General Terms and Conditions of Sale of the Peter Pflugbeil GmbH
§ 1 Application
(1) These terms and conditions of sale shall apply exclusively. Differing or contrary terms shall not apply except if expressly agreed upon in writing.
(2) These terms and conditions of sale shall also govern all future transactions between the parties and shall also apply if we perform delivery despite our knowledge of differing or contrary terms.
(3) These terms and conditions of sale shall only apply vis á vis entrepreneurs, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code).
§ 2 Offer, Acceptance
(1) Our offers shall not be binding; in particular with reference to quantities, price and delivery time.
(2) Insofar as the order constitutes an offer within the meaning of §145 BGB we are entitled to accept the offer within two weeks.
§ 3 Prices, Payment
(1) Prices are ex-warehouse, exclusive of the respective statutory VAT including normal packaging, except as otherwise expressly agreed upon.
§ 4 Payment, Offset, Retention
(1) The purchase price is due and payable with the delivery of the products. Differing agreements are respective refer to individual regulations. 30 days from the due date - counted from the delivery date - default interest in the amount of 8% above the respective base interest rate p. a. shall accrue. We reserve all rights to claim further damages for delay.
(2) We shall be entitled to apply payments to the purchaser's older debts, notwithstanding any provisions by the purchaser to the contrary.
(3) The purchaser shall be entitled to offset only insofar as the purchaser's counterclaim is acknowledged, undisputed or assessed in a legally binding judgement. The purchaser is entitled to claim retainer rights only to the extent such rights are based on the same transaction.
(4) In the event of a delay in delivery without the supplier being at fault, payments shall be made as if the delay had not occurred.
(5) The supplier shall fulfill all his obligations vis-à-vis the purchaser, provided the purchaser complies with the agreed terms of payment and all his other obligations vis-ä-vis the supplier.
§ 5 Delivery
(1) Delivery is conditioned upon clarification of all technical questions and timely and proper performance of all duties of the purchaser. Defences based on non-performance of the contract are reserved.
(2) In the event of default in acceptance or any other breach of the purchaser's duties to cooperate, we shall be entitled to assert claims in the amount of any resulting damage, including any additional expenses. Further damages are reserved. In this case, the risk of loss or damage to the goods passes to the purchaser at the time of such default or breach of duty to cooperate.
(3) We shall not be liable for delays to deliveries and performances due to force majeure and events that substantially impede or prevent the delivery by us - including in particular strikes, lock-outs and official instructions, including if such occur with respect to our suppliers - even in the case of periods and deadlines agreed with binding effect. They shall entitle us to postpone the delivery by the duration of the impediment plus a reasonable start-up time or to withdraw from the contract in whole or in part with respect to the elements not yet performed. If the impediment lasts longer than 3 months, we shall be entitled, after setting a reasonable grace period, to withdraw from the contract with respect to the elements not yet performed. The Purchaser shall not be entitled to derive any claims for damages whatever from a prolongation of the delivery period or a withdrawal from the elements of the contract not yet performed as a result of the aforementioned circumstances. However, we may only rely on the aforementioned circumstances if we notify the Purchaser immediately upon acquiring knowledge thereof.
(4) The Purchaser shall not be entitled to any claims for damages as a result of default unless the default is at least due to gross negligence on our part. In case of gross negligence our liability for damages shall be limited to the typically predictable damage.
(5) We shall have the right to reasonable delivery in instalments.
§ 6 Passing of Risk, Shipment
If the purchaser demands shipment of the goods the risk of loss or damage to the goods passes to the purchaser upon dispatch.
§ 7 Retention of Title
(1) We retain title to the goods until receipt of all payments in full. In case of breach of contract by the purchaser including, without limitation, default in payment, we are entitled to take possession of the goods.
(2) Until he obtains full title to the goods, the purchaser shall handle the goods with due care, maintain adequate insurance for them, and service them as needed.
(3) As long as the purchase price has not been completely paid, the purchaser shall immediately inform us in writing if the goods become subject to rights of third persons or other encumbrances.
(4) The purchaser may resell the goods, which are subject to retention of title, only if he is entitled to do so under the individual contract. For this case, the purchaser hereby assigns all claims arising out of such resale, whether the goods have been processed or not, to us. Notwithstanding our right to claim direct payment the purchaser shall be entitled to receive the payment on the assigned claims. To this end, we agree to not demand payment on the assigned claims to the extent the purchaser complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.
(5) Insofar as the above securities exceed the secured claim by more than 10%, we are obligated, upon our election, to release such securities upon the purchaser's request.
§ 8 Warranty
(1) Precondition for any warranty claim of the purchaser is the purchaser's full compliance with all requirements regarding inspection and objection established by sec. 377 HGB (German Commercial Code). The Purchaser shall inspect the goods immediately upon receipt and notify us of defects in writing immediately, at the latest within one week after receipt of the goods, under concrete specification of the defects. Defects that could not have been discovered even in a careful inspection within this period shall be notified in writing to us immediately after discovery under concrete specification of the defects. Only such characteristics shall be deemed to be guaranteed as have been expressly stated in writing as being guaranteed.
(2) Warranty claims shall be time-barred after 12 months of the passage of risk.
(3) In case of non-conformity of the goods the purchaser is entitled to alternative performance in the form of subsequent improvement or delivery of conforming goods. If such alternative performance has failed, the purchaser is entitled to reduce the purchase price or to withdraw from the contract.
(4) Any further claims by the purchaser, including but not limited to claims for consequential damages, are excluded as a matter of principle. This does not apply in the case of intent, gross negligence or violation of important contractual obligations by the supplier, as well as in the case of injury to life, body or health. The purchaser's right to withdraw from the contract remains unaffected.
§ 9 Liability
(1) In case of intent or gross negligence on our part or by our agents or assistants in performance we are liable according to the provisions of applicable law; the same applies in case of breach of fundamental contract obligations. To the extent the breach of contract is unintentionally our liability for damages shall be limited to the typically predictable damage.
(2) Our liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected.
(3) Any liability not expressly provided for above shall be disclaimed.
§ 10 Applicable law, Place of Performance, Jurisdiction
(1) This contract shall be governed by the laws of the Federal Republic of Germany excluding the Convention on Contracts for the International Sale of Goods.
(2) Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be the place of our registered office. We reserve our right to sue the purchaser at the court of its residence.
(3) If a provision of these Terms and Conditions shall be or become invalid, then this shall not affect the validity of the other provisions.
Version: May 2013