General Terms and Conditions
Section 1 Scope of application, Form
- The present General Terms and Conditions (GTC) apply to all our business relations with our customers. These GTC shall only apply if the customer is an entrepreneur (Section 14, German Civil Code), a body corporate organized under public law or a special asset subject to public law.
- The GTC especially apply to contracts concerning the sale and/or supply of movable things (‘goods’), regardless of the fact if PDS GmbH produces the goods itself or buys them at sub-suppliers (Sections 433 and 651, German Civil Code). These GTC also apply for repair orders. Except when otherwise stipulated, the GTC apply in the version applicable at the moment of customer’s placement of order or respectively in any case in the last duly notified, written version as a framework agreement also for similar future contracts without any need from our part to refer to them in every individual case.
- Our GTC apply exclusively. Any differing or amendatory General Terms and Conditions of the customer shall only become part of the contract, if and in how far we have explicitly agreed to their application. This requirement for approval applies in any case, for instance also, when we carry out the delivery to the customer without any reservation in awareness of the customer’s GTC.
- Separate agreements with the customer made in individual cases (including supplements, additions or amendments) shall in any case take precedence over these GTC. A written contract or our confirmation in writing shall be decisive for the content of such agreements, subject to counter evidence.
- Legally relevant statements and notices of the customer concerning the contract (e.g. deadlines, notice of defects, rescission or reduction) shall be made in writing, i.e. in written or text form (e.g. letter, email, fax). Statutory formal requirements and other proof, especially in case of doubt concerning the legitimation of the stating person, shall remain unaffected.
- Any notes on the application of statutory provisions shall only have clarifying meaning. Therefore, the statutory provisions shall also apply without such clarification unless directly changed or explicitly excluded in these General Terms and Conditions.
Section 2 Conclusion of contract
- Our offers are without engagement and non-binding. This also applies, if we have given to the customer any catalogues, technical documentations (e.g. drawings, plans, evaluations, calculations, reference to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights. In contrast, technical documentation of the customer, which the customer makes available to us for the purpose to execute the order, shall remain the customer’s property. Specifications contained in the customer’s technical documentation shall only be binding for us upon receipt of the customer‘s explicit written statement.
- The order of goods by the customer is considered as a binding offer of contract. Unless otherwise specified in the order, we are entitled to accept this offer of contract within two weeks upon receipt.
- Acceptance can either be stated in writing (e.g. by way of order confirmation) or by delivery of goods to the customer.
- We are entitled, in full or part, to assign the order to sub-contractors. Unless agreed otherwise with the customer, we are entitled to select both replacement parts and their suppliers at our discretion.
Section 3 Term of delivery and Delay in delivery
- The term of delivery will be individually agreed or respectively specified by us on acceptance of the order.
- Should we be unable to adhere to binding terms of delivery for reasons beyond our control (non-availability of goods or service) we will notify the customer about that immediately and, at the same time, specify the new, expected delivery time. Should the goods or services still not be available within the new delivery time, we are entitled to withdraw from the contract in full or part; we will immediately reimburse any payments already made or services rendered by the customer. A case of non-availability of goods or service in this regard includes the delayed delivery by our supplier if we have made an agreement on a matching cover transaction if the delay is neither our nor our supplier’s fault or if we are not obliged to procurement in individual cases.
- Commencement of a delay in delivery is defined by the statutory provisions. A reminder by the customer is required in any case, though. Should a delivery by PDS GmbH be delayed, the customer is entitled to claim liquidated damages of his damage caused by the delay. The damage lump-sum is 0.5 % of the net price (value of goods delivered) for each fully delayed calendar week, in total, however, only a maximum of 5% of the value of goods that were delivered too late. We reserve the right to prove that the customer has suffered no loss at all or that such damage was significantly lower than the afore-said lump-sum.
- The customers rights according to Section 8 of these GTC and our statutory rights, especially if an obligation to provide indemnification is excluded (e.g. because of impossibility or unacceptability of performance and/or supplementary performance), remain unaffected.
Section 4 Delivery, Transfer of risk, Acceptance, Default of acceptance
- Goods and products are delivered ex works, which is also the place of fulfilment for delivery and a possible supplementary performance. Goods will be sent to another destination (sale by delivery to a place other than the place of performance) on customer’s request and costs. Unless otherwise agreed, we are entitled to determine the type and kind of delivery ourselves (especially forwarding agents, dispatch route, packaging).
- The risk of accidental perishing and the accidental deterioration of goods passes over to the customer at the moment of delivery at the latest. However, in case of sale by delivery to a place other than the place of performance, the risk of accidental perishing and accidental deterioration of goods as well as the risk of delay already passes over to the customer when the goods are handed over to the forwarding agent, shipper or to the person or institution otherwise assigned with the delivery. If an acceptance is agreed, it is decisive for the transfer of risk. For the rest, the statutory rules of the law applicable to works and services for an agreed acceptance apply accordingly. It is considered as a delivery or acceptance if the customer is in default of acceptance.
- If a customer is in default of acceptance, if he fails to perform his obligation of cooperation or if our delivery is delayed for reasons the customer is responsible for, we are entitled to claim compensation of the damage resulting from that, including additional costs (e.g. warehouse costs). In case of delivery contracts, we charge a lump-sum compensation amounting to 0.5% of the net order value per calendar week up to a maximum of 5% in case of final non-acceptance, starting with the delivery date or – in absence of a delivery date – upon notification of readiness of shipment of goods. In case of repair orders, demurrage amounts to 2.00 € per square meter of storage space and day. At contractor’s discretion, the repair object can be stored alternatively as well, whereby costs and risk of storage shall be borne by the customer. Proof of a higher damage and our rights (especially reimbursement of additional costs, an adequate compensation, termination) remain unaffected; the lump-sum is to be offset against further claims. The customer has the right to prove that we have suffered no loss at all or that such damage was significantly lower than the afore-said lump-sum.
Section 5 Prices and Terms of payment
- Except when otherwise agreed, our current prices applicable at the moment of signing of the contract apply ex works plus value-added tax.
- In case of a sale by delivery to a place other than the place of performance (Section 4, para. 1), the customer bears the transport costs ex works and the costs for a transport insurance he may possibly desire. Possible customs duties, fees, taxes and other public charges shall be borne by the customer.
- In case of repair orders, it is also the customer who bears the transport hazard. On customer’s request, both transport to and from PDS GmbH will be insured against the insurable hazards of transport, e.g. theft, break and fire.
- The purchase price is due and payable within 10 days as from invoice and delivery or acceptance of goods respectively. We are, however, entitled within the scope of an ongoing business relationship to carry out a delivery against cash in advance, in full or part, only. We will specify a respective reservation with the order confirmation at the latest.
- The customer is in delay of payment as soon as the afore-mentioned term of payment expires. As long as payment is delayed, interest on the purchase price is to be charged in accordance with the statutory interest rate on late payments applicable at that time. We reserve the right to enforce further damage caused by delay. Vis-à-vis entrepreneurs, our claim for the commercial maturity interest (Section 353, German Commercial Code) remains unaffected.
- The customer is entitled to offset or retention rights only in so far as his claim has been established as final and absolute or uncontested. In case of a defective delivery, the customer’s reciprocal rights, especially according to Section 7, para. 6, sentence 2 of these GTC, remain unaffected.
- If it becomes clear upon signing of contract (e.g. by petition in insolvency) that our claim for payment of the purchase price is threatened by lacking performance of the customer, we are entitled to withdraw from the contract in compliance with the legal provisions on refusal of performance – and if applicable after setting a deadline (Section 321, German Civil Code). In case of contracts concerning the manufacture of unjustifiable things (custom-made items), we are entitled to cancel the contract immediately; the statutory rules on the expendability of a deadline remain unaffected.
Section 6 Retention of title
- We retain title to the sold goods until receipt of all present and future receivables resulting from the purchase contract and an ongoing business relationship (trusted receivables) in full. As far as repair orders are concerned, we retain title to all accessories, replacement and exchange parts until receipt of all receivables resulting from the repair contract in full. Further securing agreements can be reached. As far as our claims regarding repair orders are concerned, we are also entitled to lien on the repaired object, which came into customer’s possession as a result of the contract. The lien also includes receivables from earlier works, deliveries of replacement parts or other services as far as these are in connection with the repaired object. The lien does only include other claims resulting from the business relationship as far as these are uncontested or have been established as final and absolute.
- The goods subject to retention of title may neither be seized nor be assigned to any third party before full payment of the secured receivables. The customer shall notify PDS GmbH immediately in writing if an application is filed to open insolvency proceedings or if third parties access (e.g. by way of garnishment) goods belonging to PDS GmbH.
- In case of contrary to the contract behavior of the customer, especially in case of non-payment of the due purchase price, PDS GmbH shall be entitled to withdraw from the contract according to the statutory provisions or/and to claim the restitution of goods based on the right of retention to title. The claim for restitution does not at the same time include the intent to withdraw; we are rather entitled to merely claim the restitution of goods and reserve the right to withdrawal. If the customer fails to pay the due purchase price, we are only entitled to assert these rights if we have fruitlessly set an adequate deadline for payment or if such deadline is unnecessary according to statutory rules.
- Until further notice, the customer shall be entitled according to paragraph (c) below to re-sell and/or to process the goods subject to retention of title in the regular course of business. In this case, the following provisions shall be applicable in addition.
- The retention of title extends to the full value of products that come into being through processing of, blending or combination with our goods and we shall be considered the manufacturer of such goods. If the retention of title of any third party persists in case of processing of, blending or combination with their goods, we become co-owners proportionate to the invoice values of the processed, blended or combined goods. Regarding the product that comes into being, the same shall apply as for the goods delivered under retention of title.
- Already at this stage, the customer assigns all receivables towards any third party resulting from the resale of goods or of the product, either in total or to the amount of our possible co-ownership share in accordance with the above paragraph on securities. We accept the assignment. The customer’s obligations specified in paragraph 2 shall also apply in consideration of assigned receivables.
- The customer shall remain authorized to collect the receivables in addition to us. We oblige to not collect the receivables as long as the customer discharges all payment obligations towards us, there is no deficiency in his performance capacity and as long as we do not claim the retention of title by exercising a right according to paragraph 3. Should this be the case, though, we are entitled to demand from the customer to announce the assigned receivables and their debtors, to give all information necessary for collection, to hand over the necessary documents and to inform the debtors (third party) about such assignment. In that case, we are also entitled to withdraw the customer’s right to resell or process the goods subject to retention of title.
- If the realizable value of securities exceeds our receivables by more than 10%, we will release securities at our discretion on customer’s request.
Section 7 Warranty claims of the customer
- Unless otherwise specified below, the statutory provisions shall apply for the rights of the customer in case of material defects and defects of title (including wrong and short delivery as well as improper assembly or poor assembly instructions). In any case unaffected remain the special legal provisions for final delivery of unprocessed goods to a consumer, even if the consumer has processed them (recourse of the supplier according to Section 478, German Civil Code). Any claims resulting from the recourse of the supplier shall be excluded if the defective goods were processed by the customer or another entrepreneur, e.g. by integration into another product.
- Our warranty claims are mainly based on the agreement reached on the quality of goods. All product descriptions that are subject of the individual contract or that were published by our company (especially in catalogues or on our website) shall be considered as agreements reached on the quality of goods.
- If no agreement has been reached concerning quality it has to be judged in compliance with statutory provisions if a product is defective or not (Section 434, para. 1, sentences 2 and 3, German Civil Code). We do, however, not assume any liability for public statements of the manufacturer or other third parties (e.g. advertising messages).
- Warranty claims of the customer imply that he has complied with his statutory obligation to inspect, to notify and to reject (Sections 377 and 381, German Commercial Code). If a defect is found during delivery, inspection or at a later stage, we have to be notified of such defect immediately in writing. In any case, obvious defects shall be notified in writing within two weeks as from delivery and defects that were unrecognizable during the inspection within the same period as from their discovery. If the customer fails to properly inspect the goods and/or to notify us, our liability concerning the not or not in good time properly notified defect in compliance with statutory provisions shall be excluded.
- If the delivered thing is defective, we can choose if we supplementary perform by removing the defect (rectification of defect) or by delivering a thing free of defects (compensation delivery). Our right to reject supplementary performance under legal conditions shall remain unaffected by that.
- We are entitled to depend the owing supplementary performance on the condition that the customer pays the due purchase price. The customer is entitled, though, to retain an adequate - proportionate to the defect - share of the purchase price.
- The customer shall give us the chance and adequate amount of time to render the owing supplementary performance and shall particularly hand over the rejected goods to us for testing purposes. In case of a compensation delivery, the customer shall hand over the defective good to us in accordance with the legal provisions. Supplementary performance does neither include the disassembly of the defective good nor the anew assembly if we were not obliged to assemble the product in the first place.
- If there is really a defect we will pay or reimburse the costs and efforts incurring for tests in connection with the supplementary performance, especially transport, shipping, work and material costs as well as costs for disassembly and re-assembly in accordance with the legal provisions. Otherwise, we are allowed to invoice the costs resulting from the unjustified warranty claim (especially costs for tests and transport) to the customer unless the absent defectiveness was unrecognizable for the customer.
- In urgent cases, e.g. if occupational or operational safety is at risk or to control out of scale damage, the customer shall be entitled to remove the defect himself and to claim from us replacement of the objectively required costs for that. The customer shall notify us immediately, before the action, if possible, if remedy measures are to be carried out by the customer himself. The customer has no right to remedy a defect himself if we would be entitled to refuse a respective supplementary performance according to statutory provisions.
- If supplementary performance measures failed or if a, to be specified by the customer, deadline for supplementary performance expired fruitlessly or is unnecessary according to legal provisions, the customer is entitled to withdraw from the purchase contract or to reduce the purchase price. The customer has, however, no right to withdraw from the contract in case of minor defects.
- As far as defects are concerned, any claims of the customer for warranty or compensation of vain costs apply in compliance with Section 8 only and are excluded for the rest.
Section 8 Other liabilities
- Unless otherwise specified in these GTC including the following provisions, we are liable in accordance with the legal rules and regulations in case of a violation of contractual and non-contractual obligations.
- We compensate for damages – irrespective of legal basis – within the scope of fault-based liability in case of willful intent or gross negligence. In case of simple negligence, we are liable subject to a milder liability standard in accordance with the legal provisions (e.g. for diligence in our own matters) only
- for damage resulting from harm to life, body or health;
- for damage resulting from the serious violation of a significant contractual obligation (obligation, the proper fulfilment of which only allows execution of the contract and on the compliance with which the contract partner may regularly trust); in this case, our liability shall, however, be limited to the compensation of the foreseeable, typically occurring damage.
- The liability limitations resulting from paragraph 2 shall also apply for violation of obligations by or in favor of persons, we are at fault or responsible for according to applicable legal provisions. They shall not apply if we fraudulently conceal a defect or have furnished a guarantee for the product quality and for customer’s claims in compliance with the Product Liability Act.
- As a result of a violation of obligation that is not a defect, the customer shall only be allowed to rescind or cancel the contract if we are responsible for the violation of obligation. A free right of termination of the customer (in particular according to Sections 651 and 649, German Civil Code) is excluded. For the rest, the legal requirements and consequences shall apply.
Section 9 Limitation period
- Deviating from the legal rules, the general limitation period for claims resulting from material defects and defects of title shall be one year as from delivery. As far as an acceptance is agreed, the limitation period commences at the moment of acceptance.
- The above periods of limitation shall also apply for contractual and non-contractual indemnification claims of the customer that are based on a deficiency of the goods unless the application of the regular limitation period (Sections 195 & 199, German Civil Code) would result in a shorter limitation period in individual cases. Customer’s indemnification claims according to Section 8, para. 2, sentences 1 and 2 (a) and according to the Product Liability Act shall only become time-barred upon expiry of the legal limitation periods.
- In case of repair of a product carried out by our company we grant a 6 months warranty on the repair as from delivery or acceptance of the respective product.
Section 10 Choice of law and Place of jurisdiction
- These GTC and the contractual relations between us and the customer shall be governed by the laws of the Federal Republic of Germany excluding the Convention on Contracts for the International sale of Goods.
- If the customer is a merchant within the meaning of the German Commercial Code, a body corporate organized under public law or a special asset subject to public law, the exclusive – also international place of jurisdiction for disputes directly and indirectly resulting from the business relation – shall be our business location in Löhne. The same applies if the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code. We are in any case entitled, though, to take action at the place of fulfilment of the delivery commitment according to these GTC or a preceding individual agreement or at the customer’s general place of jurisdiction. Overriding legal provisions, particularly on exclusive responsibilities, shall remain unaffected.