General Terms of Sale and Delivery
PR-Technik GmbH · Bustadt 6 · 74360 Ilsfeld (Germany)
Stand: Oktober 2009
§ 1 General
1. The following terms and conditions are exclusively applicable for all
quotations submitted by us and for all contracts entered into with us. Any
pricelists handed in or dispatched by us are to be regarded as quoted prices
without commitment. The customer's purchasing terms and conditions apply
only if they are acknowledged by us. Such acknowledgement is to be effected
in writing. No verbal subsidiary agreements have been entered into. Our
terms and conditions of sale are also applicable if we effect delivery to
the customer without reservation in the knowledge of terms and conditions of
the customer which oppose or deviate from our terms and conditions of sale.
2. If we send the customer documents relating to our products, this
transmission represents only a request to the customer to submit us an offer.
We reserve the right to make alterations in the course of technical progress.
Any offer is subject to prior sale. A contract does not become effective
until our confirmation of order or the delivery of the goods.
§ 2 Prices and Payment
1. Unless otherwise specified in our confirmation of order, our prices are
in Euro, net ex works.
These prices do in particular not include value added tax (VAT), costs for
customs and excise, insurance, transport, unloading and packaging. VAT - if
applicable - will be calculated separately at the statutory rate on the date
of invoicing.
2. We reserve the right to dispatch goods cash on delivery or cash before
delivery. In the event of default of payment on the part of the customer
interest will be charged, acc. to section 288 sub-section 2 of the German
Civil Code, at the rate of 8% above the basic rate of the Federal Bank. We
are however entitled to prove a higher damage caused by delay.
3. If, after conclusion of the contract, a significant deterioration of the
customer's financial condition is recognized which endangers our claims for
payment, or if the customer makes default, we may hold back outstanding
deliveries and demand immediate payment of all invoices, even of those which
are not already due, as well as advance payments and provision of security
for future deliveries. If the customer cannot raise this advance payment or
the security within a reasonable period of time fixed by us, we may withdraw
from the contract.
4. Payments by way of bill of exchange or cheque will only be accepted in
payment and by special agreement and only by eligibility for rediscount and
against consideration for the costs payable by the customer in cash, in
particular discounts, bills, banking charges and stamp duties.
5. The customer is only entitled to set off rights if his counterclaims have
been legally established and are undisputed or have been acknowledged by us.
Any possible lien can only be exercised if a counterclaim results from the
same contractual relationship.
§ 3 Delivery and Delivery Periods
1. If any delivery date is exceeded, the customer is entitled to set a
reasonable time extension (at least four weeks) and may, upon fruitless
expiry of this term, withdraw from the contract. The customer is entitled to
claim for damage only in the scope of section 5 sub-sections 5 and 6 of the
present General Terms.
2. Cases of force majeur and unforeseen events, in particular production or
delivery failures, either at our company or that of our suppliers, release
us from our obligation for the duration of the interruption and during an
appropriate initial period and to the extent of their effect. During this
period, the customer can neither cancel the contract nor claim damage,
unless the failure is caused by us deliberately or results from gross
negligence. This also applies if the failure occurs during an existing delay.
If such events have an affect on the performance capacity, we are entitled
to adapt the contract accordingly or, if the complete discharge is not
economically tenable, to cancel the contract either wholly or in part.
3. Shipments are, as a matter of principle, effected "ex works" (EXW
Incoterms 2000) our premises for the customer's account. Accordingly
transfer of risk takes place when the object of supply is put at the
disposal of the first carrier for transmission to the cus-tomer.
4. At the request of the customer, we will have the consignment covered by
transport insurance for which the customer shall bear any costs incurred.
§ 4 Reservation of ownership
1. We remain the owners of the goods supplied by us until all payments due
to us, including future debts arising from the business relationship with
the customer, have been discharged in full.
2. On default of payment, the reservation of ownership entitles us to
recover the reserved goods without prior notice. In this case, the customer
is obliged to surrender the goods. A previous withdrawal from the contract
on the part of the vendor is not necessary. The recovery of the reserved
property is not considered a withdrawal from the contract, even if this is
not expressly indicated.
3. The customer is obliged to treat the purchased article with care and is
in particular obliged to arrange for adequate insurance against fire,
water-damage and theft for replacement value of the same at his own expense.
4. The customer is entitled to resell the object of supply in the ordinary
course of business. However, he herewith assigns to us in the amount of our
final invoice (incl. VAT) all claims against his purchasers or third parties
accruing from the further sale to his buyers or third parties, and
independent of whether the object of supply was resold with or without it
being processed. The customer remains entitled to collect this claim, even
subsequent to the assignment. The right of the customer to resell or collect
claims for payment shall extinguish as soon as he gets into arrears for even
one invoice or verges on insolvency.
5. The customer shall always perform any processing or machining and any
transformation of the goods on our behalf without any obligation being
incurred by us as a result.
If the goods are permanently connected to any other object, we shall acquire
co-ownership of the new object in proportion to the invoice value of the
goods to the other connected objects applicable at the time of such
connection. However, even though we acquire co-property on the new object,
we shall only be held liable for claims caused by our goods within the scope
of sections 5 and 6. If any claims are raised against us directly by a third
party who has purchased the goods from our customer, we have a right to
exemption towards our customer, in so far as we would not be liable within
the scope of sections 5 and 6 towards him.
6. In the case of cheque/bill of exchange procedures, our reservation of
ownership shall not extinguish until the customer has discharged all his
liabilities to us in full.
7. Neither the discontinuance of any individual claim in a current account
nor the settlement of a current account shall invalidate our reservation of
ownership in all stages. If any claim assigned to us from the resale of
goods is incorporated by the customer into an existing current account
relationship with his customers, the current account claim is to be assigned
to us in the amount of our final invoice (incl. VAT). Upon settlement, this
amount will be replaced by the acknowledged balance, assigned to us in the
amount of our original claim.
8. We undertake to release the securities to which we are entitled insofar
as their value exceeds the claims to be secured by more than 20%, unless
these have been discharged.
§ 5 Warranty
1. The claims of the customer which are based on warranty are statute-barred
after one year starting with the delivery of the object of supply.
2. The warranty rights of the customer are conditional on the customer's
having properly fulfilled his examination and complaint obligations in
accordance with Art. 38, 39 of the UN Convention on the International Sale
of Goods (CISG) or with section 377 HGB (German Commercial Code). Written
notice of detectable deficiencies must be sent to us without delay, however
at the latest within 10 days of receipt of the goods. The receiving date of
such notification by us is decisive.
3. We are liable for defects to the extent that the delivered article will
be repaired or replaced at our option if it has provably been rendered
useless or its serviceability impaired as the result of any circumstance
occurring prior to the transfer of risk. Replaced parts are our property. We
shall exercise this option right within two weeks starting with the
assertion of the respective rights on the part of the customer. Otherwise
the option right shall be exercised by the customer.
If any repair or replacement delivery is not effected within an appropriate
term, taking into account our delivery facilities, the customer is entitled
to a cancellation of the contract or to a reduction of payment (abatement).
We are liable for substantial outside products only after previous judicial
recourse against the supplier of the outside product. We assign our warranty
claims against the supplier of the outside product to the customer.
4. The purchaser shall give us the necessary time and opportunity to effect
all repairs and replacement deliveries which seem necessary at our
discretion; otherwise we shall be released from the warranty responsibility.
5. In the event of intention or gross negligence on our part, or on the part
of our legal representatives and executives, regardless of the cause in law
whatsoever, we shall be liable according to the statutory provisions unless
no further restrictions result from the following provisions.
In the event of culpable violation of essential contractual obligations as
well as in the event of gross fault or intention of persons employed in the
performance of our obligations, our liability is limited to compensation for
damage which can be typically foreseen. Any further claims of the customer -
regardless of the cause of law - are excluded.
6. No liability is assumed in particular for damages caused as a result of
the following:
a) any consequential losses;
b) in the event of inappropriate or improper use, of non-compliance with our
prescribed instructions, faulty working drawings of the customer, incorrect
assembly or operational start-up by the customer or others, natural wear,
incorrect or negligent treatment, improper maintenance, unsuitable operating
materials, chemical, electrochemical or electrical influences, unless we are
responsible for them;
c) in the event of improper repair by the customer himself or by a third
party for any resulting consequences;
d) in the event of changes to the object of supply by the customer or a
third party without our previous consent for any resulting consequences;
e) in the event of the object of supply being sold to a third party without
including in the scope of supply the PR-Technik operating instructions
relating to the respective object of delivery for any resulting consequences.
7. Our non-liability does not extend to claims in accordance with sections
1, 4 of the German Product Liability Law. To the extent that our liability
is otherwise excluded or limited, this also applies to the personal
liability of our employees, workers, staff members, representatives and
vicarious agents.
8. If we are held liable in a case of section 5 sub-sections 5 -7 by a third
party although our liability is excluded towards the customer who has resold
the goods to this third party, we have a right to be indemnified by our
customer against the claims of this third party.
§ 6 Samples, drawings, tools
We retain our title and copyright to all illustrations, drawings,
calculations and other documents; it is not permitted to make these
available to third parties. This applies especially to any written documents
which are designated "confidential"; our express written consent must be
obtained before these are passed on to third parties. This is also
applicable if costs were calculated for tooling to be manufactured on
commission.
§ 7 Concluding provisions
1. Assurances and understandings with our representatives and employees
require our express written confirmation to become effective.
2. The customer may assign his rights from this contract to others only with
our consent. The same applies for the assignment of claims against us.
3. Our legal relations to the customer are governed by German law.
4. Unless otherwise arising from the confirmation of order, Ilsfeld,
Germany, shall be the place of performance for both sides of these legal
relations.
5. Provided the purchaser is a sole trader, a company, a corporation, a
legal entity in public law or a separate estate under public law, the
district court or county court Heilbronn, Germany, is accepted as the
competent court for all contractual and non-contractual disputes. We are,
however, also entitled in individual cases to take action at the commercial
domicile of the customer.
6. If any of the above provisions should be wholly or partly ineffective,
this shall not affect the effectiveness of the remaining provisions.
The parties undertake to agree on an alternative provision which will as
closely as possible fulfill the commercial purpose of that clause, which is
possibly ineffective.