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Terms and Conditions

 

  1. Scope

    1. These terms and conditions of sale apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 Paragraph 1 of the German Civil Code (BGB). We only recognize the purchaser’s conditions that conflict with or deviate from our terms and conditions of sale if we expressly agree to their validity in writing.

    2. These terms and conditions of sale also apply to all future transactions with the customer, as long as they involve legal transactions of a related nature.

    3. Individual agreements made with the buyer in individual cases (including additional agreements, additions and changes) always take precedence over these terms and conditions of sale. Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.

  2. Offer and conclusion of contract

    If an order is to be viewed as an offer in accordance with Section 145 of the German Civil Code (BGB), we can accept it within two weeks.

  3. Documents provided
    All documents provided to the customer in connection with the placing of the order – including in electronic form – such as: B. Calculations, drawings, etc., we reserve ownership and copyright. These documents may not be made accessible to third parties unless we give the customer our express written consent to do so. If we do not accept the purchaser’s offer within the period specified in Section 2, these documents must be returned to us immediately.
  4. Prices and payment

    1. Unless otherwise agreed in writing, our prices are ex-works, excluding packaging and plus VAT at the applicable rate. Packaging costs will be charged separately.

    2. Payment of the purchase price must be made exclusively to the account of DMS-Therm GmbH. The deduction of a cash discount is only permitted if there is a special written agreement.

    3. Unless otherwise agreed, the purchase price must be paid within 10 days of delivery. Interest on arrears will be charged at a rate of 9% above the respective base interest rate p.a. The right to claim higher damages due to default remains reserved.

    4. Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wages, materials and sales costs for deliveries made 3 months or later after conclusion of the contract.

  5. Retention rights
    The customer is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
  6. Delivery time

    1. The start of the delivery time specified by us requires the timely and proper fulfillment of the customer’s obligations. The exception of the unfulfilled contract remains reserved.

    2. If the customer defaults on acceptance or culpably violates other obligations to cooperate, we are entitled to demand compensation for any damage we incur, including any additional expenses. Further claims remain reserved. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the purchaser at the point in time at which the purchaser is in default of acceptance or debtor.

    3. In the event of a delay in delivery not caused intentionally or through gross negligence on our part, we are liable for a flat-rate compensation for delay of 3% of the delivery value for each full week of delay, but not more than 15% of the delivery value.

    4. Further legal claims and rights of the purchaser due to a delay in delivery remain unaffected.
  7. Transfer of risk upon shipment
    If the goods are sent to the customer at the customer’s request, the risk of accidental loss or accidental deterioration of the goods passes to the customer upon dispatch to the customer, at the latest when they leave the factory/warehouse. This applies regardless of whether the goods are shipped from the place of performance or who bears the freight costs.
  8. Retention of title
    1. We reserve ownership of the delivered item until all claims arising from the delivery contract have been paid in full. This also applies to all future deliveries, even if we do not always expressly refer to this. We are entitled to demand the return of the purchased item if the purchaser behaves in breach of contract.

    2. The purchaser is obliged to treat the purchased item with care as long as ownership has not yet been transferred to him. In particular, he is obliged to adequately insure them at their new value against theft, fire and water damage at his own expense. If maintenance and inspection work needs to be carried out, the purchaser must carry this out in a timely manner at his own expense. As long as ownership has not yet been transferred, the purchaser must notify us immediately in writing if the delivered item is seized or is subject to other interventions by third parties. If the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit in accordance with Section 771 ZPO, the purchaser is liable for the loss incurred by us.

    3. The purchaser is entitled to resell the reserved goods in the normal course of business. The customer hereby assigns to us the claims against the customer arising from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including VAT). This assignment applies regardless of whether the purchased item was resold without or after processing. The customer remains authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application has been made to open insolvency proceedings or payments have been suspended.

    4. The processing or transformation of the purchased item by the purchaser is always carried out on behalf of us and on behalf of us. In this case, the purchaser’s expectant right to the purchased item continues with the converted item. If the purchased item is processed with other items that do not belong to us, we acquire co-ownership of the new item in the ratio of the objective value of our purchased item to the other processed items at the time of processing. The same applies in the case of mixing. If the mixing occurs in such a way that the purchaser’s item is to be viewed as the main item, it is agreed that the purchaser transfers proportional co-ownership to us and stores the resulting sole ownership or co-ownership for us. To secure our claims against the purchaser, the purchaser also assigns to us those claims that arise against a third party as a result of the connection of the reserved goods with a property; we accept this assignment now. We undertake to release the securities to which we are entitled at the purchaser’s request if their value exceeds the claims to be secured by more than 20%.

  9. Warranty and notice of defects as well as recourse/manufacturer recourse

    1. The purchaser’s warranty rights require that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with Section 377 of the German Commercial Code (HGB).

    2. Claims for defects expire 12 months after delivery of the goods we have delivered to our customer. The statutory limitation period applies to claims for damages in the event of intent and gross negligence as well as injury to life, body and health that are based on an intentional or negligent breach of duty by the user. To the extent that the law stipulates longer deadlines in accordance with Section 438 Paragraph 1 No. 2 BGB (buildings and items for buildings), Section 445 b BGB (right of recourse), and Section 634a Paragraph 1 BGB (construction defects), these deadlines apply. Prior to returning the goods our permit is to be requested.

    3. If, despite all care taken, the delivered goods have a defect that was already present at the time of transfer of risk, we will, at our discretion, repair the goods or deliver replacement goods, subject to timely notification of the defect. We must always be given the opportunity to provide supplementary performance within a reasonable period of time. Claims for recourse remain unaffected by the above regulation without restriction.

    4. If subsequent performance fails, the customer can withdraw from the contract or reduce the remuneration – without prejudice to any claims for damages.

    5. Claims for defects do not apply if there is only an insignificant deviation from the agreed quality, if there is only an insignificant impairment of usability, if there is natural wear and tear or if there is damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials, defective or unsuitable further processing use or due to special external influences that are not assumed under the contract. If repair work or changes are carried out improperly by the customer or third parties, there are no claims for defects for these or the resulting consequences.

    6. Claims by the purchaser due to the expenses necessary for the purpose of supplementary performance, in particular transport, travel, labor and material costs including possible dismantling and installation costs, are excluded if the expenses increase because the goods delivered by us are subsequently sent to another location has been transported to the purchaser’s branch, unless the transport corresponds to its intended use.

    7. The purchaser’s recourse claims against us only exist to the extent that the purchaser has not made any agreements with his customer that go beyond the legally binding claims for defects. Section 9.6 also applies accordingly to the scope of the purchaser’s right of recourse against the supplier.

  10. Miscellaneous

    1. This contract and the entire legal relationship between the parties are subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

    2. The place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our place of business unless otherwise stated in the order confirmation.

    3. All agreements made between the parties for the purpose of executing this Agreement are set out in writing in this Agreement.