Applicable to business transactions with companies, legal entities under public law and special funds under public law

1. Scope

All deliveries and services of NTH Therm GmbH and its subsidiaries (NTH) are made exclusively on the basis of these General Terms and Conditions (GTC). Deviating provisions, in particular the terms and conditions of contractual partners, shall only apply if they have been expressly confirmed in writing by NTH prior to conclusion of the contract. This also applies if NTH has not objected to a contractual partner’s general terms and conditions in an individual case. These GTC apply both to the present transaction and to all future business.

2. Written Form

Verbal declarations require written confirmation to be effective.

3. Quotations

3.1. Quotations from NTH are non-binding and subject to change, unless NTH has expressly designated them as binding in writing. Acceptances and orders from the purchaser, insofar as they qualify as an offer under § 145 BGB (German Civil Code), only become binding upon written order confirmation by NTH. NTH has 12 working days from receipt of the order to accept the purchaser’s orders.

3.2. NTH reserves all proprietary rights and copyrights in illustrations, drawings, calculations and other documents and data, regardless of the medium; they may not be made accessible to third parties. Any disclosure to third parties requires the prior express written consent of NTH. Illustrations, drawings, calculations and other documents and data, as well as the resulting dimensional and weight specifications, are only approximately authoritative unless NTH has expressly designated them as binding in writing. The same applies to usage specifications. Commercial tolerances remain reserved to NTH within the limits of what is reasonable for the purchaser.

4. Delivery Periods / Default

4.1. Delivery times are in principle non-binding and approximate. The delivery period commences, in case of doubt, upon receipt of the down payment in one of NTH’s business accounts.

4.2. Compliance with delivery deadlines requires the timely receipt of all documents to be supplied by the purchaser, necessary permits and approvals, in particular plans, as well as compliance with the agreed payment terms and other obligations by the purchaser. If these requirements are not met in time, the deadlines shall be extended appropriately; this does not apply if NTH is responsible for the delay.

4.3. If non-compliance with agreed delivery deadlines is due to force majeure, e.g. pandemic, mobilisation, war, civil unrest or similar events, e.g. strike, lockout, the deadlines shall be extended appropriately. The same applies if NTH is not supplied properly and on time by one of its suppliers.

4.4. If NTH is culpably in default of delivery, the purchaser may — provided it can demonstrate that damage has arisen — claim compensation for each completed week of delay of 0.5%, but in total no more than 5% of the net price for the part of the deliveries that could not be put to purposeful use owing to the delay.

4.5. Both claims for damages by the purchaser due to delay in performance and claims for damages in lieu of performance that go beyond the limits specified in clause 4.4 are excluded in all cases of delayed delivery, after the expiry of any deadline set by NTH for delivery. This does not apply insofar as mandatory liability arises in cases of intent, gross negligence or due to injury to life, body or health. The purchaser may only withdraw from the contract within the framework of the statutory provisions insofar as the delay in delivery is attributable to NTH.

4.6. The purchaser is obliged, at our request, to declare within a reasonable period whether it withdraws from the contract due to the delay in delivery or insists on delivery.

5. Prices

5.1. Deliveries are invoiced at NTH’s prices valid on the delivery date plus statutory VAT at the applicable rate. The prices stated are ex works, excluding packaging, shipping and/or customs costs, which will be invoiced separately.

5.2. NTH reserves the right to increase prices appropriately if, after conclusion of the contract, cost increases occur, in particular due to increases in wage costs, e.g. due to collective bargaining agreements, or changes in material prices. These will be evidenced to the purchaser upon request.

6. Dispatch

6.1. Goods are dispatched — including partial deliveries — at the purchaser’s expense and risk. This also applies if NTH bears the freight costs in an individual case. Risk passes to the purchaser upon handover of the goods to the carrier/freight forwarder.

6.2. Freight costs are not advanced. Transport is carried out by a freight forwarder/carrier of NTH’s choosing, with no obligation to select the most cost-effective option. By selecting the freight forwarder/carrier, NTH does not assume any liability for the transport.

6.3. Even for goods delivered at NTH’s expense, risk passes from NTH to the purchaser at the time of handover to the carrier.

6.4. Upon export of purchased goods, the purchaser is obliged to obtain all documents required for export (e.g. export and customs permits, etc.) at its own expense. NTH accepts no liability for the legal permissibility of the export of the goods or their compliance with the legal and technical regulations of the country of import. NTH likewise accepts no liability for the goods meeting the technical standards of the country of import.

7. Outer Packaging

Outer packaging invoiced — crates or special cartons — will be credited to the purchaser at 2/3 of the charged value if returned carriage-paid, provided it arrives at NTH in good condition and can be reused in accordance with its nature.

8. Compensation for Tooling Costs

Unless the transfer of ownership of tools manufactured or procured by NTH specifically for the production of goods to be delivered to the purchaser has been expressly agreed in writing, these tools remain the property of NTH. Even upon full payment of the manufacturing costs for these tools, the purchaser acquires no right to transfer of ownership of the tools themselves.

9. Liability for Defects

9.1. The purchaser’s warranty rights presuppose that it has fulfilled its obligations to inspect and give notice of defects as required under § 377 HGB (German Commercial Code).

9.2. Claims for defects become time-barred 12 months after delivery of the goods supplied by NTH to the purchaser. NTH’s consent must be obtained prior to any return of goods. This period does not apply insofar as the law prescribes longer periods pursuant to §§ 438(1) No. 2 (buildings and items for buildings), 479(1) (right of recourse) and 634a(1) No. 2 (building defects) BGB.

9.3. Should the goods supplied by NTH, despite all due care, exhibit a defect that was already present at the time of the transfer of risk, NTH will, subject to timely notification of defects, at its own discretion rectify the defect or supply replacement goods. NTH must always be given the opportunity to remedy the defect within a reasonable period. Rights of recourse remain unaffected by the foregoing provision.

9.4. If subsequent performance fails, the purchaser may — without prejudice to any claims for damages pursuant to clause 10 — withdraw from the contract or reduce the remuneration.

9.5. Claims for defects do not exist in the event of only insignificant deviation from the agreed condition, only insignificant impairment of usability, natural wear and tear or damage that arises after transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable operating materials or due to particular external influences that are not assumed under the contract. If repair work or modifications are carried out improperly by the purchaser or third parties, no claims for defects exist for these or the consequences arising therefrom.

9.6. Claims by the purchaser for expenses necessary for subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the goods supplied by NTH have subsequently been taken to a place other than the purchaser’s place of business, unless the transfer corresponds to their intended use.

9.7. Claims for damages by the purchaser due to a material defect are excluded. This does not apply in the event of fraudulent concealment of the defect, non-compliance with a quality guarantee, injury to life, body, health or freedom, or in the event of intentional or grossly negligent breach of duty by us. Further or other claims by the purchaser due to a material defect that go beyond those regulated in these GTC are excluded.

10. Other Claims for Damages, Limitation

10.1. Claims for damages by the purchaser, regardless of the legal basis, in particular for breach of obligations arising from the contractual relationship and from tort, are excluded.

10.2. This does not apply insofar as mandatory liability exists, e.g. under the Product Liability Act, in cases of intent, gross negligence, due to injury to life, body or health, or due to breach of material contractual obligations. However, the claim for damages for breach of material contractual obligations is limited to the typical, foreseeable damage, unless intent or gross negligence is present or liability arises due to injury to life, body or health.

10.3. Insofar as the purchaser is entitled to claims for damages, these become time-barred upon expiry of the limitation period applicable under clause 10.2. The same applies to claims by the purchaser in connection with measures to avert damage (e.g. recalls). For claims for damages under the Product Liability Act, the statutory limitation periods apply.

11. Impossibility, Contract Adjustment

11.1. If delivery is impossible, the purchaser is entitled to claim damages unless NTH is not responsible for the impossibility. However, the purchaser’s claim for damages is limited to 5% of the value of that part of the delivery that cannot be put to purposeful use due to the impossibility. This limitation does not apply insofar as mandatory liability arises in cases of intent, gross negligence or due to injury to life, body or health. The purchaser’s right to withdraw from the contract remains unaffected.

11.2. If unforeseen events within the meaning of clause 4.3 materially alter the economic significance or content of the delivery or have a significant effect on NTH’s operations, the contract shall be adjusted appropriately in good faith. Insofar as this is not economically justifiable, NTH has the right to withdraw from the contract. If NTH wishes to exercise this right of withdrawal, it must notify the purchaser immediately after recognising the scope of the situation, even if an extension of the delivery period had initially been agreed with the purchaser.

12. Payments and Creditworthiness

12.1. NTH invoices are payable within 30 days of the invoice date without deduction.

12.2. Field sales staff are only authorised to accept payments with written authorisation.

12.3. All claims of NTH become immediately due and payable if the purchaser fails to comply with the payment terms for reasons attributable to it or ceases its payments.

12.4. In addition, NTH is entitled to demand advance payments for outstanding deliveries and, following reminder and reasonable grace period, to withdraw from the contract or claim damages for non-performance. Furthermore, following reminder and setting of a reasonable grace period, the purchaser may be prohibited from reselling the goods and the delivered goods may be reclaimed at the purchaser’s expense.

12.5. The withholding of payments or offsetting against counterclaims of the purchaser is excluded unless these have been expressly acknowledged in writing by NTH or established by final judgment.

13. Retention of Title

NTH retains title to all goods delivered by it until full payment has been made; all deliveries in this context are regarded as a single, connected transaction. In the case of a running account, the retained title serves as security for NTH’s balance claim. If the goods are combined by the purchaser with other items to form a single object and the other item is to be regarded as the principal item, the purchaser hereby transfers to NTH a proportionate co-ownership interest to the extent that the principal item belongs to it.

If the purchaser resells the delivered goods in the ordinary course of business, it hereby assigns to NTH the claims arising from the resale against its customers together with all ancillary rights until all claims of NTH have been fully discharged.

If there is reasonable cause (e.g. payment default), the purchaser is obliged, at NTH’s request, to disclose the assignment to the third-party purchasers and to provide NTH with all information and documents required to enforce its rights. NTH will release the securities held by it insofar as their value exceeds the claims to be secured by a total of more than 20%.

14. General Provisions

14.1. If a contractual partner ceases its payments or if insolvency proceedings are applied for against its assets or judicial or extrajudicial composition proceedings are applied for, the other contractual partner is entitled to withdraw from the contract with respect to the unfulfilled part.

14.2. Should any provision of these terms and conditions and the further agreements made be or become invalid, the validity of the contract as a whole shall not be affected thereby. The contractual partners are obliged to replace the invalid provision with a regulation that comes as close as possible to the economic result intended.

14.3. The law of the Federal Republic of Germany applies exclusively, unless otherwise expressly agreed in writing. The application of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods is excluded.

14.4. The place of performance is the registered office of the NTH Group company acting as seller under the supply contract.

14.5. NTH is entitled to store and process the purchaser’s data for the purpose of processing the business relationship in compliance with the provisions of the Federal Data Protection Act.

14.6. The place of jurisdiction for all legal disputes arising from the contractual relationship is the registered office of the NTH Group company acting as seller under the supply contract.