Conditions of Sale, Delivery and Payment of Thielmann Energietechnik GmbH, Kassel
I. Conclusion of the Contract, basis of the Contract, transfer of rights and obligations arising from the Contract
- The Purchaser shall be bound by his Order (offer of a contract) for four weeks. The Purchase Contract has come into existence if Thielmann Energietechnik has confirmed acceptance of the Order (offer of a contract) in writing within this period or has carried out delivery. However, Thielmann Energietechnik is obliged to give notification in writing of any rejection of the Order as soon as possible after clarification of deliverability and other details of the Contract.
- The Conditions of Sale, Delivery and Payment of Thielmann Energietechnik shall apply exclusively to all the contracts between the Purchaser and Thielmann Energietechnik, insofar as nothing else has been agreed in writing. The General Terms and Conditions of the Purchaser shall not be the subject of the Contract, insofar as they contradict the Conditions of Sale, Delivery and Payment of Thielmann Energietechnik. This shall also apply if the Order by the Purchaser (offer of a contract) makes reference to the General Terms and Conditions of the latter and these General Terms and Conditions of the Purchaser are not contradicted by Thielmann Energietechnik.
- Any agreements between the Purchaser and Thielmann Energietechnik must be made in writing to become effective. This shall also apply to ancillary agreements and undertakings as well as subsequent amendments to the Contract, unless they are agreed verbally by the business proprietor himself or one of his authorised employees.
- Catalogue and prospectus pictures, drawings and indications of weight shall not be relevant in every detail for the execution of the goods ordered, insofar as they have not been indicated as binding by Thielmann Energietechnik.Offers by Thielmann Energietechnik shall remain subject to change cost estimates are not binding, insofar as they have not been expressly indicated as being binding by Thielmann Energietechnik. Cost estimates, drawings and other documentation of Thielmann Energietechnik shall remain the property rights of the latter, even if it comes to the conclusion of the Contract. These documents may not be gained access to any other parties, unless Thielmann Energietechnik gives his expressly agreement to this in writing.
- Models, which are produced as part of the Order, shall remain the property of Thielmann Energietechnik, even if part of the costs have been invoiced to the Purchaser, if nothing else has been agreed.
- Transfers of rights and obligations of the Purchaser arising from the Contract with Thielmann Energietechnik, in particular the right of delivery, correction of defects and compensation shall be permitted only with the prior written consent of Thielmann Energietechnik.
- The prices agreed shall apply ex works, exclusive packaging, insofar as nothing else has been agreed in individual cases.
- Price alterations shall be permitted only if more than 4 months have elapsed between the conclusion of the Contract and the agreed delivery date; the price of Thielmann Energietechnik which is valid on the day of delivery shall then apply. In the event of a price rise of more than 10% in relation to the purchase price, which was agreed initially, the Purchaser shall be entitled to withdraw from the Purchase Contract, unless Thielmann Energietechnik is prepared to deliver at the originally agreed purchase price. More extensive rights of the Purchaser shall be ruled out. If the Purchaser is a legal entity under public law, a special public asset or a merchant, for whom the Contract forms part of the operation of his commercial enterprise, then in any case the list price of Thielmann Energietechnik, which is valid on the day of delivery, shall apply.
III. Payment terms
- The invoices from Thielmann Energietechnik shall be payable within 30 days as of notification of readiness for shipment and the invoice date without any deduction, insofar as nothing else has been agreed in individual cases. Repairs and installations shall be payable within 14 days without any deduction. Von Thielmann Energietechnik erstellte und bereits verauslagte Frachtrechnungen sind sofort ohne Abzug zahlbar. Payment by bills of exchange is permitted only on the basis of special prior agreement and they shall be accepted by Thielmann Energietechnik only on account of performance. Credit notes for bills of exchange or cheques shall always be valid subject to collection and subsequent events with a value date on the day on which Thielmann Energietechnik has access to the counter-value. Discounts, charges and any tax on drafts and bills of exchange shall be borne by the Purchaser. The right to discount reductions shall not apply to payment by bills of exchange.
- If partial payments have been agreed, the total residual debt – without taking account of any bills of exchange falling due – shall be due for immediate payment if (1) the Purchaser, who is not entered in the Commercial Register as a merchant, has fallen behind with at least two consecutive instalments in full or in part and the sum which is overdue amounts to at least 1/10 of the purchase price; (2) the Purchaser, who is entered in the Commercial Register as a merchant, is 14 days behind with an instalment or ceases his payments or court composition or bankruptcy proceedings have been filed on his assets.
- The Purchaser may offset claims by Thielmann Energietechnik only if the counterclaim by the Purchaser is undisputed or if there is a legally valid title. The Purchaser may exercise a right of retention only insofar as this is based on claims arising from the Purchase Contract.
- If the Purchaser falls behind with payments – also agreement of partial payments with two consecutive instalments -, Thielmann Energietechnik may give the Purchaser a period of grace of 14 days in writing stating that after this period has expired, the fulfilment of the Contract shall be declined. After expiry of the period of grace without performance, Thielmann Energietechnik is entitled to withdraw from the Purchase Contract by means of a written statement or to demand compensation for non-performance.
- If the Purchaser falls behind with payments, Thielmann Energietechnik shall charge interest on arrears of 4% over the discount rate at the time the payments were due. They shall be higher or lower if Thielmann Energietechnik proves a charge with a higher interest rate or the Purchaser proves a lower interest charged to Thielmann Energietechnik.
IV. Delivery, delivery delay, delivery if payments have ceased or in case of financial collapse of the Purchaser
- Periods of delivery or delivery dates, which may be agreed as binding or non-binding, must be determined in writing. Periods of delivery shall begin with the conclusion of the Contract. If amendments to the Contract are agreed subsequently, the originally agreed period of delivery shall begin again, insofar as nothing else has been agreed. The agreed delivery date shall be considered as complied with after due notification of readiness for delivery, even if dispatch does not take place for reasons for which Thielmann Energietechnik is not responsible.
- Thielmann Energietechnik is also entitled to make the delivery – as well partial deliveries – even prior to the expiry of the period of delivery or before the delivery deadline.
- The Purchaser may make a written request to Thielmann Energietechnik 6 weeks after a non-binding delivery date or a nonbinding period of delivery has been exceeded for delivery within a reasonable period of time. Thielmann Energietechnik shall come into default with this reminder. The Purchaser may demand compensation for the loss caused by the delay in performance in addition to delivery only if Thielmann Energietechnik demonstrates intent or gross negligence.In the event of a delay in performance, the Purchaser may also give Thielmann Energietechnik an appropriate period of grace in writing with notification that he will refuse to accept the purchase article after the period of grace has expired. After unsuccessful expiry of the period of grace, the Purchaser is entitled to withdraw from the Contract by means of a written statement or to demand compensation for non-performance. This will be limited to a maximum of 10% of the purchase price for slight negligence. If the Purchaser is a legal entity under public law, a special public asset or a merchant, for whom the Contract forms part of the operation of his commercial enterprise, then he shall be entitled to claim compensation only if Thielmann Energietechnik demonstrates intent or gross negligence. The claim by the Purchaser for delivery shall be ruled out if he has used his rights according to this paragraph.Force majeure, riots, strikes, lockouts and major excusable disruptions to operations mean that the binding and non-binding periods of delivery or delivery dates shall be extended by the duration of the disruptions to performance caused by the former.
- Design or form alterations to the purchase article shall remain reserved during the delivery period, insofar as the purchase article is not altered to a considerable extent and the alterations are reasonable for the Purchaser.
- Details which are valid in descriptions regarding the scope of delivery, appearance, performance, measurements and weight of the purchase article at the time the Contract is concluded shall form part of the Contract. They are to be considered as approximate and not guaranteed properties and serve only as guidance to determine whether the purchase article complies with the Contract and is faultless, unless certain properties are ensured expressly by Thielmann Energietechnik at the time the Contract is concluded.
- Insofar as Thielmann Energietechnik uses references or numbers to describe the Order or the purchase article, which has been ordered, the Purchaser may not derive any rights from these alone.
- If the Purchaser falls behind with payments due to Thielmann Energietechnik – even from previous contracts -, bills of exchange of the Purchaser are protested, the Purchaser ceases his payments or court composition or bankruptcy proceedings are filed on his assets, Thielmann Energietechnik shall be obliged to deliver only against cash in advance.
V. Long-term sales contract
With regard to long-term continuous sales contracts, the Purchaser shall advise of call-forward notices and appropriate specifications for approximate equal monthly quantities. If the Purchaser does not call forward or not on the due date or does not provide specifications, Thielmann Energietechnik is entitled either (1) to deliver at its discretion without a call-forward notice or (2) after unsuccessful fixing of a deadline to demand damages for non-performance or (3) to withdraw from the part of the sales contract which has not yet been fulfilled.
VI. Shipment and transfer of risk
- The risk shall be transferred to the Purchaser when the purchase article is transferred to the railway, forwarding agency or the carrier, at the latest however when it leaves the factory premises of Thielmann Energietechnik.
- Thielmann Energietechnik may select the dispatch route and mode of transport. Claims arising from the selection of the dispatch route and mode of transport may be asserted against Thielmann Energietechnik only in the event of gross negligence or intent.
- Shipments shall be insured by Thielmann Energietechnik against breakage during transport unless the Purchaser expressly waives this. Any damage by breakage shall be substantiated through certification in accordance with the railway authorities by the forwarding agency or the carrier, otherwise there will be no claim for compensation by the Purchaser.
- Goods which are notified as ready for dispatch must be called forward immediately by the Purchaser, otherwise Thielmann Energietechnik is entitled to store them at the expense and risk of the Purchaser at its own discretion.
VII. Acceptance, delay in acceptance
- The Purchaser is obliged to accept goods which have been delivered or notified as ready for dispatch in accordance with the Contract.
- If the goods supplied have substantial deficiencies, which cannot be rectified in full despite a notice of defects from the Purchaser within a period of 90 days, the Purchaser may refuse acceptance.
- If the Purchaser refuses acceptance after expiry of an appropriate period of grace which has been fixed for him (for merchants at least 8 days, for non-merchants at least 14 days) or if the Purchaser already declares prior to this that he doesn’t wish to accept the goods, Thielmann Energietechnik may withdraw from the Contract or demand compensation as a result of non- performance.
- Thielmann Energietechnik may request 20% of the purchase price without deduction as compensation for non-performance if the Purchaser delays acceptance, insofar as the Purchaser does not prove that there was not any loss or not to the extent of the compensation fixed. However, Thielmann Energietechnik is entitled – in particular with regard to customized items – to put forward a higher proven loss.
VIII. Retention of title
- The sold goods shall remain under the ownership of Thielmann Energietechnik until the agreed purchase price has been paid in full. The retention of title shall also remain for all accounts receivable, which Thielmann Energietechnik acquires subsequently, against the Purchaser in connection with the goods sold, e.g. as a result of repairs or deliveries of spare parts as well as other services.
- If the Purchaser is a legal entity under public law, a special public asset or a merchant entered in the Commercial Register, for whom the Contract forms part of the operation of his commercial enterprise, the reservation of title of ownership shall also apply to such accounts receivable of Thielmann Energietechnik, which exist from current business relations with the Purchaser.
- The Purchaser undertakes to also protect the title of ownership reserved by Thielmann Energietechnik if the goods supplied are not intended directly for the Purchaser but for a third party. In this case, the Purchaser shall expressly indicate to the third party this retention of title of ownership of Thielmann Energietechnik.
- The Purchaser shall treat the goods under retention of title carefully. Every change of location and intervention by a third party, in particular attachment, shall be notified to Thielmann Energietechnik immediately in writing. With regard to attachments, by enclosing the report of the attachment proceedings.
- During the period of retention of title, the Purchaser shall be entitled to own and use the goods purchased only for as long as he fulfils his obligations from the retention of title of ownership and is not in payment arrears. Should the Purchaser fall behind with payments or should he not fulfil his obligations from the retention of title, Thielmann Energietechnik may demand the purchase article from the Purchaser and after written notification with an appropriate period of notice sell the purchase article privately on a best efforts basis by offsetting the sale proceeds against the purchase price. If Thielmann Energietechnik demands restitution of the goods under retention of title of ownership, the Purchaser is obliged to return the goods under retention of title of Thielmann Energietechnik immediately to Thielmann Energietechnik, excluding any rights of retention – unless they were based on the relevant Purchase Contract.
- All the costs of the return and sale of the purchase article shall be borne by the Purchaser. The sale costs shall be 10% of the sale proceeds including value including tax without any particular evidence. They shall be fixed at a higher or lower level if Thielmann Energietechnik proves higher costs or the Purchaser proves lower costs. The proceeds shall be credited to the Purchaser after deduction of costs and other accounts receivable of Thielmann Energietechnik connected with the Purchase Contract.
- As long as the retention of title of ownership of Thielmann Energietechnik exists, a disposal, pledging, transfer by way of security, rental or other transfer to a third party, which affects the right of security of Thielmann Energietechnik, of the goods sold as well as any alteration shall be permitted only with the prior written consent of Thielmann Energietechnik.
- In the event of a pledging of the goods under reservation of title of ownership, the bailiff and the pledgee shall immediately refer to the reservation of title of ownership of Thielmann Energietechnik.
IX. Extended retention of title
- If the goods supplied by Thielmann Energietechnik are sold on by the Purchaser with/without the consent of Thielmann Energietechnik prior to payment in full, the Purchaser shall assign his claims against his buyer from the sale of the good supplied by Thielmann Energietechnik under retention of title up to the value of the accounts receivable of Thielmann Energietechnik from this delivery.This shall correspondingly also apply in the event of processing and connecting for a third party. If the goods supplied by Thielmann Energietechnik are connected with another movable property to the extent that they become a major component of the other property, which can be considered to be the main issue, then the Purchaser shall already now transfer to Thielmann Energietechnik pro rata co-ownership of the new property.The Purchaser is obliged to disclose this assignment in favour of Thielmann Energietechnik or the pro rata co-ownership of the main issue in the event of the connection or processing at the request of Thielmann Energietechnik.
- The Purchaser is entitled to provide security at any time by providing a sufficient bank guaranty, in this case the retention of title of Thielmann Energietechnik shall terminate – even if it has been extended.
- Thielmann Energietechnik warranties for the appropriate quality and faultlessness of the goods supplied by Thielmann Energietechnik, which correspond to the relevant state of the art.
- The warrantee period shall be 12 months; in the event of the purchase of consumer goods (Section 474 German Civil Code) 24 months or 12 months for used items. It shall begin with delivery of the goods or as of notification of readiness, if there is a delay in acceptance by the Purchaser.
- Gewährleistungsansprüche über den gelieferten Warenwert hinaus sind ausgeschlossen.
- Verschleißteile bzw. natürlicher Verschleiß sind von der Gewährleistung ausgeschlossen.
- Obvious deficiencies shall be notified to Thielmann Energietechnik immediately in writing by the Purchaser, no later than within 2 weeks upon receipt of the good at its final destination or notification of readiness for delayed acceptance, with an accurate description of the deficiencies. If more than one good has been delivered, the number of defective items should be indicated. If the time limit for lodging a complaint is not adhered to, Thielmann Energietechnik shall no longer be liable, even if the 12-month warrantee obligation has not yet expired, unless the item is a consumer good purchase.
- A complaint shall be made for deficiencies which cannot be determined immediately despite careful examination, (unapparent deficiencies – nicht offensichtliche Mängel), no later than within 2 weeks after discovery or obviousness of the deficiency, at the very latest within a preclusive period of one year starting with the delivery of the item. For the purchase of a consumer good, within two years, unless the items are used, in which case the period of one year shall apply.
- Warrantee obligations of Thielmann Energietechnik shall not arise if faults about which there is a complaint are originally connected with the fact that the purchase article has been treated inappropriately or has been overused, parts have been incorporated into the purchase article whose use was not approved by Thielmann Energietechnik or the Purchaser has not followed the instructions regarding the treatment, maintenance and care of the purchase article.
- Natural wear and tear shall be excluded from the warrantee.
- With regard to justified complaints regarding deficiencies, the Purchaser initially has a claim only for rectification of these deficiencies – insofar as the purchase is not of a consumer good. However, Thielmann Energietechnik is entitled to provide a replacement delivery instead of rectification.Rectifications as part of the guarantee shall be carried out according to technical requirements by replacement or repair of defective parts without charge for the wages, material and freight costs required for the latter. Parts, which have been replaced, shall become the property of Thielmann Energietechnik.
- If the fault cannot be rectified or if further attempts at rectification are unreasonable for the Purchaser or the Customer, the Purchaser or the Customer may only have the right to withdraw from the Contract or to demand a reduction of the purchase price (Minderung) instead of the rectification; claims for compensation in particular for consequential loss are excluded. Neither the Purchaser nor the Customer are entitled to a replacement delivery. However, the right of Thielmann Energietechnik to provide a replacement delivery instead of rectification shall remain unaffected by this. (Vergleichen!)
- Thielmann Energietechnik shall be given the opportunity to examine on site deficiencies about which a complaint has been made itself or through a representative. If the Purchaser or a third party makes attempts at rectification or other alterations to the purchase article about which a complaint has been made without the express written consent of Thielmann Energietechnik prior to this examination, any claim under warrantee of the Purchaser against Thielmann Energietechnik shall lapse. This shall not apply to goods supplied by Thielmann Energietechnik, which have already been installed, and where a deficiency is discovered only subsequently and an emergency repair is unavoidable to prevent consequential loss. In this case, however, Thielmann Energietechnik shall be informed of the deficiency and the intended emergency repair. Otherwise the warrantee entitlement against Thielmann Energietechnik shall lapse.
- Thielmann Energietechnik shall be liable for third party products supplied by Thielmann Energietechnik – insofar as these are not a consumer good – in principle only to the extent that the supplier of Thielmann Energietechnik is liable, unless gross negligence or intent can be attributed to Thielmann Energietechnik in the selection of the supplier or Thielmann Energietechnik has passed on goods to the Purchaser supplied by its own supplier, despite recognising a deficiency or the supplier has restricted his guarantee in a way which is not permitted in law.
XI. Place of performance, place of jurisdiction
- The place of performance for deliveries, services and payments as well as for all other mutual claims arising from the Contract shall be Kassel, Germany.
- If the Purchaser is a full merchant (Vollkaufmann) under German law entered in the Commercial Register, a legal entity under public law or a special public asset, then Kassel alone shall be the place of jurisdiction for any current or future claims arising from the business relationship, including claims from bills of exchange and cheques. The same place of jurisdiction shall apply if the Purchaser has no general place of jurisdiction in Germany, moves his domicile or usual place of residence from Germany after conclusion of the Contract or his domicile or usual place of residence is unknown at the time a suit is filed.
XII. Partial invalidity
Should individual contractual stipulations be ineffective or become ineffective as a result of new legal provisions, the validity of the remaining Contract shall not be affected, insofar as the purpose of the Contract can still be achieved. The contracting parties shall then be obliged to replace an ineffective provision with a stipulation, which is as close as possible in economic terms to the ineffective provision and is permitted in law. This shall also apply if a loophole which requires supplementation becomes apparent during implementation of the Contract.
As at August 2008 Version 1/08