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As of 1.6.2004
1. Order and acceptance
All deliveries and services of PMA/TOOLS DIVISION AG, hereafter known as the vendor, arise from the following general terms and conditions of the vendor. Inasmuch as the purchaser is not in agreement with the following he must declare this in writing to the vendor upon placement of the order at the latest. Terms of the purchaser which deviate from these, and which the vendor does not expressly agree to in writing, are not binding on the vendor. Subsidiary agreements, specific warranties, as well as subsequent changes to the contract terms are only valid if these are confirmed in writing by the vendor. The purchaser is bound by his order for three weeks Should the purchaser withdraw from an order which has been placed, then the vendor can demand reparation of damages, including any profit lost. For goods which are out of stock, the purchaser is entitled to decline acceptance within three weeks of the placement of order.
2. Prices and Terms of Payment
Prices are based on the vendor's price lists as valid at the time of acceptance, and are valid ex-works of the vendor, but exclude packaging for shipping and VAT at the legal rate. The following holds in regard to shipping costs:
| a) |
Delivery within Germany using DPD is free of charge on orders of goods whose net worth is EUR 50.00 or more. Orders delivered by DPD must be accepted before 15:00 of the day in question. |
| b) |
Deliveries by night express are charged. Orders delivered by night express must be accepted before 15:00 of the day in question. |
| c) |
Shipment by normal means within Germany is free of charge on orders of goods whose net worth is EUR 500.00 or more. |
| d) |
Shipment abroad (EU countries) is free of charge on orders of goods whose net worth is EUR 2,500.00 or more, but delivery to non-EU countries is charged. |
Any changes in price resulting from increase in wage costs, costs of materials or market cost prices are permissible, provided that more than four months separate completion of contract and agreed delivery date. Where the purchaser is a trader, a legally incorporated body, or registered fund assets (hereafter also known as non-consumers), price changes according to the previous ruling are permissible, provided that more than six weeks separate completion of contract and agreed delivery date. The purchase price and remuneration for additional services become due for payment on handover of the items supplied. Payments are to be made free of charges to the point of payment of the vendor. Payments by cheque are only valid as payment after encashment. The purchaser has no right of retention if the purchaser is a non-consumer. Any set-off by the purchaser is only admissible, inasmuch as his counter claims are expressly undisputed or established as legally binding. In cases of default, the vendor is entitled to levy interest on arrears, in accordance with BGB § 288, at 5% above the base rate (in cases where the transaction involves a consumer as defined by BGB §§ 13), or at 8% above the base rate (in cases where the transaction involves a non-consumer). Failing prior agreement to the contrary, the vendor shall supply any purchaser not previously known to him only against cash on delivery, or prepayment, as the vendor shall choose. In the event that as a result of a change in circumstances some threat to claim to payment should arise, the vendor is entitled to exact advance payments of the amount invoiced (BGB § 321). The vendor reserves the right to demand down payments.
3. Retention of title
The goods sold remain the property of the vendor until all valid claims of the
vendor arising from the business relationship with the purchaser are met. Until this has happened, any pawning, transfer by way of security or other use of the goods sold is prohibited, subject to the following rulings. As regards use in relation to non-consumers, the following also holds: The purchaser is entitled to sell on the items supplied as part of the normal course of business, so long as no circumstances become known to the vendor, which might seem to put the settlement of his account on the part of the purchaser at risk. For this reason the purchaser shall already at this junction assign all selling-on claims to the vendor who accepts such assignation, these being claims which have arisen for the purchaser from resale, and this independently of whether the supplied items have been sold on without or after being further worked. The purchaser is empowered to make collection of these assigned accounts until countermanded by the vendor, which may happen at any time. The vendor's authority to make collection of the account himself, remains unaffected by this. If so required by the vendor, the purchaser has a duty to make known his assigned accounts along with the debtors (third parties), to give all details necessary for their collection, to submit all documents pertaining to the matter, and to immediately inform the third party in question of assignment to the vendor, as well as to give proof of this to the vendor. However, the vendor engages not to make collection of the accounts, as long as the purchaser properly meets his payment obligations, and no circumstances become known to the vendor which might seem to put the settlement of his account on the part of the purchaser at risk. In addition, the vendor engages, if requested by the purchaser, to release the collateral he is entitled to, insofar as its value does not exceed that of the accounts to be guaranteed by more than 20%, and insofar as these have not already been settled. Any work on or modification of the goods by the purchaser is always underta
ken on behalf of the vendor. If the items supplied are worked along with other items which do not belong to the vendor, then the vendor acquires a part in the title of the new concern, in relation to the ratio of the value of the items supplied to that of the other items worked or modified at the time of working. The same holds if the items supplied are inseparably mixed with others which do not belong to the vendor. The purchaser shall hold the joint ownership in safe keeping from the vendor. Any access by third parties to goods supplied with retention of title, or to worked or mixed goods, in joint ownership with the vendor, or to accounts assigned by the purchaser, must be immediately referred to the vendor with a view to action being taken. Any costs resulting from intervening action taken by the vendor are to be borne by the purchaser. In the event that the vendor requires restitution of items to which he has title, because circumstances have become known to him which might seem to put the settlement of his account on the part of the purchaser at risk, the purchaser already hereby declares himself in agreement that those persons engaged by the vendor to make collection may enter, on foot or by vehicle, the site where the items are kept. |
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4. Delivery, Acceptance and Transfer of Perils
Delivery quantities are determined by the descriptions in the price list and the product catalogue of the vendor, which are valid at the time of conclusion of contract, and unless otherwise provided for in writing at contract confirmation. The right is reserved within the delivery period to make modifications in design or form, due to technical improvements or legal requirements, insofar as the item supplied is not changed in a major way and the modifications are reasonable for the purchaser. Agreements relating to delivery periods and delivery dates do not involve a fixed-term transaction in the legal sense. A delivery date or delivery period is met, if the purchaser is informed before these have expired, that the items are ready to be despatched, or that the items supplied have left the vendor's site. Force majeure entitles the vendor to postpone delivery for the period of the hindrance and an appropriate start-up time thereafter, and to withdraw from the contract for that part which has still not been completed. Force majeure extends to strikes, lockouts, and other circumstances outside the control of the vendor and which seriously exacerbate delivery to the extent of making it impossible, this independently of whether they occur on the premises of the vendor or his suppliers. Nor does the vendor have to justify these circumstances if they arise in the course of arrears already present. Part delivery is allowed. Choice of mode of shipment shall be made at the vendor's discretion. On handover to the shipper or carrier, and at the latest on leaving the production site of the vendor, all risk, in particular that of possible loss or possible deterioration, is transferred to the purchaser. This transfer of peril is valid also in cases where carriage-free delivery has been agreed. Items delivered are to be received by the purchaser, even if they display small defect
s. If the purchaser does not accept the item purchased within the period provided for (default of acceptance), the vendor is entitled to dispose otherwise of the goods. The rights of the vendor, to withdraw from the contract after a period of grace and/or demand damages reparation, remain unaffected by this. All items are to be examined by the purchaser immediately on receipt for quantity and quality. Any complaints regarding a consignment are always to be made immediately in writing. In cases of clear defect, complaints can only be countenanced if received until 12:00 at the day of reception of the goods. Costs for inspecting an item held to be defective and which has been returned will be deducted from the credit note, or invoiced separately. The vendor reserves the express right to make further claims regarding damage to the item.
5. Warranty and liability
The vendor's specifications in catalogues and price lists pertaining to description and item description of the goods, as well as descriptions of the goods, do not serve as guaranteed features of the products. This holds also for the exact suitability and ozone resistance of the products. Once the goods are no longer in the condition in which they were supplied, it is to be assumed that the goods were free of defects on transfer of peril and that any defect now present is due to working or reworking of the goods by the purchaser. Inasmuch as the goods are worked or reworked by the purchaser or other third party in a way other than that specified in the fitting or processing instructions made available to the purchaser, the warranty is not valid, inasmuch as the purchaser is not a consumer. The statutory period of limitation on warranty and liability is 12 months, unless the purchaser is a consumer. Should a replacement delivery of a repaired item not prove satisfactory, only a purchaser who is a consumer has a right to the option of a reduction in price or cancellation of contract. Further claims by the purchaser, including eventual re
paration for consequential damages and damages arising from carrying out repairs, are excluded, unless the consequential damages involve damages arising from injury to life, limb and health or the damages are based on premeditated or negligent breach of duty by a legal representative or vicarious agent of the vendor.
6. Property Rights
If the purchaser exports the vendor's goods to areas outside the Federal Republic of Germany, the vendor takes no liability for any possible prejudice to the property rights of third parties resulting from the vendor's products. Should, as a result of such export, a direct claim be made against the vendor by a third party based on prejudice to his property rights, then the purchaser indemnifies the vendor in this sense. The parties are agreed that all publications (e.g. catalogues, price list, posters, folders etc.) of the vendor, in the form of texts, illustrations and graphics, be these in written or electronic format, may only be used by the purchaser with the express permission of the vendor. This holds also for purely internal use. The relevant rights of the vendor pursuant to the appropriate provisions of the Copyright Act remain unaffected by this.
7. Indemnity
Insofar as the vendor has a claim to indemnity against the purchaser based on their contract, the vendor can demand 15% of the order value as lump-sum indemnity, without prejudicing the possibility of proving higher actual damages. The purchaser has the right to provide evidence that the extent of damages is lower.
8. Place of Fulfilment, Court of Jurisdiction, Applicable Law
Subject to obligations arising from warranty, the place of fulfilment for all obligations arising from the contractual relationship between the vendor and purchaser is the registered office of the vendor. For any disputes arising from the contractual relationship, if the purchaser is a non-consumer, application must be made to the court of jurisdiction of the registered office of
the vendor. The vendor is also entitled to make application to the court of jurisdiction of the purchaser. German law applies for the contractual relationship; the laws of other lands are not valid. In particular the parties agree to exclude the United Nations Convention on Contracts for the International Sale of Goods of 11th of April 1980 (BGB II 1989, 588 and BGBI II 1990, 1699).
9. Concluding Provisions
Transfer of the rights and duties of the purchaser from the contract concluded with the vendor require the written authorisation of the vendor to become valid. In the event that these provisions have no legal force or are incomplete in part, the application of the remaining provisions is not thereby to be affected. .
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