General Terms and Conditions of Business

General Terms and Conditions of Business of Isotherm GmbH


The following terms and conditions of business apply exclusively to our delivery transactions, services (including information and consultations) and all other business relationships. The purchaser agrees that these terms and conditions are binding for each contract concluded with us. Deviating terms and conditions of business will not be part of the contract, even if we do not expressly contradict them. In any case, by accepting our goods or services, the terms and conditions are considered accepted. In particular, the Purchaser renounces the application of his own General Terms and Conditions of Business. In the event that agreements are made beyond these General Terms and Conditions of Business, they must be put down in writing. Deviations from our General Terms and Conditions of Business must be put down in writing and signed by our chief executive officer to become binding. Our employees and representatives do not possess the necessary authority for this purpose.

I. Offer and order confirmation

Our offers are non-binding. Supply contracts are not effective without our written order confirmation or invoice. Only the prices and delivery conditions indicated on our order confirmation are valid. Additional agreements require written confirmation.

II. Prices

Prices are stated ex works in € per kg including packaging, unless explicitly agreed otherwise. Only the prices stated in our order confirmation in addition to the current valued-added tax shall apply. Customs duties and all other taxes, fees and costs shall be charged to the Purchaser, unless agreed to otherwise in writing. We will not accept any costs incurred by the Purchaser for the return or disposal of packaging.

III. Conditions of payment

1. Unless stipulated otherwise by us in writing, our invoices are payable in € without deduction within 30 days of the invoice date. We refer to § 459 of the German Civil Code. On the 31st day after the receipt of the invoice, we may charge default costs and interest amounting to 8 % p.a. above the basic interest rate of the German Federal Reserve Bank pursuant to §§ 288, 247 of the German Civil Code. We reserve the express right to claim any additional damages. Payments received afterwards will be applied first to the costs, then to the interest, and finally to the claim pursuant to § 367 of the German Civil Code.

2. The payments shall be made without prejudice to any claims to the exclusion of the right of retention and offset against counterclaims, unless the latter are determined to be undisputed or legally binding.

3. Bills of exchange and cheques are accepted only by special agreement and subject to applicable interest charges and banking fees, less expenditures with value date on the day on which we can dispose of the equivalent. In case of doubt, bills of exchange and cheques are not accepted on account of performance, but rather only on account of payment. Customary bank expenses shall be charged. The Purchaser must reimburse all expenses in cash immediately.

4. Regardless of the stipulated payment conditions/bill of exchange, our claims are payable immediately when the conditions of payment are not met or when we become aware of circumstances which are liable to cast doubt on the Purchaser’s creditworthiness. In this event, we are entitled to make/render any outstanding services/deliveries only against advance payment without prejudice to our other rights. Moreover we can prohibit the resale, the handling and processing of the goods subject to retention, and require their return or the transfer of the indirect property at the expense of the Purchaser, revoke an authorization for collection, enter spaces which contain the goods subject to retention and remove them, without a withdrawal from contract being necessary or associated with this measure.

5. The Purchaser agrees to offset claims and liabilities payable to us. If claims and liabilities are due on different dates, they will be due on the invoice date.

IV. Description of goods

1. All specifications, descriptions, drawings, photographs, illustrations, measurements, weights and other technical information about the goods and advertising materials are for description purposes only, even if we provide them; the information provided therein does not guarantee a property or characteristic within the meaning of §§ 443, 434 of the German Civil Code. Unless otherwise explicitly stated in writing by one of our managing directors, no contract is deemed sale by sample, and we cannot guarantee that the goods will be identical to goods delivered previously.

2. We do not have to check the suitability of confirmed materials and properties in our goods for an intended purpose of which we are aware.

V. Contracted delivery quantities

If the contracted quantities are not taken within the period of delivery agreed upon, then we reserve the right to charge for the quantity not taken. Provided that nothing to the contrary has been stipulated, the goods must be taken within a year. In the event that the goods are not taken in due time, we are liable only for the intentional and grossly negligent conduct on the part of our employees. As soon as the Purchaser falls behind with the acceptance of the goods, we are entitled, although not obligated, to store the goods at the Purchaser’s risk. The Purchaser must assume all reasonable costs for this storage and any additional transportation costs incurred.

VI. Delivery, transfer of risk and acceptance

1. If not stated otherwise in the order confirmation, the goods are considered delivered as soon as they are ready for pick-up by the Purchaser.

2. The place of fulfilment for the delivery is our warehouse. As soon as the goods are given to the forwarder, shipping or freight carrier, but no later than when they leave our warehouse, the entire risk is transferred to the Purchaser. If the dispatch is delayed for reasons attributable to the Purchaser, the transfer of risk commences with the notification of readiness to dispatch. The Purchaser shall carry storage expenses incurred after the transfer of risk.

3. In the event of force majeure, problems with the nature of the goods or the raw materials, or problems with manufacturing, the shipment or transport -– even if incurred by one of our suppliers – the delivery period shall be extended by the duration of our hindrance. We shall advise the Purchaser immediately of the occurrence of the hindrance and its expected duration. Each contracting party is entitled to withdraw from the contract without penalty if the fulfilment of contract is delayed by more than two months.

4. All delivery times, dates and periods (“schedule”) constitute an estimation and are not an integral part of the contract. We will make every reasonable effort to maintain this schedule, without accepting liability for adherence to this schedule.

5. Damage claims due to default or the inability to perform the service are allowed only if the default or inability to perform the service is attributable to gross negligence or intent on our part or on the part of one of our agents.

6. In cases in which we are responsible for the transportation of the goods, the Purchaser must advise us immediately for any claims regarding non-fulfilment, a loss or damage as soon as he notices or should have noticed the non-fulfilment, the loss or the damage, but no later than within 5 working days.

VII. Liability, compensation for damages

1. The Supplier’s liability to pay compensation for damages, irrespective of the legal basis on which they arise – also for default or liability for consequential damages due to assured properties – is limited to the invoice value of the amount of goods involved directly in the event which led to the damage, and, unless specified otherwise below, excludes any other claims and farther-reaching claims of the Purchaser against us. This applies particularly to claims for damages as a result of breaches of duties arising from the obligation and from unauthorized acts. Therefore we are not liable for damage which did not occur on the goods themselves. In particular, we are not liable for loss of profits or other economic damage to the Purchaser.

2. If our liability is excluded or limited, the personal liability of our employees, associates, legal agents and vicarious agents is excluded or limited, as well.

VIII. Partial delivery and discrepancy

1. We are entitled to make partial deliveries. If the Purchaser proves that the partial fulfilment is of no use to him, he can make avail of the legal avenues.

2. The Purchaser accepts excess/short deliveries of ± 10%.

IX. Retention of title

1. The goods are supplied subject to retention of title pursuant to § 499 of the German Civil Code. The goods remain the property of the seller until payment has been made in full. Acquisition of property pursuant to § 950 of the German Civil Code, where the goods are processed to form a new object, is excluded. No supplementary agreements have been made. They require our explicit written approval to become effective.

2. If the goods subject to retention of title which we supply are processed further, the further processing is done on our behalf. If our property is mixed with other goods, we shall obtain co-ownership in the proportion of the invoice value of the delivered goods to the total value of the new item or mixed goods. This claim replaces the retention of title stipulated in the first clause and is included in the net balance of the claims to be secured.

3. In case the Purchaser forwards or processes our goods which are subject to the retention of title, the Purchaser shall already assign us the claims from the contract with the third-party which received the goods subject to the retention of title. The assignment is made to the invoice amount of our delivery. The assigned claim serves to secure our total claim. We are entitled to notify debtors of the assignment.

4. If the Purchaser is in arrears with a payment to us and/or has applied for insolvency proceedings concerning his personal assets, we are entitled to withdraw from the contract. We are then entitled:

a) to enter the premises of the Purchaser in which our goods are located, and to seize and dispose of them; and

b) to obligate the Purchaser not to sell or release possession of goods for which we still hold the title, until the Purchaser has settled all of his accounts payable to us.

X. Warranty

1. In commercial transactions, complaints must be lodged in writing as soon as the goods are received. Furthermore, they can only be considered within 5 working days after the receipt of the goods and only before the goods have been processed, combined or mixed. Hidden defects must be reported as soon as they are discovered, but no later than two weeks after delivery. Our liability is excluded for late or improper complaints.

2. In the case of a justified complaint, we shall be entitled to choose whether to reimburse the pro-rated purchase price or to provide substitute delivery. In case of defective substitute delivery, credit will be issued. No further warranties are guaranteed.

3. We are not liable for further claims, in particular not for damage incurred through processing defective goods. The Purchaser shall undertake to check our goods for correctness before putting them to use. The Purchaser is not entitled to refuse acceptance or claim damages for minor fluctuations in quality which lie in the nature of the product. The stipulations in clause VII shall otherwise apply.

XI. Compliance with legal regulations

The Purchaser must check if and to what extent the use of our products is subject to the legal regulations, and ensure compliance with them. The Purchaser is personally responsible for their use. He is also responsible for checking the finished product with regard to technical and legal aspects. The Purchaser accepts the costs and is responsible for obtaining and keeping up-to-date all required import and export licenses, customs releases, foreign exchange control approvals or other permits related to the purchase of the goods.

XII. Place of performance and place of venue

1. The place of performance and the exclusive venue for all orders and payments, including actions on checks and commercial paper, and all disputes in connection with the delivery transaction is Arnsberg.

2. The initiation, the validity and the performance of our contracts with the Purchaser are subject exclusively to German law. The parties acknowledge the unrestricted competence of German courts.

XIII. Severability clause

The aforementioned stipulations shall remain binding even if individual points are legally ineffective. This shall not apply if abiding by the contract would result in an intolerable hardship for a party.

XIV. Data acquisition

We will save and use the Purchaser’s data in accordance with the German Data Protection Law insofar as it is necessary for business purposes.

Sundern, October 2009