GmbH & Co. KG
Phone: + 49 7427 9409-0
Fax: + 49 7427 9409-30
General Terms and Conditions for Deliveries and Services of
PAUL Maschinenfabrik GmbH & Co. KG (as at 2013)
All supplies and other performances shall be subject to German law, in particular to the currently valid version of the Civil Code, Commercial Code, Copyright Act, Product Liability Act and the EC Machinery Directive. However these General Terms and Conditions and any differing provisions laid down in our order acknowledgement, provided these are admissible within the scope of freedom of contract under German law, shall take precedence. Differing general terms of business of our contracting partner or verbal agreements shall not become contractual constituents unless we agree in writing on their validity.
In all our performances, we shall adhere at least to the prevailing state of the art.
We reserve the right to effect technical alterations and alterations in shape, colour and/or weight, within reason and in particular within the scope of technical improvements.
The information and illustrations contained in prospectus shall be approximations habitual within the industry that are composed to the best of our knowledge and belief, unless we have explicitly confirmed them to be binding.
The content of our written order acknowledgement shall be binding with respect to the scope of performance required of us. We shall not be liable for statements made in advertising materials.
Inasmuch as our staff conclude verbal understandings or give assurances that differ from the written order acknowledgement, these shall at all times require written confirmation.
Delivery deadlines shall only be binding provided they are identified as such with binding effect in our order acknowledgement. They shall otherwise be deemed to be guide times, and may be exceeded where appropriate by up to 6 weeks.
An agreed delivery deadline shall be subject to a reasonable extension in the event of delays for which our contracting partner is responsible, in particular in the event of payment default or delays in providing necessary technical clarification.
Reservation of ownership
We reserve right of ownership to delivery items in all legally possible forms until payment in full of all receivables arising out of a current business relationship.
- Our contracting partner undertakes to treat the merchandise with due care and to regularly undertake necessary maintenance and inspection work at its own expense.
- Our contracting partner is obliged to prevent third parties gaining any access to the delivery items, e.g. through distraint, to immediately inform us of any access by third parties and to properly insure the delivery items.
- In the event of an application for the institution of insolvency proceedings or of payment default of more than 8 weeks, the contracting partner shall be obliged to return the delivery items.
- Our contracting partner shall be entitled to resell the merchandise during the normal course of business. It shall however then assign to us all debts due to it from a third party in the amount of the invoice arising from the sale.
- We reserve the right to collect the debt assigned to us ourselves, if our contracting partner falls into persistent payment arrears.
- Our contracting partner further undertakes to guarantee reservation of ownership in our favour even after the merchandise is resold, and to this end to take the measures necessary under the applicable national law in each case.
- If the merchandise is processed with items that do not belong to us, then we shall acquire joint ownership to the new object in the ratio of the value of the items delivered by ourselves to the items processed elsewhere.
- Our contracting partner shall not be entitled to pledge the merchandise that is subject to reservation of ownership or to transfer its ownership by way of security.
Prices and payment
Unless agreed otherwise, prices shall be “ex works, exclusive of packaging”.
The payment terms shall be set out in the order acknowledgement.
If a cash discount is agreed, then the corresponding deduction shall be allowed exclusively from the final payment, and only provided all payments have been made within the agreed deadlines and the contracting partner is not in arrears with other payments.
Our contracting partner shall only have a right of setoff provided its counterclaims have already been finally and absolutely approved or have been acknowledged by ourselves. The contracting partner may only exercise a right of retention provided its counterclaim is based on the same contractual relationship.
If our contracting partner is in default in payment, then we shall have a right of retention with respect to the performances we are required to provide.
Transfer of risk
The risk of accidental loss and accidental deterioration of the delivery items shall transfer when they are delivered to the carrier. This shall apply even if our contractual performance obligation includes the installation and commissioning of the delivery items at the customer’s premises and/or we are required to bear the freight costs.
Late acceptance on the part of our contracting partner shall still equate to transfer or delivery.
Each of the contracting parties may require formal acceptance of the performance to take place. Acceptance may not be refused in the event that minor defects should exist.
If no formal acceptance procedure is conducted, then the performance shall nevertheless be deemed to have been accepted at the latest 8 weeks after the user begins to use it, unless our contracting partner opposes acceptance in writing within this period.
Our contracting partner shall remain obliged to immediately declare defects after receipt of the performance even if he is not also the user.
- We shall initially provide warranty for defects in performances through repair or replacement delivery, at our choice.
- The warranty period shall be 1 year from acceptance of the performance.
- Our contracting partner undertakes to co-operate to a reasonable extent when faults are being sought and when replacement spare parts are being fitted. Replaced parts shall become our property and are to be returned to us upon request.
- If our warranty obligation consists of the replacement of a part or in the completion of work that does not require any specialist knowledge that is only available to our staff, customers shall not have a right to require our staff to undertake the work in question.
- Our contracting partner shall bear the onus of proof in relation to all claim prerequisites, in particular to the defect itself, the time at which the defect was discovered and the timeliness of the notice of defect.
- If the contracting partner elects to withdraw from the contract due to a material defect after subsequent fulfilment has failed, it shall not be additionally due any claim for damages due to defects.
- If the contracting partner seeks damages after failed subsequent fulfilment, he shall nevertheless accept the performance, if he can be reasonably be expected to do so. The damages payment shall in this case be restricted to the difference between the purchase price and the value of the defective item. This shall not apply if we have maliciously committed the breach of contract.
- Unless agreed otherwise, our warranty obligation shall be restricted in geographical terms to the registered offices of the contracting partner.
- If we are not commissioned with the installation and commissioning, then a charge shall in any event be made the first time a fitter is sent to the place of use.
- We are unable to accept any warranty for defects in second-hand supplied items.
Restrictions of liability
The contracting partner must provide evidence of the amount of damages for which we are responsible due to problems with our performance. We shall accept the following maximum liability for all damages for which we may be responsible, with the exception of the mandatory liability arising out of the Product Liability Act, intent or gross negligence.
- The total liability shall be restricted to a maximum of 15% of the total contract sum.
- Liability for delay in delivery shall be restricted to 0.5% per full week of delay, and to a maximum of 5%.
- The period of limitation shall be 12 months.
- We shall not be liable for minor negligence or for what are termed pecuniary losses such as lost production and profit.
We accept no liability for quality processing in the event of defects due to poor, unsuitable or unknown material quality. Our liability disclaimer also includes the processing, repair or restoration of second-hand parts.
In the event of scrap, dimensional changes, impairment to dimensional or fitting accuracy, loss, damage etc. sustained in the course of work, we are not liable for provision of any replacement, excepting in cases caused as a result of deliberate acts or gross negligence on our part. In such a case, the contracting partner shall be entitled to claim for replacement of the value at our discretion. All our calculations refer exclusively to services ordered by the contracting partner and performed by us. The value of parts to be machined is not known to us. Compensation for damages of any kind and on whatever legal grounds is consequently restricted to the amount charged by us (order value). No liability will be accepted by us for unknown risks of an unknown extent. If the contracting partner requests further-reaching security based, for instance, on the part value, then the value of any parts and the full extent of any risk to be covered by us must be known to us prior to the machining of parts. Agreements in relation to the limitation of risk may be made where appropriate and must be confirmed by us.
The contractual language shall be German or English. This shall be evident from the order acknowledgement.
The place of jurisdiction shall be our company headquarters.
If individual provisions of the contract with our contracting partner, including these General Terms of Business, should be or become fully or partially invalid, this shall not affect the validity of the remaining provisions. If this should be the case, the contracting parties shall be obliged to replace the fully or partially invalid rule by a valid rule that comes as close as possible to the economic meaning of the invalid provision.
On conclusion of contract, the General Terms and Conditions of Paul Maschinenfabrik GmbH & Co. KG shall apply.