General terms and conditions

General terms and conditions

Thum+Mahr GmbH

Section 1 – General provisions – scope of application

These General Terms and Conditions (“GTC”) apply to all business relations with our customers. They are only applicable if the customer is an entrepreneur as defined by Section 14 of the German Civil Code (Bürgerliches Gesetzbuch – “BGB”), a legal entity under public law or a special fund under public law.

These GTC apply exclusively. When you place an order, you accept them without any limitations as regards content, time or territory. Any deviating, conflicting or supplementary general terms and conditions of the customer shall become an integral part of the contract only if and to the extent we have expressly approved of their applicability. This approval requirement shall apply in any case, for example even if we complete delivery to the customer in knowledge of the customer’s general terms and conditions.

Any individual agreements entered into with the customer on a case-by-case basis (including collateral agreements, supplements or amendments) shall take precedence over these GTC in any event. Those agreements require a written agreement or our written acknowledgement.

Legally relevant declarations and notices to be made by the customer after the conclusion of the contract (e.g. setting of a deadline, notices of defects, notices of rescission or reduction) have to be made in writing in order to be effective

Any reference to the applicability of statutory provisions is only made for the purpose of clarification. Statutory provisions shall thus be applicable even without clarification unless they have been directly amended or expressly excluded by these GTC.

Section 2 – Conclusion of contract

Our offers are subject to alteration and non-binding.

The customer’s order of goods is deemed a binding offer to enter into a contract. Any order must be made in writing. Unless otherwise stated in the order, we are entitled to accept your offer to enter into a contract within a period of two weeks after submission of the offer. The point in time when the customer receives our acceptance shall be decisive for observing the period. Acceptance may be declared either in writing (e.g. by a confirmation of the order) or by delivering the goods to the customer. To the extent the scope of the order deviates from our offer, we reserve the right to amend the terms accordingly. We complete delivery in this case only after the customer has confirmed the new terms.

Minor deviations, particularly customary deviations, of the contractually owed goods as regards quality, form, color, design, weight, equipment or processing shall remain reserved within reasonable limits; such deviations shall be part of the agreed quality of the goods. We do not give any guarantees in the legal sense.

Section 3 – Delivery and period of delivery

Unless a fixed period or date has been agreed upon in writing, all deliveries of goods and the provision of services have to be completed no later than three weeks after the conclusion of the contract and the confirmation of the order, respectively. The date when the goods are delivered to the shipping company shall be decisive for observing the date of shipment.

In the event we fail to observe an agreed delivery date, the customer has to grant a reasonable extension of time that must not be less than two weeks in any case.

Should our supplier, who supplies us with goods marked as “not in stock” on our invoices to the order, not supply us with the goods on time, the relevant period of delivery shall be extended until we received delivery from our supplier plus a period of three business days, but not more than by a period of three weeks, provided that we are not responsible for the delay in delivery by our supplier and that we have reordered the goods without undue delay.

We will notify the customer if the goods cannot be delivered at all or in a timely manner for the reasons specified in para. 3. If the goods will not be available for the foreseeable future, we are entitled to rescind the purchase contract. In case of a rescission from the contract, we will refund any payments already made by the customer without undue delay. The customer’s statutory rights based on a delay in delivery shall not be affected by the provision above. The customer may, however, request damages only in accordance with the specific provisions set forth in Section 8 hereof.

The seller shall only be entitled to complete delivery by instalments if - the customer can make use of the delivery by instalments within the scope of the intended contractual purpose of use; - the delivery of the rest of the ordered goods is ensured; and - the customer does not incur considerable extra efforts or expenses thereby (unless the seller agrees to bear such costs).

If and to the extent we are not able to meet binding delivery times for reasons for which we are not responsible (unavailability of goods), we will notify the customer thereof without undue delay and inform the customer of the expected

New delivery time. If we cannot perform within the new period of delivery, we shall be entitled to fully or partially rescind the contract; we will refund any payments already made by the customer in this case. Reason for the inability to perform in this sense particularly is the late delivery from our supplier if we have entered into a congruent covering transaction, if neither we nor our supplier are responsible therefore or if we are not obliged to organise procurement in the individual case.

The seller shall not be liable for the inability to perform or the delay in delivery if caused by force majeure or other events (such as disruptions of operations of any kind, difficulties in procuring material or energy, delay in transportation, strikes, lock-outs, shortage of labour, energy or raw material, difficulties in obtaining any required official permits, administrative acts, or supplier’s failure to complete delivery or incorrect or late delivery by supplier) that could not be foreseen at the time of the conclusion of the contract and for which the seller is not responsible. Should any such event make it substantially difficult or impossible for the seller to deliver goods or perform services and if the impairment is not only temporary, the seller shall be entitled to rescind the contract. In case of temporary impairments the periods of delivery or performance shall be extended by the period of the impairment plus a reasonable starting period. If the customer cannot be expected to accept delivery of goods or performance of services because of the delay, they are entitled to rescind the contract by prompt written declaration addressed to the seller.

Section 4 – Reservation of title

Until full payment of all present or future receivables under the purchase contract and the ongoing business relationship (secured claims), we reserve title to the sold goods.

Goods being subject to a reservation of title may neither be pledged to a third party nor provided as security until full satisfaction of the secured claims. The customer has to notify us immediately in writing if third parties attempt to seize or take possession of the delivered goods.

Should the customer violate the contract, particularly by not paying the due purchase price, we shall be entitled to rescind the contract in accordance with the statutory provisions and to request the return of the goods on the basis of the reservation of title and the rescission. If the customer fails to pay the purchase price, we may exercise such rights only if we have set a reasonable deadline for payment which has expired without results or if the setting of such deadline is not required under statutory provisions.

The customer is entitled to resell and/ or process the goods being subject to a reservation of title in the ordinary course of business. In this case, the following provisions shall apply additionally: a. The reservation of title extents to the full value of any products resulting from the processing, mixing or combination of the seller’s goods, provided that we are considered to be the manufacturer. If our goods are processed, mixed or combined with third party goods and if title to such goods remains with the third party, we shall obtain joint title pro rata in proportion of the sums invoiced for the processed, mixed or combined goods. In other respects, the same shall apply to the resulting products as applies to the delivered goods being subject to a reservation of title. b. The customer hereby assigns as security any claims against third parties based on the resale of the goods or products either in the full amount or in proportion of the joint title pursuant to the paragraph above. We hereby accept the assignment. The customer’s obligations set forth in para. b shall also apply in consideration of the assigned claims. c. Besides us, the customer shall continue to be authorized to collect the receivables. We undertake not to collect the receivables if and as long as (i) the customer fulfils any payment obligations vis-à-vis us, (ii) the customer does not get into arrears with any payments, (iii) no petition to commence insolvency proceedings has been filed, and (iv) no other deficiencies in the customer’s financial capacity occur. However, should this be the case, we may request the customer to inform us about the assigned claims and the respective debtors, to furnish all information required to collect the receivables, to deliver all related documents and to notify the debtor (third party) of the assignment.

The customer is obliged to treat the goods carefully. The customer has to regularly carry out any necessary maintenance and inspection works.

The customer has to promptly notify us of any change of ownership of the goods.

Section 5 – Compensation

Our prices include statutory value added tax. In case of sale by delivery to a place other than the place of performance the purchase price is plus shipping costs corresponding to the expenses.Unless otherwise expressly agreed upon in writing, our prices apply in case of collection from our warehouse, including packaging. The customer does not incur additional costs in connection with the order by using any means of distance communication. The customer may pay the purchase price cash on delivery or on invoice. Deliveries to new customers are only made for payment in advance.

If delivery on invoice is agreed upon, invoices are due and payable within ten business days after shipment of the goods and receipt of the invoice by the customer. The customer will be in default upon expiration of the above-mentioned payment term. During the period of default, the purchase price shall bear interest at the rate of applicable statutory default interest. We reserve the right to assert claims for further damage caused by default. In the relationship with entrepreneurs, our claim for commercial interest for due payments (Section 353 of the German Commercial Code (Handelsgesetzbuch – “HGB”) shall remain unaffected.

The customer shall not have any right of set-off or retention unless the counterclaim has been found to be final and absolute. The customer may exercise any right of retention only if the counterclaim results from the same contractual relationship.

Section 6 – Shipment and passing of risk

Unless otherwise expressly agreed upon, we shall determine the adequate mode of shipment and the carrier at our reasonable discretion.

In case of sale by delivery to a place other than the place of performance we only owe the punctual and due delivery of the goods to the carrier and are not responsible for any delays caused by it. The delivery time stated by us is thus not binding.

The risk of accidental loss and accidental deterioration of the goods passes to the entrepreneur no later than upon the delivery of the goods to the entrepreneur. In case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration as well as the risk of delays shall, however, already pass upon the delivery of the goods to the forwarding agent, the carrier or other person or institution entrusted with the shipment. Delivery shall be deemed to have taken place if the customer is in default of acceptance. If shipment or delivery is delayed due to a circumstance caused by the customer, the risk shall pass to the customer on the day on which the goods to be delivered are ready for shipment and the seller has notified the customer thereof.

In all other cases, the risk passes to the customer upon the delivery of the goods to the carrier.

Any cost of storage arising after the passing of risk shall be borne by the customer. The cost of storage shall amount to 0.25% of the invoiced amount of the stored goods for each full week of storage if the goods are stored by the seller. The assertion and proof of additional or lower cost of storage shall be reserved.

Section 7 – Warranty

The warranty period shall be one year after delivery or, if acceptance is required, after acceptance. This shall not apply if the customer has not notified us of the defect in due time (para. 2 of this section).

The delivered goods have to be carefully inspected after hand-over to the customer or a designated third party without undue delay. Goods shall be deemed approved by the customer concerning apparent defects or other defects that would have been recognizable if the goods have been promptly and carefully inspected unless the seller receives a written notice of defects within seven business days after hand-over. Goods shall be deemed approved by the customer concerning other defects unless the seller receives notice of defects within seven business days after the time when the defect became apparent; if the customer could have recognized the defect at an earlier point in time when used under normal circumstances, the earlier point in time shall, however, be decisive for the commencement of the notice period. Upon the seller’s request, the rejected goods shall be returned to the seller freight paid. If the notice of defects is justified, the seller shall reimburse the expenses for the least expensive shipping method; this shall not apply if the costs rise because the goods are at another location than the location of the intended contractual use.

In case of defects in quality of the delivered goods, the seller shall be obliged or entitled, at its discretion, either to remedy the defect or to deliver substitute goods within a reasonable period of time. If the rectification of defects or substitute delivery fails, i.e. if the rectification of defects or substitute delivery are impossible, unacceptable, refused or unreasonably delayed, the customer may rescind the contract or adequately reduce the purchase price or claim damages or compensation of expenditures made in vain. The specific provisions set forth in Section 8 hereof shall apply to the customer’s claims for damages. In the event of only a minor infringement, particularly in the event of only minor defects, the customer shall not have a right of rescission.

If the defect was caused due to a fault of the seller, the customer may claim damages under the prerequisites set forth in Section 8.

In the event of defects in components from other manufacturers which the seller may not remedy because of licensing restrictions or due to factual reasons, the seller shall, at its discretion, either assert its warranty claims against the manufacturers and suppliers for the customer’s account or assign its warranty claims to the customer. In case of such defects, warranty claims against the seller shall exist under the other prerequisites and in accordance with these GTC only if judicial enforcement of the aforementioned claims against the manufacturer and supplier was not successful or would be unpromising, for example because of insolvency. During the duration of legal proceedings, the statute of limitations shall be suspended with regard to the customer’s warranty claims against the seller.

The warranty shall cease to apply if the customer modifies, or causes third party to modify, the delivered goods without the seller’s consent and if this makes any rectification of defects impossible or unreasonably difficult. In any case, the customer has to bear any additional costs of the rectification of defects caused by a modification.

The delivery of used goods as agreed upon with the customer on a case-by-case basis shall occur to the exclusion of any warranties for defects in quality.

Only the manufacturer’s product description shall generally be deemed a quality of the goods. Public statements, recommendations, or advertising by the manufacturer shall, in contrast, not constitute a contractually owed quality of the goods.

Should the customer receive incorrect assembly instructions, we shall only be obliged to deliver correct assembly instructions, and this only if the incorrect assembly instructions prevent proper assembly.

We do not give any guarantees to the customer in the legal sense. Manufacturer's warranties shall not be affected thereby.

Section 8 – Limitation of liability

The seller’s liability for damages, irrespective of their legal grounds, particularly based on impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in the event of contract negotiations and tort, shall be subject to the limitations pursuant to this Section 8 insofar as it is the seller’s fault.

The seller shall not be liable in case of ordinary negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents unless contractual obligations are violated. Contractual obligations mean any obligations to complete delivery in due time and to install the delivered goods, to deliver the goods free of defects which do not only insignificantly impair their functionality or usability as well as obligations to provide advice and protection and to exercise proper care, all of which are supposed to enable the customer to use the delivered goods in accordance with the contract purpose or aim at the protection of the customer’s staff’s body or life or the protection of its property against material damage.

To the extent the seller is liable to pay damages on its merits pursuant to clause 8.2, such liability shall be limited to damages foreseen by the seller at the conclusion of the contract as possible consequence of a contract violation or which the seller had to foresee if it had exercised customary care. Indirect damages and consequential damages based on defects in the delivered goods shall only be eligible for compensation to the extent such damages can be typically expected if the delivered goods are properly used.

In case of a liability based on ordinary negligence, the seller’s obligation to pay compensation for property damage and any consequent further financial loss shall be limited corresponding to the current insured sum under the seller’s product liability insurance or liability insurance, even if contractual obligations are breached.

The aforementioned exclusion and limitation of liability shall accordingly apply in favor of the seller’s executive bodies, legal representatives, employees or other vicarious agents.

To the extent the seller gives technical information or provides advice and to the extent such information or advice is not part of the owed, contractually agreed scope of services, this shall be made free of charge and to the exclusion of any liability.

The limitations of this Section 8 shall not apply to any liability of the seller based on willful conduct, for guaranteed quality characteristics, based on an injury to life, body or health, or under the German Product Liability Act (Produkthaftungsgesetz – “ProdHaftG”).

Section 9 – Final provisions

These GTC as well as any and all legal relations between us and the customer are subject to the laws of the Federal Republic of Germany without giving effect to the international uniform law provisions, particularly the UN Sales Convention.

If the customer is an entrepreneur as defined by the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the place of our registered office. The seller shall, however, also be entitled to institute legal proceedings at the customer’s general place of jurisdiction.

In the event the contract or the general terms of delivery and payment do not contain a required provision, such legally valid provisions shall be deemed agreed upon to fulfil the gap which the contracting parties would have agreed according to the economic purpose of the contract and the GTC if they had been aware of the gap.