General Terms and Conditions of the PARTZSCH Group
These General Terms and Conditions apply exclusively for the business relationship with our customers, in particular for all deliveries and services, information and consulting, in addition to the mutually agreed stipulations. This also applies for subsequent deals, irrespective of whether or not express reference is made to these terms and conditions once again. Any terms and conditions deviating from the agreed General Terms and Conditions shall not become part of the contract unless they are expressly recognised by us in writing. The fact that we perform deliveries and services does not mean that we recognise terms or conditions of the customer. Instead, the customer expressly recognises by accepting our order confirmation that he sacrifices of a demurrer derived from the General Terms and Conditions.
2. INFORMATION, CONSULTING, PRODUCT FEATURES
- Information and consulting, as well as other services are provided by us exclusively on the basis of our experience gathered to date and in accordance with the intended use communicated by the customer.
- Our product descriptions and specifications do not constitute a guarantee of quality or durability within the meaning of Section 434 of the German Civil Code (BGB) unless we expressly confirmed this to the Buyer in writing in advance or a certain feature is specified in a written purchase agreement concluded with the customer.
- Any guarantee shall only be deemed accepted by us if we designated a feature or service as "guaranteed" in writing.
- We only assume liability for the usability / fitness of the goods for the particular purpose of use planned or intended by the customer if this is agreed in writing.
3. OFFER AND CONCLUSION OF THE CONTRACT
- Our offers, quotations (price lists, offers or quotations submitted via the Internet, etc.) are without obligation and non-binding. They merely represent the request to the customer to issue an appropriate order. A contract is only concluded by way of our written order confirmation and in accordance with the terms and conditions specified below. The same shall also apply for any amendments or side agreements.
If the goods or services hereunder are provided immediately, our confirmation can also be replaced by our invoice or a delivery note.
- All documents belonging to the offers/quotations, such as illustrations, drawings, weight and dimensional specifications, are only decisive insofar as not expressly being termed as binding. In particular, weight tolerances of ± 5% of the total amount are to be deemed complying with the contract.
- With his purchase order, the customer submits a binding quotation which we accept by way of our written confirmation or sending the ordered article.
- The services specified in a contract document or order confirmation signed by both parties hereto shall be decisive for the contents and execution of the contract.
- All deliveries are subject to the Specifications in the version as amended upon conclusion of the Agreement. Unless otherwise specified expressly in writing, the responsibility for selecting ordered products and the results intended by the customer, as well as for the interaction of individual components rests solely with the customer.
- Delivery times desired by the customer are only binding if confirmed by us in writing. Apart from that, all agreements regarding the delivery time are subject to the fact that we are served by our subsuppliers in accordance with the agreed time schedule unless the incorrect or delayed delivery from our supplier(s) is attributable to us.
- Delivery dates are to be understood ex works. We are not obliged to transport the goods.
- The risk is transferred to the customer when the goods are collected or dispatched.
- If the customer desires transport, it will exclusively be performed at his own risk. Delivery at place (DAP) is subject to transport costs of EUR 0.20/kg for transport within the Federal Republic of Germany, and EUR 0.40/kg in European countries.
- Upon request and at the expense of the customer, the goods can be insured by the supplier against the risks that can normally occur during transport.
- We reserve the right to make partial deliveries unless the customer is obviously not interested in partial deliveries.
- Furthermore, we reserve the right to excess or short delivery in weight and/or quality by up to ± 5%.
- The Buyer shall be deemed to fall behind schedule if he did not collect/accept the subject of the contract within 14 days after receipt of the completion notice and handing over or sending of the invoice. If the goods are not accepted, the Seller may exercise all rights provided to him by law.
5. SERVICES / WORK SERVICES
- The services / work services to be furnished by us refer exclusively to insulations produced by us.
- We are entitled to have the services hereunder performed fully or partially by third parties.
6. SPECIFICATION OF TIMES AND PERIODS OF PERFORMING THE DELIVERY OR SERVICE
- Our times of delivery and periods of performance of our services are always specified to the best of our judgement and in accordance with the appropriate delivery and order situation. The specifications of the times and periods of providing the services and deliveries are only to be deemed as approximate insofar as no written and binding promise for a certain delivery date is expressly given.
- Delivery times and times of performance shall be extended by a fair and reasonable time if we are hindered in performing our obligations by force majeure or other unforeseeable and extraordinary events or circumstances which could not be averted despite exercising reasonable care. Circumstances and events within the meaning of Clause 1 hereof include, in particular war, riot, strikes, lockouts, fire, flood and other unforeseeable operational breakdowns, including, but not limited to subsuppliers. If such events or circumstances render the performance of a delivery or service substantially complicated or even impossible for us and the hinderance is not only of temporary duration, we are entitled to withdraw from the contract. If the hindrances are of temporary duration, the delivery times or periods of performing the contractually agreed services shall be extended or deferred by the time of duration of the hindrance plus a reasonable ramp-up time.
- The times of delivery and performing the services hereunder shall also be extended by a reasonable time if the customer requests any modifications later.
- Observance of the delivery dates and times of performing the services requires the customer to meet all his contractual obligations and obligations to cooperate properly and in accordance with the agreed time schedule. Any delays attributable to the customer interrupt the periods of performing the deliveries and services.
7. PRICES AND TERMS OF PAYMENT
- Unless otherwise expressly agreed, the remuneration is calculated based on our net prices ex works which are generally valid on the day when the contract/agreement was concluded.
- The customer shall pay the copper price in accordance with the Cu-DEL rating and, in addition, 2% procurement costs and 6.5% processing costs. The customer receives a separate order confirmation at the latest on the subsequent day.
- Furthermore, the customer agrees to bear the costs for the coils. They amount to EUR 40.00/pc. for the type K500, EUR 115.00 EUR/pc. for the type VM710, and EUR 200/pc. for the type VM800. In case of return deliveries, the costs for the coils are reimbursed by us at 90% if they are not damaged.
Break bulk cargo pallets are invoiced with EUR 20.00 and reimbursed at 100% if returned undamaged.
- In the case of continuing obligations, we reserve the right to adapt the agreed prices unless there is no cost increase.
- All prices are to be understood excluding the appropriate value-added tax at the statutory rate.
- All payments shall be due without deduction within 14 days after invoicing unless a different mode of payment was agreed.
- Non-cash payments are only accepted on account of performance and shall only be deemed as payment with irrevocable credit note. All costs resulting from and incurring in conjunction with the collection and encashing shall be borne by the customer.
- Without prejudice to any further claims, we are entitled to charge default interest of 9% above the base interest rate and, in addition, dunning costs amounting to EUR 5.00 for each reminder from the company in default from the time of delay in payment. PARTZSCH still retains the right to prove and claim damages of greater magnitude.
- If any facts occur raising doubts about the ability or willingness of a customer to pay (e.g. if a cheque or direct debit cannot be cashed, if an extra-judicial debt settlement plan must be established or an application for opening insolvency proceedings against the assets of a customer is made) and in case of delayed payment, we are entitled to retain the performance of deliveries and services until they are paid in full or an appropriate surety is provided. If the customer does not comply with an appropriate request within a reasonable period of time, we are entitled to withdraw from the contract fully or partially, without prejudice to further claims.
8. RESERVATION OF TITLE
- All goods and parts of goods shall remain our property until the contract price is paid in full.
- If the customer is an entrepreneur or legal person performing a professional activity in industry or as a self-employed person at the time when the contract is concluded, the reservation of title also subsists in respect of claims of our company towards the customer from the current business relationship until all claims and liabilities arising from and resulting in connection with orders are settled.
- The customer is to treat the goods with care all the time the goods are subject to reservation of title. In case of any behaviour of the customer which is contrary to the contract or agreement, especially in case of delayed payment, we are entitled and authorised to withdraw the goods delivered subject to reservation of title at the expense of the customer. Insofar as the goods delivered subject to reservation of title are no longer in the possession of the customer, the customer already now assigns us his claims for return to third parties. Such a withdrawal or request for withdrawal shall not be deemed a withdrawal from the contract unless expressly declared by us or expressly specified by way of compulsory statutory regulations.
- The customer is entitled to combine or resell the goods delivered subject to reservation of title within the ordinary course of business until revoked. This, however, shall only apply if and as long he meets his obligations towards us on schedule. The customer is not allowed to pledge or assign the goods delivered subject to reservation of title as security for a debt.
- If the goods are processed, modified or combined, we will become owners or co-owners of the new goods.
- If the customer resells the goods delivered subject to reservation of title, he already in advance agrees to assign all and any claims and receivables resulting from the reselling of the goods as security until all our claims and receivables are settled completely. If the goods delivered subject to reservation of title are delivered together with other goods - also if included in the total price -, and they are not in our possession, then the assignment only covers the part of the claim that corresponds to the ratio of the value of our (co-)ownership. In this case, we will accept the assignment.
- Resale of the goods or parts of the goods to a third party prior to their payment in full is not permissible if the aforementioned third party excluded the assignment of the customer's claims towards him.
- The customer shall be authorised to collect the assigned claims until recalled. We will not use our right of revocation if the customer meets his duties and obligations duly, properly and in accordance with the time schedule and does not fall into insolvency or becomes unable to pay. The customer is to keep the collected amounts for us separately until the secured claims are settled.
- Upon our request, the customer must notify third parties of the assignment and send us all information and documents required to collect the assigned claims. We are entitled to disclose the assignment to third parties.
- In case of pledging or any other impairment of our rights by third parties, notably in case of access to the goods delivered subject to reservation of title, the customer must notify the third party of its rights and inform us immediately. All costs and damages resulting from violation of this obligation shall be borne by the customer.
- If the value of the securities existing for us exceeds the claims to be secured by more than 20%, we will release the securities in parts at the customer's option or, if the customer does not decide on an option, at our own option.
- If the Purchaser is an entrepreneur or a legal person, claims for material defects shall lapse after one year from handing-over/delivery of the object of purchase to the Customer. This shall not pertain to claims for damage compensation resulting from personal injury or impairments to the health and/or claims resulting from damage caused by the Seller grossly negligent or deliberately. To this extent, the legal limitation periods shall apply.
- The Purchaser agrees to check the delivered goods for completeness and correctness on his premises carefully in accordance with Section 377 of the German Commercial Code ("HGB") immediately after collection/arrival of the goods. Complaints are to be issued immediately and in writing. The receipt of a notice of defects (also via telefax or e-mail) is essential.
- The Purchaser is entitled to post-fulfilment, and we reserve the right to remedy the defect or to deliver proper replacement. The Purchaser agrees to grant us a fair and reasonable grace period for the remedy of each defect.
- Unless otherwise expressly agreed, all specifications, information, illustrations, images or the like contained in order confirmations, brochures or other materials or documents only serve the pure description of the product. Guaranteed features must be marked by us expressly and in writing as such.
- Rejected goods may only be returned to us after prior agreement. Defects in parts of the delivery do not entitle the customer to reject the entire delivery unless the fitness for use of the parts of the delivery which are free of defects is impaired.
- All and any warranty shall be null and void if the delivered item or furnished service was modified or incorrectly operated or treated by the Customer or third party.
- We will only be liable for damage resulting from breach of the contract or from unlawful acts in case of deliberate action or gross negligence. This shall not apply in case of infringement of material contract obligations, damage resulting from injury to life, body or health, or cases relating to guarantees or in case of claims in accordance with the product liability act. The damage shall be limited to payment of the typically foreseeable damage at the time of conclusion of the contract. This shall also apply for violations of obligations by our agents.
- If we or our representatives or agents become unable to deliver or perform the services to be provided hereunder, we shall be liable for damage due to failure to comply with the contractual obligations. In case of ordinary negligence, the limitation of liability in accordance with Para. 1 shall apply correspondingly. The same shall apply for replacement in case of damage caused by delay.
- If the damage is caused by a third party operating for us as an agent, the Customer agrees to enforce his claims for damage compensation initially towards the third party, where necessary by a court, before he takes recourse to us.
- Insofar as the damage is covered by an insurance taken out by the Customer for the appropriate damage event, we will only be liable for any disadvantages resulting for the customer, including, but not limited to higher insurance premiums or disadvantages in terms of interests until the loss is adjusted by the insurance.
11. SETTING-OFF / RETENTION
The Customer has no right of setting-off or retention unless the claim is indisputable or recognised by declamatory judgement.
12. DATA PROTECTION
Personal data (e.g. salutation, name, address, e-mail address) are collected, processed and stored by us exclusively in accordance with the regulations of the German data protection act, notably the Federal Data Protection Act (FDPA) and the German Telemedia Act (TMG).
13. PLACE OF PERFORMANCE / PLACE OF JURISDICTION / GOVERNING LAW
- Place of performance for both Parties is Döbeln.
- Sole place of jurisdiction for any disputes or conflict arising from this Agreement is Döbeln. We remain, however, also entitled to assert claims against a customer before a different court with appropriate jurisdiction.
- All contracts and agreements shall be governed by the law of the Federal Republic of Germany.
14. FINAL PROVISIONS
- An assignment or transfer of rights and/or obligations arising from or in conjunction with this Agreement by the Customer always requires our prior written consent.
- Any amendments or modifications of the agreements and of the terms and conditions agreed herein shall only be valid and binding if performed in writing. Any general terms and conditions of the Customer deviating therefrom shall not be part of the contract. This shall also apply for terms and conditions of contract, tendering or award which are subject to public law or otherwise pre-formulated.
- If one or several of these provisions are or become ineffective, invalid or infeasible or should the contract or agreement concluded on their basis contain a gap, the validity of the remaining provisions shall not be affected. The parties hereto will endeavour to find an effective substitute provision instead which comes as close as possible to the intended economic and legal purpose of the ineffective or missing provision.
Rosswein, version: March 2018