General Terms and Conditions (GTC) of Theis Feinwerktechnik GmbH for Sales, Delivery and Payment
§ 1 Area of Validity
The following terms and conditions apply exclusively to our deliveries and services. The client’s additions or derogations from the terms and conditions of purchase do not apply, unless we have given our consent to these in writing in individual cases.
The delivery of goods, provision of services or receipt of payments without reservation cannot be construed as a derogation from the terms and conditions.
These terms and conditions apply to the sale and/or delivery of movables from the place of their manufacture or from our suppliers. The terms and conditions also apply to future deliveries and services to the client.
These terms and conditions of sale apply exclusively in respect of contractors, legal persons under public law or public-law fund assets as defined in Section 310, Paragraph 1 of the German Civil Code (BGB).
§ 2 Conclusion of the Contract
Our quotes are always non-binding and without obligation. The contract is not concluded until we have confirmed acceptance of the order in writing or completed the delivery. The scope of the delivery is specified in our written order confirmation. We have two weeks in which to accept the order.
All agreements must be made in writing; this also applies to additions, amendments and side letters. We reserve the right to correct errors in quotes, order confirmations and invoices.
Should an order confirmation contain amendments to the order, these are deemed to be accepted by the client unless the latter states his objection in writing promptly – at the latest within five business days.
Written communications are deemed to be received by the client after regular postal delivery time if they are sent to the address, fax number or e-mail address we were last informed of. Exceptions to this are notifications of particular importance, in particular cancellations, notices of withdrawal, grace periods.
We will only save the personal data the client acquires in connection with the business relationship insofar as this is necessary for the execution of the contracts and the maintenance of the business relationship.
§ 3 Submitted Documents
The manufacturer reserves the property rights and copy-right to illustrations, drawings, drafts, models, technical or other documentation relating to the products. This also applies to constructional services provided by us and proposals for the design and manufacture of the product. They must be returned immediately on request, and may not be used, copied, reproduced or passed on or disclosed to third parties for other purposes without the agreement of the manufacturer.
§ 4 Prices, Payment Terms, Invoicing
Unless otherwise agreed in writing, our prices are ex works and exclusive of transportation, customs, import duties, insurance, statutory value added tax, packaging and other incidental expenses.
All invoices are payable immediately upon issuance with-out discount. We are entitled to charge a late payment interest amount of eight per cent over the European Cen-tral Bank’s current basic interest rate from 30 days after the payment becomes due. We reserve the right to claim for higher losses or damage.
Payment of the purchase price must be made onto one of our bank accounts indicated on the invoice.
Payment reductions are only permitted by separate written agreement.
Unless a fixed price agreement has been concluded, we reserve the right to make price changes as a result of changes in wage, material and operational expenses for deliveries made three months after conclusion of the contract, or later.
The client may only offset payment or assert a right of retention against our claims, if his counter-claim is legally established or undisputed.
§ 5 Delivery and Time of Performance
It is a condition for the start of the delivery period we specify that all technical matters are clarified and the client has fulfilled his obligations to cooperate according to deadlines, in full and in the proper manner. We reserve the right to plea non-fulfilment of the contract. Delivery terms or deadlines are only binding if we have confirmed them in writing.
Should the client delay acceptance or culpably contravene other obligations to cooperate, we will be entitled to de-mand compensation for any damages we have incurred as a result, including any additional expenses. We reserve the right to make further claims. If the preceding prerequisites exist, the risk of accidental loss or accidental deterioration of the purchase item is transferred to the client as soon as the latter falls into default of acceptance or payment.
If the delivery is delayed in full or in part for reasons for which we cannot be held responsible, in particular as a result of force majeure circumstances, such as material loss, disruption to operations, strike, lock-out, disruptions to power or transport, flooding, fire, measures taken by public authorities or other unavoidable events, our terms of delivery will be extended in the appropriate manner, at least for the duration of the impediment plus an appropri-ate time to resume the works.
Provided that we have informed the client of the impedi-ment to the service, and the impediment is not just of a temporary nature, we are entitled to cancel the contract in full or in part on account of the part of the contract that has not yet been fulfilled.
We are entitled to cancel in the event of a serious change in the circumstances that existed on conclusion of the contract, as a consequence of which we cannot be ex-pected to adhere to the contract.
We are permitted to make partial deliveries and provide partial services at any time, provided that these can be used by the client for the purpose stated in the contract.
Our liability in the event of a delay in delivery is regulated by the provisions of the law. Provided that the delay in delivery is not a result of an intentional breach of contract for which we are responsible, however, our liability for compensation is limited to foreseeable damage occurring in a typical manner.
§ 6 Transfer of Risk
Unless other agreements have been reached, we will send the goods at the client’s expense and risk. We determine the method and route of shipping, forwarding and/or carrier.
The risk is transferred to the client when the goods are handed over to the transporter, freight forwarder or carrier, or loaded onto a vehicle of the supplier, at the latest, how-ever, on leaving the works or warehouse. This also applies in the case of partial deliveries, or when the supplier has assumed other services, for example, shipping costs or carriage.
We only provide insurance against loss and damage of the goods during transport on the instruction and at the expense of the client.
If the shipment is delayed as a result of circumstances for which the client is responsible, the risk shall be transferred to the client when notification is given that the goods are ready for shipment or collection.
Goods notified as ready for shipment in accordance with the contract must be released without delay, otherwise we will be entitled, after issuing a warning, to either dispatch the goods or store them at our discretion, at the client’s expense and risk, and to invoice immediately.
§ 7 Retention of Title
Sold goods remain our property up until fulfilment of all demands arising out of the business relationship (reserved goods).
The client may only take possession of the reserved goods up until full settlement of the secured claims if we have given our consent to the possession. The client must inform us in writing immediately if third parties attempt to seize the reserved goods.
If reserved goods are handled or processed by the client, our retention of title extends to the whole new item. In the event of processing, combining or mixing with foreign items by the client, we acquire the co-ownership of the part that corresponds to the proportion of the invoice amount of our goods to that of the other items used by the client at the time of the processing, combining or mixing.
If the reserved goods are combined or mixed by the client with a main item belonging to him, the client transfers his rights to the new item to us herewith. If the client combines or mixes the reserved goods with the main item of a third party in exchange for payment, he assigns his claims for remuneration against the third party herewith; we accept the assignment.
The client is entitled to resell reserved goods within the framework of orderly business operations. If the client sells on reserved goods without obtaining the full purchase price, he will agree with his purchaser on a retention of title that satisfies the obligations by which he is bound. The client assigns his receivables from this resale and the rights from the retention of title agreed by him to us herewith; we accept the assignment. He is obliged to make his purchaser aware of the assignment on our demand, and to provide us with the necessary information and documentation for us to assert our rights against his purchaser. Notwithstanding the assignment, the client is authorised to collect the receivables from the resale, as long as he fulfils his obligations towards us in the proper manner.
Should the value of the securities granted to us exceed our receivables by more than 20 per cent, we will be obliged, at the demand of the client, to release surplus securities at our discretion.
§ 8 Requirement to Investigate and Notify Defects
Obvious defects in the goods must be notified by the client in writing promptly, at the latest two weeks after delivery of the goods or on acceptance of the delivery. Warranty claims on the grounds of obvious defects can no longer be asserted after expiry of this deadline.
Hidden defects that cannot be identified by the aforemen-tioned deadline even with the most meticulous examination must be notified immediately after their appearance, and any handling or processing discontinued.
Any notification of defects must be given in writing and accompanied by a precise description. The defective items must be kept in the condition they were in at the time the defect was discovered, for examination by us.
§ 9 Warranty and Liability
Claims for defects lapse after 12 months of delivery of the goods supplied by us to our client. The statutory limitation period applies to claims for compensation for damage caused by intent or gross negligence, as well as for injury to life, body and health caused by the user’s intentional or negligent breach of duty.
If the law prescribes longer mandatory deadlines pursuant to § 438, Paragraph 1, Item 2 of the BGB (Structures and Components for Structures), § 479, Paragraph 1 of the BGB (Right of Recourse), and § 634a, Paragraph 1 of the BGB (Building Defects), these deadlines will apply.
Should the delivered item, in spite of all care taken, reveal a defect that was present at the time of the transfer of the risk, we will remedy the defect or replace the item at our discretion, subject to notification of the defect within the deadline. We must be given the opportunity to rectify de-fects within an appropriate timescale at all times. Any rights to recourse remain unaffected by this regulation without limitation.
There are no claims for defects if the deviation from the agreed quality is only negligible, if usability is impaired only negligibly, in the case of natural wear and tear, and of damage that is caused after transfer of the risk by incorrect or negligent handling, excessive usage, unsuitable equipment or by other external influences that are not provided for by the contract.
Arbitrary finishing work and improper handling will result in the loss of claims for defects. The usual extent of wear and tear does not justify a claim for defects.
The costs of rectification, in particular transport, infrastructure, work and material costs, are borne by us as long as they are not increased by the delivery item being delivered after dispatch to another location than the one specified in the contract, unless the delivery corresponds to its intended use.
The client only has a right to recourse against us if the client has not reached any agreements with his purchaser in addition to the statutory claims for defects.
§ 10 Flat-rate Compensation
If the client gives notice to terminate the contract before its execution, we will be entitled to invoice for the costs al-ready incurred, or to demand 5% of the total contractual amount in compensation. The client explicitly reserves the right to provide proof of a smaller damages amount.
§ 11 Intellectual Property Rights
If we are obliged to supply the delivery item according to the client’s specifications (drawings, models, patterns, etc.), the client is responsible for ensuring that the intellectual property rights of third parties are not infringed. In the event of a breach of duty, the client will be obliged to indemnify us against any claims made by third parties.
§ 12 Confidentiality and Data Protection
The parties will treat the trade and business secrets of the other party confidentially, in particular, not disclose them to third parties or use them for their own purposes without authorisation. The parties will also impose these obligations on their employees and vicarious agents.
The duty of confidentiality does not apply to information that the other party was already aware of outside of the contractual relationship at the time of its disclosure, developed in-house or acquired lawfully by third parties, is publicly known or state-of-the art technology, or has been disclosed by the contractual partner from where it originated.
After the termination of the contractual relationship, the parties must return, destroy or - if technically possible with reasonable effort - delete irrevocably all of the other party’s information that is subject to confidentiality, whether in tangible or digital form, at the request of the party from whom it originates.
The parties shall comply with the data protection regula-tions, in particular if they have been granted access to the other party’s operations or information technology facilities. They shall take measures to ensure that their employees and vicarious agents also comply with these regulations.
§ 13 Final Provisions
This contract and all legal relationships of the parties are subject exclusively to the law of the Federal Republic of Germany, with the exclusion of the United Nations Con-vention on Contracts for the International Sale of Goods (CISG).
The place of performance for all obligations arising out of the contractual relationship, as well as the exclusive place of jurisdiction, also in respect of exchange or cheque transactions, are our headquarters in Breidenbach-Wolzhausen, Germany.
Should a provision of these Terms and Conditions be or become invalid or unenforceable, the validity and enforce-ability of all other provisions or agreements will not be affected.
Last updated: Mai 2018.