GTC

1. General Terms and Conditions

1. These contractual terms and conditions apply exclusively in the context of business transactions;these contractual terms and conditions apply exclusively to business transactions between thoenes® Dichtungstechnik GmbH (hereinafter thoenes®) and customers who belong to the group of companies within the meaning of § 14 BGB. The contractual terms and conditions between thoenes® and the customers specified in sentence 1 shall be governed exclusively by these General Terms and Conditions (hereinafter referred to as GTC). Any other terms and conditions or terms and conditions of the customer shall only apply with the express written consent of thoenes®. The acceptance of deliveries and services as well as payments shall not be deemed consent.
   
   
2. These GTC shall also apply to all future contractual relationships between thoenes® and the customer, even if the GTC have not been expressly included in these contractual relationships. They shall also apply if thoenes® carries out the delivery or the delivery to the customer without reservation in the knowledge of conflicting or deviating terms and conditions of the customer. In such cases, the acceptance of the service by the customer shall be deemed to be an acknowledgement of these General Terms and Conditions with the simultaneous and hereby previously accepted waiver of the validity of its own General Terms and Conditions.

2. Offers

The offers of thoenes® are always subject to change, unless otherwise specified in writing by thoenes®. Technical parameters, specifications and descriptions such as weights, performance data, illustrations and drawings are only binding if they are expressly recognised or confirmed as binding in writing by thoenes® in the order confirmation. Otherwise, they shall only be binding within the scope of normal technical tolerances.

Reasonable deviations from orders of up to +/- 10 % are permissible, unless expressly agreed otherwise in writing.

3. Prices

The prices of thoenes® are net prices in EURO ex works plus statutory value added tax as well as freight and packaging costs.

thoenes® reserves the right, in the case of contracts with an agreed delivery time of more than three months, to increase the prices appropriately in accordance with the cost increases that have occurred due to collective labour agreements and material price increases. If the increase amounts to more than 5% of the agreed price, the customer has a special right of cancellation.

A reduction of the order quantity or reduction of the number of items in the case of agreed partial delivery as well as the reduction of agreed call-offs after conclusion of the contract on the part of the customer shall not lead to a reduction of the agreed price.

4. tools

Tools manufactured by thoenes® or on its behalf remain the property of thoenes®, even if these tools are charged to the customer on a pro rata basis.

5. Deliveries and services

The content, quality and scope of the deliveries and services owed by thoenes® shall result from the respective order confirmation, unless otherwise agreed in individual cases.

The risk of price and performance shall pass to the customer directly from the delivery plant.

The choice of shipping method and packaging shall be at the discretion of thoenes®, unless otherwise agreed in writing. Transport and other packaging will not be accepted by thoenes®. The costs for the disposal of the packaging shall be borne by the customer. The packaging is to be disposed of by the customer in accordance with the existing statutory regulations.

thoenes® is entitled to partial performance at any time, unless this has been expressly agreed otherwise in writing or is unreasonable for the customer.

6. delivery deadlines

Delivery deadlines are only binding if they have been expressly agreed in writing by thoenes®.

The compliance with such binding deadlines requires the timely receipt of all documents, releases and approvals to be provided by the customer, the timely clarification of all preliminary questions and technical clarifications in connection with the performance to be rendered by thoenes® as well as the compliance with the terms of payment regulated under Clause 7 and all other conditions of payment. 7 and all other contractual obligations of the customer. In the event that the aforementioned prerequisites are not met, performance shall be postponed at least accordingly by the duration of the impeding circumstance.

The delivery period shall be deemed to have been fulfilled upon dispatch of the goods. If force majeure, strikes or lockouts or other - even foreseeable - events outside the sphere of influence and the will of thoenes® prevent the fulfilment of the performance obligations, the deadlines for the owed performance success shall be extended for the duration of the hindrance. These events also include delays in deliveries from thoenes®'s suppliers, unless thoenes® is responsible for the delay.

The customer shall be informed immediately by thoenes® of the beginning and end of such delays.

7. Terms of payment

Unless otherwise expressly agreed in writing, thoenes® shall be entitled to invoice the customer on instalments.

Unless otherwise agreed in writing, invoices from thoenes® shall be due for payment net within 14 days of the invoice date less 2% discount or within 30 days of the invoice date without deductions. The credit note or other receipt of payment by thoenes® shall be decisive for the timeliness of payment. If the customer is in default of payment, thoenes® is entitled to charge interest on arrears at a rate of 4.9% above the applicable deposit rate of the ECB and to charge 10.00 euros per reminder plus any postage expenses. thoenes® is at the same time entitled to assert a right of retention in the event of default of payment by the customer with regard to all outstanding deliveries and services.

thoenes® reserves the right to accept bills of exchange.

A set-off or assertion of rights of retention by the customer is only permissible with counterclaims recognised by thoenes® or legally established.

8. Acceptance and inspection of the delivery

The customer shall be obliged to inspect the deliveries immediately for completeness, conformity with the delivery documents, and correctness;the customer is obliged to inspect the deliveries immediately for completeness, conformity with the delivery documents and for externally recognisable defects and to report any recognisable deviations and defects immediately, at the latest within 8 calendar days of receipt of the goods. If the customer fails to assert the claim, the goods shall be deemed to have been approved in accordance with the contract, unless the deviation is not recognisable despite careful inspection.

In addition, the customer shall note any transport damage or missing quantities recognisable upon delivery on the carrier's certificate of receipt.

The provision of § 377 HGB remains unaffected.

9. Retention of title

The delivered goods shall remain our property until full payment of all claims arising from the business relationship between the parties;thoenes® and the customer, including ancillary claims, claims for damages, interest, encashment of cheques and bills of exchange, shall remain the property of thoenes®. The retention of title shall also remain in force if individual claims of thoenes® are included in a current invoice and the balance is drawn and recognised.

The customer hereby assigns all claims from the resale of the reserved goods in full to thoenes®. The resale is equivalent to the use of the reserved goods in fulfilment of work contracts by the customer.

The customer shall undertake any treatment or processing of the reserved goods for thoenes® as manufacturer, without any obligations arising for thoenes® from this.

If the law in whose area of application the delivery item is located does not permit the retention of title, but permits the retention of similar rights between the customer and thoenes®, these shall be deemed agreed. The customer is obliged to co-operate in measures that thoenes® wishes to take to protect its ownership of the delivery item.

10. Warranty/liability for defects

thoenes® warrants that the deliveries and services comply with the agreements made when used in accordance with the contract.

For a merely insignificant deviation from the contractual quality, there are no claims for material defects. Claims for material defects are excluded if the deviation from the contractual quality is due to improper or inappropriate use or natural wear and tear.

The customer must report any defects in a comprehensible and detailed form, stating the information required for defect detection and analysis. If the customer has claims for defects, he shall first have the right to subsequent fulfilment within a reasonable period of time. According to this, thoenes® is entitled to choose between rectification of the defect or replacement delivery. After consultation with thoenes®, the customer shall grant the necessary time and opportunity to carry out all necessary repairs and replacement deliveries.

After further processing of the goods delivered by thoenes® any liability for defects of thoenes® is excluded.

In the event of improper handling of the goods, intervention by third parties and defects caused by processes that cannot be influenced by thoenes®, there is no warranty obligation.

A subsequent fulfilment can only have an influence on the limitation period of the defect triggering the subsequent fulfilment. Insofar as subsequent fulfilment takes place, ownership of the items exchanged within the scope of subsequent fulfilment shall pass to thoenes&reg at the time of exchange.

If the rectification fails or is not feasible for other reasons, the customer may, subject to the statutory requirements, reduce the remuneration, withdraw from the contract or demand compensation for damages or expenses in accordance with Section 11 of these GTC. The customer must exercise his right to choose within a reasonable period of time, which is usually two weeks.

Claims due to a material defect expire within one year of delivery. The statutory time limits shall remain unaffected in the event of intentional or negligent breach of duty by thoenes®, in particular its legal representatives or vicarious agents, in the event of fraudulent concealment of a defect and in cases of injury to life, limb or health.

11. Liability

thoenes® shall be liable for damages for wilful or grossly negligent damage caused by it, its legal representatives or vicarious agents;damage caused wilfully or through gross negligence in accordance with the Product Liability Act and for damage resulting from injury to life, limb or health for which thoenes®, its legal representatives or vicarious agents are responsible. thoenes® shall be liable for slight negligence insofar as it or its legal representatives and/or vicarious agents have breached a material contractual obligation (so-called cardinal obligation), the fulfilment of which is essential for the proper performance of the contract and on the observance of which the customer may regularly rely. Furthermore, liability for slight negligence is excluded. Insofar as thoenes® is liable for slight negligence, liability for damage to property and assets is limited to the foreseeable damage typical for the contract. Liability for other remote consequential damages is excluded.

Liability for a single case of damage is limited to 50,000.00 euros. Otherwise, any claim for damages for liability for defects shall be limited to direct damages, again limited to a value of 25% of the remuneration for the defective performance. The assertion of indirect damages and consequential costs is excluded. The above exclusions and limitations of liability shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, limb or health or due to the breach of material contractual obligations.

12. Withdrawal from the contract

If the customer withdraws from the contract without justification or refuses to fulfil it;thoenes® shall be entitled to claim damages in the amount of the full invoice amount less any expenses saved, without prejudice to the possibility of proving higher damages in individual cases.

13. Place of fulfilment, place of jurisdiction, applicable law, other

The place of fulfilment for deliveries and payments is the registered office of thoenes®. The place of jurisdiction is Dresden.

German law shall apply to all contracts.

Should a provision of these terms and conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of the other provisions or agreements.

Download GTC as PDF (Status: November 2007)