General terms and conditions of PMA/TOOLS AG
valid since 2014/04/01
1. General information
1.1 The contractual partner for all orders is the PMA/TOOLS AG, Siemensring 42 in 47877 Willich (hereinafter referred to as "PMA", "us" or "we"). The following general terms and conditions (GTCs) shall be applicable to all company transactions with PMA in the sense of the German Civil Code (BGB). They shall also apply to all future transactions with our customers, even if they are not expressly agreed again. Contradicting or deviating conditions of the customer shall not be recognised unless we expressly recognise this in writing. Our general terms and conditions shall also be applicable if we perform the delivery to the customer without reservation although being aware of contradictory or deviating conditions of the customer.
1.2 Collateral agreements, in particular assurances as well as subsequent amendments to the contract shall require the written form.
1.3 In the event that the customer only becomes aware of our GTCs upon the written order confirmation, then these GTCs shall become an integral part of the contract with the unqualified acceptance of the goods unless he has expressly objected to the applicability of our GTCs.
2. Offers and documentation
2.1 All offers on the part of PMA are principally non-binding. The offers on our website do not represent offers in legal terms, but merely an invitation to submit an offer.
2.2 We shall be entitled to accept an offer made by the customer within three weeks. The customer shall be bound by his offer for a period of three weeks unless otherwise provided for in the offer.
2.3 An agreement shall not become effective until receipt of our order confirmation or the delivery of the goods.
2.4 The observance of our obligation to deliver shall require the timely and complete obligations to cooperate on the part of the customer as well as the timely and complete delivery on the part of our supplier. In this regard, we shall immediately notify the customer in respect of goods, which are undeliverable following the placing of the order. In this case, we shall be entitled to cancel the agreement within two weeks following the order confirmation and reimburse any return service already provided without this leading to further compensation claims against us.
2.5 We shall retain the title to property rights and copyrights to images, drawings, calculations and other documents (e.g. catalogues, posters, etc.). The customer shall require our express written consent before their reproduction, publication, distribution, modification, passing on to third-parties or other use. This shall particularly apply to such written documents designated as "confidential".
2.6 We shall assume no liability whatsoever for misunderstandings occurring through non-written communication. Declarations made verbally or by telephone shall require our written confirmation as a matter of principle.
3. Prices and terms of payment
3.1 For contracts with an agreed delivery period exceeding four months, we shall reserve the right to change the prices as appropriate in the event that cost reductions or cost increases have taken place following the conclusion of contract.
3.2 All our prices are net prices plus VAT in the statutory amount.
3.3 Unless a different term of payment has been agreed, invoices shall be due within 14 days without deduction. The agreement of a discount shall require a special written agreement.
3.4 For company customers, the default interest shall be a minimum of 8 %-points above the base rate. The right to verification for higher default damages shall remain reserved.
3.5 PMA shall be entitled at any time to claim an advance payment (§ 321 BGB) – particularly with new customers, i.e., only provide delivery against cash on delivery or prepayment at the discretion of PMA.
3.6 PMA shall be entitled to claim settlement of all outstanding invoices (without reminder) and demand payment in cash at any time – particularly if we become aware of a risk to our payment claim.
3.7 Any set-off of our claims with non-recognised or claims on the part of the customer that have not been legally determined shall be excluded. This shall also apply to a right of retention relating to said counter-claims unless these claims are based on the same contractual relationship.
3.8 Invoice complaints shall be notified immediately (§ 121 BGB). Complaints received later than 14 days following receipt of the invoice shall no longer be accepted.
4. Scope and period of delivery
4.1 The scope of delivery shall be determined by the order confirmation or the agreements made between PMA and customers. The right to changes in design or form, intended to improve the technology or the requirements of lawmakers, shall remain reserved during the delivery period, insofar as the consignment remains suitable for the contractual use without restrictions and the changes are reasonable for the customer to accept.
4.2 Information provided in our catalogues, in our online shops or other information material shall not represent warranties for a particular product feature.
4.3 A delivery period or delivery date specified by us does not represent a transaction at a fixed date. A transaction at a fixed date shall require a particular written agreement.
4.4 We shall only enter into default if we have been set a suitable period of time for subsequent performance (a minimum of 5 working days) and said time has lapsed ineffectively.
4.5 A temporary prevention of acceptance shall also constitute default of acceptance. In the event of default of acceptance or the culpable violation of other obligations to cooperate, we shall be entitled to demand compensation for losses incurred, including any additional expenditures. Further claims or rights shall remain reserved.
4.6 Unless otherwise specified in the order confirmation, our prices do not include ex-works handling charges (extra). The despatching shall invariably ensue at the customer's request and risk. PMA shall be entitled to select the despatching company. The amount of the despatch charges shall be calculated according to our despatch charges file, which may be viewed in our online shop (after logging-in) or can be sent to the customer on request.
4.7 PMA shall be entitled to provide partial performance and partial delivery at any time. § 324 Section 5, Clause 1 BGB shall be excluded.
4.8 In those cases, in which sale to destination (§ 447 BGB) is not present, the risk of incidental loss or incidental deterioration of the purchase item shall pass to the customer not later than the date, at which he has fallen into default of taking delivery.
4.9 Insofar as the customer so wishes and assumes the costs thereof, we will cover delivery with transport insurance.
5. Force majeure
Force majeure, strike, non-culpable inability on the part of PMA or one of our suppliers as well as unfavourable weather conditions shall extend the delivery period by the period of the disruption, plus a suitable initial period of not less than 5 days. Alternatively, we shall be entitled to withdraw from the contract in full or in part as a result of the not yet fulfilled part of delivery or performance.
6.1 The inspection and reproof obligations in accordance with § 377 German Commercial Code (HGB) shall apply to all companies.
6.2 Insofar as the purchase item is defective, we shall be entitled, at our discretion, to provide subsequent performance either by rectifying the defect or delivering a new item free of defects. In the event of subsequent performance, we shall only bear the necessary costs up to the value of the purchase price.
6.3 In the event of subsequent performance, the customer shall only have complied with his contractual obligation of mitigation, if he has given us the opportunity to provide him with a suitable replacement until rectification of the defect(s)/delivery of a new item free of defects.
6.4 Should the subsequent performance fail, then the customer shall, at his discretion, be entitled to demand withdrawal or a reduction in payment.
6.5 The period of limitation for claims based on defects shall be 12 months, beginning with the transfer of risk. No warranty shall be assumed for parts subject to wear, particularly batteries, unless the defect is due to intent or gross negligence by us or by one of our representatives or vicarious agents. The caveat emptor for wear parts shall apply neither to injury to life, limb or health nor to an obligation to provide compensation due to other statutory provisions.
6.6 In the event of withdrawal from the agreement, the obligation to provide compensation on the part of PMA for wear parts shall be cancelled.
6.7 Notification of defects and withdrawal shall require the written form.
7. Liability and compensation
7.1 Our liability for compensation claims shall be limited to our own intent and gross negligence as well as to intent and gross negligence on the part of our representatives or vicarious agents. Unless we are accused of intent, our compensation liability shall be limited to the amount of the sum insured of our business liability insurance.
7.2 Insofar as we culpably violate an essential contractual obligation, we shall be liable in accordance with statutory provisions. Again in this respect, however, our compensation liability shall be limited to the amount of the sum insured of our business liability insurance. In respect to the violation of minor contractual obligations, our liability for slight negligence shall be excluded.
7.3 Our liability resulting from culpable injury to life, limb or health shall remain unaffected by said limitation of liability. The same shall apply to mandatory liability in accordance with other provisions, particularly the German Product Liability Act.
7.4 The limitation of liability shall also apply, insofar as the customer demands unnecessary expenses in lieu of performance instead of reimbursement of expenses.
7.5 The use of our products shall only be permitted in those countries, in which there exist industrial property rights for PMA products. The customer shall bear the sole risk and the sole responsibility for export to those countries, in which no PMA property rights exist. If because of this, property rights of third-parties are violated and – as a result – a claim is made against PMA, the customer shall undertake to indemnify us from all costs.
7.6 A further liability for compensation other than that envisaged in this Section shall be excluded – without regard to the legal nature of the claim asserted. This particularly applies to compensation claims arising from fault in conclusion of contract (culpa in contrahendo), other breaches of obligation or on account of tortuous claims for compensation for material damage in accordance with § 823 BGB.
8. Title retention
8.1 The consignment shall remain the property of PMA until the settlement of all claims owed to us resulting from the business connection.
8.2 The customer is permitted to process or rework ("processing") the consignment. The processing shall ensue for PMA;
if, however, the value of the consignment belonging to PMA is lower than the value of the consignment not belonging to PMA and/or the processing, then PMA shall acquire joint ownership of the new goods in the ratio of the value (gross invoice value) of the consignment processed to the value of the remaining processed goods and/or the processing at the time of processing. Insofar as PMA does not acquire any ownership of the new goods under the above paragraph, PMA and the customer shall agree that the customer grants PMA joint ownership of the new goods in the ratio of the value (gross invoice value) of the consignment belonging to PMA to the value of the remaining processed goods at the time of processing. The above sentence shall apply accordingly in the case of the inseparably mixed (or combination of the) consignment with goods not belonging to PMA. Insofar as PMA acquires ownership or joint ownership according to Item 8 in this agreement, the customer shall keep the goods safe for PMA free of charge.
8.3 In the case that the customer should sell on the goods or the new goods, the customer shall herewith assign his claim arising from the resale against the subsequent purchaser to PMA as security, without any further special declarations being required. The assignment shall apply to include any current account balances. The assignment shall, however, only apply to the amount corresponding to the price of the consignment invoiced by PMA. The share of the receivable assigned to PMA shall be satisfied with priority.
8.4 Until notice of revocation, the customer shall be authorised to collect receivables assigned to PMA in accordance with Item 8 in this agreement. The customer shall immediately pass on payments made on the assigned receivables up to the amount of the secured claim to PMA. If there is a compelling legitimate interest, particularly in relation to default in payment, the suspension of payments, the opening of insolvency proceedings, protest of a bill or cheque or justified indication of over-indebtedness or impending solvency on the part of the customer, PMA shall be entitled to revoke the customer's authority to collect. Furthermore, after having set a reasonable deadline, and observing an appropriate period, PMA shall be entitled to disclose the assignment by way of security, exploit the assigned outstanding balance claims and require the customer to disclose any assignments by way of security to his sub-buyers.
8.5 When a legitimate interest is substantiated, the customer shall provide PMA with the information necessary to assert its rights against the sub-buyers and hand over the documents required.
8.6 For the duration of retention of title, the customer is prohibited to pledge the retained goods or assign them by way of security. The customer shall immediately notify PMA in the event of distraints, confiscation or other disposition or intervention on the part of third-parties. The resale of the consignment or of the new goods by the customer shall only be permissible in accordance with correct business procedures and allowed only on condition that payment of the counter-value of the consignment ensues to the customer. Furthermore, the customer shall agree with his purchaser, that the purchaser will acquire ownership only with this payment.
8.7 Insofar as the realisable value of all the security rights, to which PMA is entitled, exceeds the sum of all secured claims by more than 10 %, PMA shall – at the customer’s request – release a corresponding part of the security rights. It shall be assumed that the requirements of the above sentence are satisfied when the estimated value of the securities due to PMA reaches or exceeds 150 % of the value of the secured claims. PMA shall have the right to choose which various security entitlements are to be released.
8.8 In the event that the customer violates any of its obligations – particularly in relation to default of payment, PMA shall be entitled to demand surrender of the consignment or the new goods – even without setting a time limit, and/or withdraw from the contract – against a time limit, if necessary; the customer shall undertake said surrender. A demand for the surrender of the consignment / new goods shall not constitute a withdrawal declaration on the part of PMA, unless this is expressly declared.
9. Data protection
PMA shall save and make use of personal customer data in accordance with the applicable data protection laws. The customer shall be entitled to revoke the use of his personal data for his own marketing purposes at any time.
10. Final provisions
10.1 Insofar as the customer is a Kaufmann (with a business registered in the German Commercial Register), the place of jurisdiction shall be our place of business. We shall also be entitled, however, to sue the customer at the court of his place of residence.
10.2 The laws of the Federal Republic of Germany shall be applicable, to the exclusion of the application of the UN Sales Law.
10.3 Unless otherwise specified in the order confirmation, the place of performance shall be our place of business.