The deliveries, services and offers from Thitronik GmbH (hereinafter referred to as “seller”) are made exclusively on the basis of these terms and conditions. These therefore also apply to all future business relationships, even if they are not expressly agreed again. These conditions are considered accepted at the latest upon receipt of the goods/service. Counter-confirmations from the buyer with reference to his business or purchase conditions are hereby rejected.
Deviations from these terms and conditions require written confirmation from the seller.
Our offers are always subject to change.
The seller reserves ownership and copyrights to illustrations, drawings, calculations, data and other documents; they may not be made available to third parties. This applies in particular to such information, in particular written documents, which are described as confidential; before passing them on to third parties, the buyer requires the express written consent of the seller.
Drawings, illustrations, dimensions, weights or other performance data are only binding if this is expressly agreed in writing. Such information is not to be understood as quality guarantees.
The start of the delivery time specified by us requires the clarification of all technical issues.
The dates and deadlines specified by the seller are non-binding, unless otherwise expressly agreed in writing. Procurement risks are generally not assumed by the seller.
Delays in delivery and performance due to force majeure and events which significantly impede or make delivery impossible for the seller (e.g. strike, lockout, war, riot, official restrictions, etc.) authorize the seller to postpone the deliveries or services for the duration of the hindrance plus a reasonable start-up time. The same applies if the above obstacles have occurred with the seller's suppliers or their sub-suppliers.
We reserve the right and timely self-delivery.
If the seller has not fulfilled a payment due in accordance with the contract, the buyer cannot withdraw from the contract and claim compensation instead of all performance or reimbursement of futile expenses, insofar as the seller's breach of duty is irrelevant.
The seller is only in default if there is a reminder. Unless otherwise stated in the Act or the Contract. Reminders and deadlines set by the buyer must be made in writing to be effective.
Compliance with the seller's delivery obligations requires the timely and proper fulfilment of the buyer's obligations. We reserve the right to plead that the contract has not been fulfilled. The seller is entitled to partial delivery and partial performance at any time.
Insofar as the seller fails to provide a service due or does not perform as owed, the buyer may withdraw from the contract and, subject to the culpable breach of a contractual obligation on the part of the seller, claim compensation in lieu of performance or reimbursement of futile expenses, without prejudice to the further requirement in accordance with clauses 3.9 - 3.11 below. A further requirement is that the buyer has set a reasonable period for performance or subsequent performance and that this period has expired without success.
The buyer is obliged to combine the grace period in accordance with Section 3.8 above with an unequivocal declaration that he will refuse delivery after the grace period has expired without effect and will assert the rights resulting from the above Section 3.8 against the seller.
If the service has already been partially performed, the buyer can only claim compensation instead of the entire service insofar as this requires his interest in the entire service. Withdrawal from the entire contract is only possible in this case if the buyer is demonstrably not interested in a partial service.
If the seller is in default for reasons for which he is responsible, liability for damages in the event of ordinary negligence is excluded. The above limitation of liability does not apply insofar as the default is based on the seller culpably breaching an essential contractual obligation. In these cases, the seller's liability is limited to foreseeable damage typical of the contract in accordance with Section 3.13 below. In the event of an intentional breach of contract for which the seller is responsible, the seller is liable in accordance with the statutory provisions. Further compensation claims by the buyer are excluded in all cases of late deliveries, even after expiry of any grace period set by the seller. This does not apply insofar as liability is mandatory in cases of intent, gross negligence and personal injury; this does not entail a change in the burden of proof to the detriment of the buyer.
In the event of default of acceptance on the part of the buyer or in the event of a breach of other obligations on the part of the buyer to cooperate, the seller is entitled to assert the legal claims to which he is entitled. The risk of accidental loss and/or accidental deterioration of the purchased item is transferred to the buyer at the latest when the buyer is in default of acceptance.
Unless otherwise agreed, delivery from Eckernförde warehouse has been agreed. The risk is transferred to the buyer as soon as the shipment has been handed over to the person carrying out the transport or has left the seller's warehouse for shipment; this applies even if the seller carries out the transport with his own efforts.
If shipping becomes impossible through no fault of the seller, the risk is transferred to the buyer upon notification of readiness for shipment.
If the buyer so wishes, the seller will cover the delivery with transport insurance; the costs incurred in this regard are borne by the buyer.
Transport and all other packaging in accordance with the Packaging Ordinance will not be taken back; with the exception of reusable means of transport such as pallets, mesh boxes, etc. The buyer is obliged to dispose of the disposable packaging at his own expense. The reusable means of transport are only provided to the buyer on loan; the buyer is obliged to return them in proper condition, i.e. emptied and without damage; in the event of contamination or damage to the means of transport, the buyer bears the repair costs or he is obliged to compensate the seller if repair is impossible.
The prices shown in the seller's current price lists plus the respective statutory sales tax are decisive. Additional deliveries and services are charged separately.
Unless otherwise agreed, the prices are ex Eckernförde factory, including normal packaging.
For orders under €100.00 net, we charge a minimum quantity surcharge of €10.00 for order processing.
Mondays are calculated based on time and effort. Our current billing rates apply, which we will be happy to send to the buyer upon request. Assembly billing includes waiting and travel times such as working time. Assembly invoices are due without deductions after invoicing.
Agreed payment dates apply from the moment that the goods are ready for dispatch. If there is no notification of readiness for shipment, agreed payment terms apply from delivery of the goods. Paragraph 5.3 applies only to entrepreneurs within the meaning of Section 14 BGB, legal entities under public law or special funds under public law.
Unless otherwise expressly agreed, the invoice amount is due 30 days after issuance of the invoice without any deductions.
If the buyer is in default of payment, the seller is entitled to assert the rights arising from Section 288 BGB.
The buyer is only entitled to offsetting rights if his counterclaims have been legally established, undisputed or recognized by the seller. In addition, he is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
If the seller becomes aware of circumstances that question the buyer's creditworthiness, in particular if checks or bills of exchange or payment settings have not been cashed, the seller is entitled to make the entire remaining debt due, even if he has received a check or bill of exchange. In this case, the seller is also entitled to demand advance payment or security.
Cheques and bills of exchange, which the seller reserves the right to accept, are only considered payment after they have been cashed. Any discount and bank charges are borne by the buyer.
The goods are delivered subject to retention of title in accordance with these terms and conditions. Insofar as the seller agrees payment of the purchase price debt with the buyer on the basis of the check/bill of exchange procedure, the reservation also extends to the redemption of the bill of exchange accepted by the seller by the buyer and does not expire when the check received is credited to the seller.
At our discretion, invoices can be sent by post or email. The customer agrees to receive invoices electronically. Electronic invoices are sent to the customer by email in PDF format to the email address provided. At the express request of the customer, the delivery of invoices can also be switched to delivery by post at any time.
6. Guarantee
The buyer's warranty rights presuppose that the buyer has duly complied with his inspection and complaint obligations under Section 377 of the German Commercial Code.
The buyer's legal recourse claims against the seller exist only insofar as the buyer has not concluded an agreement with his buyer that goes beyond the statutory claims for defects.
If the subsequent performance fails, the buyer can - without prejudice to any claims for compensation - withdraw from the contract or reduce the purchase price. Claims by the buyer due to expenses required for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the item of delivery was subsequently brought to a location other than the place of fulfilment.
If there is a defect in the purchased item for which the seller is responsible, the seller must first always be given the opportunity to rectify the defect within reasonable periods of time. The seller is entitled, at his discretion, to remedy the defect or to make a replacement delivery.
Claims for defects do not exist in the event of only minor deviations from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of faulty or negligent treatment, excessive use, unsuitable equipment and/or due to special external influences and/or which are not required under the contract.
If the seller's operating or maintenance instructions are not followed, if improper changes are made to the products, parts are replaced or consumables are used that do not comply with the original specifications, the seller is not liable for material defects; anything else only applies if the warranty claim is demonstrably not due to one of the above reasons for exclusion.
Claims for material defects expire after 12 months; the period begins with the transfer of risk. The above provisions do not apply insofar as the Act prescribes longer periods in accordance with Sections 438 Paragraph 1 No. 2 (Property for Buildings), 479 Paragraph 1 (Right of Recourse) and 634 a (Construction Defects) BGB.
Unless otherwise stated below, further claims by the buyer - irrespective of the legal grounds - are excluded. The seller is therefore not liable for damage that did not occur to the delivery item itself; in particular, the seller is not liable for lost profit or other financial losses suffered by the buyer.
The seller is liable in accordance with statutory provisions if he culpably breaches an essential contractual obligation; in this case, however, liability for damages is limited to the foreseeable, typically occurring damage. In addition, liability for damages is excluded; in this respect, in particular, the seller is not liable for damage that did not occur to the delivery item itself.
The above liability exemptions do not apply insofar as the cause of damage is based on intent or gross negligence; they also do not apply in cases of physical and/or health damage and in cases in which the buyer makes claims for damages due to the assumption of a guarantee for the existence of a characteristic, unless the purpose of the quality guarantee extends only to the contractual compliance of the underlying delivery, but not to the risk of defect Consequential damage. The above regulations do not entail a change in the burden of proof to the detriment of the buyer.
In the event that the buyer returns goods to us on the basis of a complaint and this requires us to check the goods, the buyer is obliged to reimburse us for the costs incurred as a result of the inspection and resubmission to the buyer, if it turns out that the goods are free of defects and the complaint was made wrongfully.
The return of goods to us based on a complaint must be made free of charge. Shipments delivered without free will not be accepted and will be returned to the sender at the expense of the sender.
If correctly delivered goods are returned, at least 10% of the value of the goods will be charged as a processing fee and depreciation.
Liability for damages beyond that provided for in Section 6 is excluded - regardless of the legal nature of the claim made - in particular due to breach of obligations arising from the obligation and from tort.
The exclusion of liability in accordance with Section 7.1 above does not apply to claims under the Product Liability Act and in cases of damage to life, body or health.
Insofar as the seller's liability is excluded or limited, this also applies to the personal liability of the seller's employees, workers, employees, representatives and vicarious agents.
The delivered goods remain the property of the seller until full payment of all claims arising from the business relationship between the seller and the buyer. The inclusion of individual claims in a current invoice and the recognition of the balance do not affect the retention of title. Payment is only considered upon receipt of the equivalent value by the seller.
If the buyer acts contrary to the contract, in particular in the event of late payment, the seller is entitled to take back the purchased item. The withdrawal of the purchased item by the seller does not constitute a withdrawal from the contract, unless the seller has expressly stated this in writing.
In the event of seizure or other intervention by third parties, the seller must be notified immediately in writing so that the seller can file an action in accordance with Section 771 of the Code of Civil Procedure. Insofar as the third party is unable to reimburse the seller for the judicial and extrajudicial costs of an action in accordance with Section 771 ZPO, the buyer is liable for the loss that has arisen.
The buyer is entitled to resell the reserved goods in the ordinary course of business; however, he assigns to the seller all claims in the amount of the final invoice amount (including value added tax) of the seller's claims arising from the resale against his customers or third parties, regardless of whether the purchased item has been resold without or after processing. The seller accepts the assignment. If the assigned claim against the acquirer of the reserved goods has been included in a current invoice (current account), the assignment also relates to the recognized balance and, in the event of insolvency of the customer, to the then existing “causal balance”. The buyer remains authorized to collect this claim even after the assignment. The seller's right to collect the claim himself remains unaffected by this. However, the seller undertakes not to collect the claim as long as the buyer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application to open insolvency proceedings has been filed or payment has been suspended. However, if this is the case, the seller may demand that the buyer disclose the assigned claims and their debtors to the seller, provide all information necessary for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.
The processing or transformation of the reserved goods by the buyer is always carried out for the seller. If the reserved goods are processed with other objects not belonging to the seller, the seller acquires joint ownership of the new item in proportion to the value of the reserved goods (final billing budget amount incl. VAT) on the other processed items currently being processed. The same applies to the item resulting from processing as to the goods delivered subject to reservation.
If the reserved goods are inseparably mixed with other items not belonging to the seller, the seller acquires joint ownership of the new item in proportion to the value of the reserved goods (final invoice amount incl. VAT) to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the buyer's item is to be regarded as the main item, it is considered agreed that the buyer transfers joint ownership to the seller on a pro rata basis. The buyer stores the resulting sole or joint ownership for the seller.
The seller undertakes to release the securities to which it is entitled at the buyer's request to the extent that the realizable value of the seller's securities exceeds the claims to be secured by more than 10%; the seller is responsible for selecting the securities to be released.
The sole place of jurisdiction for all current and future claims arising from business relationships with entrepreneurs, legal entities under public law and special funds under public law, including bills of exchange and check claims, is the seller's registered office. However, the seller is also entitled to sue the buyer before the buyer's court of residence.
The seller's place of business is the place of fulfilment.
The laws of the Federal Republic of Germany apply to these terms and conditions and all legal relationships between the seller and the buyer. The application of UN sales law (United Nations Convention of 11.04.1980 on Contracts for the International Sale of Goods, BGBL 1989 II p. 588, b.e.r. 1990 II 1699) is excluded.
Should certain sections of these terms and conditions be ineffective, the remaining provisions remain unaffected.
Thitronik GmbH
Finkenweg 9-15
24340 Eckernförde
germany