I. Scope of application
1. The following terms and conditions of sale shall apply exclusively and solely to commercial business persons and legal entities pursuant to § 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law for all our offers and contract conclusions.
2. Deviating, conflicting or supplementary general terms and conditions of sale shall not become part of the contract and are rejected, even if we are aware of them or execute the order, unless their incorporation is expressly agreed to in writing.
3. This General Terms and Conditions of Sale shall also apply to all future business transactions with the customer even if execute the business transaction in the knowledge of customer’s deviating or conflicting conditions.
II Offer and conclusion of contract, documents provided
1. In so far as an order is to be regarded as an offer, we may accept it within two weeks by sending an order confirmation or by sending the ordered products within the same period.
2. Our offers are subject to change and non-binding unless we have expressly declared them as binding.
3. We reserve our property rights, copyrights and other rights to all documents such as illustrations, calculations, etc. provided to the customer in connection with the placing of an order. The customer may only make them accessible to third parties with our written consent, regardless of whether we have marked them as confidential.
III. Terms of payment, set-off, retention
1. Our prices are Incoterms® 2020 Ex Works without packaging, unless otherwise specified in the order confirmation. Our prices do not include the statutory value added tax (VAT). The VAT will be shown separately in the invoice at the statutory rate on the date the invoice is issued.
2. A cash discount deduction requires an individual written agreement between us and the customer. The net purchase price (without deduction) is immediately due and payable upon receipt of the invoice by the customer unless the order confirmation specifies a different payment term.
3. If the customer is in default with the payment of one of our invoices, we reserve the right to declare all other claims due and payable with immediate effect, even if a different payment term was initially agreed to.
4. The customer shall only be entitled to offset claims, even if customer provides notices of defects or asserts counterclaims if the counterclaims have been legally established by a court of law by a legal binding and final award or acknowledged by us. The customer is only entitled to exercise a right of retention if customer’s counterclaim stems from the same contractual relationship. In the absence of a legal binding and final award or our of our acknowledgement, any subsequent orders and partial deliveries shall only be executed against pre-payment in full.
IV. Delivery and Time when an obligation is performed
1. Delivery dates or deadlines that have not been expressly agreed as binding are always nonbinding target dates. The delivery time stated by us shall only commence provided customer has clarified all technical questions and the customer has previously fulfilled all of customer’s obligations in a proper and timely manner. Any agreed upon delivery date is contingent that we are supplied by our own suppliers. We shall not be responsible for delays in delivery and performance due to force majeure, pandemics, or epidemics, in particular COVID-19, and due to external events/factors, which make delivery considerably more difficult or impossible for us, even if we agreed to binding dates of delivery and deadlines.
2. In the event a delivery is not intentionally or gross negligently delayed by us, the customer may claim a lump-sum compensation for each full week of the delay in the amount of 3% but not more than 15% of the delivery’s net value.
3. Additional legal claims and rights of the customer due to a delay in delivery are still applicable and remain unaffected.
4. We are entitled to make partial deliveries and render partial services at any time, provided it is reasonable for the customer.
5. If the customer does not accept the delivery or breaches other duties to cooperate (Mitwirkungspflicht), we are entitled to claim compensation for the damage caused by customer and any other additional expenses made by us. The risk of deterioration and risk of loss of the purchased goods shall transfer to the customer if delivery is not accepted or customer is in delay with any obligation owed to us (Schuldnerverzug).
V. Transfer of risk – shipping/packaging
1. Dispatch and shipment of goods is not insured and on account and at the risk of the customer. If the goods leave our warehouse/works, the risk of accidental deterioration or risk of loss of the purchased goods transfers to the customer irrespective of whether the goods are dispatched from the place of performance or who must pay the freight costs.
2. If the shipment is delayed for reasons for which the customer is responsible, the risk of loss shall pass to the customer upon receipt of the notification of ready for dispatch of the shipment. We are entitled to store the goods at the expense and risk of the customer.
VI Warranty, Liability
1. Customer can only make a claim for defective goods provided customer has inspected the goods and notified us in timely manner pursuant to § 377 of the German Commercial Code (HGB). The delivery is deemed to being approved provided that (i) a defect is obvious or a defect can be detected during the inspection, (ii) the quantity of the delivered goods deviates from the quantity ordered, or (iii) a wrong delivery has been made, and customer has not notified us about the foregoing sections (i) through (iii) in writing within 14 calendar days and before the goods are bonded (Verbindung), mixed (Vermischung), have been subject to further processing (Weiterverarbeitung) processing or assembled (Montierung).
2. A claim for defective goods does not exist in the event the defect is only an insignificant deviation from the agreed upon quality provided that the usability is only insignificantly impaired. A delivery of goods in excess or less than ordered of up to deviation 10% shall also not constitute a defect. In the case of custom-made products, up to 20% are permissible.
3. In the event that we are liable for the defective goods, we have the right to make a second attempt to deliver goods free of defect and, at our discretion, redeliver new and non-defective goods or, repair the defective goods (Nacherfüllung), hereby, excluding the customer’s right to cancel or withdraw from the contract (Rücktritt) or to reduce the purchase price (Minderung), unless statutory law entitles us to deny a second delivery (Nacherfüllung). The customer shall grant us a reasonable period of time for the redelivery or repair (Nacherfüllung). We have two attempts for a successful redelivery or repair, unless further attempts to remedy the defect are reasonable and acceptable to
the customer due to the subject matter of the contract. If the redelivery or repair has finally failed, the customer may, at customer’s discretion, demand a reduction of the purchase price or declare his withdrawal from the contract. In the event of only minor defects, however, the customer shall not be entitled to withdraw from the contract.
4. In the event the defects are successfully rectified, we carry the necessary expenses insofar as the expenses are not increased because the removal of the goods to a place other where the delivery was made unless such removal was within the intended scope of the contract.
5. The customer’s recourse rights against us shall only exist insofar as the customer has not entered into any agreements with its own customer and, thereby, expanding the statutory mandatory claims for defects.
6. The period of limitation for a warranty claim is one [1] year once the delivery of the goods has been made to our customer. The period of limitation of one [1] year is replaced with the applicable statutory period of limitation and does not apply to (i) a damage claim in the event of intent and gross negligence, and (ii) in the event of injury to life, body and health which are based on an intentional or negligent breach of duty on our part.
7. Insofar as we or our vicarious agents are not charged with gross negligence or intent, claims for damages by the customer – irrespective of the legal grounds – are excluded. This shall not apply insofar as we are compulsorily liable under the Product Liability Act for injury to life, body and health or due to default. The same shall apply in the event of a breach of an obligation which is so material for the achievement of the purpose of the contract that its fulfilment is a prerequisite for the proper performance of the contract and on whose observance the customer may regularly rely (Kardinalspflicht). In the event of a breach of a cardinal obligation, our liability shall be limited to the damage typically and foreseeably incurred.
8. We shall only be liable for damage other than on the goods if the risk of such damage is obviously covered by the guarantee of quality and durability.
9. The liability of the Purchaser is limited to the amount of its product liability, extended product liability and property liability insurance.
VII Retention of title
1. The delivered goods shall remain our property and are subject to retention of title until all claims, including all current account balance claims, to which we are entitled against the customer now or in the future have been settled. In the event of a breach of contract by the customer, e.g. default in payment, we shall be entitled to take back the goods subject to retention of title after setting a reasonable deadline. If we retake such goods, this shall constitute a withdrawal from the contract. If we seize such goods, this shall constitute a withdrawal from the contract. We are entitled to commercialise such goods after the retake. After deduction of a reasonable amount for the costs of commercialisation, the proceeds shall be set off against the amounts owed to us by the customer.
2. The customer shall treat the goods subject to retention of title with care and insure them adequately at replacement value as if they were new against fire, water and theft at its own expense. Maintenance and inspection work that becomes necessary shall be carried out by the customer in good time at its own expense.
3. The customer is entitled to sell and/or use the goods subject to retention of title in the ordinary course of business provided that the customer is not in default of payment. Pledges or transfers by way of security are not permitted. The claims arising from the resale or any other legal reason (insurance, tort) with regard to the goods subject to retention of title (including all balance claims from the current account) are assigned to us in full by the customer here and now by way of security; we hereby accept the assignment. We revocably authorise the customer to collect the claims assigned to us for his account in his own name. The direct debit authorisation can be revoked at any time if the customer does not properly fulfil his payment obligations. The customer is also not authorised to assign this claim for the purpose of collecting the claim by way of factoring, unless the obligation of the factor is simultaneously established to effect the counter-performance in the amount of the claims directly to us for as long as we still have claims against the customer.
4. Any processing or transformation of the goods subject to retention of title by the customer shall in any case be carried out on our behalf. If the goods subject to retention of title are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the other processed items at the time of processing. The same shall apply to the new item created by processing as to the reserved goods. In the event of inseparable mixing of the reserved goods with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other mixed items at the time of mixing. If the customer’s item is to be regarded as the main item as a result of the mixing, the customer and we agree that the customer shall transfer co-ownership of this item to us on a pro rata basis; we hereby accept the transfer. The purchaser shall hold our sole or co-ownership of an item thus created in safe custody for us. In the event of access by third parties to the goods subject to retention of title, in particular seizures, the purchaser shall point out our ownership and notify us immediately so that we can enforce our ownership rights. Insofar as the third party is not in a position to reimburse us for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable for these.
5. We are obliged to release the securities to which we are entitled insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%; in this respect, the choice of the securities to be released is incumbent on us.
VIII Place of performance, place of jurisdiction, applicable law
1. The place of performance, as defined in § 5 EuGVVO, and the exclusive jurisdiction for any dispute between the parties are the Courts of Heilbronn, Germany. We are also entitled to bring a lawsuit against the customer at customer’s place of residence and/or principal place business.
2. The foregoing section VIII subsection 1. is also applicable to any deliveries and payments (including actions on cheques and bills of exchange).
3. The relations between the contracting parties shall be governed exclusively by the substantive law applicable in the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 and the Private International Law of the Federal Republic of Germany is excluded.
PFITZER Verbindungstechnik GmbH
Max-Planck-Str.4
D- 74211 Leingarten-Germany
Fon: +49 7131 797769 0
Fax: +49 7131 797769 10
kontakt@pfitzer-verbindungstechnik.de
https://pfitzer-verbindungstechnik.de