General Terms and Conditions of Pfalz Tec GmbH (as of 01/09/2018)
I. Scope of application
(1) The General Terms and Conditions apply exclusively to contracts with entrepreneurs.
(2) All deliveries, services and offers of Pfalz Tec - including the items that Pfalz Tec manufactures specifically according to the specifications of the contractual partner (hereinafter referred to as the customer) - are made exclusively on the basis of these General Terms and Conditions. These are an integral part of all contracts that Pfalz Tec concludes with the client. They shall also apply to all future deliveries, services or offers to the customer, even if they are not separately agreed again.
(3) Terms and conditions of the customer or third parties shall not apply, even if Pfalz Tec does not separately object to their validity in detail. Even if Pfalz Tec refers to a letter that contains or refers to the terms and conditions of the customer or a third party, this does not constitute an agreement with the validity of those terms and conditions.
II Offer and conclusion of contract
(1) All offers made by Pfalz Tec are subject to change and non-binding.
(2) The legal relationship between Pfalz Tec and the customer shall be governed solely by the contract concluded in writing, including these General Terms and Conditions. This fully reflects all agreements of the contracting parties on the subject matter of the contract. Verbal promises made by Pfalz Tec prior to the conclusion of this contract are not legally binding and verbal agreements of the contracting parties shall be replaced by the written contract, unless it is expressly stated in each case that they shall continue to be binding.
(3) Additions and amendments to the agreements made, including these General Terms and Conditions, must be made in writing to be effective.
(4) Information provided by Pfalz Tec on the subject matter of the delivery (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as representations by Pfalz Tec (e.g. drawings and illustrations) are only approximate unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or labelling of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permitted, provided they do not impair the usability for the intended purpose.
(5) Pfalz Tec reserves the right of ownership or copyright to all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the customer. Without the express consent of Pfalz Tec, the customer may not make these items accessible to third parties, disclose them, use them himself or through third parties or reproduce them. At the request of Pfalz Tec, the customer must return these items to Pfalz Tec in full and destroy any copies made if they are no longer required by the customer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract
III. DUTY TO CO-OPERATE - NOTIFICATION OF THE SPRAY AGENT TO BE USED AND THE ENVIRONMENTAL CONDITIONS
(1) The customer must specify with the order which spray agent (complete chemical formula) and under which specific environmental conditions the delivery item is to be used, unless Pfalz Tec specifies the suitability of the delivery item for certain spray agents or environmental requirements within the framework of „agent information“, product advertising or other publications and the use remains within this specified framework.
(2) Pfalz Tec reserves the right to reject the customer's order immediately in the event of notification of the spray agent to be used and the specific ambient conditions.
(3) Otherwise, it is the sole responsibility of the client:
- select the spray agent and its active ingredients for the specific application and environmental requirements,
- to carry out the operation,
- obtain any necessary official authorisations and permits for the spraying process and
- regulations regarding the use of the spray agent to be used, the behaviour in the environment in which it is used and the applicable health and safety regulations must be observed.
IV. Deliveries, delivery periods
(1) Deadlines and dates for deliveries promised by Pfalz Tec are always only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed. If despatch has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport
(2) Unless otherwise agreed, a delivery period of approximately 4 weeks shall apply for standardised standard devices and approximately 8 weeks for devices that are to be manufactured for the customer in accordance with the customer's specifications. S. 3 shall not apply to deliveries comprising more than 5 devices; delivery periods in this respect shall require a separate agreement.
(3) Insofar as the customer and Pfalz Tec have agreed advance payment, delivery shall not commence before receipt of the agreed payment amount by Pfalz Tec.
(4) Pfalz Tec may - without prejudice to its rights arising from default of the customer - demand from the customer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the customer does not fulfil its contractual obligations towards Pfalz Tec. This applies in particular to the answering of technical questions, the provision of necessary drawings and documents, the provision of agreed materials or technical goods and the timely production of contractually agreed preliminary work by the customer.
(5) Pfalz Tec may also demand an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period required for the realisation of subsequent change requests or specifications of the customer.
(6) Pfalz Tec shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver correctly or on time) for which Pfalz Tec is not responsible. If such events make the delivery or service significantly more difficult or impossible for Pfalz Tec and the hindrance is not only of a temporary nature, Pfalz Tec is entitled to withdraw from the contract. In the event of such hindrances of temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If the client cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to Pfalz Tec. Pfalz Tec shall immediately inform the customer of hindrances in the sense of the preceding sentences.
(7) Pfalz Tec is entitled to make partial deliveries if
- the partial delivery can be used by the customer within the scope of the contractual purpose,
- and the delivery of the remaining goods is ensured
- and the client does not incur any significant additional work or costs (unless Pfalz Tec agrees to bear these costs)
(8) Should Pfalz Tec fail to meet an agreed delivery date, the customer shall set Pfalz Tec a reasonable period of grace, which may in no case be less than 2 weeks.
(9) If Pfalz Tec is in default with a delivery or service or if a delivery or service becomes impossible for whatever reason, the liability of Pfalz Tec is limited to damages in accordance with the provisions in Section X of these General Terms and Conditions.
V. Prices and terms of payment
(1) The prices are ex works Görlitz, Germany. In addition to the prices, the respective statutory value added tax of currently 19 %, the costs of packaging, dispatch, transport insurance, as well as customs duties, fees and other public charges, or other country-specific costs. (e.g. toll charges).
(2) Insofar as the agreed prices are based on Pfalz Tec's list prices and the delivery is to be made more than four months after conclusion of the contract, Pfalz Tec's list prices valid at the time of delivery shall apply. In the event of price increases of more than 10 % since conclusion of the contract, the customer may withdraw from the contract. The right of cancellation must be exercised within a period of five days after receipt of the notification of the price increase.
(3) Offsetting against counterclaims of the client or the retention of payments due to such claims is only permissible if the counterclaims are undisputed or have been legally established.
(4) When the contract is concluded for the first time or for clients in other EU countries, the price must be paid upon conclusion of the contract.
(5) The respective invoice amount is due without deductions 12 calendar days after receipt of the invoice, unless otherwise agreed.
(6) Interest shall be charged on the price from the due date at five percentage points above the base interest rate; the assertion of higher interest and further damages in the event of default shall remain unaffected.
(7) The date of receipt of payment by Pfalz Tec shall be decisive for the date of payment.
(8) Pfalz Tec is entitled to carry out or provide outstanding deliveries only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the customer and which jeopardise the payment of Pfalz Tec's outstanding claims from the respective contractual relationship.
VI Cancellation / Withdrawal by the client
In the event that the subject matter of the contract is the delivery of an item to be manufactured and the client cancels or withdraws from the contract, the client shall pay the agreed price less the expenses saved; the expenses saved shall be set at 20 % of the agreed price. VII Retention of title
(1) The delivery item remains the property of Pfalz Tec until full payment of all claims against the customer arising from the business relationship.
(2) The client shall store the delivery item subject to retention of title free of charge.
(3) The customer is permitted to process or remodel the delivery item (processing). The processing is carried out for Pfalz Tec. However, if the value of the delivery item belonging to Pfalz Tec is lower than the value of the items not belonging to Pfalz Tec and/or the processing, Pfalz Tec shall acquire co-ownership of the new item in the ratio of the value (gross invoice value) of the processed delivery item to the value of the other processed items and/or the processing at the time of processing. Insofar as Pfalz Tec does not acquire ownership of the new item according to the above, Pfalz Tec and the customer agree that the customer shall grant Pfalz Tec co-ownership of the new item in the ratio of the value (gross invoice value) of the delivery item belonging to Pfalz Tec to that of the other processed items at the time of processing. The above sentence shall apply accordingly in the event of inseparable mixing or combination of the delivery item with items not belonging to Pfalz Tec. Insofar as Pfalz Tec acquires ownership or co-ownership according to this provision, the customer shall store them for Pfalz Tec with the care of a prudent businessman.
(4) In the event of the sale of the delivery item or the new item, the client hereby assigns his claim from the resale against his customer with all ancillary rights to Pfalz Tec by way of security, without the need for any further special declarations. The assignment shall apply including any balance claims. However, the assignment shall only apply to the amount corresponding to the price of the delivery item invoiced by Pfalz Tec. The part of the claim assigned to Pfalz Tec is to be satisfied with priority.
(5) If the customer combines the delivery item or the new item with real estate, he also assigns his claim, which he is entitled to as remuneration for the combination, in the amount corresponding to the price of the delivery item invoiced by Pfalz Tec, without the need for further special declarations.
(6) Until revocation, the client is authorised to collect the claim assigned to Pfalz Tec in accordance with this clause VII. The client shall immediately forward to Pfalz Tec any payments made on the assigned claim up to the amount of the secured claims. In the event of justified interests, in particular in the event of default of payment, suspension of payment, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the customer, Pfalz Tec is entitled to revoke the customer's authorisation to collect. In addition, Pfalz Tec may, after prior warning and subject to a reasonable period of notice, disclose the assignment by way of security, realise the assigned claims and demand disclosure of the assignment by way of security by the contractor to the customers.
(7) Upon request, the client shall provide the information required to assert its rights against the customers and hand over the necessary documents.
(8) During the existence of the retention of title, the customer is prohibited from pledging or transferring the delivery item by way of security. In the event of seizure, confiscation or other dispositions or interventions by third parties, the client must inform Pfalz Tec immediately. The resale of the delivery item or the new item is only permitted to resellers in the ordinary course of business and only under the conditions that payment of the equivalent value of the delivery item is made to the customer. The customer shall also agree with the purchaser that the purchaser shall only acquire ownership upon this payment.
(9) Insofar as the realisable value of all security interests to which Pfalz Tec is entitled exceeds the amount of all secured claims by more than 10 %, Pfalz Tec shall release a corresponding part of the security interests at the customer's request. It shall be assumed that the requirements of the preceding sentence are fulfilled if the estimated value of the securities to which Pfalz Tec is entitled reaches or exceeds 150% of the value of the secured claims. Pfalz Tec shall be entitled to choose between different security interests for the release.
(10) In the event of breaches of duty by the customer, in particular in the event of default of payment, Pfalz Tec is entitled, even without setting a deadline, to demand the surrender of the delivery item or the new item and/or to withdraw from the contract after setting a deadline; the customer is obliged to surrender the item. The demand for the return of the delivery item/new item does not constitute a declaration of cancellation by Pfalz Tec, unless this is expressly declared.
VIII. Dispatch/Transfer of risk
(1) The place of fulfilment for all obligations arising from the contract is Germany, 02829 Markersdorf, Erligheimer Ring 9. If Pfalz Tec is also responsible for the installation, the place of fulfilment is the place where the installation is to take place.
(2) The risk shall pass to the contractual partner of Pfalz Tec upon delivery to the forwarding agent, carrier or other person designated to carry out the shipment. The start of the loading process is decisive. This also applies if partial deliveries are made or Pfalz Tec has taken over other services (e.g. dispatch or installation). If the dispatch or the handover is delayed due to a circumstance whose cause lies with the customer, the risk shall pass to the customer from the day on which Pfalz Tec is ready for dispatch and has notified the customer of this.
(3) Instead of the start of the loading process, notification of readiness for dispatch shall be given if dispatch is delayed due to circumstances caused by the customer, but Pfalz Tec is ready for dispatch.
(4) The mode of dispatch and the packaging are subject to the dutiful discretion of Pfalz Tec. The consignment will only be insured at the express request of the customer and for his account.
(5) In the event of collection by the client, the risk shall pass to the client at the start of the loading process.
(6) Storage costs after the transfer of risk shall be borne by the customer. In the case of storage by Pfalz Tec, the storage costs amount to 15 € / square metre per month or part thereof. The assertion and proof of further or lower costs remains reserved.
IX. Notice of defects, warranty
(1) The delivery item must be carefully inspected immediately after delivery to the customer or to the third party designated by the customer.
(2) The delivery item shall be deemed approved if the Seller has not received a notice of defects in text form with regard to obvious defects or other defects that were recognisable during an immediate, careful inspection within five working days of delivery of the delivery item, or otherwise within five working days of discovery of the defect or any earlier point in time at which the defect was recognisable to the Customer during normal use of the delivery item without closer inspection.
(3) At the request of Pfalz Tec, the rejected delivery item is to be returned to Pfalz Tec carriage paid. In the event of a justified notice of defects, Pfalz Tec shall reimburse the costs of the most favourable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
(4) In the event of material defects of the delivered item, Pfalz Tec is initially obliged and entitled to rectify the defect or make a replacement delivery at its discretion within a reasonable period of time. A failure of the subsequent improvement is in any case only given after the unsuccessful second attempt. In the event of failure of subsequent fulfilment, i.e. impossibility, unreasonableness, refusal or unreasonable delay of subsequent improvement or replacement delivery, the customer may withdraw from the contract or reduce the price appropriately.
(5) The warranty shall not apply if the customer modifies the delivered item or has it modified by a third party without the consent of Pfalz Tec and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the customer shall bear the additional costs arising from the modification.
(6) The warranty shall also lapse if a defect arises in the delivery item as a result of the use of a spray agent and/or environmental requirements, the respective specification of which the customer has omitted in accordance with Section III (1), unless Pfalz Tec specifies the suitability of the delivery item for certain spray agents or environmental requirements in the context of „agent information“, product advertising or other publications and the use remains within this specified framework.
X. Damages - Limitation of liability
(1) Pfalz Tec's liability for damages, irrespective of the legal grounds, in particular impossibility, delay, defective or incorrect delivery, breach of contract of duties during contract negotiations and unauthorised action, is limited in accordance with the following provisions insofar as fault is involved.
(2) Pfalz Tec shall not be liable in the event of simple negligence on the part of the owner/its bodies, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations.
(3) Essential to the contract are the obligation to deliver on time and free of defects as well as duties of advice, protection and care which are intended to enable the client to use the delivered item in accordance with the contract or which are intended to protect the life and limb of the client's personnel or to protect the client's property from considerable damage.
(4) Insofar as the client is liable on the merits pursuant to IX. para. 2, this liability is limited to damages which Pfalz Tec foresaw as a possible consequence of a breach of contract upon conclusion of the contract or which Pfalz Tec should have foreseen if it had exercised due care. Indirect damages and consequential damages resulting from defects of the delivery item are only eligible for compensation if such damages are typically to be expected when the delivery item is used as intended. This does not include damage resulting from the use of a spraying agent and/or the environmental requirements which the customer has failed to specify in accordance with Section III (1), unless Pfalz Tec specifies the suitability of the delivery item for certain spraying agents or environmental requirements in the context of „agent information“, product advertising or other publications and the use is within this specified scope.
(5) In the event of liability for simple negligence, Pfalz Tec's liability for property damage shall be limited to an amount of € 1 million per claim, even if this involves a breach of material contractual obligations.
(6) The above exclusions and limitations of liability shall apply to the same extent in favour of the executive bodies, legal representatives, employees and other vicarious agents of Pfalz Tec.
(7) Insofar as Pfalz Tec acts in an advisory capacity or provides technical information, and this information and advice is not part of the contractually agreed scope of services owed by it, it shall be provided free of charge and to the exclusion of any liability.
(8) The above limitations do not apply to the liability of Pfalz Tec for intentional acts, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
XI. Statute of limitations
(1) The limitation period for all claims of the client due to defects is one year. However, this shall not apply in the cases of § 438 para. 1 no. 2 BGB (buildings, items for buildings), § 479 para. 1 BGB (recourse claim of the contractor) or § 634 a para. 1 no. 2 BGB (buildings or work, the success of which consists in the provision of planning or monitoring services for this). The cases listed in p. 2 are subject to the statutory limitation period.
(2) The limitation periods according to para. 1 shall also apply to claims for damages against Pfalz Tec that are related to the defect - irrespective of the legal basis of the claim. Insofar as claims for damages of any kind exist against Pfalz Tec that are not related to a defect, the limitation period of para. 1 sentence 1 shall apply to them.
(3) However, the limitation periods pursuant to para. 1 and para. 2 shall apply with the following proviso: The limitation periods shall not apply in the event of intent or fraudulent concealment of a defect. The limitation periods shall also not apply to claims for damages in the event of a grossly negligent breach of duty, in the event of culpable breach of material contractual obligations - not consisting of the delivery of a defective item - in the event of culpable injury to life, limb or health, or in the event of claims under the Product Liability Act.
(4) The limitation period begins with the delivery, in the case of work services with the acceptance.
(5) Unless expressly stipulated otherwise, the statutory provisions on the commencement of the limitation period, suspension of expiry, suspension and recommencement of limitation periods shall remain unaffected.
(6) A change in the burden of proof to the detriment of the client is not associated with the above provisions.
XII Third-party property rights
If Pfalz Tec manufactures and delivers items for the customer according to the customer's specifications and/or documents, the customer shall be responsible for ensuring that no industrial property rights of third parties in countries of the European Union or other countries are infringed. The customer shall indemnify Pfalz Tec from all claims of third parties due to the industrial property rights mentioned in sentence 1. The claim for indemnification according to sentence 2 also includes the costs incurred by Pfalz Tec for legal prosecution including judicial and extrajudicial costs. The claim for indemnification exists irrespective of any fault on the part of the customer.
XIII Written form requirement
Insofar as the General Terms and Conditions require the written form, this shall be deemed to have been complied with in text form. XIV Place of jurisdiction, choice of law, contract language, final provisions
(1) The place of jurisdiction is Görlitz. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected.
(2) The relations between Pfalz Tec and the customer are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(3) The contract language is German.
(4) If any of the above provisions are invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by what the parties would have agreed against the background of these GTC if they had been aware of the omission. Insofar as the contract or these GTC contain loopholes, sentence 2 shall apply accordingly.