Terms & Conditions
The following terms of delivery apply exclusively to all contracts, deliveries and other services, including consultancy services, except where expressly written consent of the seller may be changed or excluded. Conditions of the buyer will not be binding even if the seller does not expressly contradicts again. Other terms and conditions of the purchaser are only valid insofar as they have been expressly accepted by the supplier in writing.
2. Offer and completion
Offers are always non-binding, contracts and other agreements are only binding by written confirmation of the seller.
Insofar as sales employees or sales representatives make verbal ancillary agreements or make representations that go beyond the written purchase agreement, these always require the written confirmation of the seller.
The documents belonging to the offer such as illustrations, drawings, weights and measurements are only approximate.
If facts become known to the seller after conclusion of the contract which make the creditworthiness of the buyer doubtful, the seller is entitled to demand advance payment or corresponding securities and in the event of refusal to withdraw from the contract. Company change or change in the person of the buyer entitle the seller to resign.
3. Plans and technical documentation
Brochures and catalogs are not binding unless otherwise agreed. Information in technical documents is only binding if expressly guaranteed.
The supplier may deviate from illustrations, weights and dimension tables, if this proves to be expedient in the execution of the order. Each party reserve all rights to plans and technical documentation provided to the other party. The receiving party acknowledges these rights and will not make the documents, in whole or in part, accessible to third parties without the prior written consent of the other party or use them for the purpose for which they were handed over. Upon request, all plans and technical documents or copies or extracts thereof, in any form, to be returned.
4. Delivery times and delay
Delivery times and dates are only approximate, unless the seller has expressly made a written commitment as binding.
Partial deliveries are permitted. The delivery period shall be extended - even in the event of default - in the event of force majeure and all unforeseen obstacles beyond the control of the seller, insofar as such impediments demonstrably have a significant influence on the delivery of the goods sold. This also applies if these circumstances occur with the suppliers of the seller and its subcontractors.
In important cases the seller will inform the buyer as soon as possible about the beginning and end of such obstacles.
Delivery periods are extended by the period in which the buyer is in default with his contractual obligations - also from other contracts.
The right of the buyer to withdraw after fruitless expiration of a grace period set for the seller stays untouched. The delivery takes place if possible within the agreed period. For late deliveries all claims for damages of the customer are excluded.
5. Shipping and transfer of risk
Shipping is at the discretion of the seller, but without guarantee for cheapest shipping. All shipments, including any returns, are at the expense and risk of the buyer. Insurance is at his request and at his expense. The shipping route and means are, unless otherwise agreed, the choice of the seller. If the shipment is delayed through no fault of the seller, the goods are stored at the expense and risk of the buyer. In this case, the display of readiness for shipment is the same as shipping. Moreover, the risk passes to the handover of the goods to a freight forwarder or carrier, at the latest, however, when leaving the warehouse or with a seizure of the goods to the buyer.
The packaging will be charged separately. Lightweight packaging, such as boxes, etc. will not be taken back. For late-returned means of transport, the conditions of the manufacturer or the seller apply.
7. Prices and payment
The prices are always plus value added tax in the respective statutory amount. Unless otherwise expressly agreed, payment must be made within 30 days of the date of invoice without deductions so that the seller has the agreed amount for the settlement of the invoice no later than the due date. Service, maintenance and repair services are to be paid immediately after service provision and invoicing without deductions. Checks will be credited subject to receipt less expenses with value date of the day on which the seller can dispose of the consideration. In the event of late payment, interest in the amount of the respective bank rates for overdrafts must be paid, but at least interest of 3% above the discount rate of the Deutsche Bundesbank, plus VAT. Discounts will not be granted if the buyer is in arrears with the payment of previous deliveries. For each invoice made by the seller, beginning at the earliest 2 weeks after default, dunning fees in the amount USD 10, - will be charged. The offsetting of any counterclaims of the buyer disputed by the seller is not permitted, as far as the claim is not legally established. If a complaint is made, payments made by the buyer may be withheld to an extent proportionate to the defects that have occurred. However, if the contract is part of the operation of his trade, the buyer may withhold payments only if a complaint is made, the justification of which cannot be in doubt. The replacement of further damage remains reserved.
8. Retention of title
a) The seller retains title to the goods until all claims of the seller against the buyer from the business relationship, including future claims, have also been settled from simultaneously or later concluded contracts. This also applies if individual or all claims of the seller have been included in a current invoice and the balance has been drawn and acknowledged.
In case of breach of contract by the buyer, in particular in case of default of payment, the seller is entitled to take back the goods after a reminder and the buyer is obliged to surrender. In the withdrawal as well as in the seizure of the object by the seller a resignation of the contract exists only if this the seller expressly declares in writing. In the case of seizure or other interventions by third parties, the purchaser must notify the seller immediately in writing of the identity of the seized object by sending a seizure protocol and an affidavit.
b) The buyer is entitled to resell the goods in the ordinary course of business, provided that the claims from the resale to the seller as follows: The buyer assigns the seller from now all claims with all ancillary rights from the resale to the customer or against third parties, regardless of whether the reserved goods are resold without or after processing. To collect these claims, the buyer is authorized even after the assignment. The seller's right to collect the claims himself remains unaffected, but the seller undertakes not to collect the claims as long as the buyer duly fulfills his payment obligations. The seller may demand that the buyer informs him of the assigned claims and their debtors, provides all information necessary for collection, hands over the related documents and notifies the debtors of the assignment. If the goods are resold together with other goods that are not owned by the seller, the buyer's claim against the buyer in the amount of the delivery price agreed between the seller and the buyer shall be considered as assigned.
c) Working and processing of the reserved goods are carried out for the seller as a manufacturer within the meaning of § 950 BGB, without obliging him to do so. The processed goods are considered as reserved goods within the meaning of these conditions. If the reserved goods are processed or inseparably mixed with other items not belonging to the seller, the seller acquires co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used at the time of processing or mixing. The resulting co-ownership rights are considered as reserved goods within the meaning of these conditions. If the seller's goods are combined or inseparably mixed with other movable items and the other item is to be regarded as the main item, it shall be deemed to have been agreed that the buyer assigns co-ownership to the seller to the extent that the main item belongs to him. Incidentally, the same applies to the thing resulting from the agreement and the connection and mixing as for the reserved goods.
d) The seller undertakes to release the securities due to him insofar as their value exceeds the claims to be secured, insofar as they have not yet been settled, by more than 25%.
e) The company may at any time inspect or surrender the reserved goods if their payment claim appears to be endangered. The customer irrevocably authorizes the company to enter his rooms and to take the goods away, without any power of their own being prohibited. The purchaser shall maintain the delivered goods at his expense during the period of retention of title and insure them against theft, breakage, fire, water and other risks for the benefit of the supplier. He will also take all measures to ensure that the ownership of the supplier is neither affected nor canceled.
9. Complaints and warranty
For defects, which include the lack of assured properties, the seller is liable as follows:
a) The buyer must examine the received goods immediately after arrival on quantity and condition. Obvious defects must be reported to the seller immediately, at the latest within one week by written notice.
b) In the case of justified complaints, the seller will choose to rectify faulty goods, to replace them, to take back the goods under credit or credit the reduced value of the goods.
c) In order to remedy the defect, the Buyer must grant the Seller the time and opportunity required in its reasonable discretion, in particular to provide the object in dispute or samples thereof. If he refuses, the seller is released from liability for defects.
d) For all entries and returns, the delivery note (packing slip) must be returned. If, in the case of a return of goods for the purpose of the complaint, the complaint has been made unjustly, the seller is entitled to charge not only the costs of the shipment but also a reasonable remuneration for the inspection of the goods.
e) Any changes or repairs undertaken improperly by the purchaser or third parties will cancel the liability for the resulting consequences.
f) Further claims of the buyer against the seller and its vicarious agents are excluded, in particular a claim for compensation for damages that have not arisen on the delivery item itself. This does not apply insofar as liability is mandatory in cases of intent, gross negligence or the lack of warranted characteristics. The warranty expires prematurely if the purchaser or third parties make changes or repairs, fail to comply with the operating conditions or if the purchaser, if a defect has occurred, does not immediately take all suitable measures to mitigate the damage and give the supplier the opportunity to remedy the defect.
10. General limitation of liability
The liability of the seller is exclusively based on the agreements made in the preceding section. Claims for damages of the buyer due to culpa in contrahendo, breach of contractual secondary obligations and tort are excluded, unless they are based on intent, gross negligence on the part of the seller or one of his vicarious agents. These claims expire half a year after receipt of the goods by the buyer.
Damages may not, however, exceed the loss and loss of profit which the party who breached the contract should have anticipated at the time of the conclusion of the contract, taking into account the circumstances that it knew or should have known as a possible consequence of the breach of contract. Supplier shall not be held liable for circumstances beyond its control, such as non-delivery by suppliers, total or partial closure of suppliers, mobilization, outbreak of war, strike, fire or other disruption, entry into force of import bans or significant increase in import duties. All cases of breaches of contract and their legal consequences as well as all claims of the purchaser, irrespective of their legal grounds, are governed by these terms and conditions. In particular, all claims for damages, reduction, and cancellation of the contract or withdrawal from the contract are expressly excluded. In no case shall claims of the purchaser exist for compensation for damages that have not arisen on the delivery item itself, such as loss of production, loss of use, loss of orders, lost profit, as well as other direct or indirect damages.
If the submission of a cost estimate is requested before carrying out repairs, this must be stated explicitly. The costs for the estimate are to be remunerated.
Repairs are made without guarantee if no defect report is available. Whether repairs are made in-house or by a third-party workshop is at the discretion of the seller.
Costs for shipping and packaging are at the expense of the buyer.
Reference is made to clauses 4 and 5 of the conditions.
Delivery of repair equipment takes place only against immediate payment.
If a product or object has to be assembled by the supplier, the customer has to take care of all necessary preparatory work and to ensure that the assembly can be started and carried out without hindrance. All environmental work, such as bricklaying, carpentry and painting work, the delivery of any necessary scaffolding and the hiring of auxiliary workers, are to his detriment. The statutory liability for accidents in all delivery and installation work to be carried out by the supplier, including samples, shall apply to the purchaser's personnel and third parties authorized by the purchaser. The purchaser is exclusively liable for damage to property unless he proves that the supplier's staff were at fault. Regulatory and other approvals required for the execution of installations must be obtained from the purchaser; necessary insurance must be taken out.
13. Sale maintenance
Where products are covered by a sales commitment, these conditions of delivery shall be governed by the special conditions of the manufacturer concerned.
The buyer is obliged to get acquainted with the content of these conditions as well. He cannot rely on an ignorance of these conditions.
14. Place of Performance, Jurisdiction, Applicable Law
For P&N Europe GmbH, Donauwörth, Germany:
Place of fulfillment and exclusive place of jurisdiction for deliveries and payments (including check claims), as well as for all disputes arising between the parties, is the head office of the seller, as far as the buyer is a merchant, legal entity of public law or public special assets. The relations between the contracting parties are governed exclusively by the German law applicable in the Federal Republic of Germany.