1. General conditions
The following terms and conditions are binding unless otherwise agreed in writing. They shall become effective upon confirmation of the order. Deviating terms and conditions of the customer shall be ineffective if our terms and conditions are not objected to immediately after sending the order confirmation. Our General Terms and Conditions of Sale and Delivery shall apply to all subsequent transactions, even if they are not referred to again when they are concluded. Subsidiary agreements as well as amendments and supplements to the contract are only valid if they are confirmed by us in writing. The place of jurisdiction shall be Wiesloch.
2. Binding nature of offers
Offers are always subject to change unless a binding period is expressly stated. We reserve the right to make improvements or changes to the design or execution of our goods. As soon as a buyer exceeds his credit limit through his call-off, we are released from our delivery obligation.
3. Order acceptance
Orders shall only be deemed accepted if they have been confirmed by us in writing. This form can only be waived on the basis of a written agreement. Orders are processed within Thunder-IT GmbH with the aid of electronic data processing. Consent to the storage of the necessary data is given with the conclusion of the contract.
4. Acceptance, default of acceptance
The buyer is obliged to accept the goods on the agreed date. If the buyer refuses acceptance, the risk of loss or deterioration shall pass to him immediately. In this case, the seller is entitled to store the goods at the expense and risk of the buyer; if the buyer finally refuses to accept the service in whole or in part or if the contract is not executed for a reason for which the buyer is responsible, the seller may demand compensation for damages in the amount of 25% of the contract value in lieu of payment of the purchase price with simultaneous withdrawal from the contract.
5. Prices
Prices quoted on offers, order confirmations and invoices are subject to VAT at the rate applicable at the time of invoicing. We expressly reserve the right to ship all deliveries in advance or cash on delivery; the prices shall be based on the prices of our suppliers applicable at the time the offer is submitted as well as currency parities, customs and import duties. In the case of merchandise purchased from abroad, the agreed prices may be adjusted if the currency of the country of purchase fluctuates by more than 5% against the euro between the time of order placement and delivery/invoicing. In the case of agreed deliveries and partial deliveries to be made later than 4 months after the order confirmation date, the sales price valid at the time of delivery shall apply.
6. Delivery and delay in delivery
Delivery dates or deadlines must be specified in writing. They may be agreed as binding or non-binding. Delivery periods begin with the conclusion of the contract. All delivery obligations are subject to our own timely delivery. Corresponding dispositions must be proven by Thunder-IT GmbH. In the event of force majeure or other unforeseeable obstacles, such as riots, operational disruptions, strikes, lockouts or delivery stoppages on the part of the manufacturer, delivery is delayed. Claims for damages by the buyer due to delayed delivery, even after the expiry of any grace period granted to us, are excluded. This does not apply if Thunder-IT GmbH is liable due to intent or gross negligence. Partial deliveries are permitted. In the case of long-term supply contracts, each partial delivery is considered a separate transaction.
7. Shipment - transfer of risk
Shipment shall be at the buyer's risk. For all deliveries, the risk shall pass to the Buyer when the goods are made available to the forwarding agent, the carrier or the person otherwise designated to carry out the shipment. In the case of delivery and installation by us, the risk shall pass to the Buyer upon installation. This also applies to partial deliveries and if carriage paid delivery has been agreed. However, Thunder-IT GmbH will insure the goods at the Buyer's expense if the Buyer requests the insurance of the goods in writing. The deliveries and services of Thunder-IT GmbH are deemed to be fulfilled in the system business with the operational installation of the systems, otherwise with the dispatch of the delivered products.
8. Terms of payment
Depending on the agreement, invoices are payable in advance, cash, cash on delivery, cash on delivery check or on collection. Partial deliveries and additional equipment supplied subsequently shall be invoiced separately and the above-mentioned terms of payment shall apply. If the delivery is delayed at the request of the customer or due to a lack of space or technical conditions at the customer's premises, the invoice shall be issued upon delivery. Offsetting against counterclaims of any kind is excluded unless the counterclaim is undisputed or has been legally established. In the event of late payment, Thunder-IT GmbH is entitled, without prejudice to other statutory rights, to charge interest on arrears from the due date of payment in the amount of the bank interest charged to us plus VAT, but at least 3% above the Bundesbank discount rate, plus the applicable VAT. Interest is due immediately. If the buyer defaults on a payment, we may, without prejudice to other rights, postpone the fulfillment of our obligations arising from the entire business relationship with the buyer, with the exception of any rectification of defects, to cure the default or withdraw from the contract, charging our costs, or claim damages for non-performance. In such a case, all existing payment obligations towards us, including those from other contracts, shall become due immediately, regardless of the term of any bills of exchange accepted. In the event of default of payment by the Buyer, Thunder-IT GmbH may, without prejudice to its other statutory rights, refuse further deliveries under this or any other contract or make them dependent on advance payment or the provision of security.
9. Retention of title
The goods are delivered under extended and expanded retention of title and remain the property of Thunder-IT GmbH until full payment of all our claims arising from the business relationship. The buyer may resell the reserved goods in the ordinary course of business. He is not entitled to assign the reserved goods as security or pledge them. The buyer hereby assigns to us all claims that accrue to him from the delivery of reserved goods to his customers. This also applies to the balance claims from a current account if the buyer has agreed such with his customer. We can demand that the buyer informs us of the assigned claims and their debtors. We are entitled to disclose the assignment. The buyer must inform us immediately if third parties seize the reserved goods or claims assigned to us or access them in any other way. In the event of a breach of the obligation to notify, we shall be entitled to assert all claims against the Buyer immediately. If the delivery has not yet been made, we may, at our discretion, deliver either immediately or concurrently against payment. The buyer himself must immediately take all measures necessary to cancel and defend against such access and claims.
Furthermore, he shall support us in every way in exercising our rights. Any processing or treatment of the goods subject to retention of title shall be carried out by the Buyer on our behalf (ownership relationship). We shall acquire ownership rights in the amount of the market value of the goods subject to retention of title resulting from the treatment or processing. If the reserved goods are combined with other items, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other items at the time of processing. If another object is to be regarded as the main object during processing, it shall be deemed agreed that the purchaser shall grant us co-ownership of the new object in the ratio of the value of the reserved goods to the value of the new object, insofar as the new object belongs to the purchaser. If the value of the securities existing for us exceeds the value of the new item by more than 25%, we are obliged, at the buyer's request, to release goods subject to retention of title at our discretion up to the stated value limit. Unless we expressly declare otherwise, however, taking back the goods does not constitute a withdrawal from the contract, but rather merely serves to secure our claims. The buyer remains obliged to fulfill the contract. The buyer shall bear the costs of taking back and managing the object of purchase. The buyer is obliged to keep the object of purchase in proper condition for the duration of the retention of title.
10. Warranty
Thunder-IT GmbH is liable for defects as follows: Unless otherwise agreed, we provide a warranty for 12 months from the transfer of risk for faultless workmanship of the new devices supplied by us with regard to material and workmanship. We pass on any further warranty promises made by the manufacturer to the customer in full, without being liable for them ourselves. We are not liable for defects in used appliances unless the defect was reported in writing within a period of 8 working days from the transfer of risk.
OEM customers and resellers have a limited right of conversion of 14 days, starting from the transfer of risk. For returns of goods in other than original packaging, any right of conversion is generally excluded. Thunder-IT GmbH warrants that the contractual products are described in the product information in a generally accurate manner and are generally usable in this context. The technical data and descriptions in the product information alone do not constitute a guarantee of certain properties; a guarantee of properties in the legal sense is only given if the respective information has been confirmed in writing by Thunder-IT GmbH. The warranty begins with the transfer of risk.
If our operating or maintenance instructions are not followed, changes are made, parts are replaced or consumables are used that do not correspond to the original specification, serial numbers, type designations or similar markings are removed or made illegible, any warranty is void. This also applies if the defect is due to improper use, storage and handling of the devices, or tampering or opening of devices. Insignificant deviations in color, dimensions and/or other quality and performance characteristics of the goods do not trigger any warranty rights. The buyer must report the defect in writing immediately, but at the latest within one week of receipt of the delivery item. Defects that cannot be discovered within this period, even after careful inspection, must be reported to us in writing immediately after discovery. In the event of a proper notification of defects, we may, at our discretion, demand that (a) the defective part or device and a precise description of the defect, stating the model and serial number and a copy of the delivery bill with which the device was delivered, be sent to or delivered to Thunder-IT GmbH, Technical Department for repair. The devices must arrive carriage paid and will be redelivered by us carriage forward, unless the transportation costs are disproportionate to the order value; (b) the customer keeps the defective part or device ready and a technician is sent by us to the customer to carry out the repair. The replacement of parts, assemblies or entire devices shall not result in any new warranty periods coming into force.
The removed and replaced parts shall become our property. The customer shall only be entitled to rescind the contract or reduce the purchase price if three attempts at repair or replacement deliveries fail after a reasonable repair period has been approved and a deadline set. After proper commissioning, wearable parts, e.g. made of rubber, fuses, batteries, cassettes, diskettes and other consumables are excluded from the warranty. For devices purchased from subcontractors, the warranty is limited to the scope of the manufacturer's warranty conditions. The warranty applies - at our discretion - to repair or replacement of the defective parts or devices. The parts remaining for replaced parts shall become our property. If the examination of a notice of defects shows that a warranty case does not exist, Thunder-IT GmbH is entitled to demand that all expenses be reimbursed.
11. Repair conditions (outside the warranty)
If a cost estimate is not expressly requested, the repair will be carried out against the cost rate valid on the day the order is placed. If the repair is not carried out due to an unsolicited cost estimate, Thunder-IT GmbH will invoice the processing costs incurred. If customer service work is carried out on the premises of the buyer or third parties, the arrival and departure times as well as the travel costs shall be borne by the client. The costs for sending and returning repair devices, the packaging costs and, naturally, the transportation risk shall be borne by the customer. Complaints due to repair defects must be made in writing and are only admissible within eight days of arrival of the goods at their destination. Repairs subject to a charge shall only be carried out against cash payment/cash on delivery.
12. Claims for damages
Claims for damages against Thunder-IT GmbH and its vicarious agents, regardless of the legal grounds (e.g. from advice, positive breach of contract or tort), in particular for indirect or consequential damages, are excluded. This does not apply if liability is mandatory in cases of intent, gross negligence or the absence of warranted characteristics. Insofar as claims for damages exist against Thunder-IT GmbH and its vicarious agents, these shall become statute-barred within one year of delivery of the product, in the case of systems from notification of operational readiness.
13. Software
Insofar as programs are included in the scope of delivery, the purchaser shall be granted a simple, unrestricted right of use for these, i.e. he may neither copy them nor allow others to use them. A multiple right of use requires a special written agreement. In the event of a breach of these rights of use, the purchaser shall be liable in full for any resulting damage.
14. Other claims
Even if not specifically emphasized in the above conditions, claims for damages by the buyer, in particular due to positive breach of contract or culpa in contrahendo, are excluded to the extent permitted by law. The Buyer's rights under this contract are not transferable. The invalidity of individual provisions shall not affect the validity of the remaining provisions. Should one or more provisions of these General Terms and Conditions of Sale and Delivery be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision is hereby deemed to be replaced by a new valid provision which fulfills the same legal and economic purpose as far as possible. Supplements and ancillary agreements must be made in writing.
© 2007 Thunder-IT GMBH
