General Terms and Conditions of

ratiotherm Heizung + Solartechnik GmbH & Co. KG

I. Scope

Our following Terms and Conditions shall exclusively apply to companies, legal persons acting under public law and public fund assets.

II. Conclusion and Content of the Contract

1.  Our offers, goods and services shall be exclusively subject to these Terms and Conditions. The Customer’s Conditions of business and purchase diverging herefrom shall not become part of the Contract. This shall be the case even if we do not expressly reject said conditions despite our awareness of these. We shall conclude business transactions exclusively on the basis of our own Terms and Conditions. Our Terms and Conditions shall be considered accepted at the very latest upon acceptance of the goods or service in question.

2.  All offers shall be deemed non-binding. The nature and scope of our performance obligation shall be determined exclusively by the content of our written order confirmation. Performance not listed there shall not constitute part of the scope of performance owed by us. Deviations from the offer and/or order confirmation shall be deemed binding only if we have confirmed them in writing. Contracts shall solely come into being through our written order confirmation or by carrying out the order.

3.  We reserve the right for technical and design features to vary from the descriptions and details in brochures, offers and written documents, as well as for changes in design and material in the course of technical progress, without the customer being able to derive rights from this. Details about our products (technical data, and measurements, etc.) are only approximate; they do not constitute guaranteed properties, unless the warranty has been expressly provided in writing.

4.  We shall reserve the right to exercise our ownership rights and copyrights for prototypes, drawings, and quotations, etc., including in electronic form. They are not to be made available to third parties without prior permission and are to be returned immediately on request.

III. Prices and Payments

1.  Our prices shall apply to the scope of performance and delivery cited in the order confirmations. Supplemental or special services shall be invoiced separately.

2. Prices are ex works without packaging, freight, insurance and unloading. The applicable rate of value added tax will be added to the prices. In the case of exports, customs, fees and other public contributions are also to be paid.

3.  Prices shall be valid only for the order confirmed in writing. Should our suppliers' prices or other costs arising from our products rise in the period between concluding the Contract and delivery, we shall be entitled to increase the agreed prices accordingly.

4.  Unless otherwise agreed in writing, payments must be made in cash or by bank transfer within 10 days of the invoice date with a 3% cash discount, or in full within 30 days of the invoice date. For new customers or customers with default of payment, including from other transactions, we shall be entitled to deliver, at our option, in exchange for advance payment; in the event of refusal of acceptance, Section IV Subsection 9 of these Conditions shall apply. Conditions at variance herewith shall be valid only in written form.

5.  Set-offs and retention rights of the Customer shall be precluded, unless the counter-claim is uncontested, determined as a matter of law or recognised by us.

IV. Delivery and acceptance

1.  Supplies shall be ex works.

2. Performance and delivery times stated by us shall be non-binding and subject to change. Contracts regarding a binding performance or delivery time must be executed in writing. Our timely performance shall require us to have resolved all commercial and technical issues with the customer and that the customer has fulfilled all obligations, such as obtaining the necessary official permits or rendering (advance) payments.

3.  Our delivery time has been upheld, if our product has left the works by the end of this period or we have given notice of its readiness for dispatch (notice of completion of goods). In as far as acceptance is to take place, the acceptance date shall be decisive; this will not apply in the case of justified refusal of acceptance.

4.  Should we not be able to deliver on time, we shall inform the customer forthwith.

5. If we are not responsible for the delay, such as in the event of power shortages, import difficulties, operating and traffic incidents, strikes, force majeure or delays caused by our suppliers or subcontractors, the performance or delivery time shall be extended accordingly. However, should we still not be able to deliver after an appropriate extended period, both we and the customer shall be entitled to withdraw from the Contract. Customer claims for damages shall be excluded.

6.  If we are responsible for the delay, the customer may withdraw from the Contract in accordance with the legal stipulations. If the customer suffers a loss due to the delay, he or she shall be entitled to demand a fixed compensation sum. This shall be 0.5 per cent for each complete week of delay, but a total of 5 per cent of the part of the performance that as a result of the delay can no longer be used in time or as set out by the Contract.

7. The Customer shall immediately examine the performance for its conformity to Contract. Obvious deviations, including missing quantities and defects covered by warranty, shall be subject to detailed complaint submitted to us within a period of 24 hours following receipt, in writing and with an exact representation of the facts. Hidden deviations shall be subject to reporting in the same way, immediately upon coming to the Customer’s attention.

     Failure by the Customer to observe the duty of inspection and notification of defects shall constitute deeming our performance to be in conformity with the Contract.

8. Obvious damages or losses attributable to transport must be reported to us immediately, in writing, following acceptance of the goods, and including a precise description of the facts (photos, documentation). If the customer does not perform an acceptance test of this nature, acceptance shall be deemed to have taken place, and proper performance on our part to have occurred. Later complaints are hereby precluded.

9. We shall accept returns only upon written permission and delivered free of charge; otherwise, we shall be entitled to refuse acceptance and to effectuate a return at the risk and expense of the Customer. The costs incurred by us in handling and processing the returns shall be borne by the Customer.

V. Transfer of risk, insurance

1.  The risk shall be transferred to the customer, as soon as the product has left our factory or dispatch warehouse. This shall also apply if we carry out other performances, e.g. if we assume shipping costs or delivery. If acceptance is to take place, the risk shall be transferred at this point.

2.  If dispatch or acceptance is delayed or stopped due to circumstances the customer is not responsible for, the risk shall be transferred to the customer as soon as we have informed the latter of the product's readiness for dispatch or acceptance (notice of completion of goods).

3.  We shall be obliged to insure the product on the express request of the customer and at his expense.

VI. Retention of Title

1.  The product we supply shall remain our property until payment has been made in full (retained goods).

2.  The customer shall store the retained goods for us free of charge.

3.  The Customer shall be entitled to process and sell the retained goods in ordinary business transactions pending realisation of enforcement (Subsection 8 hereof). Mortgages and grants of security shall be prohibited.

4. If the retained good is processed by the Customer, it has been agreed that processing shall be in our name and on our account as manufacturer, and that the Customer shall immediately acquire the ownership, or – if processing includes materials from several owners or the value of the processed object is higher than the retained good – the co-ownership (part ownership) of the newly created object in relation to the value of the retained good to the value of the newly created object. In case no such acquisition of ownership occurs, the Customer shall transfer its future ownership to us forthwith or – in the ratio given above – co-ownership in the newly created object as collateral. If the retained good is joined and inseparably mixed with other objects to make up a whole and one of the other objects is to be considered a main object, the Customer shall transfer co-ownership of the whole object to us proportionately at the ratio set out in clause 1, provided that the main object belongs to the Customer.

5. If the retained goods are resold, the Customer shall transfer the accounts receivable from the acquiring party to us forthwith for security purposes; in the case of co-ownership of the retained goods, this shall be transferred to us proportionately to the co-ownership share. The same shall apply to other accounts receivable in place of the retained goods or that otherwise arise with regard to the retained goods, such as insurance claims or claims in tort for loss or destruction. We hereby revocably authorise the customer to collect the accounts receivable assigned to us for us in his own name. We shall only have the right to revoke this authorised collection in the case of realisation.

6.  If third parties obtain the retained goods, in particular, through seizure, the Customer is to point out our ownership to them immediately and notify us so that we are able to exercise our ownership rights. Provided the third party is not in a position to reimburse us for the associated court or out-of-court costs, the Customer shall be liable to us in this respect.

7. We shall release the retained goods and the objects or receivables in their place on request at our own discretion, provided that their value exceeds the secured receivables by more than 50%.

8.  If the Customer defaults on a due part payment or a considerable part by more than 10 days and a fair payment term set by us is not met, we may request that the Customer relinquishes the retained goods, without having to have declared prior withdrawal from the Contract. The same shall apply, if insolvency has been filed against the customer's assets and this is not withdrawn within 10 days. If the customer fails to meet the request for relinquishment of the goods, or there is a risk of their loss or demise, we shall be entitled to take possession of the retained goods. In this respect, we shall have the right to enter the site where the retained goods are held. The customer shall bear the costs of returning the goods. We may use the returned goods as we see fit. In as far as the profit exceeds our secured claim, the Customer shall be entitled to this.

9.  We shall be entitled to insure the retained goods against theft, breakage, fire, water and other damage at the Customer’s expense, if the Customer does not provide us with evidence of having taken out appropriate insurance. In so doing, the Customer shall assign all claims on insurance to us forthwith.

VII. Claims for Defects (Warranty)

1.  Our liability shall extend to the state-of-the-art faultless condition of our products. We shall not be liable:

a) if the goods have not been duly examined and reported upon acceptance (Section IV. Subsection 7);

b) if our products are not properly stored, installed, commissioned or used by the Customer or a third party;

c) for natural wear and tear;

d) for improper maintenance;

e) for the use of unsuitable operating materials/equipment;

f) for damage caused by repairs or other work carried out by a third party that we have not expressly authorised.

2.  The Customer is to inspect the product immediately after its receipt. We are to be notified in writing immediately, but not later than 24 hours of receiving the product, of any apparent defects or, if the defect becomes apparent at a later stage, immediately following its discovery. If this does not happen, the product shall be considered approved.

3.  Our legal liability for defects shall be limited to rectification; i.e. the rectification of any defects or replacement delivery. The customer is to give us sufficient opportunity for rectification immediately; otherwise, we shall be released from liability for the resulting consequences. The customer shall only be allowed to rectify the defect or have the defect rectified by a third party in emergency cases, for example, in order to maintain operational reliability or to avert disproportionate damages, and request that we reimburse any necessary expenses. In any case, the Customer is to hand over the exchanged parts to us (see Section IV. Subsection 9).

4.  If the rectification fails, the customer shall be entitled to reduce the counter-performance or – in the case of substantial defects – withdraw from the Contract; this right to withdraw shall not apply to construction work.

5.  We shall be liable for newly manufactured products and work performances, including associated planning and monitoring services, for one year from the date of supply or acceptance. The exception to this shall be buildings, including associated planning and monitoring services, and construction materials, if they have been used; the legal statute of limitations shall apply to these performances, provided that the General Terms of Contract for the Execution of Construction Work – VOB/B (German Construction Contract Procedures) – have not been included in their entirety.

6.  On principle, our liability shall be exempt from the sale of used products.

7.  Any other claims by the Customer due to defects other than those to the extent set out in items 3.-5. above shall be excluded. We shall therefore not be liable for any damages that have not occurred to the product itself, or for any other financial losses to the Customer.

VIII. Liability

1.  Our liability, regardless of the legal grounds, shall be limited to intent and gross negligence.

2.  All of the restrictions on liability cited in these Terms and Conditions shall not apply to:

a) intent or gross negligence on our part or the part of our vicarious agents;

b) personal injury;

c) damage caused by a missing feature that we have guaranteed;

d) claims arising from Product Liability Law.

IX. Choice of Law; Place of Jurisdiction

1.  This Agreement shall be governed by the laws of the Federal Republic of Germany. The UN Convention on the International Sale of Goods shall not apply.

2.  The place of jurisdiction for all disputes between the parties arising from this contractual relationship shall be the company headquarters, provided that the customer is a merchant, a legal person under public law or a special asset under public law.

 

X. Concluding provision

The invalidity of individual provisions hereof shall be of no consequence with regard to the validity of the individual provisions hereof. In the event that one of the preceding conditions is invalid, a provision that comes closest to meeting the economic purpose of this condition shall be deemed agreed.

 

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