General Terms and Conditions of Delivery and Sale of PSA Zufuehrtechnik GmbH
1. The following General Terms and Conditions of Delivery and Sale form the basis of all offers, contracts, services and deliveries between PSA Zufuehrtechnik GmbH as the Supplier and the Customer, provided the latter is an undertaking. The Customer’s conditions of purchase shall not become part of the contract, even if an order is accepted. These terms of sale and delivery are deemed to be accepted latest with the acceptance of the delivery item or object of performance.
II. Conclusion of the Contract and Documents
1. A contract is concluded with the Supplier’s written confirmation of order. Any changes or amendments made by the Customer require the Supplier’s confirmation in writing. When placing his order, the Customer agrees with the following terms of sale and delivery.
The Supplier reserves the right of ownership and copyrights to samples, estimates of costs, drawings and similar information of a physical and non-physical kind – also in electronic form. They may only be made available to third parties if the Supplier consents to this in writing.
2. Our written confirmation of order is authoritative for the extent of the delivery/performance as agreed per contract.
3. Technical alterations of the delivery/performance owed under the contract shall remain reserved, provided this is reasonable for the Customer.
4. The Customer himself must ensure that all customs and other formalities are met for deliveries to be made abroad.
III. Price and Payment
1. In the absence of any particular agreement, the prices shall be understood ex works including loading at the works, though excluding packing and unloading. Added to the prices is value-added tax in the current statutory amount. Any work that is connected with the installation or assembly and/or setting-up of equipment is not included in the price and shall be invoiced by us separately.
2. In the absence of any particular agreement, payment is to be made to the Supplier’s account within 30 days after being notified that the delivery item is ready for dispatch and without any deductions, that is:
one third as deposit upon receipt of the confirmation of order,
one third as soon as the Customer has been informed that the main parts are ready for dispatch and the remaining amount within one month after the passing of risk.
3. The Customer has the right to offset payments with counterclaims only if his counterclaims are undisputed or have been determined without further legal recourse. The Customer is entitled to retain a payment only if it based on the same legal relation.
4. The mentioned prices are based on the purchase prices, raw material and energy prices, wages, social security contributions, freight rates and public contributions current at the time of submitting the offer and which influence the costs directly and indirectly. When there are changes to this reference value, the Supplier reserves a corresponding correction of the price if more than four months lie between the conclusion of the contract and agreed date of manufacture or delivery.
5. Partial deliveries are permissible if reasonable for the Customer; they oblige the Customer to make the corresponding partial payments.
6. The Customer is not entitled to transfer claims arising from the contract to third parties.
7. Should we become aware of circumstances after concluding the contract that are qualified to seriously doubt the Customer’s creditworthiness, the Supplier shall be entitled to make further performances dependent on the fact that the Customer provides sufficient securities within an appropriate time limit. In the event that the Customer does not meet this demand for the provision of securities in time, the Supplier shall be entitled to rescind from the contract.
8. In the event that the Customer gets into arrears by more than 10 days with the payment of the agreed instalments, all of the remaining amount still pending shall become immediately due for payment.
9. In the event that the Customer gets into arrears with his payments, the Supplier shall be entitled to demand default interest amounting to 8 percent points above the base lending rate as amended from time to time (section 247 of the German Civil Code). Next to that and provided that higher damage has occurred as a result of the Customer’s delay in payment, the Supplier shall be entitled to assert this.
IV. Period of Delivery, Delay in Delivery
1. The period of delivery results from the agreements of the contracting parties. So that the Supplier can meet the delivery date, it is necessary that all commercial and technical questions are clear between the contracting parties and that the Customer has fulfilled the obligations resting on him like e.g. obtaining the necessary official certificates or authorisations, or by paying a deposit. If this not the case, the period of delivery shall be reasonably extended. This does not apply if the Supplier is responsible for the delay.
2. The delivery time begins with date of the confirmation of order, though not before the Customer has supplied the necessary documents, authorisations and clearances and paid in the agreed deposit.
3. The period of delivery shall be met when the delivery item leaves the Supplier’s works before expiry of the period or when it is notified that the delivery item is ready for dispatch. If an acceptance inspection is to take place, the acceptance or advice about readiness for acceptance shall be decisive.
4. In the event that dispatch or acceptance of the delivery item is delayed for reasons that the Customer is responsible for, he shall be charged the costs incurred by this, starting one month after advice of readiness for dispatch or for acceptance.
5. If the period of delivery cannot be met for reasons of force majeure, industrial actions, unavailability of the performance or other events beyond the Supplier’s sphere of influence, the period of delivery shall be reasonably extended. A case of unavailability of the performance in this sense is, in particular, if the Supplier does not obtain supplies himself from his own suppliers upon concluding a congruent covering transaction and is, therefore, not responsible for the unavailability. The Supplier shall inform the Customer as soon as possible about the beginning and end of such circumstances.
6. In the case of an agreed liquidated damages for a delay in delivery, the Supplier shall be liable only to a limited extent for the foreseeable, typically occurring damage. This liability shall furthermore be limited to a fixed compensation charge of 0.5% of the delivery value for each complete week of delay; in total, it shall be limited to 5% of the delivery value. Delivery value means the value of that part of the entire delivery that cannot be used in time due to the delay or not as provided in the contract. These limitations do not apply if the delay in delivery is based on an intentional infringement of the contract by the organs or managerial employees of the Supplier. Neither does the limitation to 0.5% of the delivery value apply if the delay in delivery is based on a grossly negligent infringement of the contract by the organs or managerial employees of the Supplier.
V. Passing of Risk, Acceptance
1. The risk passes over to the Customer when the delivery item has left the works, i.e. also then when partial deliveries take place or the Supplier has taken over other services like e.g. the forwarding charges or delivery and installation. If an acceptance inspection is to take place, this shall be decisive for the passing of risk. It must be carried out immediately on the date of taking delivery or, alternatively, after the Supplier has given advice of his readiness for the acceptance inspection. The Customer may not reject the acceptance if there is an insignificant defect.
2. If dispatch or taking delivery is delayed or does not occur as a result of circumstances that are not attributable to the Supplier, the risk shall go over to the Customer from the day of advice of dispatch or readiness for acceptance. The Supplier undertakes to take out the insurance policies the Customer requests and at the Customer’s expense.
3. If dispatch is delayed upon the Customer’s wish or if the goods are not accepted for reasons beyond our responsibility, the risk shall pass over to the Customer with the advice that the goods are ready for dispatch. The storage costs incurred, at least 0.5% of the value of the goods per month, are to be borne by the Customer. The Customer is permitted to prove lower damage.
4. Partial deliveries are permissible provided that this is reasonable for the Customer.
VI. Retention of Title
1. The Supplier retains the title to the delivery item until he has received all payments under the supply agreement.
2. The Supplier shall be entitled to insure the delivery item at the Customer’s expense against theft, breakage, fire, water and other damages, unless the Customer shows proof that he has taken out the insurance himself.
3. The Customer may neither pledge the delivery item nor assign it by way of security until he has paid for it in full. In the case of attachments, confiscations or other dispositions by third parties, he must inform the Supplier immediately about this.
4. If the Customer’s conduct is not in conformity with the contract, especially when in delay of payment, the Supplier shall be entitled to recover the delivery item after demand for payment, and the Customer shall be obliged return it. Neither enforcement of the Retention of Title nor confiscation of the delivery item by the Supplier shall apply as withdrawal from the contract.
5. Should the Customer get into arrears, the Supplier shall be entitled to recover the delivery item under reservation of title without this being evaluated as exercising his right to withdraw from the contract. In the event that the delivery item under reservation of title is sold, the Supplier shall be entitled to deduct 10% of the sales proceeds for incurred costs in connection with the sale, unless the Customer proves that the incurred costs for this were substantially lower for the Supplier.
6. The petition to open insolvency proceedings shall entitle the Supplier to withdraw from the contract and demand that the delivery item be returned immediately.
7. The Customer shall be entitled to resell the delivery item in an ordinary course of business. However, he already now assigns all claims to the Supplier arising against the buyer or against third parties from the resale, i.e. no matter whether the goods subject to retention of title are resold without or after processing. The Customer shall be authorised to collect this claim even after the assignment. The Supplier’s power to collect the claims himself shall remain unaffected by this; however, the Supplier undertakes not to collect the claims as long as the Customer meets his duty to pay. The Supplier can request the Customer to make the assigned claims and their debtors known to him, to give him all the necessary information for the collection, to hand out the corresponding documents and to inform the debtor of the transfer. If the delivery item is resold together with other goods that do not belong to the Supplier, the Customer’s claim against the buyer in the amount of the delivery price agreed between the Supplier and Customer shall be deemed as assigned.
The processing or transformation of items subject to retention of title shall always be performed by the Customer for the Supplier. If the item subject to retention of title is processed with other objects that do not belong to the Supplier, the Supplier shall acquire co-ownership on the new item in relation of the value of the item subject to retention of title to the other processed items at the time of their processing. In other respects, the same shall apply to goods subject to retention of title as for the item created by processing.
8. The Supplier must release securities to the extent that the realisable value of these securities exceeds the claims to be secured by more than 10%. It is for him to choose the securities to be released.
VII. Liability for Defects of Quality and Total Liability
1. The Customer’s warranty rights require that he inspect the delivery item immediately upon receipt for defects. The Customer is obliged to notify the Supplier of any defects immediately, though latest within one week in writing. This obligation applies to hidden defects from the moment they are discovered. If the Customer does not meet his requirement to give notice of defects, the delivery item shall be deemed to be approved, provided it is a defect that was recognisable in the proper inspection.
2. No guarantees shall be made. The technical documentation shall, on principle, apply as the agreed condition of the goods.
3. No warranty shall be assumed for damages incurred from the following reasons: inappropriate/improper use, faulty assembly or setting up carried out by the Customer or a third party, natural waste, faulty or negligent handling, inappropriate operating material, provided this is not the Supplier’s fault.
4. Liability shall be set aside for consequences resulting from inappropriate modifications or maintenance work carried out by the Customer or a third party without the Supplier’s prior consent.
5. In the event of a defect, the Supplier shall decide – as appears fair also in consideration of the Customer’s interests – whether he will eliminate the defects with repair work or supply a replacement.
The Supplier shall bear the costs for any work and material expenditures on the justified remediation of defects; other costs, especially assembly and disassembly costs as well as testing costs, shall not be borne by the Supplier. If the Customer takes the delivery item to a place other than the place of acceptance, he shall bear the incurring additional costs of supplementary performance. The compensation for damages liability shall remain unaffected by this rule within the limitation as regulated hereinafter.Should the removal of defects or replacement delivery fail, the Customer shall be entitled to a price reduction. As long as this is not the case of a minor breach of contract, he may, instead, be entitled to choose to rescind from the contract. The Supplier shall have the right to refuse supplementary performance if it entails disproportionate costs.
6. The Supplier shall be liable in accordance with the legal provisions; however, his liability for compensation shall be restricted as follows:
a) In the case of simple negligence, he shall be liable for death and injury to body or health only.
b) In the case of intentional acts by simple vicarious agents or gross negligence of his legal representatives, employees or vicarious agents, liability shall only be limited to the foreseeable, typically occurring damage. In addition, liability shall be restricted to the limit of indemnity of the manufacturer’s liability insurance of €10m for personal injuries and €5m for damage to property. Liability for death and injury to body or health remains unrestricted.
c) In the case of infringement of a material contractual obligation, the Supplier shall be liable by way of derogation from 2.a), even for simple negligence, though limited as under b). A material contractual obligation is understood as an obligation, the fulfilment of which makes proper performance of the contract possible in the first place and permits the contracting party to regularly rely on it being met.
7. The aforementioned exclusions of liability do not apply, (1) according to the Product Liability Act; (2) to injury to life, body or health based on a negligent or intentional breach of duty caused by us or one of our legal representatives or by one of our vicarious agents; (3) if the cause of damage is based on intentional or gross negligence of the Supplier or a legal representative or vicarious agent; (4) if the Customer asserts his rights due to a defect arising from a guarantee for the condition or certain duration of a condition; (5) if the Supplier breaches an essential contractual duty, the fulfilment of which makes proper performance of the contract possible in the first place and permits the contracting party to regularly rely on it (material contractual obligation) being met; (6) if the rights of withdrawal in the sale of consumer goods supply chain (section 478 of the German Civil Code) are affected. The Supplier’s legal representatives, managerial employees and simple employees shall not be further liable than the Supplier himself.
8. The Supplier shall not be liable for any incidental, indirect and/or consequential damages, such as but not limited to, loss of use, loss of profit, recalls, loss of production or business interruption, in connection with any claim arising under any Agreement, or in any way in connection with the subject matter of the Agreement, or under applicable law.
9. The Customer cannot assert any liability for defects if the delivery item is installed on unsuitable building ground or otherwise assembled in a faulty manner, if it is operated incorrectly, if inappropriate operating material is used, if he damages the delivery item, exposes it to electronic or electrical influences or does not carry out maintenance work on it, or incorrectly, thus causing the defects himself.
10. For essential third-party products, the Supplier’s liability shall be limited to the assignment of the liability claims he is entitled to against the deliveries of such third-party products. This only applies insofar as the Customer is in the position to obtain compensation from the Supplier’s supplier.
11. The rejected delivery item is to be forwarded to the Supplier carriage free to Aachen.
VIII. Liability and Defects in Title
1. Should the use of the delivery item lead to an infringement of industrial property rights or copyrights in the country, the Supplier shall, at his own expense, obtain the right for the Customer to continue using it or to modify the delivery item for the Customer in such a reasonable way that the infringement of industrial property rights no longer exists. If this is not possible on economically commensurate conditions or within a reasonable time limit, the Customer shall be entitled to withdraw from the contract. On the mentioned conditions, the Supplier shall also be entitled to withdraw from the contract. Apart from that, the Supplier shall exempt the Customer from undisputed claims or claims determined without further legal recourse of the proprietor of the industrial right concerned.
2. Claims for damages owing to defects in title only exist with the limitation as in VII. The Supplier shall not be liable if the defect in title is based on an instruction from the Customer or if the infringement of a right was also caused by the fact that the Customer has made arbitrary modifications to the delivery item or used it in a manner not according to contract.
3. The Customer is to support the Supplier to a reasonable extent in warding off the asserted claims and by making it possible for the Supplier to carry out modification measures. The Customer reserves all warding-off measures, including extra-judicial arrangements, for the Supplier. The Supplier shall not be liable if the damage is based on an infringement against the aforementioned duties of the Customer.
IX. Statute of Limitations
All the Customer’s claims – for defects – become statute-barred in 12 months. For intentional or fraudulent conduct as well as for claims in accordance with the Product Liability Act, the statutory time limits shall apply. They shall also apply for defects of a structure or for delivery items that were used in accordance with their usual manner of use for a structure and which caused their defectiveness.
X. Use of Software
Provided software is included in the delivery, the Customer shall be conceded a non-exclusive right to use the supplied software including the documentation. It shall be ceded for use on the delivery item it is intended for. It is forbidden to use the software on more than one system. The Customer may reproduce, revise and/or translate the software, or cast the object code to the source code only to the extent permitted by law (sections 69 a et seq. Copyright Act).The Customer shall undertake not to remove manufacturer’s data – especially copyright notices – or to change them without the Supplier’s express prior consent.
All other rights to the software and documentation, including the copies, shall remain with the Supplier or supplier of the software. It is not permitted to grant sublicences.
XI. Applicable Law, Place of Jurisdiction
1. For all legal relationships between the Supplier and Customer, the governing law of the Federal Republic of Germany shall apply exclusively to the legal relationships of domestic parties among themselves.
2. The place of jurisdiction shall be the competent court for the Supplier’s place of business. However, the Supplier shall be entitled to bring an action at the Customer’s place of business.