General Terms and Conditions of Dantherm GmbHD - 22844 Norderstedt - Oststraße 148
I. Scope / Definition of business transactions with entrepreneurs and consumers
1. We only conclude business transactions in accordance with the terms and conditions below. Any terms and conditions not approved explicitly by us are non-binding for us even if we do not object to them.
2. Our terms and conditions apply to business transactions with consumers, with entrepreneurs, with legal entities under public law and with special assets under public law. A business is a natural person or legal entity or partnership with legal capacity that enters into a legal transaction in the course of his/her/its trade, business or profession (Section 14 of the Federal Civil Code - BGB). Consumers are all natural persons who concluded a legal translation for a purpose which can be attributed neither to their commercial nor to their professional activity as as self-employed person (Section 13 BGB).
II. Written form / Agreement with representatives
1. All declarations must be in writing - with the exception of the acceptance of a customer order substantiated by executing a delivery. This also applies to ancillary agreements, quality guarantees and contract amendments. The cancellation of the written form requirement may only be agreed in writing.
2. Representatives do not have the power to conclude contracts but transfer our customers' orders to us. Therefore, we are only bound by agreements with representatives if we confirm them in writing.
III. Prices / Price changes
1. Prices are ex works / warehouse without deductions plus statutory VAT.
2. Price changes are only permissible if there are more than four months between contract conclusion and the agreed delivery deadline; in such cases, the price valid on the day of delivery applies. Changes to the VAT rate authorise both parties to amend the price accordingly.
IV. Subject of the contract / Deviations
1. All information in our brochures and offers and on our website which relates to the scope of delivery, appearance, performance, measurements and weight must be interpreted as approximations, do not constitute a quality guarantee and do not form part of the contract without an explicit confirmation.
2. Any deviations or changes to the construction, features and processing remain subject to change to the extent that the subject of the contract has not changed significantly and the change is reasonable for the customer. In commercial business transactions, the commonly accepted deviations in volume, weight and quality cannot constitute a reason for a complaint.
V. Delivery / Delivery delay
1. Delivery deadlines and delivery periods must be interpreted as approximations unless they are explicitly referred to as binding. Delivery periods do not start before all implementation details have been clarified in full and all the documents required have been received from the customer. They are extended - irrespective of default rights - by the period by which the customer is in default in relation to its obligations.
2. A delivery delay does not apply in the event of Acts of God or other unforeseeable events (strike, disruption of operations, non-delivery on the part of upstream suppliers or subcontractors).
Unless agreed otherwise, packaging is not accepted back and is not credited.
VII. Dispatch / Transfer of risk
1. Unless agreed otherwise, the goods travel at the expense and risk of the customer. Transport insurance can be taken out at the customer's request and expense.
2. In any case, risk is transferred to the customer - including for CPT delivery and delivery using own vehicles - as soon as the delivery is in the haulier's care.
VIII. Acceptance / Compensation in the event of non-performance
1. If the goods are not accepted, then, after an appropriate period of grace has been set, we are authorised to withdraw from the contract and / or to compensation in lieu of performance No period of grace is required if acceptance is seriously and finally refused, the customer ceases payment or submits an application for insolvency or is evidently unable to pay.
2. We can demand 20 % of the agree fee as compensation in lieu of performance without the need to provide evidence; both parties may provide evidence to prove higher or lower damage.
VIII. Payment terms / Delayed payment / Offsetting and retention
1. Payments must be made in cash without deductions immediately upon receipt of our invoice; discounts are only permitted if a separate agreement has been concluded. Representatives are only authorised to accept payments in return for presenting a written power of collection.
Installation costs are payable net cash immediately upon completion in cash.
Cheques and bills of exchange are only accepted by special agreement and as payment taking into account all collection and discount expenses.
AGB Dantherm GmbH As at: June 2013
2. If the customer defaults on payment, we may withdraw from the contract and / or demand compensation in lieu of payment as per Clause VIII, 2, after an appropriate period of grace. Furthermore, under such conditions, all of our claims fall due immediately - including from other transactions and bills of exchange – except for transactions with consumers. A period of grace is also not required if the customer is evidently unwilling or unable to make a payment, particularly where payments cease or the customer submits an application for insolvency. This shall not affect the legal provisions (§ 323 Para. 2 BGB).
Default interest of 8 percent above the base interest rate is payable; for legal transactions with consumers, the interest rate is 5 percent above the basic interest rate; higher interest may be payable if evidence is provided.
3. The customer may only set off its own claims if these are undisputed or if they have legal capacity. Rights of retention are excluded in commercial transactions with entrepreneurs.
X. Retention of title
1. We retain title to the contractual object until all claims under this contract are settled - including after they have been included in a current invoice. In transactions with companies, the retention of title applies until all - including future - claims from the business relationship have been settled.
The customer is only entitled to sell on or process the goods subject to a retention of titled in the context of ordinary business operations and only if the conditions below are observed. Other disposals, particularly pledging or the transfer of securities, are not permitted. In the event of payment default, the right to sell on the items ceases.
The goods subject to a retention of title may only be sold on with a retention of title except where this is done in return for an immediate cash payment upon transfer. The customer hereby passes on all claims and security rights to us to which it is entitled from the sale to its customers or third parties, irrespective of whether the goods subject to a retention of title are sold on without or after processing. If the goods subject to a retention of title are sold on together which goods which do not belong to us, the transfer in advance only applies to the amount of the value of our goods.
At the customer's request, we may release securities to which we are entitled at our option if the value of the securities exceeds the claims to be secured by more than 20 %.
2. The customer shall bear all costs of the goods being taken back and of recovery. The costs of recovery amount to 15 % of the recovery proceeds plus VAT without a requirement to provide evidence. Both parties are free to provide evidence of higher or lower recovery costs.
3. The customer must notify us of any third-party access to the goods subject to a retention of title or to the transferred claims immediately.
a) Scope and limits of our warranty obligation
1. If the customer accepts the object of the order in spite of being aware of a defect, it shall only be entitled to assert warranty claims if it reserves the right to do so upon acceptance.
2. Warranty claims due to a delivery of defective goods or defective services are excluded if the customer does not report obvious defects to us within two weeks after collection or delivery of the object of the order.
3. In the event of legal transactions with an entrepreneur (§ 14 of the German Civil Code - BGB), warranty claims as per Clause 2 are also excluded for defects which are not obvious if they are not reported within two weeks of being discovered or after they should have been discovered.
4. For legal transactions with businessmen, the increased examination and reporting obligations under § 377 of the German Commercial Code (HGB) apply.
5. The statutory warranty obligation does not cover natural wear and tear.
6. No warranty obligations apply if
- a defect is caused by incorrect or negligent handling, excessive use, inappropriate operating materials, defective construction work, unsuitable foundations, chemical, electrochemical or electrical impacts, unless this is our fault;
- the customer or third party perform inappropriate repair or maintenance work;
- parts are installed which we have not approved for use, or
- technical interventions are performed without being coordinated with us.
b) Rights of the customer in the event of a warranty case
1. If defective goods are delivered, we may at our option either deliver a replacement or perform the required rectification work at our own expense in one of our business (supplementary performance). If the customer is a consumer (§ 13 BGB), the latter has the right to choose the type of supplementary performance to the extent that this does not cause unreasonable costs for us.
2. If supplementary performance ultimately fails or it is no longer reasonable for the customer to endure further rectification work, the customer has the right to reduce the purchase price or to withdraw from the contract.
c) Exclusion of liability/limit to liability
1. In cases of simple negligence, our legal representatives, business employees and assistants are not liable for damage suffered by the customer except in case of damage to health, bodily harm or death.
2. In legal transactions with entrepreneurs, our liability for grossly negligent violations of obligations by our direct assistants is limited to the typical contractual foreseeable damage.
XII. Place of performance and jurisdiction
The place of performance is Norderstedt. Hamburg is the jurisdiction for all current and future claims from the business relationship in commercial transactions including claims involving bills of exchange or cheques. The same jurisdiction applies if the customer does not have a general jurisdiction in Germany, moves its domicile or ordinary place of residence to Germany after the contract is concluded or if no domicile or ordinary place of residence is known at the time that the claim is asserted.