1. Area of Application
The following terms of contract apply to all current and future contracts concluded by Clina Heiz- und Kühlelemente GmbH (hereinafter referred to as Clina) and its contract partners (hereinafter referred to as the customer), to the extent that the latter is exercising his/her/its commercial or self-employed professional activities (a business in the sense of section § 14 of BGB [German Civil Code]).
Other standard terms of business deviating from, conflicting with or supplementing these terms of contract shall only apply as effectively agreed on if Clina explicitly consents to this in writing.
The contract shall only be concluded with our written order confirmation, at the latest, however, with the acceptance of the delivery and service by the customer. This also applies to individual contracts (call-offs) under a framework agreement. Verbal agreements require written confirmation.
2. Scope of Delivery, Delivery Dates
Subject to correct and punctual delivery to ourselves.
In cases of orders for bulk goods deviations customary to the trade apply.
Delays in delivery due to disturbances in the business operations for which Clina is not answerable, or due to the direct prior suppliers, particularly as a result of strike or lockouts or to cases of force majeure, prolong the delivery period.
Four weeks after the exceeding of a non-binding delivery date or a non-binding delivery deadline the customer can demand in writing that Clina delivers within an appropriate period. With this reminder Clina comes into default.
3. Prices, Terms of Payment
Unless some other agreement has been reached, prices include packaging and apply ex works, with the statutory VAT still to be added.
In the event of a net order value of less than EUR 50 Clina charges an additional processing fee to the value of EUR 7.50 (plus VAT).
Unless some other agreement has been reached, payments are to be made without deduction and within 30 days as from the invoice date.
If the customer exceeds the agreed payment period, he/she/it comes into default without the need for a reminder.
If Clina accepts bills of exchange or cheques on the basis of an explicit agreement, any costs thereby incurred must be borne by the customer.
4. Dispatch, Passing of Risk
If, at the customer's wish, Clina is to send the goods, Clina is then entitled, at its own reasonable discretion, to send the goods by the most favourably priced transport route on account of the customer and at the customer's risk, unless the parties have some other agreement.
If carriage paid dispatch has been agreed on, the risk of deterioration and of accidental loss of the goods passes to the customer with the handover of the goods to the haulage contractor. All liability on the part of Clina for deterioration and loss due to loading, transportation and unloading that cannot be traced to defective packaging by Clina is excluded.
5. Offsetting, Right to Retention
All offsetting by the customer against claims of Clina arising from this contract is excluded, unless the counterclaims are uncontested or have been legally established.
The right of retention by the customer vis-à-vis claims of Clina arising from this contract is excluded, unless this is uncontested or has been legally established.
6. Retention of Ownership
Clina retains ownership of the delivered goods until full payment of the goods and all commitments arising from the business relationship has been made.
The customer is obliged to handle the goods subject to retention of ownership (conditionally-sold goods) carefully and to store them properly. With respect to the conditionally-sold goods, the customer is not permitted to grant securing rights to the benefit of third parties.
In the course of orderly business activities the customer is entitled to resell or to process the delivered goods under retention of ownership. To the extent that, as a result of this, the property of Clina perishes or is encumbered by rights of third parties, the customer already assigns his/her/its claims against his/her/its debtors arising from the sale or processing of the conditionally-sold goods, to the value of the purchase price, to Clina. This also includes any existing right to the granting of a debt-securing mortgage. Clina accepts the assignment. The assignment is only to take place on account of performance.
If the customer defaults on his/her/its payment commitments, Clina is entitled and authorized, in the customer's name, to notify the customer's debtor of the assignment and to collect the claim amount itself.
The customer is obliged, at Clina’s request, to provide all information and documents necessary for enforcement of the assigned claims.
The preceding paragraphs apply accordingly, to the extent that Clina processes, combines or mixes the goods for the customer as a contractor, though the customer is not the owner of the property in question.
If the customer combines conditionally-sold goods, as a significant component, with property in his/her/its ownership, the customer already assigns to Clina the claims arising from the sale of the property or of rights to the property arising, to the value of the purchase price of the conditionally-sold goods. Clina accepts the assignment. The assignment is only to take place on account of performance.
The customer is obliged to inform Clina immediately, if any attempt is made by a third party to confiscate conditionally-sold goods, as in the case of seizure, or if the conditionally-sold goods are damaged or destroyed. Clina must also be notified of any change of ownership. The customer must inform a third party attempting to confiscate the conditionally-sold goods about Clina's retention of ownership. The same applies in the event of enforcement against a claim amount assigned to Clina in keeping with point 6.2.
The customer must also provide Clina with all information and documents required for legal action.
7. Duty to Notify, Warranty, Liability
For customers who are businessmen and conclude the contract within the framework of their business activities, section § 377 of HGB [German Commercial Code] applies. The customer must inspect the goods on their arrival and, in the event of a defect, must notify Clina of this immediately in writing.
All other customers must report obvious defects in the goods to Clina in writing, four weeks after receipt of the goods at the latest. If the customer fails to send written notification of the defects within the foreseen period, claims relating to these defects are excluded.
In cases of defective goods Clina initially warrants for subsequent performance (subsequent improvement or replacement, at the choice of Clina). If the subsequent performance fails, or if it is refused without justification, the customer is then free to opt for price reduction or, provided the subject matter of the claims based on liability for defects does not relate to construction performance, to choose withdrawal from the contract.
For the rest, the statutory regulations apply. Explicitly agreed, deviating periods of limitation for the warranty and guarantee commitments (see Warranty Statement for Heating and Cooling Mats in the Clina product catalogue) remain unaffected.
Claims to compensation are excluded for delivered parts to which the party ordering has made unauthorized changes or has undertaken subsequent improvements, and for improper assembly / leak test or improper further processing of delivered products.
Clina is essentially only liable for malintent and gross negligence. The same applies to its legal representatives and agents.
If Clina, one of its legal representatives or an agent violates a significant contractual obligation (an obligation the fulfilment of which first makes the proper and orderly implementation of the contract possible, and the violation of which endangers the achievement of the purpose of the contract, and on compliance with which the customer may typically rely on) due to slight negligence, the level of liability is limited to the damage foreseeable, at the time of conclusion of contract, for typical, comparable cases.
Clina is liable without limitations for damage arising from injury to life, limb or health due to negligent or intentional violation of obligations by Clina or one of its legal representatives or agents. Clina is furthermore liable without limitations for claims in keeping with the "Produkthaftungsgesetz" [Product Liability Act].
8. Cancellation of Orders
Cancellation of orders by the customer is generally possible within 24 hours after receipt of the order confirmation, provided that no goods have yet been dispatched. The cancellation must be made in writing. If the customer withdraws from the contract later than 24 hours, so-called cancellation fees shall be incurred, depending on the production status, but the customer shall be charged at least 30% of the order volume.
9. Miscellaneous Terms
Verbal statements regarding design, dimensions and the like require our written confirmation. Additional costs arising from the specification of incorrect dimensions or data shall be charged to the customer.
10. Final Provisions
The law of the Federal Republic of Germany is applicable, to the exclusion of the UN purchase law (CISG).
If the customer is a businessman, a public corporation or a public-law fund, or if the customer has no general place of jurisdiction in Germany, the court of jurisdiction for the district in which Clina has its registered address will be solely liable for all disputes arising from this contract.
If individual regulations of the contract, including the above standard terms of contract, prove to be wholly or partly ineffective or impracticable, this will not detract from the effectiveness of the remaining regulations.
Berlin, 15. December 2022
Clina Heiz- und Kühlelemente GmbH, 13435 Berlin