Updated 09/2006

Terms & conditions

Terms and conditions of Thitronik GmbH

1. Applicability of conditions

1.1.

The deliveries, performance and offers of Thitronik GmbH (hereinafter referred to as the ‘seller’) are based exclusively on these terms and conditions. These thus also apply to all future business relationships, even if they are not expressly agreed again. These conditions are considered to be accepted at the latest upon receipt of the goods/service. Counter-confirmations by the buyer with reference to the buyer’s terms and conditions or conditions of purchase are hereby rejected.

1.2.

Deviations from these terms and conditions require the written confirmation of the seller.

2. Offer and contract conclusion

2.1.

Our offers are always non-binding.

2.2.

The seller reserves all property rights and copyrights to representations, drawings, calculations, data and other documents; they must not be made accessible to third parties. This applies in particular to such information, particularly written documents, which are marked as confidential; before passing them on to third parties, the buyer requires the express written consent of the seller.

2.3.

Drawings, representations, dimensions, weights or other performance data are only binding if this is explicitly agreed in writing. Such details are not to be understood as quality guarantees.

3. Delivery and performance times, delays

3.1.

The start of the delivery time indicated by us is conditional on the clarification of all technical questions.

3.2.

The dates and deadlines specified by the seller are non-binding unless explicitly agreed otherwise in writing. Procurement risks are generally not assumed by the seller.

3.3.

Delivery and performance delays due to force majeure or due to events which make delivery significantly more difficult or impossible for the seller (e.g. strike, lock-out, war, unrest, official restrictions etc.) authorise the seller to deliver or postpone the deliveries or performance by the duration of the impairment plus a reasonable allowance. The same thing applies accordingly if the aforementioned obstacles occur with suppliers of the seller or their sub-suppliers.

3.4.

We reserve the right to meet our own supply needs properly and punctually.

3.5.

If the seller has not performed duly in accordance with the contract, the buyer cannot withdraw from the contract and/or demand compensation for damages instead of the full performance or reimbursement of futile outlays as far as the seller’s breach of duty is negligible.

3.6.

The seller only defaults through a reminder. This is unless something to the contrary is yielded from the law or the contract. The buyer’s reminders and deadlines must be in written form in order to be effective.

3.7.

Compliance with the delivery obligations by the seller is conditional on the timely and proper fulfilment of obligations by the buyer. Both parties reserve the right to raise the exceptio non adimpleti contractus defence. The seller is authorised to supply partial deliveries and partial performance at any time.

3.8.

If the seller fails to perform duly or as obligated, the buyer can withdraw from the contract and, under the precondition of culpable violation of a contractual obligation on the part of the seller, demand compensation for damages instead of performance or reimbursement of futile outlays notwithstanding the further preconditions pursuant to clauses 3.9 to 3.11 below. A further requirement is that the seller must have set a reasonable time period for performance or supplementary performance and this period has elapsed without success.

3.9.

The buyer is obligated to connect the grace period pursuant to clause 3.8 above with the clear declaration that after the grace period has elapsed fruitlessly, the buyer will refuse the delivery and assert the rights resulting from clause 3.8 above in relation to the seller.

3.10.

If performance has already been partially supplied, the buyer can only demand compensation for damages instead of the full performance if this requires the buyer’s interest in the full performance. In this case, withdrawal from the entire contract is only possible if the buyer demonstrably has no interest in partial performance.

3.11.

If the seller defaults for reasons for which he is responsible, liability for damages in the event of ordinary negligence is excluded. The aforementioned limitation of liability does not apply if the delay is due to the fact that the seller culpably violated an essential contractual obligation. In these cases, the seller’s liability is limited to contract-typical foreseeable damages according to clause 3.13 below. In the event of an intentional breach of contract for which the seller is responsible, the seller is liable according to the statutory provisions. Further claims for compensation by the buyer are excluded in all cases of delayed deliveries, even after a grace period possibly set for the seller has elapsed. This does not apply if liability is mandatory in the cases of intent, gross negligence and bodily harm; a change in the burden of proof to the detriment of the buyer is not connected with this.

3.12.

In case of a default in acceptance on the part of the buyer or in case of violation of other cooperation obligations on the part of the buyer, the seller is authorised to assert the legal claims to which the seller is entitled. The risk of accidental loss and/or accidental deterioration of the object of purchase passes to the buyer at the latest when the buyer is in default of acceptance.

4. Transfer of risk, packaging

4.1.

Unless an agreement to the contrary has been made, delivery from the Eckernförde warehouse is agreed. The risk passes to the buyer as soon as the consignment has been handed over to the person carrying out the transport or has left the seller’s warehouse for the purpose of shipping; this also applies if the seller is responsible for transport.

4.2.

If delivery is impossible through no fault of the seller, the risk is transferred to the buyer with the notification of readiness for dispatch.

4.3.

If the buyer so desires, the seller will cover the delivery by transport insurance; the buyer bears the costs incurred through this.

4.4.

The transport and all other packaging in accordance with the German Packaging Ordinance will not be taken back; multi-use transport aids such as pallets, grid boxes etc. are excluded. The buyer is obligated to dispose of the disposable packaging at the buyer’s own expense. The multi-use transport aids are only given to the buyer on loan; the buyer is obligated to return them in proper condition, i.e. completely empty and without damage; in the event of contamination or damage to the transport materials, the buyer bears the repair costs or is obligated to compensate the seller for deterioration if repair is impossible.

5. Prices and payments

5.1.

The prices shown in the current price lists of the seller plus the respective statutory sales tax are applicable. Additional deliveries and performance are charged separately.

5.2.

Unless otherwise agreed, the prices are ex works Eckernförde including normal packaging.

5.3.

For orders under € 100.00 net, we add a low-volume surcharge for order processing of € 10.00.

5.4.

Installation is charged according to time and expenditure. Our applicable billing rates apply. We will be happy to send them to the buyer on request. For installation billing, waiting and travel times will be billed as working time. Installation invoices are payable net on the invoice date.

5.5.

Agreed payment dates apply starting from notification of readiness for dispatch. If there is no notification of readiness for dispatch, agreed payment terms start at the time of delivery of the goods. Section 5.3 only applies to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law.

5.6.

Unless otherwise expressly agreed, the net invoice amount is due 30 days after the invoice date.

5.7.

If the buyer defaults on payment, the seller is entitled to assert the rights yielded from Section 288 of the German Civil Code.

5.8.

The buyer is only entitled to set-off rights if the buyer’s counter-claims have been legally established, are undisputed or have been recognised by the seller. In addition, the buyer is only authorised to exercise a right of retention to the extent that the buyer’s counter-claim is based on the same contractual relationship.

5.9.

If the seller becomes aware of circumstances that question the creditworthiness of the buyer, especially in the event of non-cashing of cheques or bills of exchange or suspension of payments, the seller is entitled to make the entire remaining debt due, even if he has received a cheque or bill of exchange. In this case, the seller is also entitled to request advance payment or provision of security.

5.10.

Cheques and bills of exchange which the seller reserves the right to accept are only considered to be payment after they have been cashed. Any discounts and bank charges are borne by the buyer.

5.11.

The goods are delivered with retention of title in accordance with these terms and conditions. Insofar as the seller agrees payment of the purchase price debt on the basis of the cheque / bill of exchange procedure with the buyer, the reservation also extends to the cashing of the bill accepted by the seller by the buyer and does not expire when the cheque received is credited to the seller.

6. Warranty

6.1.

The buyer’s warranty rights require that the buyer has properly complied with the buyer’s inspection and notification obligations in accordance with Section 377 of the German Commercial Code (HGB).

6.2.

The buyer's statutory rights of recourse against the seller only exist to the extent that the buyer has not reached an agreement with the buyer’s customer that goes beyond the statutory claims for defects.

6.3.1.

If the subsequent performance fails, the buyer can – without prejudice to any claims for damages – withdraw from the contract or reduce the purchase price. Claims by the buyer due to the expenses required for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the object of delivery was subsequently brought to a place other than the place of performance.

6.3.2.

If there is a defect in the object of purchase for which the seller is responsible, the seller must always be given the opportunity to remedy the defect within a reasonable period of time. The seller is entitled to choose to remedy the defect or to deliver a replacement.

6.4.1.

Claims for defects do not exist if there is only a slight deviation from the agreed quality, if there is only an insignificant impairment of usability, in the case of natural wear and tear or in the case of damage occurring after the transfer of risk as a result of incorrect or negligent treatment, excessive use or unsuitable equipment and/or due to special external factors and/or which is not provided for under the contract.

6.4.2.

If the seller’s operating or maintenance instructions are not followed, impermissible changes are made to the products, parts are replaced or consumables not meeting the original specifications are used, the seller shall not be liable for material defects; deviations only apply if the warranty claim is demonstrably not attributable to one of the aforementioned reasons for exclusion.

6.5.

Material defect claims are barred by limitation after 12 months; the period begins with the transfer of risk. The above provisions do not apply if the law stipulates longer periods in accordance with Sections 438(1)(2) (materials for structural works), 479(1) (right of recourse) and 634(a) (construction defects) of the German Civil Code.

6.6.1.

Insofar as nothing to the contrary is yielded below, further claims by the buyer – irrespective of the legal basis – are excluded. The seller is therefore not liable for damage that has not occurred to the object of delivery itself; in particular, the seller is not liable for loss of profit or other financial loss of the buyer.

6.6.2.

The seller is liable according to the statutory provisions if the seller culpably violates an essential contractual obligation; in this case, however, the liability for damages is limited to foreseeable, typically occurring damage. Otherwise liability for damages is excluded; thus, the seller is in particular not liable for damage that has not occurred to the object of delivery itself.

6.6.3.

The above exemptions from liability do not apply if the cause of the damage is based on intent or gross negligence; furthermore, they do not apply in cases of bodily injury and/or damage to health or in cases in which the buyer asserts claims for damages due to the assumption of a guarantee for the existence of a property unless the purpose of the quality guarantee only extends to the conformity with the contract of the delivery on which the contract is based, but not to the risk of consequential damage due to defects. A change in the burden of proof to the detriment of the buyer is not connected with the above regulations.

7. Lump-sum costs for unjustified notice of defects

7.1.

In the event that the buyer returns goods to us due to a notice of defects and this necessitates inspection of the goods by us, the buyer is obligated to reimburse us for the costs incurred by the inspection and resending to the buyer if it turns out that that the goods are free of defects and the notice of defects was unjustified.

7.2.

Goods must be returned to us on the basis of a notice of defects. Consignments with unpaid postage will not be accepted and will be returned to the sender at the sender’s expense.

7.3.

If properly delivered goods are returned, at least 10% of the value of the goods will be charged as a processing fee and impairment.

8. Joint and several liability

8.1.

Any further liability for damages beyond those provided for in clause 6 is excluded – without consideration of the legal nature of the asserted claim – in particular due to violation of obligations arising from the contractual relationship and from tort.

8.2.

The exclusion of liability pursuant to clause 7.1 above does not apply to claims under the German Product Liability Act or in case of damage to life, limb or health.

8.3.

Insofar as the seller’s liability is excluded or limited, this also applies to the personal liability of the salaried employees, wage earners, colleagues, representatives and vicarious agents of the seller.

9. Retention of title

9.1.

The delivered goods remain the property of the seller until all receivables arising out of the business relationship between the seller and the buyer have been paid in full. The posting of individual claims in a current invoice and the acceptance of the balance do not affect the retention of title. Payment is only deemed to have occurred with receipt of the equivalent value by the seller.

9.2.

If the buyer behaves in a manner contrary to the contract, especially in the event of default of payment, the seller is entitled to take back the object of purchase. Taking back of the object of purchase by the seller does not constitute withdrawal from the contract unless the seller has expressly stated this in writing.

9.3.

In the event of attachment or other interventions by third parties, the seller must be informed immediately in writing so that the seller can bring an action in accordance with Section 771 of the German Code of Civil Procedure (ZPO). If the third party is unable to reimburse the seller for the court fees and out-of-court expenses of a lawsuit in accordance with Section 771 of the German Code of Civil Procedure, the buyer is liable for the resulting loss.

9.4.

The buyer is entitled to resell the reserved goods in the ordinary course of business; however, the buyer already at this time assigns to the seller all receivables amounting to the final invoice amount (including VAT) of the seller’s receivables that arise from the resale to the buyer’s customers or third parties irrespective of whether the object of purchase is resold without or after being processed. The seller accepts the assignment. If the assigned receivable from the buyer of the goods subject to retention of title has been included in a running invoice (open account), the assignment also relates to the recognised balance and, in the case of buyer insolvency, to the ‘causal balance’ which then exists. The buyer remains authorised to collect this claim even after the assignment. The seller’s entitlement to collect the amount receivable personally remains unaffected. However, the seller undertakes not to collect the amount receivable as long as the buyer meets the buyer’s payment obligations from the proceeds received and is not in default of payment and in particular as long as application has not been made to open insolvency proceedings and payment has not been suspended. However, if this is the case, the seller can demand that the buyer notify the seller of the assigned receivables and their debtors, provide all the information necessary for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.

9.5.

The processing with retention of essential characteristics or alteration of the goods subject to reservation of title by the buyer is always carried out for the seller. If the goods subject to reservation of title are processed with other objects that do not belong to the seller, the seller acquires co-ownership of the new item to an extent corresponding to the ratio of the value of the goods subject to reservation of title (final invoice/budget amount including VAT) to the value of the other processed objects at the time of processing. For the rest, the same thing applies to the item arising through processing as for the goods delivered subject to reservation of title.

9.6.

If the goods subject to reservation of title are inseparably mixed with other objects that do not belong to the seller, the seller acquires co-ownership of the new item to an extent corresponding to the ratio of the value of the goods subject to reservation of title (final invoice amount including VAT) to the value of the other mixed objects at the time of mixing. If the mixing takes place in such a way that the buyer’s item is to be regarded as the main item, it is agreed that the buyer transfers co-ownership to the seller proportionally. The buyer safeguards the resultant sole ownership or co-ownership for the seller.

9.7.

The seller undertakes to release the securities to which the seller is entitled at the buyer’s request insofar as the realisable value of the seller’s securities exceeds the receivables to be secured by more than 10%; the choice of securities to be released is incumbent upon the seller.

10. Applicable law, place of jurisdiction, partial invalidity

10.1.

The exclusive place of jurisdiction for all current and future claims arising from the business relationship with entrepreneurs, legal entities under public law and special funds under public law, including bills of exchange and checks, is the registered office of the seller. However, the seller is entitled to sue the buyer before the court of the buyer’s domicile.

10.2.

The seller’s place of business is the place of performance.

10.3.

The law of the Federal Republic of Germany applies to these terms and conditions and all legal relationships between the seller and the buyer. The application of the United Nations Convention on Contracts for the International Sale of Goods (United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods, Federal Law Gazette 1989 II p. 588, corrigendum 1990 II 1699) is excluded.

10.4.

If certain clauses of these terms and conditions are ineffective, the rest remain unaffected.

Thitronik GmbH
Finkenweg 11-15
24340 Eckernförde
Germany