1. General provisions:
1.1. All orders shall be accepted and executed by us based on the following terms of sales. They shall also apply to future deliveries without being announced repeatedly.
1.2. If deviating from the following terms of sales, terms of the purchaser shall not bind us even if we do not expressly object to them, unless they are confirmed by us in writing.
1.3. By placing orders, the purchaser expressly acknowledges the terms of delivery. All side agreements, in particular oral arrangements or orders by phone must be confirmed by us in writing or by way of a form in order to bind us. Oral arrangements preceding the conclusion of the contract which were not confirmed in writing shall not be effective.
2.1. The offers are subject to change without notice in terms of price, quantity, period of delivery and availability.
2.2. Orders shall become binding upon us only by written order confirmation, invoice or delivery note.
2.3. In case of sale by sample, these samples shall only warrant a professionally tested consistency; no assurances whatsoever regarding any suitability for use shall be given. Unless specified as being binding, the pictures, drawings, lists, brochures, etc. relating to our goods and the data contained in them are only roughly authoritative. Changes regarding design, form and workmanship not significantly impairing the intended use shall not entitle to complaints and rescission.
2.4. We expressly reserve the ownership and the exploitation rights under copyright in cost estimates, drawings, application proposals and other offer documents without restriction. These documents may be made accessible to third parties only with our written consent.
3. Place of performance, place of jurisdiction, choice of law:
3.1. Place of jurisdiction shall be Landshut or the seat of the contracting party at our choice.
3.2. Place of performance shall be Altheim.
3.3. The contractual relationship shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
4.1. We charge to the purchaser the prices valid at the time of delivery plus the statutory VAT in its respective amount. The prices are net, ex works and without cost of packaging.
4.2. If we generally increase the prices between the time of concluding the contract and the delivery, the respectively new list price shall apply in case of long-term supply contracts. In case of individual orders, the customer shall be entitled to rescind the contract within a period of 2 weeks after notification of price increases. This shall not apply to price changes caused by a change of the applicable VAT rates.
5.1. Unless otherwise agreed upon, the payments shall be due 30 days after the date of issue of the invoice.
5.2. We grant cash discount deductions only in case of previous express written agreement. A cash discount deduction regarding new invoices shall be inadmissible if older invoices are still unsettled. A cash discount deduction shall also be excluded if the payment takes place by bill of exchange.
5.3. We shall not be obliged to accept bills of exchange or cheques. If we accept bills of exchange or cheques, the acceptance shall take place on account of payment. In case of collecting bills of exchange, the discount and collection expenses at bank rates shall be charged; they shall be due for payment immediately and without deduction.
5.4. If the customer is in default in payment, we shall be entitled to claim default interest pursuant to the statutory provisions pursuant to § 288 BGB [German Civil Code]. The assertion of further damage caused by the default remains reserved upon furnishing of proof. If there is justified doubt that the claim for consideration is endangered due to lack of customer’s ability to pay or if the customer is in default in payment of invoices due for payment, we shall be entitled to carry out the further delivery concurrently with the payment or against provision of a security. We are not obliged to offer the goods to the customer on-site concurrently with the payment; a written offer of the delivery concurrently with the payment shall constitute the default in acceptance of the customer if the customer does not provide a security amounting to the value of the goods when receiving the written offer of delivery.
5.5. The customer shall not be entitled to offset against contested receivables or receivables which are not legally ascertained. A right of retention shall be excluded unless the notification of defects has been acknowledged by us or is uncontested or the counterclaim has been legally established or a legal dispute in this respect is ready for decision.
5.6. In case of failure to accept ordered goods, we shall be entitled to claim damages compensating for expenses already paid and lost profit as well as a reasonable agency fee caused by the non-performance amounting to a lump-sum of 30% without furnishing proof. The assertion of higher damage upon furnishing of proof shall not be excluded due to that. The customer shall be free to furnish proof that no damage or damage below the lump-sum occurred.
6. Shipment and insurance:
The goods are shipped at our choice for invoice and at the risk of the purchaser. This shall also apply in case of franco, FOB or CIF deliveries. We shall not bear any responsibility whatsoever for transport difficulties of any kind.
We take back packaging to the extent that we are obliged to do so by statutory regulations and are not released from this obligation by waste disposal associations or communities with this purpose.
8. Delivery and impediments to the contract:
8.1. All impediments beyond our responsibility, in particular cases of force majeure, operational breakdowns, impaired delivery of raw and auxiliary materials and operating supplies, lack of loading possibilities, official measures, strikes, lock-outs and the like shall release us from the obligation to deliver for the duration of the impediment. If the impediment lasts longer than 8 weeks, each contracting party shall be entitled to rescind the contract excluding any further claims. In case of partial deliveries, the above regulation shall apply correspondingly to outstanding partial performances. In case that our sub-suppliers fail to supply us we shall not be obliged to make substitute purchases from third parties. We shall be entitled to distribute the available stocks to the existing orders at our due discretion.
8.2. Unless confirmed in writing, the dates of delivery are subject to change without notice. If a date of delivery is fixed in the individual case and we are in default in delivery, the customer shall set a reasonable period of grace declaring that the customer will refuse to accept performance or rescind the contract after expiry of the period of grace. Usually, a period of grace amounting to 20 days shall be deemed as reasonable.
8.3. Clause 8.2. shall apply correspondingly if we are obliged to carry out a substitute delivery due to a defect of the product at our fault and fail to carry out such substitute delivery within a reasonable period of grace.
8.4. If the default in delivery or the impossibility to supply the customer is at our fault, customer’s claims for damages due to negligence shall be excluded. In any case, the liability for damage and consequential damage shall be limited to the value of the order.
9. Custom-made products, small quantities:
9.1. In case of custom-made products in small batches, we shall be entitled to charge an addition to the price pursuant to a separate calculation and to invoice the packaging costs which differ from the standard cost.
9.2. In case of custom-made products, we shall be entitled to exceed or fall below the quantity agreed in the purchase contract by 20 %.
10. Notifications of defects:
10.1. Complaints regarding extent and quality of the delivery may be raised only immediately, § 377 HGB [German Commercial Code], at the latest within 8 days. Hidden defects are to be notified immediately upon discovery, notifications of defects after expiry of 6 months after delivery shall be excluded.
10.2. Our written and oral application recommendations made for supporting the purchaser/processor due to available experiences to the best of our knowledge and corresponding to the current level of knowledge in science and practice shall be non-binding and shall not constitute a contractual legal relationship, a pre-contractual legal relationship, a claim due to counselling or a collateral obligation under the purchase contract. They shall not release the purchaser from the responsibility to test the suitability of our products for the intended use.
10.4. If the customer notifies defects in proper and justified manner we shall be entitled to subsequent improvement or substitute delivery. If we waive our right to substitute delivery/subsequent improvement or if we fail to carry out the substitute delivery/subsequent improvement within a reasonable period of time to be set or if the substitute delivery or subsequent improvement again is defective, the customer shall be entitled to rescind the contract or claim reduction of the purchase price at its choice. In case of purchase of a group of assets this right shall only refer to the defective parts.
10.5. Claims for damages against us due to slight negligence and against our assistants shall be excluded unless a duty material for the purpose of the contract was breached.
10.6. We shall only be liable for indirect damage and consequential damage if we or our assistants are at fault in grossly negligent or intentional manner. In these cases, our liability shall be limited to the value of the goods of the defective delivery.
11. Reservation of ownership:
11.1. Until complete payment of the purchase price including all additional receivables (cost of bills of exchange, cost of financing and interest), we reserve the ownership in the goods delivered. The reservation of ownership shall also continue to exist if individual receivables have been added to a current account and accepted.
11.2. The purchaser shall be entitled to process, assemble or reshape the goods delivered in the usual course of business. The reservation of ownership shall also continue to be effective if the goods are processed, reshaped or combined with other goods not originating from us. In the latter case, a proportionate co-ownership shall be created for us pursuant to § 947 para. 1 BGB.
11.3. Upon conclusion of the contract, the purchaser shall assign to us in advance all receivables arising from the resale of the reserved goods or their processing within the framework of a contract of work and services or a contract for work and material amounting to the value of the goods. In case of the combination of the reserved goods, the assignment shall be limited to such part of the purchase price or compensation receivable which corresponds to the value of the goods. The purchaser shall be authorised to collect the receivables assigned to us as long as the purchaser meets its obligation to pay vis-à-vis us. Upon our request, the purchaser has to inform us of the debtors of the receivables assigned. We may notify the debtors of the assignment.
11.4. If the securities to which we are entitled exceed the receivables to be secured by more than 20%, we shall be obliged to release securities insofar upon purchaser's request. The choice of the securities to be released is made by us.
11.5. If the reserved goods are attached by a third party, the purchaser shall be obliged to notify the seller of the attachment immediately.
11.6. In case of serious doubt regarding the solvency or in case of default in payment as well as in case of an application for opening insolvency proceedings, we shall be entitled to claim back the goods at any time even without setting a period of grace or declaration of rescission to the extent deemed necessary for covering all receivables. For this purpose, we shall be entitled to enter the premises where the goods are stored.
12. Proprietary rights:
12.1. Drawings, samples and drafts shall remain our property and must neither be used for other purposes nor made accessible to third parties. Orders pursuant to drawings, sketches or other information provided shall be executed at the risk of the principal as regards patent, design and trademark law. If the execution of such orders causes encroachments on proprietary rights of third parties, the principal shall bear the damage resulting from that.
12.2. By purchasing our products, no licence to make use of the rights protecting patents or utility models shall be granted.
13. Final provisions:
13.1. If individual provisions of these terms of sales and delivery are ineffective, the effectiveness of the other terms of sales and delivery shall not be affected. The parties shall replace any ineffective regulation by a regulation which is as close as possible to the intended economic purchase in an admissible manner.
Terms of sales and delivery of Pitzl Metallbau GmbH & Co KG HO Altheim
Version as of: 1 February 2011