Terms and Conditions - DMS-Therm GmbH

General Terms and Conditions of Sale (B2B)

DMS-Therm GmbH
Max-Fischer-Str. 11c, 86399 Bobingen, Germany

Version: July 2026

Scope of Application
1. These General Terms and Conditions of Sale apply exclusively to entrepreneurs, legal entities under public law and special funds under public law within the meaning of Section 310 (1) German Civil Code (BGB)
2. These Terms govern all contracts for deliveries and other services provided by DMS-Therm GmbH (“Seller”). Conflicting, deviating or supplementary terms and conditions of the Customer shall apply only if the Seller has expressly agreed to them in text or written form.
3. Individual agreements made with the Customer shall prevail over these Terms. Subject to proof to the contrary, the relevant agreement in text or written form shall be authoritative as to its content.
4. Legally relevant declarations and notifications by the Customer after conclusion of the contract, in particular notices of defects, setting of deadlines, declarations of withdrawal or reduction, must be made at least in text form unless mandatory law requires a stricter form.
Offers and Conclusion of Contract
1. The Seller’s offers are subject to change and non-binding unless expressly designated as binding.
2. Orders placed by the Customer constitute a binding offer to enter into a contract. Unless otherwise stated in the order, the Seller may accept such offer within 14 calendar days of receipt.
3. A contract is concluded only upon the Seller’s order confirmation in text or written form or upon delivery of the goods.
4. Information provided by the Seller regarding the subject matter of the delivery or service, in particular dimensions, weights, technical data, illustrations, drawings and descriptions, are standard approximate values customary in the trade unless exact conformity is required for the contractual purpose. They do not constitute guaranteed characteristics, but merely descriptions or identifications of the goods or services.
5. Reasonable technical modifications as well as modifications due to legal requirements or product improvements remain reserved, provided that they do not unreasonably impair the Customer.
Documents, Rights, Confidentiality
1. The Seller reserves title, copyright and all other proprietary rights in all cost estimates, drawings, samples, calculations, technical documents and other information in physical or electronic form.
2. Such documents may not be disclosed to third parties, reproduced or used for purposes other than the contractual purpose without the Seller’s prior consent.
3. If no contract is concluded, such documents must be returned or deleted without undue delay upon request; no right of retention shall apply in this respect.
4. The Customer shall keep confidential all commercial and technical information of the Seller and use it only for the performance of the respective contract.
Prices and Payment Terms
1. Unless otherwise agreed, prices are ex works or ex warehouse plus packaging, freight, insurance, customs duties, other ancillary charges and statutory value added tax at the applicable rate.
2. Unless otherwise agreed, invoices are due for payment within 14 calendar days from the invoice date without deduction.
3. Timely payment shall be determined by receipt of funds by the Seller.
4. Cash discounts shall only be granted on the basis of an express separate agreement.
5. In the event of default in payment, the statutory consequences of default shall apply. The Seller is entitled to charge default interest at the statutory rate; the right to claim further damages for default remains reserved.
6. The Customer may only set off or exercise rights of retention to the extent that its counterclaims are undisputed, finally adjudicated or ready for decision; in addition, a right of retention exists only insofar as the counterclaim is based on the same contractual relationship.
7. If, after conclusion of the contract, it becomes apparent that the Seller’s payment claim is jeopardised by the Customer’s inability to perform, the Seller shall be entitled, in accordance with the statutory provisions, to refuse performance and, if necessary after setting a reasonable deadline, withdraw from the contract.
8. In the case of deliveries or services to be rendered more than three months after conclusion of the contract, the Seller may demand a reasonable price adjustment if essential cost factors, in particular materials, energy, wages or transport, demonstrably change after conclusion of the contract and such change was not foreseeable at that time. Any price adjustment shall be limited to the actual impact of the relevant cost change on the contractual performance.
Delivery, Deadlines, Customer Cooperation
1. Delivery periods and delivery dates shall be agreed individually or stated by the Seller upon acceptance of the order. Unless expressly agreed as binding, they are non-binding.
2. Any stated delivery period shall commence only after all technical questions have been clarified, all documents, approvals and releases to be provided by the Customer have been received in due time, and agreed payment and cooperation obligations have been fulfilled.
3. Partial deliveries are permissible insofar as they are reasonable for the Customer.
4. If the Customer is in default of acceptance or culpably breaches other duties to cooperate, the Seller shall be entitled to claim compensation for the resulting damage, including any additional expenses. Further statutory claims remain unaffected.
5. If the Seller is prevented from performance by force majeure or other events unforeseeable at the time of conclusion of the contract for which the Seller is not responsible, including in particular operational disruptions, energy shortages, procurement difficulties, delays by upstream suppliers, transport disruptions, strikes, lawful lockouts, pandemics, official measures or similar events, delivery periods shall be extended appropriately. If such event continues for more than 90 days, each party may withdraw from the contract with respect to the unperformed part.
6. The Customer’s statutory rights in case of delay in performance remain unaffected unless validly modified by these Terms.
Shipment, Transfer of Risk, Insurance
1. Unless otherwise agreed, delivery is ex works or ex warehouse. The method of shipment and packaging shall be at the Seller’s due discretion.
2. The risk of accidental loss and accidental deterioration shall pass to the Customer at the latest upon handover of the goods to the forwarding agent, carrier or other third party designated to perform the shipment. This also applies to partial deliveries or where the Seller has assumed additional services.
3. If acceptance has been agreed, such acceptance shall be decisive for the transfer of risk. The Customer may not refuse acceptance due to an insignificant defect.
4. If shipment or acceptance is delayed due to a circumstance attributable to the Customer, the risk shall pass to the Customer on the day on which the goods are ready for shipment or acceptance and the Seller has notified the Customer thereof.
5. Transport insurance shall be taken out only at the Customer’s express request and expense.
Retention of Title
1. The delivered goods shall remain the property of the Seller until full payment of all present and future claims arising from the ongoing business relationship has been made (reserved goods).
2. The Customer shall handle the reserved goods with due care and, where necessary and customary in the trade, insure them adequately at its own expense. The Customer shall notify the Seller without undue delay in text form of any third-party access to the reserved goods, in particular attachments.
3. The Customer is entitled to resell the reserved goods in the ordinary course of business. The Customer hereby assigns to the Seller, and the Seller hereby accepts, all claims arising from such resale in the amount of the final invoice amount including value added tax.
4. The Customer shall remain authorised, revocably, to collect the assigned claims. The Seller’s right to collect the claims itself remains unaffected; however, the Seller will not exercise this right as long as the Customer duly meets its payment obligations, is not in default of payment and no application has been filed for the opening of insolvency proceedings and no suspension of payments exists.
5. Any processing or transformation of the reserved goods shall always be carried out for the Seller. If the reserved goods are processed, combined or mixed with other items, the Seller shall acquire co-ownership in proportion to the invoice values of the processed items at the time of processing.
6. If the realisable value of the securities exceeds the Seller’s claims by more than 10%, the Seller shall release securities of its choice at the Customer’s request.
Defects, Inspection and Notice
1. The Customer shall inspect the goods without undue delay after delivery in accordance with Section 377 German Commercial Code (HGB) and notify recognizable defects, incorrect deliveries or quantity deviations without undue delay in writing or text form. Hidden defects must be notified without undue delay after discovery.
2. In the event of justified and timely notified defects, the Seller shall, at its option, provide subsequent performance by remedying the defect or delivering replacement goods.
3. The Seller is entitled to make subsequent performance conditional upon payment of the purchase price due. However, the Customer is entitled to retain a portion of the purchase price that is reasonable in relation to the defect.
4. The Seller shall be granted reasonable time and opportunity for subsequent performance. Returns of defective goods require prior coordination with the Seller.
5. If subsequent performance fails, is unreasonable, does not take place within a reasonable deadline to be set by the Customer, or is dispensable under statutory law, the Customer may withdraw from the contract or reduce the purchase price in accordance with statutory law. In the case of an insignificant defect, however, there is no right of withdrawal.
6. No defect claims shall exist in the case of natural wear and tear, improper use, defective assembly or commissioning by the Customer or third parties, unsuitable operating materials, unsuitable further processing, or modifications or repair work carried out by the Customer or third parties without the Seller’s consent, insofar as the defect is attributable thereto.
7. Claims by the Customer for reimbursement of expenses required for subsequent performance, in particular transport, travel, labour and material costs and any dismantling and reinstallation costs, shall be governed by the statutory provisions. No exclusion shall apply where liability is mandatory by law.
8. The limitation period for defect claims is one year from delivery of the goods. Statutory limitation periods remain unaffected for claims for damages based on intent or gross negligence, injury to life, body or health, fraudulent concealment of a defect, an assumed guarantee, claims under the German Product Liability Act and other cases where liability is mandatory by law.
9. Recourse claims of the Customer under Sections 445a, 445b and 478 BGB remain unaffected insofar as the statutory requirements are met.
Liability
1. The Seller shall have unlimited liability for intent and gross negligence, fraudulent concealment of a defect, the assumption of a guarantee, damages arising from injury to life, body or health, and under the German Product Liability Act.
2. In cases of simple negligence, the Seller shall be liable only for breach of a material contractual obligation. In such case, liability shall be limited to the typical damage foreseeable at the time of conclusion of the contract.
3. The above limitations of liability shall also apply for the benefit of the Seller’s corporate bodies, legal representatives, employees and other vicarious agents.
4. Insofar as the Seller’s liability is excluded or limited, the same shall apply to the personal liability of its corporate bodies, legal representatives, employees and vicarious agents.
Intellectual Property, Compliance, Export
1. To the extent that the Seller delivers according to drawings, specifications, samples or other instructions provided by the Customer, the Customer shall be responsible for ensuring that no third-party intellectual property rights are infringed thereby. The Customer shall indemnify the Seller upon first demand against third-party claims arising from such infringement to the extent the Customer is responsible for the breach.
2. In any onward transfer, export or use of the goods, the Customer shall comply with all applicable export control, sanctions, customs and foreign trade laws.
3. The Seller shall not be obliged to perform the contract to the extent that performance is prevented by national or international foreign trade regulations, embargoes or other sanctions.
Limitation, Governing Law, Jurisdiction, Severability
1. Unless otherwise provided in these Terms, the statutory limitation provisions shall apply to claims of the Customer.
2. These Terms and the entire legal relationship between the Seller and the Customer shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
3. If the Customer is a merchant, legal entity under public law or special fund under public law, the exclusive place of jurisdiction, including international jurisdiction, for all disputes arising directly or indirectly out of the contractual relationship shall be the Seller’s registered office. However, the Seller shall also be entitled to bring an action at the Customer’s general place of jurisdiction.
4. Unless otherwise agreed, the place of performance for deliveries and payments shall be the Seller’s registered office.
5. Should individual provisions of these Terms be or become wholly or partly invalid, unenforceable or incomplete, the validity of the remaining provisions shall remain unaffected. In place of the invalid or unenforceable provision, such valid provision shall be deemed agreed as comes closest to the economic purpose of the original provision to the extent legally permissible.