information are in no case to be understood as guarantees for a special quality or durability of the delivery item; such quality or durability guarantees must be expressly agreed in writing
The customer must notify us in text form of an obvious defect within two weeks after receipt of the item, otherwise a warranty is excluded. If the defect is not obvious, the customer must notify us of this defect in text form no later than one week after its discovery. The timely dispatch of the notice of defect shall be sufficient to meet the deadline. The provisions of 377 HGB remain unaffected. In the event of any notice of defect, we shall be entitled to inspect and test the delivery item complained about. The customer shall grant us the necessary time and opportunity for this purpose. We may also require the customer to return the delivery item complained about to us at our expense.
Warranty claims shall become statute-barred one year after the passing of risk. This shall not apply to claims for damages of the purchaser due to damage to life, body or health culpably caused by us or our vicarious agents; as well as for other damage caused by us or our vicarious agents due to gross negligence or intentionally. In these cases, the statutory limitation periods shall apply. Special statutory provisions (e.g. § 438 para. 3 BGB, § 444 BGB) shall also remain unaffected.
The limitation period in the event of delivery recourse pursuant to § 445 b BGB shall remain unaffected by the above Section VIII.5. However, the delivery recourse according to §§ 445a, 445b BGB shall be excluded if the customer fails to point out to his customer the usual period of wear of thermocouples, heatsealing bands and heating solutions and if he thereby becomes liable to pay compensation to his customer.
Limitation of liability
1) We shall not be liable for any damage resulting from the fact that we have performed services based on drawings, templates, calculations and the like provided or checked by the customer. As far as recognizable for us, we will point out to the customer as soon as possible the impossibility of a technical implementation of the templates.
2) For the slightly negligent breach of essential contractual obligations ("cardinal obligations"), our liability shall be limited to the amount of the damage foreseeable at the time of conclusion of the contract and typical for the contract. Cardinal obligations are those obligations which provide the Buyer with a legal position which the contract is intended to grant him according to its content and purpose, as well as those obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose fulfillment the Buyer regularly relies and may rely.
3) We shall not be liable for the slightly negligent breach of obligations under the contract other than those specified in Section IX. 2.
4) Otherwise, the customer's statutory claims for damages shall remain unaffected; in particular, we shall be liable for intent and gross negligence in accordance with the statutory provisions.
5) The aforementioned limitations of liability in Sections IX.2 and IX.3 shall not apply in cases of mandatory statutory liability (in particular under the Product Liability Act), culpable injury to life, limb or health by us, guarantees given by us or defects fraudulently concealed by us.
6) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
7) The customer shall be obliged to provide us with evidence of any damage claimed. Any contractual penalties and/or lump sums for damages provided for in the Buyer's terms and conditions shall not apply (cf. Section I. 1 of these GTC).
8) If the customer resells a delivery item, he shall indemnify us internally against product liability claims and any other claims of third parties insofar as he is responsible for the defect/defect giving rise to the liability.
If assembly (and commissioning) of the delivery items is part of the contract, the conditions of this Clause X shall apply in addition:
The customer is responsible for the proper storage of the items at or near the place of commissioning. Any part lost, damaged or perished during storage shall be repaired or replaced by us at our discretion at the customer's expense.
All preparatory work must be carried out and completed on time in accordance with the specifications notified by us with sufficient advance notice. The assembly site shall be made available to us without hindrance on the agreed date. Our assembly personnel shall not be requested until all preparatory work has been completed or it has been ensured that the preparatory work will be completed by the agreed date.
The delivery items intended for assembly or commissioning must be available in perfect condition at the agreed time.
In the event that one of the prerequisites specified in the above Sections X.2 to 3 does not exist, or that we have to interrupt the commissioning and assembly work for reasons that are not attributable to us, the agreed time for the performance of these services shall be extended accordingly. All additional costs arising from these reasons shall be borne by the customer.
Insofar as the delivery or export of the goods requires the approval of German and/or foreign authorities and/or international institutions, our offers shall be subject to the granting of such approval. The customer shall be responsible for obtaining such approval, whereby we shall support the customer to the extent necessary, in particular by issuing certificates and confirmations.
If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from or in connection with this contractual relationship shall be Hamburg. However, we are entitled to sue the customer at any other legal place of jurisdiction.
The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Should an agreement between us and the customer be or become void or ineffective in whole or in part, this shall not affect the validity of the remaining agreements. In this case, the provision that most closely approximates the economic intent of the invalid provision shall be deemed to have been agreed.
Any assignment of claims (with the exception of monetary claims) shall require the prior written consent of the contractual partner.
Subsidiary agreements, amendments and supplements to these GTC shall require the text form in order to be effective. Likewise, the cancellation of the text form requirement requires an agreement in text form.
ThermoExpert Germany GmbH
Phone (040) 67 10 22 8-0
Fax (040) 67 10 22 8-20
Andreas Helf, Heiko Gevert
Registered office of the company: Stapelfeld,
Registered at the local court
Lübeck, HRB 12446 HL
Raiffeisenbank Südstormarn Mölln eG
Kto.-Nr. 532363, BLZ 200 691 77
IBAN: DE46 2006 9177 0000 5323 63
BIC: GENODEF1 GRS
Ust-IDNr. DE 285 410 793
Status: April 2023