General Terms of Sale and Delivery of pm-tech GmbH
- All supplies and services are governed by these general terms (GTC) as well as any separate contractual stipulations. Terms which conflict with or derogate from these GTC shall not become part of the contract, unless pm-tech has expressly confirmed this. This also applies for the case that pm-tech carries out the delivery in the knowledge of conflicting terms or accepts payments toward the purchase price.
- The assignment of rights as well as the transfer of obligations by the ordering party requires the express consent of pm-tech. If a third party assumes obligations of the ordering party under the contract, the ordering party continues to be liable to us, unless pm-tech expressly consented to an assumption of debt with debt-discharging effect.
II. Offer and Conclusion of Contract
- The order by the ordering party constitutes a binding offer. The offers of pm-tech are subject to change and non-binding with respect to price, quantity, delivery, time and possibility of delivery and are only a request for submission of an offer to the purchaser. The ordering party is bound to his order for four weeks. The purchase agreement has been concluded if pm-tech confirms the acceptance of the order within this time limit in writing or in electronic form or has carried out the delivery. pm-tech is however obligated to notify any rejection of the order without delay in writing or in electronic form after clarification of the deliverability.
- The ordering party is not entitled to cancel any binding order or to rescind the purchase agreement. Statutory rights of rescission as well as rights of rescission which are expressly mentioned in these GTC remain unaffected. If an order or a concluded contract shall nevertheless be cancelled at the request of the ordering party without a right of rescission applying, pm-tech is entitled to accept the cancellation of the agreement only in exchange for payment of damages and reimbursement of expenses. In the event of a rescission within two months prior to the agreed delivery date pm-tech can request a flat payment of damages and expenses in the amount of 15 % of the purchase price and in the event of the rescission in the third month prior to the delivery date of 5 % of the purchase price. The damage amount shall be set higher or lower if pm-tech proves higher or the ordering party lower damages.
- Supplements, changes and side agreements by phone or orally also require written or electronic confirmation by us to be valid.
- For the scope of supply the order confirmation by pm-tech is determinative.
- pm-tech reserves ownership and copyrights to cost proposals, offers, illustrations and documents. The documents may not be made accessible to third parties.
III. Price and Payment
- In the absence of a particular agreement the prices apply ex works including loading at the works premises, but excluding packaging, destination fees, freight and unloading. The prices are subject to VAT in the respective statutory amount.
- In the absence of a particular agreement the payment shall be made without any deduction to the account of pm-tech, in particular:
- 1/3 down-payment after receipt of the order confirmation
- 1/3 as soon as the ordering party has been informed that the main parts are ready for shipping
- the remaining amount within one month after transfer of risk.
- If the ordering party is in default of due payment obligations which at the date of default amount to at least 25 % of the total claims of pm-tech arising from the business relationship, and he does not pay such claim fully within a subsequent period to be set of at least two weeks, all claims of pm-tech arising from the business relationship shall become due for payment immediately upon expiry of the subsequent period. pm-tech shall expressly refer to this legal consequence when setting the subsequent period. The same applies if bills of exchange or cheques of the ordering party are not redeemed. pm-tech is in such cases also entitled to undertake the further fulfillment of the contractual obligations only simultaneously and in exchange for payment of the respectively owed compensation. The statutory rights of pm-tech in the event of default of the ordering party shall remain unaffected.
- The ordering party only has the right to withhold payments or set off counterclaims as far as his counterclaims are undisputed or have been finally adjudicated.
IV. Delivery Time, Delayed Delivery
- Delivery dates or delivery periods are non-binding unless they are expressly stated by pm-tech to be binding. If subsequent contract changes are agreed, if necessary a new delivery date or delivery period shall be stipulated. The compliance with binding delivery periods by pm-tech requires that all commercial and technical questions between the parties have been clarified and the ordering party has fulfilled all his obligations e.g. provision of the necessary public authority certificates or permits or making a down-payment. If this is not the case the delivery period shall be reasonably extended. This does not apply as far as pm-tech is responsible for the delay.
- The compliance with the delivery period is subject to the condition that pm-tech itself receives proper and timely deliveries. Any expected delays shall be notified by pm-tech as soon as possible.
- The delivery period has been complied with if the delivery item has left the works of pm-tech or its suppliers by its expiry or the readiness for shipment has been notified. If an acceptance must be made the acceptance date shall be determinative – except in the case of a justified refusal – and in the alternative the notification of the readiness for acceptance.
- The ordering party can four weeks after exceeding a non-binding delivery date or a non-binding delivery period request pm-tech in writing to deliver within a reasonable period. Through this request pm-tech shall be in default. In the event of default the ordering party can also set pm-tech a reasonable subsequent period in writing indicating that after the expiry of the time limit he will reject the acceptance of the article of sale. After an unsuccessful expiry of the subsequent period the ordering party is entitled to rescind the purchase agreement by written notice.
- If a binding delivery date or a binding delivery period is exceeded, pm-tech shall be in default already with the passing of the delivery date or the delivery period. The rights of the purchaser shall then be governed by section 4 sentence 3 and 4.
- If the non-compliance with the delivery period is due to force majeure, labor disputes or other events outside the scope of influence of pm-tech, the delivery period shall be reasonably extended. pm-tech shall inform the ordering party of the start and the end of such circumstances as soon as possible.
V.Transfer of Risk, Acceptance, Right of Rescission Pm-tech
- The risk shall pass to the ordering party once the delivery item has left the works, in particular also if partial deliveries are made or pm-tech has assumed other services, e.g. the shipping costs or delivery and set-up. As far as an acceptance must be made, it shall be determinative for the transfer of risk. It must be carried out without delay on the acceptance date, in the alternative after notification by
pm-tech of the readiness for acceptance. The ordering party may not refuse the acceptance in the event of a non-material defect.
- If the shipment rsp. the acceptance is delayed or not made as a result of circumstances which are not attributable to pm-tech the risk shall pass to the ordering party starting from the date of notification of the readiness for shipping rsp. acceptance. pm-tech agrees to obtain the insurance requested by the ordering party at his expense.
- The ordering party has the right to inspect the article of sale at the agreed place of acceptance within eight days after receipt of the notification of availability and has the duty to accept the article of sale within that time limit. If the offered article of sale has defects which are not completely eliminated after an objection within the above mentioned time limit within a further eight days, the ordering party can reject the acceptance.
- If the ordering party remains in default of acceptance of the article of sale for longer than fourteen days after the receipt of the notice of availability due to fault, after the setting of a subsequent period of a further fourteen days pm-tech is entitled to rescind the contract. No setting of a subsequent period is required if the ordering party earnestly or definitively refuses the acceptance or clearly is also not able to pay the purchase price within such period.
- Under the conditions of the above para. 4 pm-tech is entitled to claim additional damages of 15 % of the purchase price. The damage amount shall be set higher or lower if pm-tech proves higher or the ordering party lower damages.
- If pm-tech does not make use of the rights set forth in para. 4 and 5, he can fully dispose of the article of sale and in its place deliver under the terms of the contract within a reasonable period an article of sale of an equivalent type.
- The statutory rights of pm-tech in the event of default of acceptance of the ordering party shall remain unaffected.
- Partial deliveries are permissible as far as this is reasonable for the ordering party.
VI. Retention of Title
- pm-tech reserves the ownership of the delivery item until receipt of all payments under the supply agreement. If the ordering party is a legal person under public law, a special public law fund or a merchant where the contract belongs to the operation of his business, the retention of title applies for all claims of pm-tech from the ongoing business relationship against the ordering party. pm-tech agrees upon request of the ordering party to release security which he has provided as far as it is not only temporarily no longer required to secure the existing claims, in particular as far as they exceed the value of the secured claims and unpaid claims by more than 10 %. The selection of the security is the responsibility of pm-tech.
- In the event of default on payment pm-tech is entitled to take back the delivery item after an unsuccessful warning notice and rescission of the purchase agreement. The ordering party is obligated to return the delivery item. The ordering party cannot assert a right of retention unless it is based on the purchase agreement. This also applies in the event of other conduct of the ordering party in breach of contract. All costs related to taking back the item and the realization of the article of sale shall be borne by the ordering party. The realization costs shall without proof amount to 10 % of the realization proceeds including VAT. They shall be set higher or lower if pm-tech proves higher or the ordering party lower costs. The proceeds shall be credited to the ordering party after deduction of the costs and other claims of pm-tech related to the purchase agreement.
- On the basis of the retention of title pm-tech can only request return of the delivery item if pm-tech has rescinded the agreement. In the case of seizures or other impairment of rights by third parties pm-tech shall inform the ordering party without delay and refer the third party to the right of retention of pm-tech without delay. The ordering party bears all costs which must be paid to eliminate the impairment of rights and to obtain the article of sale again as far as they cannot be collected from third parties.
- An application for opening an insolvency proceeding concerning the assets of the ordering party entitles pm-tech to rescind the agreement with immediate effect and to request the immediate return of the delivery item.
- The ordering party is entitled to resell the delivered item in the ordinary course of business. He however hereby assigns to pm-tech in advance all claims which arise from the resale against the customer or third parties. pm-tech accepts the assignment. The ordering party is authorized to collect such claims also after the assignment. The right of pm-tech to itself collect claims shall not be affected thereby. pm-tech however agrees not to collect the claim as long as the ordering party properly complies with his payment obligations or the collection authorization is notrevoked or no application for an opening of an insolvency proceeding is made. pm-tech can otherwise request that the ordering party disclose the assigned claims and the debtors thereof, provide all information necessary for the collection, hand over the documents and inform the debtors of the assignment as far as not already done by pm-tech.
- The ordering party has the duty to keep the article of sale in proper condition during the duration of the retention of title and have all maintenance work specified by the manufacturer and necessary repairs carried out without delay – apart from emergencies – by pm-tech or a workshop recognized by the manufacturer for the handling of the article of sale.
- If the delivery item is resold together with other goods which do not belong to pm-tech the claim of the ordering party against the customer in the amount of the delivery price stipulated between pm-tech and the ordering party is deemed to be assigned.
- The adaptation or re-forming of items which are subject to a retention of title by the ordering party shall always be made on behalf of pm-tech. If the item subject to a retention of title is adapted with other objects not belonging to pm-tech,
pm-tech shall acquire the co-ownership of the new object in the ratio of final invoice amount of the item subject to a retention of title in relation to the procurement price of the other adapted objects at the time of adaptation. If goods of pm-tech are bound together with other movable objects into a single object or are inseparably mixed together and if the other object is to be considered as the main object, the ordering party shall transfer to pm-tech pro rata the co-ownership as far as the main object belongs to him. The ordering party shall keep the owned or co-owned item without charge for pm-tech. In other respects the same applies for the object created through the adaptation, re-forming, binding together or mixing as for the items subject to a retention of title.
VII. Warranty Claims of the Ordering Party
- Documents belonging to the offer such as illustrations, drawings, weight and measurement information are only approximately determinative if they have not been expressly designated as binding or pm-tech expressly makes a guarantee for certain qualities. Values indicated in the documents and operating instructions are non-binding estimated values. The specifically attainable values can deviate therefrom and are dependent on the quality of the used products as well as the external influences and conditions on site.
- pm-tech is not liable on the basis of public statements by pm-tech, the manufacturer /importer or his agents if pm-tech was not aware of the statement and did not reasonably have to be aware thereof, the statement was already corrected at the date of the purchase decision or if and to the extent the ordering party cannot prove that the statements influenced his purchase decision.
- pm-tech is not liable for defects which insignificantly reduce the value or the functionality of the object. An insignificant defect exists in particular if the defect disappears by itself within a short time or can be eliminated by the ordering party with insignificant expense.
- A warranty is excluded for defects or damages arising due to the following grounds and as far as pm-tech is not responsible for them:
- Designation of design or material by the ordering party
- Defective assembly or putting into operation by the ordering party or third parties
- Defective operation or use of inappropriate operating materials
- Non-compliance with operating instructions and maintenance requirements
- Improper use or overuse of the device
- Natural wear and tear
- Installation of parts from third parties (products of other manufacturers) which are not approved in the operating manual or by express written declaration of pm-tech
- Assembly or change of the subject matter of the contract by the ordering party or a third party without consent of pm-tech
- Defective installation and improper use of the delivery item
- Claims of the ordering party due to a defect in the case of a commercial sale require that he inspects the delivered products without delay after transfer of risk and that he has notified outstanding defects to pm-tech without delay.
- For the settlement of claims due to defects the following applies:
- The ordering party shall notify the claims to pm-tech without delay.
- The replacement performance shall at the option of pm-tech occur through repair or replacement delivery.
- Replaced parts shall become the property of pm-tech. In settling warranty cases with foreign customers pm-tech shall in general not assume any customs duties and other special costs relating to the place of use rsp. country to which the articles of sale are exported.
- If the ordering party is a business enterprise, pm-tech shall in the event of replacement delivery owe the delivery of a defect-free item but not the deinstallation of the defective and the installation of the defect-free item or the indemnification of the costs incurred therefor.
- pm-tech shall be given time and opportunity to carry out the necessary replacement work after agreement on the date. pm-tech reserves the right to have the replacement work carried out in a workshop which appears appropriate to it.
- For the repair, supplementing or exchange of delivered parts the warranty period amounts to one year starting from the date of replacement performance.
- For parts supplied by third parties which are the subject matter of the purchase agreement the ordering party shall initially approach the respective supplier regarding repair. The purchaser only has repair claims against pm-tech if the manufacturer / importer or supplier does not provide repair within a reasonable period.
- The ordering party shall provide pm-tech with all necessary information to determine and eliminate the defect. As long as the ordering party does not comply with this duty of cooperation, pm-tech can refuse replacement performance.
- If the replacement performance is not successful, the right of the ordering party remains unaffected to rescind the agreement or request a reduction in price (reduction of the compensation).
- All claims due to a defect are subject to a limitation period of one year after delivery. For defects asserted but not eliminated within the warranty period the warranty shall apply until the elimination of the defect. For that period the limitation period is suspended for such defect. It however ends in such cases three months after notice by pm-tech that the defect is eliminated or that no defect exists. The warranty is excluded in the case of the supply of old or used materials or spare parts.
- Claims for damages and reimbursement of expenses shall remain unaffected as far as they are not excluded under section VIII. Any statutory indemnification claims of the ordering party also remain unaffected.
- Damage claims, regardless of the legal ground, are excluded unless willful actions or gross negligence of pm-tech are involved or pm-tech is liable for willful actions or gross negligence of its legal representatives or agents.
- The above release from liability does not apply if the damage claim results from the violation of material contractual obligations. As far as pm-tech negligently violates a material contractual obligation, its duty of indemnification is limited to the reimbursement of the typically foreseeable damages.
- Liability for damages due to injury for life, body or health as well as liability under statutory product liability regulations shall remain unaffected.
- As far as the liability of pm-tech is excluded or limited, this also applies for the personal liability of its employees, staff, representatives and agents.
- The ordering party shall notify damages and losses for which pm-tech is responsible to pm-tech without delay in writing or have them recorded by pm-tech.
IX. Use of Software
- As far as software is included in the scope of delivery, the ordering party is granted a non-exclusive right to use the delivered software including its documentation. It shall be provided for use on the delivery item designated for such purpose. Use of the software on more than one system is prohibited.
- All other rights to the software and documentation including the copies shall remain with pm-tech rsp. the software supplier. The granting of sublicenses is not permissible.
X. Miscellaneous, Applicable Law, Place of Jurisdiction
- If one or more of the above conditions are invalid, the remaining conditions remain unaffected thereby. pm-tech and the ordering party are in such a case obligated to replace an invalid condition with a valid one which comes as close as possible to the commercial purpose of the invalid condition.
- The place of performance for all liabilities under the supply agreement is Regen, Germany, as far as no different place of performance is agreed.
- The law of the Federal Republic of Germany subject to the exclusion of the UN sale of goods law has exclusive application for all legal relationships between pm-tech and the ordering party.
- As far as the ordering party is a merchant and the supply agreement belongs to the operation of his commercial business, the exclusive place of jurisdiction for disputes arising from the supply agreement is the court of jurisdiction at the seat of pm-tech. pm-tech is however also entitled to file a claim at the seat of the ordering party.