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General terms and conditions of PMA/TOOLS DIVISION AG
As at 1/8/2009
1. General – scope
1.1 The following conditions of sale, delivery and payment apply exclusively. Conflicting or deviating customer conditions are not acknowledged, unless we have expressly consented to their validity in writing. Our conditions of sale, delivery and payment also apply if we implicitly make the delivery to the customer in full knowledge of conflicting or deviating customer conditions.
1.2 All agreements made between us and the customer for the purposes of executing this contract are recorded in writing in this contract. Sub-agreements, special guarantees, as well as subsequent contractual amendments, require written form.
1.3Our conditions of sale, delivery and payment only apply to merchants according to § 310 Para. 1 BGB (German Civil Code).
2. Offers and documents
2.1 If the order is to be classified as an offer according to § 145 BGB, we can accept this within three weeks. The customer is bound to his offer for three weeks.
2.2 For an item which is not in stock, we are entitled to reject the offer within three weeks of issuing the order.
2.3 We reserve the proprietary and copyrights to illustrations, diagrams, calculations and other documents (e.g. catalogues, posters etc.). This also applies for written documents marked as “confidential”. The customer requires our express written consent before passing these on to third parties. This also applies for publishing, as well as pure internal usage.
3. Prices and conditions of payment
3.1 Unless otherwise stated in the order confirmation, our prices are considered ex works, excluding shipment costs. These are charged separately.
3.2 We reserve the right to modify prices appropriately for contracts with an agreed delivery time of more than four months, if costs decrease or increase after contractual conclusion.
3.3 The legal VAT is not included in our prices, and is shown separately in the invoice, in its legal amount, on the day of invoicing.
3.4 Cash discounts require a special written agreement.
3.5 We only supply purchasers unknown to us at our discretion, in exchange, against COD or prepayment, subject to another prior agreement. Should the pecuniary claims be at risk, as a result of changed circumstances, we reserve the right to demand advance payments of the invoice amount (§ 321 BGB).
3.6 We reserve the right to demand deposits.
3.7 Offsetting against non-recognised customer claims, or those not legally established, is excluded. This also applies for a withholding right for such counterclaims, insofar as these claims are not based on the same contractual relationship.
4. Scope of delivery and delivery period
4.1 The scope of delivery is, subject to another condition in the written order confirmation, determined by the description in our price list and our product catalogue, which are valid at the time of contractual conclusion. Rights to construction or form changes based on improvement of technology or on legislator claims remain reserved during the delivery period, insofar as the delivery item is not significantly modified, and the changes are feasible for the customer.
4.2 The start of our delivery period requires clarification of all technical queries.
4.3 The observance of our delivery obligation also requires prompt and correct fulfilment of the customer’s obligation. Rights to plead the unfulfilled contract remain reserved.
4.4 If the customer defaults acceptance or culpably breaches other co-operation obligations, we are entitled to demand compensation for any resulting damages, including any additional expenses. Subject to further claims or rights.
4.5 Insofar as the requirements in point 4.4 have been met, the risk of any loss or deterioration of the purchase item is transferred to the customer at the time the customer began defaulting acceptance or payment.
4.6 We are liable according to the legal conditions, insofar as the underlying purchase agreement is a firm deal in accordance with § 286 Para. 2 No. 4 BGB or § 376 HGB (German Commercial Code). We are also liable according to the legal conditions, if, as a result of a delivery delay caused by us, the customer is entitled to claim that it is no longer interested in further contractual fulfilment. Subject to other written confirmation, agreements on delivery periods and delivery deadlines do not lead to any fixed deals in a legal sense.
4.7 We are also liable according to the legal conditions, insofar as the delivery delay is based on a deliberate or grossly negligent contractual breach caused by us. We must bear the blame for our representatives or assistants. Insofar as the delivery delay is based on a grossly negligent contractual breach caused by us, our damage compensation liability is limited to typical, foreseeable damages.
4.8 We are also liable according to the legal conditions, insofar as the delivery delay caused by us is based on culpable breach of an important contractual duty. In this case, however, the damage compensation liability is limited to typical, foreseeable damages.
4.9 The above is subject to further legal claims and rights of the customer.
5. Transfer of risk and shipping costs
5.1 Unless otherwise stated on the order confirmation, the delivery is agreed as being ex works.
5.2 Separate agreements apply for the returning of packaging material.
5.3 If the customer wishes, we will cover the delivery with transportation insurance. The resulting costs are borne by the customer, unless otherwise agreed.
5.4 Shipping costs: You will receive information on these on request, or in our web shop.
6. Liability for defects
6.1 Customer liability claims require the customer to have correctly complied with its inspection and objection claims according to § 377 HGB.
6.2 Insofar as the purchase item is defective, we are entitled to either repair it or deliver a new, flawless item, at our own discretion. In the event of a repair, we only bear the necessary expenses up to the amount of the purchase price.
6.3 If the repairs fail, the customer is entitled, at its discretion, to demand withdrawal or a reduction.
6.4 We are liable according to the legal conditions, insofar as the customer asserts damage compensation claims based on wilful intent or gross negligence, including wilful intent of gross negligence on the part of our representatives or assistants. Insofar as we are not accused of deliberate contractual breach, the damage compensation liability is limited to typical, foreseeable damages.
6.5 We are liable according to the legal conditions, insofar as we culpably breach an important contractual duty. Even in this case, however, the damage compensation liability is limited to typical, foreseeable damages.
6.6 Liability of culpable death, physical injury or harm to health remains unaffected. This also applies for the mandatory liability according to the product liability act.
6.7 Unless stated to the contrary above, liability is excluded.
6.8 The statute of limitations for defect claims is 12 months, starting from transfer of risk.
6.9 The statute of limitations for delivery recourse according to §§ 478, 479 BGB remains unaffected. It totals five years, starting from delivery of the defective item.
7. Joint and several liability
7.1 A liability for damage compensation other than that stated under point 6 is excluded – regardless of the legal nature of the asserted claim. This particularly applies for damage compensation claims resulting from default at contractual conclusion, for other breaches of duty, or for tortuous claims for compensation of item damage according to § 823 BGB.
7.2 The limit in point 7.1 also applies if the customer demands compensation of futile expenses instead of claiming for compensation for damage and not for the service.
7.3 Insofar as our damage compensation liability is excluded or restricted, this also applies for the personal damage compensation liability of our officers, employees, staff, representatives and assistants.
7.4 If third party proprietary rights are breached through the exporting of items to regions outside the Federal Republic of Germany, and the third parties make direct claims on us for breach of their proprietary rights, the customer commits to absolving us in this respect.
8. Retention of title
8.1 The item delivered by us remains our property until all our present claims against the customer, as well as the future claims – insofar as they are related to the delivered item – are fulfilled.
8.2 The customer is entitled to resell the items owned by us (reserved items) in conventional business activities. It does, however, immediately assign to us all claims resulting from this resale, regardless of whether the reserved items are resold before or after processing, or whether they are associated with a property or movable item or not. If the reserved items are resold after processing or together with other items which do not belong to us, or if they are associated with a property or movable items, the customer’s claim against its purchaser is considered as having been assigned for the amount of the delivery price agreed on between us and the customer for the reserved item.
8.3 The customer is authorised to collect these claims even after the assignment. Our authorisation to collect the claim ourselves is not affected by this, but we commit to not doing this as long as the customer complies with its payment duties accordingly. If the customer makes use of its collection rights, we are entitled to the collected revenue totalling the delivery price agreed on between us and the customer for the reserved item.
8.4 The reserved items are processed or altered for us as the manufacturer according to § 950 BGB, without obliging us. If the reserved items are processed with other objects, we acquire co-ownership of the new item in proportion to the market value of our goods compared to the value of the other processed objects at the time of processing. The customer will store the new item for us free of charge with due care.
8.5 We commit to releasing the securities to which we are entitled, on request, insofar as the realisable value of our securities exceeds the claims to be hedged by more than 10%. We are responsible for selecting the securities to be released.
9. Place of jurisdiction and place of fulfilment
9.1 Insofar as the customer is a merchant, our place of business is the place of jurisdiction. We are, however, entitled to bring the customer to trial at the court of its domicile.
9.2 The law of the Federal Republic of Germany applies. The UN convention on the International Sale of Goods is excluded.
9.3 Unless otherwise stated on the order confirmation, our place of business is the place of fulfilment.
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