GeneralTerms and Conditions

I. Validity of the General Terms and Conditions

All services and deliveries provided by ThermoExpert Deutschland GmbH are performed exclusively on the basis of the specific contract in conjunction with these General Terms and Conditions (hereinafter referred to as the “GTC”). By placing an order, and at the latest upon acceptance of the delivered goods, the customer acknowledges that these GTC are the sole binding terms. Any deviating terms and conditions of our customers shall not apply, even if we do not expressly object to them or if we carry out or accept deliveries and services without reservation while being aware of conflicting GTC.

These Terms and Conditions apply exclusively to business entities, legal entities under public law, or special funds under public law as defined in Section 310(1) of the German Civil Code (BGB).

II. Offers, Conclusion of the Contract, and Terms of the Contract

  1. Our contract offers are subject to change and should be understood solely as an invitation to place an order.
  2. A contract is concluded only upon our written order confirmation, which must correspond to the customer’s order, or, at the latest, upon delivery by us. Verbal statements must be confirmed in writing to be valid.

Our order confirmation (including these General Terms and Conditions) shall be the sole basis for determining the scope of the services we are obligated to provide. An order confirmation whose content differs from the customer’s order shall be deemed accepted by the customer unless the customer objects to it within three business days of receipt.

If the delivered item is intended to serve specific purposes of the customer or meet specific requirements, such intended use or requirements shall only become part of the contract if they are expressly and fully specified by the customer in the order and expressly confirmed by us in the order confirmation.

We are only obligated to commission the items we have delivered 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 impair 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 to the concept.

III. documents / documentation

We reserve all rights to the illustrations, drawings, cost estimates, technical information, and other documents provided to us, unless they 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 that 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. You may use them only for the contractual purposes and must return them to us upon our request, provided that the customer no longer requires them in the ordinary course of business and in compliance with any applicable retention obligations. Any existing copies must be destroyed by the customer.

All illustrations, drawings, cost estimates, technical information, other documents, and weight and dimension specifications provided by us are approximate. They are therefore not binding unless we expressly designate them as such.

IV. Terms of delivery

Unless otherwise agreed, our deliveries are made FCA Stapelfeld (Brookstieg 1) in accordance with Incoterms 2020. The risk of accidental loss or accidental deterioration passes to the customer upon handover of the goods to the logistics service provider (freight forwarder or carrier).

If, at the customer’s request, we agree to arrange for the transport of the goods to a different delivery location, our delivery will still be made on an FCA basis in accordance with Incoterms 2020. The buyer bears the costs and risk associated with such transport of the goods to the delivery location. On our part, the price of the goods will be increased by a flat-rate shipping fee valid at the time of shipment, based on standard packaging; Special packaging and special shipping methods (e.g., express shipping) will be billed separately. Insurance against damage during transport, fire damage, and destruction of the goods during transport will be provided only if the customer specifically requests it and at the customer’s expense; we are under no obligation to insure the goods in this regard.

International shipments are made exclusively in accordance with the following terms and conditions:

  • If the destination is within the European Economic Area, delivery is made carriage paid, in accordance with the CPT clause of the INCOTERMS.
  • If the destination is outside the European Economic Area, delivery will be made duty unpaid, in accordance with the DAP clause of [■].

Partial deliveries are permitted provided that (i) the partial delivery is usable by the customer for the contractual purpose, (ii) delivery of the remaining items ordered is guaranteed, and (iii) this does not result in any significant additional effort or costs for the customer.

V. Delivery time and delay

Delivery times provided by us are binding only if (i) we designate them as binding in the order confirmation, the customer has provided us with all information and documents necessary for the delivery in a timely manner, and the customer has made any agreed-upon down payments as agreed.

The delivery deadline is met if the shipment has been made available for pickup at the agreed-upon delivery time. If shipment to the customer has been agreed upon, the delivery deadline is met if the shipment has been made available at the agreed-upon delivery time and the carrier has been instructed to pick it up. If the customer places additional or expanded orders at a later date, the deadlines are extended accordingly.

Disruptions in our production, in the provision of our services, and/or in the transport of the shipment to the customer that are attributable to the coronavirus or other events of force majeure (such as war, acts of terrorism, epidemics, natural disasters, strikes, lockouts, occupation of factories and premises, government measures, shortages of energy, materials, or raw materials, damage caused by fire or explosion, traffic and operational disruptions, acts of state (whether lawful or unlawful)), and for which we are not responsible, and which temporarily prevent or significantly impede our ability to fulfill our delivery obligation, shall release us from the obligation to deliver on time for the duration of the disruption. This also applies if the aforementioned circumstances occur at our suppliers. We are not obligated to procure replacement goods from third parties during the disruption. Any agreed-upon delivery deadlines shall be extended by the duration of the disruption. We will notify the customer of the onset 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, both the customer and we are entitled to withdraw from the contract with respect to the affected scope of services without notice.

Our obligation to deliver goods for which we source raw materials and/or components from suppliers is subject to correct and timely delivery to us by our suppliers.

The customer shall bear the additional costs resulting from any interruption or delay in the services we are obligated to provide that is caused by the customer.

If the customer is in default of acceptance or fails to fulfill any other obligations to cooperate, we shall be entitled—without prejudice to our other rights—to store the delivered goods in an appropriate manner at the customer’s risk and expense 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 carrier’s receipt of delivery shall serve as proof 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 deliver and pay for the quantity not yet called off.

Unless otherwise agreed in the contract, our invoices are due for payment without deduction within 14 days of the invoice date. In the event of late payment, we are entitled to charge the customer interest on arrears at the statutory rate. We are also entitled to claim the lump-sum compensation for damages pursuant to Section 288(5) of the German Civil Code (BGB) and any higher damages resulting from the delay, if applicable.

A payment made by bank transfer is not considered complete until the amount has been irrevocably credited to the account we have specified, without any deductions.

If the customer is in default of its obligations and this causes a delay in our delivery or service, payments must be made as if the delay had not occurred.

The customer is entitled to set off counterclaims or withhold payments based on such claims only to the extent that the counterclaims are undisputed, have been legally established, or arise from the same contract under which the relevant delivery was made.

If, after the conclusion of the contract, it becomes apparent to us that the customer is unable to fulfill its obligations, we are entitled to make any outstanding or future deliveries only upon receipt of advance payment or other security. If the advance payments or other security have not been provided even after the expiration of a reasonable grace period, we may suspend deliveries until such payments or security are provided, or we may withdraw from individual or all affected contracts, in whole or in part. We reserve the right to assert further claims.

We are entitled to issue partial invoices for partial deliveries as defined in Section IV.4 of these General Terms and Conditions.

VII. Retention of Title

We reserve title to the goods delivered by us ("goods subject to retention of title") until all our claims against the customer arising from the business relationship have been fulfilled. If the customer does not fulfill one of our claims resulting from the business relationship within the agreed time or not completely, we are entitled to demand the return of the reserved goods. The customer is then obliged to return the reserved goods to us at his own risk and expense at our place of business (Stapelfeld).

The customer is entitled to sell the goods subject to retention of title in the ordinary course of business. To the extent that the customer resells the goods subject to retention of title, the customer hereby assigns to us the resulting claim, limited to our claims arising from the delivery of the goods subject to retention of title, regardless of whether the sale takes place before or after processing, mixing, or combining. ThermoExpert Deutschland GmbH accepts this assignment. The customer is revocably authorized to collect the claims assigned to us independently but is obligated to immediately forward to us any payments received in this regard; in the case of partial payments, such payments shall be deemed to have been made against the assigned portion of the claim until our claims are fully satisfied. We may revoke this authorization as well as the right to resell if the customer defaults on material obligations, such as payment, to us; in the event of revocation of the authorization, we are entitled to collect the receivable ourselves.

The customer is not authorized to pledge the goods subject to retention of title, to assign them as security, or to take any other actions that would jeopardize our ownership.

For the duration of the retention of title, the customer is obligated to insure the goods subject to retention of title against loss and destruction to the usual extent, to mark them—as far as possible—as our property, and to handle them with care.

The customer is obligated to notify us immediately of any events that jeopardize our property (in particular, attachments, orders, and seizures) and to provide us immediately with all information and documents necessary to protect our rights. Third parties must be made aware of our property.

The processing of the goods subject to retention of title is carried out on our behalf as the manufacturer, without any obligations arising for us as a result of such 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 value of the other items at the time of processing, mixing, or combining. If the customer acquires sole ownership of the newly created item, it is agreed that the customer shall grant us co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the value of the other processed, mixed, or combined items, and shall manage this share of co-ownership in trust and free of charge on our behalf.

If the value of our security, as determined in accordance with the provisions of this Section VII, exceeds the amount of our claim by more than 30%, we will, at the customer’s request and at our discretion, immediately release collateral in an amount such that the remaining security does not exceed 130% of our claims.

If the customer defaults on material obligations, such as payment, to us, we may—without prejudice to any other rights—withdraw from the contract in accordance with statutory provisions. If we withdraw from the contract, we are entitled to demand the return of the goods subject to retention of title and to dispose of them otherwise for the purpose of satisfying due claims. In the event of a demand for surrender, the customer shall immediately grant us or our agent access to the goods subject to retention of title and surrender them.

VIII. Warranty

The goods we deliver are deemed free of material defects if, at the time of transfer of risk, they conform to the quality agreed upon between us and the customer. The agreed-upon quality is determined exclusively by the specific agreements made in writing regarding the properties, features, and performance characteristics of the goods.

Defects in the delivered goods will be remedied, at our discretion, either by repair or replacement. We will bear all expenses necessary to remedy the defect, provided that such expenses do not result from the goods having been moved to a location other than the place of performance.

If heating elements, thermocouples, and heating solutions become unusable or their usability is significantly impaired after the transfer of risk, it is 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 results from the products we have supplied being operated beyond their specified limits.

We assume no warranty for application-specific functions unless this has been expressly agreed to in writing. Information contained in catalogs, price lists, and other informational materials provided by us to the customer, as well as product descriptions, shall in no way be construed as guarantees of any particular quality or durability of the delivered goods; such guarantees of quality or durability must be expressly agreed to in writing.

The customer must notify us in writing of any obvious defect within two weeks of receiving the item; otherwise, any warranty claim is excluded. In the case of a non-obvious defect, the customer must notify us of such defect in writing no later than one week after its discovery. To meet the deadline, it is sufficient to send the notice of defect in a timely manner. The provisions of § 377 HGB remain unaffected. In the event of any notice of defect, we are entitled to inspect and examine the item in question. The customer shall grant us the necessary time and opportunity to do so. We may also require the customer to return the item in question to us at our expense.

Warranty claims expire one year after the transfer of risk. This does not apply to the buyer’s claims for damages resulting from injury to life, body, or health caused by us or our agents through fault; nor does it apply to other damages caused by us or our agents through gross negligence or willful misconduct. In these cases, the statutory limitation periods apply. Special statutory provisions (e.g., Section 438(3) of the German Civil Code (BGB), Section 444 BGB) also remain unaffected.

The statute of limitations in the case of a supplier’s recourse claim under Section 445b of the German Civil Code (BGB) remains unaffected by the preceding Section VIII.5. However, recourse for defects in delivery pursuant to §§ 445a, 445b BGB is excluded if the customer fails to inform its customers of the typical service life of thermocouples, heating conductors, and heating solutions and, as a result, becomes liable to its customers for damages.

IX. Limitation of Liability

  1. We are not liable for any damages resulting from services we have provided based on drawings, templates, calculations, or similar materials provided or reviewed by the customer. To the best of our knowledge, we will notify the customer as soon as possible if the templates cannot be technically implemented.
  2. In the event of a breach of material contractual obligations (“cardinal obligations”) due to slight negligence, our liability is limited to the amount of damages that were foreseeable at the time the contract was concluded and that are typical for this type of contract. Cardinal obligations are those obligations that confer upon the buyer a legal position which the contract, by its content and purpose, is specifically intended to grant, as well as those whose fulfillment is essential for the proper performance of the contract and on whose compliance the buyer regularly relies and is entitled to rely.
  3. We shall not be liable for breaches of contractual obligations resulting from slight negligence, other than those specified in Section IX.2.
  4. Furthermore, the customer’s statutory claims for damages remain unaffected; in particular, we are liable for intentional acts and gross negligence in accordance with statutory provisions.
  5. The aforementioned limitations of liability in Sections IX.2 and IX.3 do not apply in cases of mandatory statutory liability (in particular under the Product Liability Act), culpable injury to life, body, or health caused by us, warranties given by us, or defects that we have fraudulently concealed.
  6. To the extent that our liability for damages is excluded or limited, this also applies with respect to the personal liability for damages of our employees, workers, staff members, representatives, and agents.
  7. The customer is obligated to provide us with evidence of any claimed damages. Any contractual penalties and/or lump-sum damages provided for in the buyer’s terms and conditions shall not apply (see Section I of these General Terms and Conditions).
  8. If the customer resells a delivered item, the customer shall indemnify us against any product liability claims and any other claims by third parties, to the extent that the customer is responsible for the defect or flaw that gave rise to the liability.

X. Installation, Commissioning

If assembly (and commissioning) of the delivery items is part of the contract, the conditions of this Section X shall apply in addition:

  1. The customer is responsible for the proper storage of the items at or near the site of commissioning. Any part that is lost, damaged, or destroyed during storage will be repaired or replaced by us, at our discretion, at the customer’s expense.
  2. All preparatory work must be carried out and completed on time in accordance with the specifications we provided well in advance. The installation site must be made available to us without hindrance on the agreed date. Our installation personnel should not be called in until all preparatory work has been completed or it has been ensured that the preparatory work will be completed by the agreed date.
  3. The items to be delivered for installation or commissioning must be available in perfect condition at the agreed-upon time.
  4. In the event that any of the conditions specified in sections X.2 through X.3 above are not met, or if we are required to suspend the commissioning and installation work for reasons beyond our control, the agreed-upon timeframe for the performance of these services shall be extended accordingly. All additional costs incurred for these reasons shall be borne by the customer.

XI. Export Control

To the extent that the delivery or export of the goods requires approval from German and/or foreign authorities and/or international institutions, our offers are subject to the granting of such approval. The customer is responsible for obtaining this approval, and we will assist the customer to the extent necessary, in particular by issuing certificates and confirmations.

XII. Final Provisions

  1. If the customer is a merchant, a legal entity under public law, or a special fund under public law, the exclusive venue for all disputes arising out of or in connection with this contractual relationship shall be Hamburg. However, we are entitled to bring an action against the customer in any other court with jurisdiction.
  2. The laws of the Federal Republic of Germany shall apply exclusively, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
  3. If any provision of the agreement between us and the customer is or becomes wholly or partially void or invalid, this shall not affect the validity of the remaining provisions. In such a case, the provision that most closely approximates the economic intent of the invalid provision shall be deemed to have been agreed upon.
  4. Any assignment of claims (with the exception of monetary claims) requires the prior written consent of the contracting party.
  5. Any side agreements, amendments, or additions to these General Terms and Conditions must be in writing to be valid. Likewise, any waiver of the written form requirement must be agreed upon in writing.

ThermoExpert Deutschland GmbH
Brookstieg 13
D-22145 Stapelfeld
Tel. (040) 67 10 22 8-0
Fax (040) 67 10 22 8-20
http://www.thermoexpert.de
Email: welcome@thermoexpert.de

Managing Directors: Andreas Helf, Heiko Gevert
Company headquarters: Stapelfeld
Registered with the Lübeck Local Court, HRB 12446 HL

Bank Information:
Raiffeisenbank Südstormarn Mölln eG
Account No. 532363, Bank Code 200 691 77
IBAN: DE46 2006 9177 0000 5323 63
BIC: GENODEF1 GRS
VAT ID No. DE 285 410 793

Status: April 2023