AGBs - Alpha Therm

§1 Validity

These Terms and Conditions apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) BGB (hereinafter referred to as “Customer” or “Buyer”).

These terms and conditions shall also apply to all future transactions with the customer, insofar as these are legal transactions of a related nature.

Conflicting agreements are only valid if confirmed in writing by Alpha Therm GmbH (hereinafter referred to as “Alpha Therm”). Terms and conditions of business and/or purchase as well as other terms and conditions of the Customer shall only apply if Alpha Therm has expressly agreed to them in writing in the individual case.

§2 Offer and conclusion

Offers of Alpha Therm GmbH are always subject to change unless a commitment has been expressly declared in writing. If an order of the customer is made as an offer within the meaning of § 145 BGB, Alpha Therm can accept this within two weeks by order confirmation or by delivery of the goods.

The technical information contained in offers is based on the information available at the time and is for guidance only. The customer is responsible for checking the suitability of the product offered for the respective application – in particular with regard to switching points, connection types, installation conditions and other technical features.

Before series release or ordering, it is recommended to request a sample for functional testing and approval in the specific application. Alpha Therm accepts no liability for damage or consequential costs resulting from untested specifications.

Conclusions of contract shall become effective at the time at which the customer receives the order acceptance or confirmation, in the absence of such at the time of receipt of the goods. Insofar as sales employees or commercial agents make verbal collateral agreements or agreements on the quality of the goods or give guarantees that go beyond the information provided in the order and/or the declaration of acceptance, these always require written confirmation from Alpha Therm. Otherwise they are not valid.

The prices quoted by Alpha Therm are Euro prices and apply ex warehouse Plankstadt plus VAT at the respective statutory rate. Alpha Therm is also entitled to levy price surcharges after conclusion of the contract if calculation components of the price have changed between the order by the customer and delivery; these include, in addition to fees of all kinds, public charges, taxes and customs duties, freight surcharges, price increases by our suppliers and the like. If the above-mentioned conditions are met, which lead to an increased price calculation at Alpha Therm, the increased price shall be deemed agreed. If the calculation components have changed in such a way that this leads to a price increase of more than 5% for the affected articles, both Alpha Therm and the customer are entitled to withdraw from the contract with regard to the affected products (partial withdrawal). With the announcement of corresponding price changes, all previously quoted prices lose their validity. Packaging and transportation costs will be charged separately.

The minimum order amount per order placed is Euro 300.00 net value of goods. If smaller orders are received, we reserve the right to charge a lump sum for small quantities of up to EUR 80.00.

In the case of prices quoted with EU duty rates, Alpha Therm is entitled to charge the new duty rate in the event of a change in the EU duty rate in the period between submission of the offer and the date of delivery.

VAT-exempt invoicing to intra-Community buyers can only be carried out if Alpha Therm has received an input tax declaration from the customer with an EU VAT identification number. Duties or taxes not paid by the buyer entitle the seller to subsequent invoicing.

§3 Delivery

Delivery dates and delivery periods are only binding if they are expressly confirmed by Alpha Therm in writing. If changes to the contract are subsequently agreed, the delivery date must be agreed again.

The conclusion of the contract is subject to the correct and timely delivery by our suppliers. If Alpha Therm is only partially supplied by the supplier, Alpha Therm is also entitled vis-à-vis the customer to partial delivery of the existing items and to subsequent delivery of the missing items within a reasonable period of time. If it is clear that Alpha Therm can no longer deliver missing items, Alpha Therm is entitled to withdraw from the contract with regard to the items that can no longer be delivered (partial withdrawal). If the partial delivery to the customer without the subsequent delivery of the missing articles is objectively unreasonable for the customer, the customer is entitled to withdraw from the contract with regard to these articles already delivered. However, this does not apply if items have been individually manufactured for the Customer or have been ordered separately by Alpha Therm for the Customer.

If Alpha Therm is prevented from fulfilling its obligations by events for which Alpha Therm is not responsible, such as force majeure, strike, illness, lockout, damage to or destruction of the goods, faulty production, fire, water damage, intervention by higher authorities at Alpha Therm or its suppliers or similar, the delivery time will be extended by the duration of the hindrance and by a reasonable start-up time.

The Customer may only assert rights against Alpha Therm due to delayed or non-delivery if the Customer has set Alpha Therm a reasonable deadline for performance, which must be at least 14 days. After fruitless expiry of the deadline, the Customer may withdraw from the contract. If Alpha Therm has already effected partial performance, the customer may only withdraw from the entire contract if it cannot reasonably be expected to adhere to the partial performance.

Delivery dates specified by Alpha Therm are deemed to have been met if the goods to be delivered have left Alpha Therm’s factory or warehouse before the delivery date. Partial deliveries reasonable for the customer are permitted. Excess or short deliveries of up to 5% of the final quantity do not entitle the customer to make complaints unless it is objectively unreasonable for the customer to adhere to the excess or short deliveries.

If the customer is in default with his contractual obligations, Alpha Therm reserves the right to retain goods for which delivery dates have already been agreed and confirmed. This applies until complete fulfillment of all contractual obligations on the part of the customer.

We reserve the right to make changes to the design, shape or color during the delivery period, provided that the function of the purchased item is not changed and the change is reasonable for the customer. Customary deviations are possible at any time and do not require prior notice.

The regular term of framework agreements with Alpha Therm GmbH is 12 months from the order date, unless otherwise agreed. If the customer is in default of acceptance, Alpha Therm is entitled either to insist on acceptance or to make a price adjustment in accordance with the actual annual requirement determined by us. For the duration of the Buyer’s default of acceptance, Alpha Therm is also entitled to store the delivery items at the Buyer’s risk at its premises, with a forwarding agent or a warehouse keeper. For the duration of the delay in acceptance, the Buyer shall pay Alpha Therm a lump sum of Euro 25.00 per month for the storage costs incurred without further proof. If higher storage costs are incurred, Alpha Therm may demand reimbursement of these costs from the Buyer against proof.

§4 Shipment and transfer of risk

Unless otherwise agreed, the route and means of shipment shall be at Alpha Therm’s discretion.

If dispatch is delayed at the request or through the fault of the customer, the goods shall be stored at the customer’s expense and risk. In this case, notification of readiness for shipment shall be deemed equivalent to shipment. Otherwise, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer when the goods are handed over to a forwarding agent or carrier, but at the latest when they leave the warehouse.

Every shipment from Alpha Therm with a value of up to USD 100.00 is insured against loss or damage. Shipments with a value of more than USD 100.00 will only be insured upon written request. The costs for transportation insurance will be shown separately on our invoice.

In the event of transport damage, Alpha Therm’s insurance conditions are binding for the customer and form part of the contract. The customer is obliged to cooperate in the assessment of damage. The following conditions for damage assessment and reporting deadlines must be observed:

Damaged packaging:

For transportation by post and/or parcel services: Have confirmation issued immediately by the postal employee or deliverer.

In the case of transportation by a forwarding agent: Unpack in the presence of the delivering truck driver and have him certify the damage on the consignment note or packing slip.

Perfect packaging but damaged contents (concealed damage):

In the case of transportation by post and/or parcel services: Inform the responsible post office/branch office immediately, request an inspection and a statement of facts.

In the case of transportation by a forwarding agent: Inform the delivering carrier immediately and request an inspection. Have the damage certified on the consignment note after the inspection.

Any damage found must be reported to Alpha Therm immediately, at the latest within 3 working days.

The insurance conditions will be made available to the customer on request, together with any amended conditions up to the time of the request. The customer must take all measures to minimize the damage. A claim does not entitle the Customer to refuse payment. Rather, the amount invoiced by Alpha Therm is due on the same date as in a damage-free delivery history.

§5 Export regulations

If the validity of a legal transaction in accordance with the provisions of the Foreign Trade and Payments Act, the Foreign Trade and Payments Ordinance or other export control regulations (including those of other countries) depends on the granting of one or more licenses, the legal transaction is invalid until the licenses are granted.

If the performance of an act (e.g. delivery of goods or provision of a service) is dependent on the granting of one or more licenses in accordance with the provisions of the Foreign Trade and Payments Act, the Foreign Trade and Payments Ordinance or other export control regulations (including those of other countries), the act must only be performed after the licenses have been granted.

The customer must obtain the necessary permits at his own expense. The customer shall only be entitled to export the goods after receipt of the relevant permits. The buyer is additionally advised that U.S. export control law applies if the goods or delivery items originate in whole or in part from the USA. This may be the case even if the contract has no other reference to the USA.

§7 Defects and warranty

Even if Alpha Therm GmbH provides support and advice on its products and services in writing or verbally, it is ultimately the responsibility of the customer/buyer to check the suitability of the product for its intended use. The risk of use is borne by the buyer/customer unless Alpha Therm GmbH has entered into an express written product use agreement with the buyer/customer.

Complaints due to incomplete or incorrect delivery or other defects (this also includes the absence of an agreed quality) must be made in writing within eight working days of receipt of the goods at the place of destination, insofar as they are recognizable. If written notification is not given in good time, all claims for defects shall be excluded.

No liability is accepted for damage caused by the following reasons:
- Unsuitable or improper use
- faulty installation or commissioning by the customer or third parties
- in the event of incorrect or negligent handling of the delivery item, in particular with regard to these operating instructions
- Use-related wear and tear

Potentially defective goods will be taken back by Alpha Therm GmbH after prior written agreement and subjected to a detailed inspection. The postage costs for returning potentially defective goods for inspection shall be borne by the customer. If a defect is found, Alpha Therm GmbH undertakes to provide proportionate subsequent performance in the form of rectification or subsequent delivery. Excluded from this are goods which are defective due to wear and tear.

If Alpha Therm is not able to remedy identified defects in a reasonable manner by rectification or if rectification is not technically possible, Alpha Therm may, without prejudice to the Customer’s rights, rescind the contract.

As the object of purchase is generally a complex technical product, the customer is assumed to have all the necessary knowledge. Incompatibilities with similar components and devices of other manufacturers already in use are therefore no reason for complaints. Beyond the documents provided by the manufacturer, which Alpha Therm provides at the Customer’s request, Alpha Therm is not obliged to provide any information about the object of purchase, even if Alpha Therm has already done so in exceptional cases in previous purchase contracts.

Warranty claims cannot be derived from incorrect product descriptions and product information in our catalogs, on our website or in advertising statements, unless these product descriptions and information have expressly become part of the contract in writing.

Compliance with building and safety regulations of all kinds (VDE, TÜV, employers’ liability insurance association, etc.) is the responsibility of the customer.

§7a Return of goods

The return of delivered goods is generally excluded.
Goods will only be taken back in exceptional cases and only with the prior written consent of the seller.
Returns will only be accepted for undamaged goods in their original packaging. Opened, opened or damaged goods cannot be returned.
A non-negotiable handling fee of 15% of the net value of the goods will be charged for approved returns.
The return shipment is at the expense and risk of the customer.
Returns will only be accepted after successful inspection of the returned goods by the seller.

§8 Liability

Alpha Therm is not liable for damages, regardless of the cause, in the event of simple negligence (except for breach of material contractual obligations) of its legal representatives, executives and ordinary vicarious agents and in the event of grossly negligent breach of non-material contractual obligations by ordinary vicarious agents. The term essential contractual obligations covers contractual obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner may regularly rely.

Insofar as Alpha Therm is liable in the event of simple negligence, Alpha Therm shall only be liable for typical, foreseeable damage.

The exclusions or limitations of liability listed in paragraphs 1. to 2. do not apply to damages due to the absence of assurances given, liability under the Product Liability Act or damages to life, limb and health.

If the customer asserts claims directly against Alpha Therm’s legal representatives, employees or vicarious agents, the exclusions and limitations of liability in paragraphs 1. to 2. apply equally in favor of these, insofar as legally permissible.

Should the customer use or sell the goods for use in an application as listed in §8, 9:

the customer acknowledges that such use or sale is at the customer’s sole risk,
1. the Customer agrees that the Company and the manufacturer of the Goods shall not be liable in whole or in part for any claim or damage arising from such use; and
1. the customer undertakes to indemnify and hold the company and the manufacturer of the goods harmless from and against all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale. Liability under the Product Liability Act remains unaffected.

§9 Prices, terms of payment and

Withdrawal option from Alpha Therm

Unless expressly agreed otherwise in writing, all payments shall be made within 14 or 30 days without deductions from the date of invoice (receipt of payment by Alpha Therm). Alpha Therm reserves the right, at its discretion, to demand delivery against advance payment. Any other agreements made shall be subject to a written contract or our written confirmation.

In the event of late payment, we are entitled to charge interest on arrears at a rate of 4% above the discount rate of the Landeszentralbank. We will also charge a €10.00 reminder fee.

The withholding of payments or offsetting against claims of the customer that are disputed by us, are not recognized, have not been legally established or are not ready for decision in pending legal proceedings is excluded.

If delivery is delayed at the customer’s request, the invoice shall be issued when the goods are ready for delivery.

Offsetting is only permitted with such claims that have been recognized by Alpha Therm in writing or have been legally established. The Customer may only exercise a right of retention if its counterclaim is based on the same contractual relationship.

If the Customer is in default of payment or gets into payment difficulties, Alpha Therm is entitled to declare all claims due and payable and to demand advance payment for outstanding deliveries. If the Customer is in default with the resulting obligations, Alpha Therm may, after setting a reasonable deadline, claim damages in lieu of performance or compensation for futile expenses for all contracts not yet fulfilled by the Customer. The right to withdraw from the contract remains unaffected.

Alpha Therm may withdraw from the contract if it becomes aware of a suspension of payments, the opening of insolvency proceedings, the rejection of insolvency proceedings for lack of assets, bill or check protests or other concrete indications of a deterioration in the financial circumstances of the Customer. If Alpha Therm withdraws from the contract or if the order is not executed for reasons for which the Customer is responsible, the Customer shall pay Alpha Therm a lump-sum compensation of 10% of the purchase price for its expenses and loss of profit. Alpha Therm reserves the right to claim demonstrably higher damages. The lump-sum compensation is reduced to the extent that the customer proves that expenses or damages have not been incurred.

§10 Retention of title

All items delivered by Alpha Therm shall remain its property until all claims – including future claims – against the customer arising from the business relationship have been satisfied in full. If the purchase price claim is included in the current invoice, the retention of title exists for the respective balance. If bills of exchange or checks have been given in payment, only the redemption is considered as repayment.

The customer is obliged to treat the items with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure them adequately at his own expense against theft, fire and water damage at replacement value. As long as title has not yet passed, the Customer must notify Alpha Therm immediately in writing if the delivered goods are seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of a successful action pursuant to § 771 ZPO, the Customer shall be liable for the loss incurred by us.

The customer is entitled to resell the goods in the ordinary course of business. He hereby assigns to us all claims to the amount of the invoice which accrue to him against a third party as a result of the resale. We accept the assignment. After the assignment, the customer is authorized to collect the claim. We reserve the right to collect the claim ourselves as soon as the customer does not properly meet his payment obligations and is in default of payment.

The customer’s claims arising from the resale of the goods subject to retention of title are hereby assigned to Alpha Therm. Alpha Therm accepts the assignment. The assigned claim serves as security for Alpha Therm in the amount of the respective invoice value of the reserved goods sold. If the goods subject to retention of title are sold together with other goods not belonging to Alpha Therm, whether without or after processing, mixing or combining, the assignment of the claim from the resale only applies in the amount of the invoice value of the respective goods subject to retention of title sold or, in the case of the sale of goods in which Alpha Therm has co-ownership, in the amount of the invoice value of the co-ownership share(s).

The customer is entitled to collect claims from the resale until revocation by Alpha Therm, which is permissible at any time. Alpha Therm is entitled to revocation if the customer does not properly fulfill his payment obligations, in particular if he is in default of payment or in case of breach of the obligations regulated in this paragraph. In this case, Alpha Therm may inform the Customer’s customers of the assignment and collect the claim itself.

At Alpha Therm’s request, which may be made at any time, the Customer must store and mark the goods subject to retention of title separately. In the event of breaches of duty, in particular breaches of the obligations regulated in this paragraph or in the event of default, Alpha Therm is entitled – in addition to other rights – to take back the goods. After taking back the goods, Alpha Therm must declare to the Customer within a reasonable period of time whether Alpha Therm will rescind the contract and claim damages. Alpha Therm is entitled to dispose of returned goods by private sale to offset them against its claim.

Alpha Therm undertakes to release the securities to which it is entitled at its discretion to the extent that their value exceeds the claims to be secured by more than 30%, insofar as these have not yet been settled.

§11 Place of jurisdiction/place of performance

If the customer is a merchant, a legal entity under public law or a special fund under public law (§38 ZPO), the place of jurisdiction for all claims (however, this does not apply to exclusive places of jurisdiction as in the case of dunning proceedings) shall be Mannheim Local Court. However, Alpha Therm is also entitled to pursue its rights at the Customer’s place of jurisdiction.

The place of performance for all services between the parties is the registered office of Alpha Therm, unless the parties have agreed otherwise in the concluded contract or these Terms and Conditions.

§12 Other

All contracts with Alpha Therm shall be governed exclusively by German substantive law to the exclusion of the provisions of private international law. The applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) is also excluded.

All amendments to these provisions must be made in writing. The same applies to any amendments to this written form agreement.

Should individual provisions of these terms and conditions be invalid in whole or in part, this shall not affect the validity of the remaining provisions. Rather, the invalid provision shall be replaced by way of supplementary interpretation of the contract by a provision that comes closest to the economic or legal purpose pursued by the parties with the invalid provision. The above shall apply accordingly in the event of loopholes.