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THERMONIE > Terms & Conditions

Terms & Conditions

General Terms and Conditions
of Thermonie Elektrotechnische Komponenten GmbH

I. Applicable Scope
1.
Goods and services shall be governed exclusively by the following General Terms and Conditions. These shall furthermore apply to all future business relations even in the event that they are not explicitly stipulated. Any deviating terms and conditions of the Buyer which are not explicitly recognized by the Seller shall not be binding upon the Seller even if the Seller has not expressly objected to same.

2.
All agreements made between the Seller and the Buyer in connection with the contracts are set forth in writing in the contract itself, in these Terms and Conditions and in the order confirmation of the Seller.

3.
The Buyer is familiar with the General Terms and Conditions from forms, price lists, invoices, emails and Internet publications (www.thermonie.de).

II. Offers and Contracts
1.
The offers of the Seller are non-binding and subject to change without notice unless the Seller has expressly confirmed in writing that a specific offer is binding.

2.
Measurements, weights, pictures, sketches, product parameters and other documentation which forms part of the non-binding offers of the Seller shall remain the property of the Seller and shall be deemed approximations unless explicitly designated by the Seller as binding.

3.
The technical specifications and descriptions of the various product data, advertising materials, technical data sheets and manufacturers’ information are not to be construed as guarantees of the condition or durability of the goods to be supplied unless such information has been stipulated in a separate covenant. In the event of sales based on samples or specimens, same merely describe general characteristics of the product and shall not constitute guarantees of the condition or durability of the goods to be supplied.

4.
Technical advice on implementation and application shall be provided based on the best of Seller’s knowledge. All data and information on the suitability and use of the goods shall not relieve the Buyer from conducting its own tests and trials of the products to determine their suitability for the intended operation and purposes.

5.
The Buyer is under obligation to inform the Seller in the event that Buyer’s intended use of the goods and services lies in the realm of air-, space- and watercraft or in medical applications.
III. Conditions of Payment
1.
The prices are cited in euros ex works including packaging and excluding the currently applicable value-added tax unless a different currency has been expressly agreed.

2.
In the event that no other system of payment has been stipulated, invoices shall be payable in full 14 (fourteen) days after receipt. Following the expiration of the due date cited on the invoice, the Buyer shall be deemed to be in default. Should the Buyer be in default of payment, the Seller has the right to demand interest from the date in question at a rate of 8% (eight percent) above the basic interest rate of the European Central Bank (ECB). Seller reserves the right to claim further damages based on documentation to be furnished by the Seller.

3.
Buyer shall only be entitled to offset, also in the event of notification of defects or counterclaims, if the counterclaims in question have become res judicata, have been recognized by the Seller, or are uncontested. The Buyer is only entitled to exercise rights of retention if Buyer’s counterclaim is based on the same contract.
IV Periods for the Delivery of Goods and Services
1.
Delivery dates or periods which have not been expressly agreed as binding shall be deemed non-binding in every case.

2.
In the event that the Seller culpably fails to comply with an expressly agreed term or is in default for other reasons, the Buyer shall grant the Seller a reasonable extension – beginning with the date upon which the written notice of default was received by the Seller, or in line with a specific date as stipulated. Should such term expire to no avail, the Buyer has the right to withdraw from the contract.

3.
The Buyer is under obligation, at Seller’s request, to declare within a reasonable term whether Buyer intends to withdraw from the contract due to the delay in delivery or insist upon delivery.

4.
The Seller shall be liable according to the laws of the Federal Republic of Germany, subject to the following limitations, if the contract comprises a transaction for delivery by a fixed date or the Buyer is entitled, as a consequence of the delay for which the Seller is responsible, to cite the cessation of Buyer’s interest in the performance of the contract.

5.
In the event of delayed delivery, the Seller is liable to the Buyer according to the laws of the Federal Republic of Germany if the delayed delivery is due to a failure of the Seller to comply with its duty, caused deliberately or by gross negligence for which the Seller is responsible. The Seller shall be liable for fault attributable to its representatives and vicarious agents. In the event that the delayed delivery is not due to a failure of the Seller to comply with its duty, caused deliberately or by gross negligence for which the Seller is responsible, the liability of the Seller shall be limited to foreseeable, typically incurred damages.

6.
In the event that the delayed delivery for which the Seller is responsible is due to the culpable breach of one of the substantive obligations under the contract, the Seller shall be liable according to the laws of the Federal Republic of Germany; Seller’s liability shall be limited to foreseeable, typically incurred damages.

7.
The Seller has the right to effect part delivery and part performance at any time as long as same can reasonably be expected of the Buyer.
V Passage of Risk-Shipping-Packaging
1.
Loading and shipping shall be effected uninsured at the Buyer’s risk. The Seller shall endeavor to take the Buyer’s preferences and interests into consideration as regards the mode of dispatch and shipping route; any additional costs thereby incurred – even in the event of stipulated freight-paid delivery – shall be borne by the Buyer.

2.
In the event that shipping or delivery is delayed at the request or fault of the Buyer, the Seller shall store the goods at Buyer’s cost and risk. In such event, notification of readiness to ship shall be deemed to comprise shipment. The Seller is entitled to charge a warehousing fee to the Buyer for every month commenced which shall amount to 0.5 % (one-half percent) of the price of the articles comprising the shipments, not to exceed, however, a total of 5 % (five percent). The parties reserve the right to claim higher or lower warehousing fees if same have been documented.
VI Warranty/Liability
1.
The Buyer shall examine the incoming goods to determine their completeness, possible damage in transit, obvious defects, condition and characteristics. Written notification of obvious defects is to be made by the Buyer to the Seller within two (2) weeks of the shipment of the goods under the contract.

2.
The Seller is not obligated to perform under the warranty (subsequent performance, withdrawal from the contract, reduction of the purchase price and compensation for damages), if the Buyer has not given written notification of an obvious defect in due time. In the event that there is a defect in the goods for which the Seller is responsible and the Buyer has submitted timely written notification of same, the Seller – excluding the rights of the Buyer to withdraw from the contract or reduce the purchase price – shall be obligated to provide subsequent performance, unless the Seller is entitled (according to German substantive law) to refuse subsequent performance. The Buyer shall grant the Seller a reasonable term to provide such subsequent performance for each defect.

3.
At the Buyer’s discretion, subsequent performance can be effected by remedying the defect or by delivering new merchandise. The Seller has the right to refuse the type of subsequent performance chosen by the Buyer if same would necessarily entail unreasonable cost. The Buyer shall not have the right, in the event of subsequent performance, to reduce the purchase price or withdraw from the contract. Subsequent performance shall be deemed to have failed if the second attempt is to no avail. In the event that subsequent performance has thus failed or the Seller has completely refused subsequent performance, the Buyer can choose between demanding a reduction in the purchase price and declaring its withdrawal from the contract.

4.
Claims based on defects are not deemed given in the event of merely insubstantial deviation from the stipulated quality of the goods, merely insubstantial impairment to their use, natural wear and tear or damages which have been incurred subsequent to the passage of risk by way inappropriate or negligent handling, excessive use, unsuited operating materials, defective operation or due to unusual external influences which have not been foreseen in the contract. In the event that the Buyer or a third party makes improper changes or repair work, no claims based on defects shall apply to same or any consequences thereof.

5.
Claims for damages based on a defect as set forth in the following provisions can only be lodged by the Buyer if subsequent performance has failed or the Seller has refused subsequent performance. The right of the Buyer to lodge further claims to damages in accordance with the following provisions shall not be affected.

6.
The Seller shall be fully liable, notwithstanding these provisions and the following limitations of liability, for any mortal, bodily or physical injury or harm incurred by a deliberate or negligent breach of duty on the part of the Seller, its statutory representatives or its vicarious agents, as well as for damages covered by the liability set forth in the Product Liability Act [Produkthaftungsgesetz] of the Federal Republic of Germany, as well as for damages incurred due to deliberate or grossly negligent breach of duty or fraudulent intent on the part of the Seller, its statutory representatives or its vicarious agents. To the extent that the Seller has provided a warranty as to the condition and/or durability of the goods or parts thereof, Seller shall also be liable pursuant to the terms of said warranty. In the event of damages attributable to the absence of the guaranteed condition or durability which do not, however, arise in the goods themselves, the Seller shall only be liable if the risk of such damage is covered by the warranty of condition and durability.

7.
The Seller shall also be liable for damages caused by simple negligence if such negligence pertains to a breach of a contractual obligation whose performance is of central importance in accomplishing the purpose of the contract. However, the Seller shall be liable only in the event that the damages are typically related to the contract and are foreseeable. In other respects, the Seller shall not be liable for negligent breaches of collateral obligations which are not substantive to the contract. These limitations on liability shall also apply where liability for statutory representatives, executives with managerial functions and other vicarious agents of the Seller is concerned.

8.
The Seller shall not be liable where personal injury and damage to property are incurred which result from a breach of Buyer’s reporting duty as set forth in Article II No. 5 above.

9.
Any liability beyond the above shall be excluded regardless of the legal nature of the claim lodged. To the extent that the liability of the Seller is excluded or limited, this shall also apply to the personal liability of its salaried employees, staff, independent contractors, representatives and vicarious agents.

10.
Claims based on the liability for material defects shall be statute-barred in 12 (twelve) months. The term shall commence with the passage of risk.
VII Retention of Title
1.
The Seller shall retain the title to the goods until all of the sums payable under the contract have been received.

2.
The Buyer is prohibited from pledging the goods subject to retention of title or transferring same by way of security. In the event that the goods subject to retention of title are pledged or otherwise attached by third parties, particularly in the course of execution proceedings or other impairments, the Buyer shall inform the Seller immediately in writing. The Buyer shall make reparation to the Seller for any and all damages and costs incurred by a breach of this obligation and any requisite interventional measures taken against attachment by third parties.

3.
In the event that the Buyer fails to meet its payment obligations despite a reminder on the part of the Seller, the Seller is entitled to demand the surrender of the goods still subject to Buyer’s retention of title without advance notice. The transport charges thus incurred shall be borne by the Buyer. A pledge of the goods under retention of title on the part of the Seller shall be deemed a withdrawal from the contract in every case. The Seller is entitled to realize gains from the goods subject to retention of title subsequent to their return. The resulting proceeds shall be counted toward obligations of the Buyer.
VIII Place of Performance and Jurisdiction
1.
Place of performance and exclusive jurisdiction for deliveries and payments as well as for any and all disputes arising between the parties based on the contracts entered into between them shall be at the head office of the Seller if the parties to the contract are qualified merchants, public law entities or separate estates or funds under public law.

2.
The relations between the parties shall be governed exclusively by the laws in effect in the Federal Republic of Germany. The Uniform Law on the International Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods shall not apply.

3.
The Buyer does not have the right to assign claims based on the contract without the consent of the Seller.
IX Final Provisions
1.
Should specific provisions be invalid, partially invalid or excluded by way of a special covenant, this shall not affect the validity of the remaining provisions.

2.
Should questions of interpretation arise concerning the German and English wording of these General Terms and Conditions, the German text shall be authoritative.

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