General Terms and Conditions
Paragraph 1: Scope
1. All orders received by i-warm GmbH (referred to hereinafter as "the vendor") for the delivery of goods or the supply of other services are made exclusively on the basis of legislation applying in Germany and exclude the application of the UN Convention on the International Sale of Goods dated 11 April 1980. If the following provisions of these conditions deviate from this legislation, all above-mentioned orders will be governed by the following provisions of the General Terms and Conditions of Business and Delivery of i-warm GmbH (referred to hereinafter as "The General Terms and Conditions of Business").
2. General terms and conditions of business of the purchaser or contractual partner (hereinafter referred to as "the customer") that deviate from the provisions applying on the basis of Paragraph 1, Section 1, will not become part of the contracts based on orders accepted by the vendor (sales or other services) if the vendor does not expressly agree to such general terms and conditions of business in writing. Neither will they become part of a contract if the vendor fulfils an order while being aware of such general conditions of business. In particular, the silence of the vendor on the validity of the purchaser's general terms and conditions of business does not mean the vendor's consent in this respect. Reference to a letter containing the conflicting general terms and conditions of business or which refers to them constitutes no recognition of these conditions by the vendor.
3. Our General Terms and Conditions of Business are communicated to the customer in our forms, prices lists, invoices, emails and online publications.
Paragraph 2: Scope of the Delivery Obligations
Unless otherwise agreed to, the vendor is only obliged to deliver the goods ordered. There is no obligation on the part of the vendor to perform construction, installation or setting-up work. Within certain tolerances, deviations in the strength of materials are due to the manufacturing process.
Paragraph 3: Technical Advice, Training etc.
1. If the vendor provides technical information, suggestions or advice, these are only binding if they are related to the goods and made in writing. Technical advice of this nature related to the goods and given in writing is to be investigated for their suitability for their intended use and verified by the purchaser/customer in all cases. If necessary and reasonable, other expert persons are to be called in to examine the goods.
2. If legally permissible, liability is not accepted for technical information, suggestions or advice or for the above-mentioned written service or for training given orally or by telephone, as this is done only as a favour. Otherwise, Paragraph 11 applies.
Paragraph 4: Quotes, Prices and Payments
1. The vendor's offers are without obligation and, in particular, depend on the amount of the manufacturing costs. If the manufacturing costs increase by the time the contract is concluded, the vendor is entitled to adjust its prices. In case the delivery or the performance of the service is not carried out until four months after the contract was concluded, the vendor is entitled to pass on any price increases in the manufacturing costs to the customer. The order will be deemed to have been accepted only when it has been confirmed in writing.
2. All prices are exclusive of value added tax and are therefore net prices.
3. In the absence of deviating written agreements, payments are due immediately on receipt of the invoice. This applies regardless of any notifications of defects; Sentence 6 applies correspondingly. Payments are to be made by electronic transfer or in cash and without any deductions ex paying agent. The customer's payments will initially be credited against incidentals, then against interest and then against capital. If there are several accounts payable, non-dedicated payments will always be used to settle the oldest account payable. The withholding of payments or offsetting due to any counter-claims of the customer will not be permitted. If payments are made in instalments or made later than agreed, interest at the amount of 8% percentage points over the base lending rate will be due in the interim. In cases of arrears, the vendor will be entitled to charge a lump-sum reminder fee in the amount of 25.00 euros. Claims for any further damage due to arrears remain unaffected. Unless otherwise agreed, the customer will only fall into arrears with respect to the total account payable if making instalment payments even if only one instalment is not paid on time.
Paragraph 5: Freight
In the absence of any agreement to the contrary, freight charges will be at the expense of the customer. The method of shipment selected by the vendor is deemed to have been approved. If the customer uses its own method of transport, a transport surcharge will be charged in the absence of any other agreement.
Paragraph 6: Packaging, Special Logistics
1. Any packaging will be issued as sales packaging to be disposed exclusively at the expense of the customer. Packaging desired by the customer of a type that deviates from the standard normally used by the vendor will be charged for.
2. If the goods are shipped on pallets or squared timber, this will be charged for and only paid for in the form of a corresponding credit when returned undamaged and at no charge to one of the vendor's plants.
Paragraph 7: Delivery Periods
1. Delivery periods specified by the customer require confirmation by the vendor as a matter of course. The delivery period begins when the confirmation of the order is sent but only after all technical, commercial and financial matters have been settled, all documentation, approvals and releases to be obtained by the customer have been supplied and after an agreed deposit has been paid. The delivery period will be deemed to have been complied with if, when the goods are ready, they have left the factory or the customer has been informed that they are ready for shipping. Compliance with the delivery period presumes adherence to the terms of the contract by the customer and hence fulfilment of the customer's contractual obligations.
2. The delivery period will be extended accordingly as required if events occur such as transport disruptions, strikes, lockouts, disruptions to energy supplies, other operational disruptions, such as shortages of goods, trucks or raw materials, which are outside the control of the vendor or are due to Acts of God.
3. If the shipment or delivery is delayed for reasons for which the customer is responsible, the vendor may charge the customer for the storage costs that arise. The vendor may, at its option, also demand a lump-sum payment of 0.5% of the amount of the invoice per month as storage costs.
Paragraph 8: Transfer of Risk
The vendor is no longer liable for the goods after they have been handed over to the carrier. Risk transfers to the customer as soon as the goods have been passed to the freight forwarder, the carrier or any other person or organisation designated to transport them.
Paragraph 9: Obligations to Inspect and Notify Defects
The immediate unloading of the goods is the job of the customer. In order to preserve its rights the customer and, in the case of third-party deliveries its customer, is required, with regard to any transport damage, to inspect all deliveries before and after unloading for any damage and/or losses or discrepancies in quantities. All discernible defects are to be notified to the vendor in writing immediately after discovery, giving concrete details of the type and extent of the defects (in advance by telephone and then by telefax). The vendor is to immediately be given the opportunity to inspect the defect claims on the spot.
Paragraph 10: Guarantee, Agreed Inherent Qualities, Notice of Defects
1. The information in pricelists, prospectuses etc. of the vendor approximates that in the detailed description of the products offered and approximately describe their inherent qualities. However, they do not include any guarantee of any description whatsoever. In the absence of any other express written agreement, the contractually guaranteed inherent qualities of the goods is contained solely in the text of the quotes, delivery notes or invoices of the vendor as well as the relevant DIN standards and/or DIN EN standards for the vendor's products.
2. No guarantee can be accepted for defects occurring as a result of imprecise information or instructions from the customer. If goods or a delivery from the vendor is made based on manufacturing instructions, plans, models or similar specifications of the customer, the warranty covers only the workmanship as instructed. The vendor gives no guarantee when carrying out repair jobs, alterations, the conversion of old items or items it has not made itself.
3. Notice of defects will not be accepted if the condition of the goods or services has altered after risk has transferred. In cases of other exclusion from all guarantees, defective items are to be sent back by the customer at the request of the vendor freight-free, free of charge and will become the property of the vendor again.
4. The lack of a part of the delivery or service does not entitle the customer to reject the whole delivery or service. The vendor is only liable for material faults if it could have detected the defect in the course of professional diligence. The vendor accepts subsidiary liability for all third-party products only vis-à-vis the liability of the respective manufacturer. The claims due to which the vendor is entitled against the respective manufacturer will be passed on to the customer for assertion.
5. In the case of a justified notice of defect the vendor is entitled, to the exclusion of the option of the customer and at its own option, both in the case of a purchase contract and a contract for labour and services, to either
- supply defect-free goods on surrender of the defective goods,
- to withdraw from the purchase contract and to repay the purchase price,
- to repair or replace the goods within an appropriate period or
- to reimburse the reduced value of the goods while maintaining the validity of the contract.
Other further claims on the part of the customer will not be recognised. All costs arising in connection with the repairs will be borne by the customer.
6. Where the customer carries out the repairs itself, all its claims to compensation and guarantee rights vis-à-vis the vendor will expire.
Paragraph 11: Exclusion of Liability
1. The vendor's liability for compensation for damage, regardless of the reason in law, in particular for the supply of defective goods or services, delay, inability to perform, breach of general obligations in negotiating and/or fulfilling the contract, forbidden actions and manufacturer's liability, in particular, when it is also a question of fault, as far as permitted by law, is not recognised or limited as follows:
- in the case of minor negligence of the management of the vendor, a legal or other representative, other employees and vicarious agents, the vendor is only liable if duties material to the contract are breached;
- in the case of gross negligence of the non-supervisory employees or other vicarious agents of the vendor, the vendor is only liable if the breach is material to the contract;
- in all other cases the vendor is only liable if it is to accept responsibility for the breach.
2. If the vendor is liable for compensation on its merits in cases of minor or gross negligence, it is only liable for damage not typical in contracts of this nature and not for foreseeable damage.
3. For the rest, the vendor's liability in cases of minor and gross negligence is limited to ten times the price of the goods manufactured up to that point. In the case of gross negligence this only applies to the breach of non-material duties typical in contracts of this nature.
4. The above liability exclusions and limitations apply to the same extent and directly in favour of the vendor's management, legal and other representatives, other employees and vicarious agents.
5. If the vendor is still liable, such liability is limited to the sum of two million euros for persons and five hundred thousand euros for property damage and financial loss.
Paragraph 12: Cancellation Rights
1. The customer is entitled to withdraw from the contract if
- the vendor has let an appropriate final deadline for remedying a defect for which it is responsible pass without success,
- or if correction is impossible by means of a suitable replacement
- or if the vendor refuses once and for all to repair a defect whose existence it has proven.
2. Should an unforeseen event considerably alter the commercial significance or the content of the vendor's service, exercise a considerable change on his business or make it impossible for the vendor to carry out such remedies retrospectively, the vendor will be entitled to withdraw from the contract, either entirely or in part. In such a case the vendor is required to immediately
- inform the customer of the unforeseen event, i.e. of the reason for withdrawal pursuant to Sentence 1,
- if necessary, return to the customer the consideration it has paid
- and declare its withdrawal. This also applies if a longer delivery period has been already agreed to with the customer.
3. Section 2 will apply correspondingly if the customer acts contrary to the terms of the contract or is not creditworthy. The vendor is at liberty to assert further damage claims.
4. Damage claims by the customer due to withdrawal from the contract by the vendor under the terms of Sub-Sections 2 or 3 will not be accepted.
5. If, after conclusion of the sales contract, the vendor becomes aware that the customer's financial situation has become unfavourable and it is to be expected that the customer might not be able to fulfil its contractual obligations, either partially or in full, the vendor will be entitled to demand advance payments or demand that the customer provide securities to the value of the delivery or the goods. If the customer fails to fulfil these conditions, the vendor will be entitled to withdraw from the contract. The customer will bear the full cost of the expenses that have accrued to the vendor to date. Sub-Section 3 Sentence 2 and Section 4 will apply correspondingly.
Paragraph 13: Reservation of Title
1. The goods delivered shall remain our property until full payment of the purchase price and all other present or future accounts due from the customer which we are entitled to under the business relationship and shall be immediately returned upon request.
2. The processing or alteration of the goods by the vendor is carried out by the vendor as a manufacturer but without any obligation being incurred on its part. In the event of processing or alteration by the customer with other goods not belonging to the vendor, the vendor is entitled to joint ownership of the new item as a ratio of the invoice value of the retained goods in relation the other processed or altered goods at the time of processing. The customer is required to store at no cost the items owned or jointly owned by the vendor in the above cases, which are also deemed to be retained goods within the meaning of these conditions. The customer is entitled to process, alter and sell the retained goods in the normal course of business. The goods may neither be pledged, transferred by way of security nor may other parties dispose over them. The claims arising from the resale or other reason in law (e.g. payment by an insurance company, compensation for forbidden actions) in respect of the retained goods are herewith assigned to the vendor as security for all its claims from the business relationships with the customer without any special declaration being required from the vendor. This applies regardless of whether the retained goods are sold without being processed, after processing or alteration or whether they are sold to one or several purchasers. The assignment is made with all ancillary rights, including the right to registration of a collateral mortgage with priority over the claims of the customer. If the customer sells the retained goods together with other goods not supplied by the vendor, the assignment is made at the pro rata value of the retained goods in relation to the total sale price. In such cases the pro rata value of the retained goods is deemed to be the amount of the vendor's invoice plus a 20% surcharge, which will remain disregarded if third parties have any claims against it. The anticipatory assignment also extends to the balance claim including the closing balance from a current invoice of the vendor. In all cases the customer is only entitled to resell the retained goods if it has been established without doubt that the, assigned claims above transfer to the vendor.
3. If the customer has built retained goods into the property of a third party as an integral part, the now-existing statutory claims to payment arising against the third party to the value of the retained goods will now hereby be deemed to have been assigned to the vendor. As long as the customer is entitled to resell the goods, it is also entitled to collect the proceeds from the resale.
4. The customer is obliged to withhold the ownership of the retained goods due to it conditionally from its purchasers until they have paid the purchase price in full. In the absence of this condition, the customer is not entitled to resell the retained goods.
5. If the customer falls into arrears vis-à-vis the vendor with its existing obligation or if its financial situation as defined by Paragraph 12, Section 5 worsens or if the vendor exercises its rights pursuant to Paragraph 12 Sections 2, 3 or 5, the customer's right to process, alter and resell the retained goods expires, as does the authority to collect the claims assigned to the vendor against the customer's purchasers. The vendor may require the customer to name the assigned claims and their third-party debtors and to give it all information required to collect this claim, to hand over to it the related documentation – at least in copy form – and to advise the third-party debtor of the assignment. In addition, the vendor itself is also entitled to advise the third-party debtor of the assignment. The vendor may also demand that still-available goods be handed over to it without this effectively meaning the withdrawal from the purchase contract. Unsaleable or only conditionally saleable goods will, at the option of the vendor, not be taken back or will not be taken back in return for compensation. In respect of saleable goods, the vendor is entitled to claim compensation of 20% of the value of the goods in addition to the return of the goods. The same applies if the vendor takes back the goods voluntarily, including on the basis of asserted claims for reservation of title pursuant to Paragraph 13.
6. If the value of the goods exceeds the security granted to the vendor by more than 20% of the amount of its claim, it will obliged, at the request of the customer or a third party which is disadvantaged by the excessive securitisation, to release securities of its choice. The claims assigned to the vendor are to be assessed at their nominal value.
Paragraph 14: Place of performance, place of jurisdiction, applicable law
1. Insofar as the customer is a businessman, a legal person under public law or a public-law entity with special public funds, the place of performance and sole place of jurisdiction for all deliveries and payments (including actions pertaining to cheques and bills of exchange) and for any disputes arising shall be our company’s place of business.
2. The contractual relations shall exclusively be governed by the applicable law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Paragraph 15: Miscellaneous
1. Employees of the vendor, in particular commercial representatives, are only authorised to collect debts if this can be demonstrated by means of an authority issued by the vendor. Payments made without submission of the authority by an employee of the vendor to the former will be deemed not to have been made to the vendor.
2. Pursuant to Paragraph 28 of the Federal Data Protection Act (BDSG), please note that any data required for the processing of business transactions will be stored using a computer system in compliance with Paragraph 33 BDSG. As a matter of course, any personal data will be kept confidential.
3. The vendor and the customer may only advertise their business relationship with the written permission of the other business partner.
4. Should any of the foregoing provisions be or become invalid, partially invalid or excluded by a special agreement, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a regulation that comes closest to the economic purpose of the agreement and is best suitable to take care of both parties’ interests.
Date last altered: June 2013