Ts&Cs – General Terms and Conditions – Thölen Pumpen GmbH
§ 1 General Terms
- The following conditions shall form an integral part of all contracts including those ones concluded in the future, even when we do not explicitly refer to them in future contracts.
- Any deviating terms and conditions, phone arrangements or verbal agreements, which are not explicitly agreed by us in writing, shall not be binding for us, even if we do not expressly object to them.
- Our liability for recording and transmission failures when receiving orders and messages by phone, fax, email or on the internet shall be excluded where legally permissible.
§ 2 Offers
- Our offers indicate net prices excluding value added tax.
- They shall be subject to change, the contract shall only be concluded upon execution of the order.
- Any price and cost changes (in particular collectively agreed wage increases or higher material costs) shall entitle us to make price adjustments. This shall also apply to orders already completed.
- Our offers shall always be valid for a period of three months.
§ 3 Delivery
- Deliveries shall be effected at the buyer’s risk and expense, ex works including packing. The choice of the transport route (haulage, parcel service, post etc.) shall remain at our discretion.
- Should we fall into arrears with a delivery, the delivery time shall be extended within the meaning of § 326 BGB (German Civil Code) to a minimum of two weeks. The delivery time shall be deemed observed, if the delivery item already left the works or its readiness for dispatch was notified prior to the expiry of the deadline.
- We shall be entitled to effect partial deliveries.
- Special circumstances such as operational disruptions, material shortages, war, seizures, strikes, lockouts, shipping problems as well as any kind of force majeure shall exempt us from the delivery deadline and entitle us to terminate the contract whereby we shall not be liable for any damages, where legally permissible.
§ 4 Payment
- Our prices are quoted in Euros and apply to the delivery ex works (Incoterm Code EXW).
- Transport insurance shall be taken out only upon the customer’s specific instruction and at his expense. Costs for transport and packing shall be charged separately and the current value added tax rate shown separately.
- Net payment shall be effected within 30 days from the date of the invoice. Payment within 14 days from the date of the invoice shall be subject to an early payment discount of 2%.
- Upon substantial deterioration of the buyer’s financial situation (e. g. protest of a bill, application for bancruptcy or composition, affirmation in lieu of an oath etc.) as well as upon circumstances disclosing an insufficient credit-rating we shall be entitled at our own discretion to demand either payment in advance or, if the goods have not yet been delivered, terminate the contract.
§ 5 Call-off or General Orders, Custom-Made Products
- Orders shall only be called off in partial quantities, if this has been explicitly agreed in advance. We shall maintain the right to claim fulfilment of the overall contract.
- If the buyer terminates the contract and we do not either claim fulfilment or damages, we shall reserve the right to recalculate the prices for the released quantities in line with the prices which would have been applicable if the order had been limited to these quantities when it was placed. If the order involves custom-made products we shall, in any case, insist on contract fulfilment.
- Prices which were offered or confirmed for larger supply quantities cannot be claimed for smaller quantities.
- Excess or short deliveries not exceeding 10% of the order volume shall be deemed permissible for custom-made products.
§ 6 Offsetting
- Any rights for retention resulting from other transactions including the current business relationship shall not be asserted. Any offsetting on the part of the buyer shall be excluded unless the counterclaim is undisputed or legally binding.
§ 7 Warranties
- The time the goods are handed over to the haulage company or carrier, at the latest however the time the goods leave the works or the store including freight-free deliveries shall determine the contractual condition of our delivery.
- Objections to parts of a delivery shall not entitle the buyer to object to the overall delivery.
- We shall carry out subsequent improvements upon justified complaints at our discretion, replacement delivery or compensation for the loss in value. Should subsequent improvements or replacement delivery fail, the buyer shall be entitled to cancel the contract or decrease the purchase price.
- As far as legally permissible any claims for damages against us and our associates are excluded, regardless of whether they are based on contractual claims, contractual or legal obligations, in particular on default claims, subsequent possibility, positive contractual violations, culpa in contrahendo or ex delicto.
- The buyer shall be obliged to thoroughly inspect the goods delivered without delay and advise of any deficiencies or quantity deviations in writing.
- The warranty period for our OEM pumps shall be 12 months starting from the time they are received by the customer. For all other pumping systems and filling stations the warranty shall be 24 months starting from the time they were received by the customer. Tubing and items subject to fair wear and tear shall not be subject to warranty.
§ 8 Reservation of Title
- All delivered items shall remain our property until all claims arising from the overall business relationship – including current account balances – have been met.
- The goods shall only be resold or processed by way of proper business transactions. Should they be resold or processed, we shall be entitled to the purchase price or labour cost demand up to the amount of our total claim at the time they are incurred. As of now the buyer shall assign this future purchase price or labour cost demand to us. We shall be entitled to inform the third-party purchaser about this agreement. The buyer shall explicitly be obliged to submit written documents on the type and amount of this demand on request. Should the value of the securities provided to us exceed the demand by more than 20%, we shall be obliged to re-transfer the amount at the request of the buyer.
- The buyer shall be obliged to inform us about any seizures of or damage to our property. Any legal cost incurred shall be borne by the buyer.
- Should the buyer be wholly or partially in arrears with payment, we shall be entitled to demand immediate return of the goods without a reminder. Any depreciation that has since occurred shall be borne by the buyer.
§ 9 Damages and Limitation of Liability
- Any claims for damages and reimbursement of expenses made by the buyer due to violations of essential contractual obligations, ex delicto or other legal grounds shall be excluded. This shall not apply to liabilities in accordance with the Product Liability Act (Produkthaftungsgesetz), in cases of intent or gross negligence by us or our associates, to the injury of life, limb or health or due to the warranty promise for the existence of a characteristic feature.
- In case of essential contract infringements we shall only be liable if we or our associates are at fault. The scope of liability shall, in this respect, be limited to the foreseeable damage typical to the contract. This shall not apply to cases of intent or gross negligence.
§ 10 Place of Jurisdiction
- If the conditions for an agreement on jurisdiction are met in accordance with § 38 of the Code of Civil Procedure (ZPO), the place of jurisdiction for all claims of the contractual partners shall be GELDERN. German law shall also exclusively apply to cross-border contracts without the possibility of applying the Uniform Law on the International Sale of Movable Goods (EKG) of 17 July 1973.
§ 11 AOB
- Should some of the aforementioned provisions be ineffective, the validity of other provisions shall not be affected.
- The contractual partners shall be obliged to replace a possibly ineffective provision with a new provision that most closely reflects the spirit and purpose of the ineffective provision.