General terms and conditions of PMA/TOOLS AG
Valid from: 01.08.2018
1. General information
1.1 The contractual partner for all orders is the PMA/TOOLS AG, Siemensring 42 in 47877 Willich (hereinafter referred to as “PMA”, “us” or “we”). The following general terms and conditions (GTCs) shall be applicable to all company transactions with PMA in the sense of the German Civil Code (BGB). They shall also apply to all future transactions with our customers, even if they are not expressly agreed again. Contradicting or deviating conditions of the customer shall not be recognised unless we expressly recognise this in writing. Our general terms and conditions shall also be applicable if we perform the delivery to the customer without reservation although being aware of contradictory or deviating conditions of the customer.
1.2 The GTC apply in particular to contracts for the sale and/or delivery of movable goods (“goods”), irrespec-tive of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 651 BGB).
1.3 Individual agreements made with the purchaser in individual cases (including collateral agreements, sup-plements, amendments) take precedence over these GTC. Collateral agreements, in particular assurances as well as subsequent amendments to the contract – subject to proof to the contrary – shall require the written form.
1.4 Legally relevant declarations and notifications by the purchaser with regard to the contract (e.g. setting of a deadline, notification of defects, withdrawal, reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further evidence, in particular in cases of doubt as to the declarant’s legitimacy, remain unaffected.
1.5 References to the validity of legal regulations have only a clarifying meaning. Even without such clarifica-tion, the statutory provisions apply, unless directly modified or expressly excluded by these GTC.
2. Offers and documentation, consequences in case of infringement of property/copyright rights to documents
2.1 All offers on the part of PMA are are subject to change and principally non-binding. Our Internet presence and other information material (brochures, catalogues, etc.) are not offers in the legal sense, but an invitation to the offer. This also applies if we have provided the purchaser with technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards) or other product descriptions to which we gener-ally reserve title and copyright.
2.2 We shall be entitled to accept an offer made by the customer within three weeks. The customer shall be bound by his offer for a period of three weeks unless otherwise provided for in the offer.
2.3 An agreement shall not become effective until receipt of our order confirmation or the delivery of the goods.
2.4 The observance of our obligation to deliver shall require the timely and complete obligations to cooperate on the part of the customer as well as the timely and complete delivery on the part of our supplier. In this regard, we shall immediately notify the customer in respect of goods, which are undeliverable following the placing of the order. In this case, we shall be entitled to cancel the agreement within two weeks following the order confirmation and reimburse any return service already provided without this leading to further compensation claims against us.
2.5 We shall retain the title to property rights and copyrights to images, drawings, calculations and other documents (e.g. catalogues, posters, etc.). The customer shall require our express written consent before their reproduction, publication, distribution, modification, passing on to third-parties or other use. This shall particularly apply to such written documents designated as “confidential”. If the above requirement of consent is violated, we charge – in addition to further legal claims – a lump-sum compensation in the amount of one thou-sand times our sales price of the respective product to which the documents refer and in the case of duplication or modification of the documents in the amount of five thousand times our sales price of the respective product to which the documents refer upon publication, distribution or passing on of the documents. The prices are valid at the time of the violation. Each violation establishes its own claim. The infringer reserves the right to prove that no or substantially less damage has been caused.
2.6 We shall assume no liability whatsoever for misunderstandings occurring through non-written communication. Declarations made verbally or by telephone shall require our written confirmation as a matter of principle.
3. Prices and terms of payment
3.1 For contracts with an agreed delivery period exceeding four months, we shall reserve the right to change the prices as appropriate in the event that cost reductions or cost increases have taken place following the conclusion of contract.
3.2 All our prices are net prices plus VAT in the statutory amount.
3.3 Unless a different term of payment has been agreed, invoices shall be due within 14 days without deduction. The agreement of a discount shall require a special written agreement.
3.4 We charge the statutory interest rate (currently 9 percentage points above the base rate) as default interest to company customers. The right to verification for higher default damages shall remain reserved.
3.5 PMA shall be entitled at any time to claim an advance payment (Section 321 BGB) – particularly with new customers, i.e., only provide delivery against cash on delivery or prepayment at the discretion of PMA.
3.6 PMA shall be entitled to claim settlement of all outstanding invoices (without reminder) and demand payment in cash at any time – particularly if we become aware of a risk to our payment claim.
3.7 Any set-off of our claims with non-recognised or claims on the part of the customer that have not been legally determined shall be excluded. This shall also apply to a right of retention relating to said counter-claims unless these claims are based on the same contractual relationship.
3.8 Invoice complaints shall be notified immediately (Section 121 BGB). Complaints received later than 14 days following receipt of the invoice shall no longer be accepted.
4. Scope and period of delivery
4.1 The scope of delivery shall be determined by the order confirmation or the agreements made between PMA and customers. The right to changes in design or form, intended to improve the technology or the requirements of lawmakers, shall remain reserved during the delivery period, insofar as the consignment remains suitable for the contractual use without restrictions and the changes are reasonable for the customer to accept.
4.2 Information provided in our catalogues, in our online shops or other information material shall not represent warranties for a particular product feature.
4.3 A delivery period or delivery date specified by us does not represent a transaction at a fixed date. A transaction at a fixed date shall require a particular written agreement.
4.4 We shall only enter into default if we have been set a suitable period of time for subsequent performance (a minimum of 5 working days) and said time has lapsed ineffectively.
4.5 A temporary prevention of acceptance shall also constitute default of acceptance. In the event of default of acceptance or the culpable violation of other obligations to cooperate, we shall be entitled to demand compensation for losses incurred, including any additional expenditures. Further claims or rights shall remain reserved.
4.6 Unless otherwise specified in the order confirmation, our prices do not include ex-works handling charges (extra). The despatching shall invariably ensue at the customer’s request and risk. PMA shall be entitled to select the despatching company. The amount of the despatch charges shall be calculated according to our despatch charges file, which may be viewed in our webshop (after logging-in) or can be sent to the customer on request. Unless otherwise agreed, we are entitled to determine the type of despatch (in particular transport company, dispatch route, packaging) ourselves.
4.7 PMA shall be entitled to provide partial performance and partial delivery at any time. Section 323 (5), p. 1 BGB shall be excluded.
4.8 The risk of accidental loss or accidental deterioration of the object of purchase shall pass to the purchaser upon delivery; in the case of a sale to destination, the risk of accidental loss, accidental deterioration of the goods and the risk of delay shall pass to the purchaser upon delivery of the goods to the forwarding agent, the carrier or any other person appointed to carry out the shipment.
4.9 However, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the latest at the time at which the customer defaults in acceptance. In all other respects, we are entitled to de-mand compensation for the damage resulting from default in acceptance or from the failure to cooperate and for additional expenses incurred (e.g. storage costs).
4.10 If the customer so wishes and bears the costs, we will cover the delivery with transport insurance.
4.11 The rights of the buyer according to No. 7 of these general terms and conditions and our legal rights, in particular in case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the performance and/or subsequent performance), remain unaffected.
5. Force majeure
Force majeure, strike, non-culpable inability on the part of PMA or one of our suppliers as well as unfavourable weather conditions shall extend the delivery period by the period of the disruption, plus a suitable initial period of not less than 5 days. Alternatively, we shall be entitled to withdraw from the contract in full or in part as a result of the not yet fulfilled part of delivery or performance.
6.1 Unless otherwise specified below, the statutory provisions shall apply to the buyer’s rights in the event of material defects and defects of title (including incorrect and short deliveries as well as improper assembly or defective assembly instructions). In all cases, the statutory special regulations remain unaffected when the unprocessed goods are delivered to a consumer, even if the consumer has processed them further (supplier recourse pursuant to Section 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the purchaser or another company, e.g. by installation in another product.
6.2 The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions which are the subject matter of the individual contract or which have been made public by us (in particular in catalogues or on our Internet homepage) are regarded as an agreement on the quality of the goods.
6.3 Insofar as the quality has not been agreed, it must be assessed in accordance with the statutory provisions whether there is a defect or not (Section 434 (1), p. 2 and 3 BGB). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
6.4 The purchaser’s claims for defects presuppose that he has complied with his statutory inspection and notifi-cation obligations (Sections 377, 381 HGB). If a defect appears during delivery, inspection or at any later point in time, this must be reported to us immediately in writing. In any case, obvious defects must be reported in writing within four working days of delivery and defects that were not apparent during the inspection within the same period of time after discovery. If the buyer fails to carry out a proper inspection and/or report a defect, our liability for the defect not or not in time or not properly reported shall be excluded in accordance with the statuto-ry provisions.
6.5 If the delivered item is defective, we can first choose whether we perform subsequent performance by elim-inating the defect (rectification) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions remains unaffected.
6.6 We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a proportionate part of the purchase price in relation to the defect.
6.7 The purchaser must give us the time and opportunity necessary for the subsequent fulfilment owed, in par-ticular to hand over the goods complained of for inspection purposes. In the event of a replacement delivery, the purchaser must return the defective item to us in accordance with the statutory provisions. The subsequent performance does not include the removal of the defective item nor the re-installation if we were not originally obliged to install it.
6.8 The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs as well as, if applicable, removal and installation costs, shall be borne or reim-bursed by us in accordance with the statutory provisions if a defect actually exists. Otherwise we can demand reimbursement from the buyer for the costs arising from the unjustified request to remedy the defect (in particu-lar testing and transport costs), unless the lack of defectiveness was not apparent to the buyer. Please note that any removal and installation costs to be borne only include the costs for removal and installation of the product supplied by us; costs for removal and installation of a composite product in which the goods supplied by us were installed are not included.
6.9 In urgent cases, e.g. when operational safety is at risk or to prevent disproportionate damage, the purchaser has the right to remedy the defect himself and to demand compensation from us for the expenses objectively required for this. We must be informed immediately, if possible in advance, of such a self-execution. The right of self-performance does not exist if we would be entitled to refuse subsequent performance in accordance with the statutory provisions.
6.10 If the subsequent performance has failed or a reasonable period to be set by the buyer for the subsequent performance has expired without success or is dispensable according to the statutory provisions, the buyer can withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, how-ever, there is no right of withdrawal.
6.11 It is made clear that in the case of defects of title, in particular to the extent that third-party industrial proper-ty rights are concerned, the customer may only assert rights arising from the defect if the defect of title (third-party industrial property right) existed when the goods were handed over or the default in acceptance occurred.
6.12 Claims by the purchaser for damages or reimbursement of wasted expenses shall only exist in accord-ance with Section 8 even in the case of defects and shall otherwise be excluded.
6.13 Notwithstanding Section 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period be-gins with acceptance.
7. Other liabilities
7.1 Unless set out otherwise in these GTC and in the following provisions, we shall be liable in accordance with the statutory provisions for a breach of contractual and non-contractual duties.
7.2 We shall be liable for damages – on whatever legal grounds – within the scope of liability for intent and gross negligence. In the event of simple negligence, we shall only be liable subject to a milder standard of liability in accordance with statutory provisions (e.g. for diligence in our own affairs).
a) for damages resulting from injury to life, body or health,
b) for damages resulting from a not insignificant breach of a material contractual obligation (obligation the fulfilment of which is essential for the proper performance of the contract and on whose compliance the con-tractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
7.3 The limitations of liability resulting from para. 2 also apply to breaches of duty by or in favour of persons whose fault we are responsible for according to statutory regulations. They do not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for claims of the buyer under the Product Liability Act.
7.4 In case of any breach of duty other than relating to defects, the buyer shall only be entitled to withdraw from or terminate the contract if we are responsible for said breach.
8. Title retention
8.1 The consignment shall remain the property of PMA until the settlement of all claims owed to us resulting from the business connection.
8.2 The customer is permitted to process or rework (“processing”) the consignment. The processing shall ensue for PMA; if, however, the value of the consignment belonging to PMA is lower than the value of the consignment not belonging to PMA and/or the processing, then PMA shall acquire joint ownership of the new goods in the ratio of the value (gross invoice value) of the consignment processed to the value of the remaining processed goods and/or the processing at the time of processing. Insofar as PMA does not acquire any ownership of the new goods under the above paragraph, PMA and the customer shall agree that the customer grants PMA joint ownership of the new goods in the ratio of the value (gross invoice value) of the consignment belonging to PMA to the value of the remaining processed goods at the time of processing. The above sentence shall apply accordingly in the case of the inseparably mixed (or combination of the) consignment with goods not belonging to PMA. Insofar as PMA acquires ownership or joint ownership according to Item 8 in this agreement, the customer shall keep the goods safe for PMA free of charge.
8.3 In the case that the customer should sell on the goods or the new goods, the customer shall herewith assign his claim arising from the resale against the subsequent purchaser to PMA as security, without any further special declarations being required. The assignment shall apply to include any current account balances. The assignment shall, however, only apply to the amount corresponding to the price of the consignment invoiced by PMA. The share of the receivable assigned to PMA shall be satisfied with priority.
8.4 Until notice of revocation, the customer shall be authorised to collect receivables assigned to PMA in accordance with Item 8 in this agreement. The customer shall immediately pass on payments made on the assigned receivables up to the amount of the secured claim to PMA. If there is a compelling legitimate interest, particularly in relation to default in payment, the suspension of payments, the opening of insolvency proceedings, protest of a bill or cheque or justified indication of over-indebtedness or impending solvency on the part of the customer, PMA shall be entitled to revoke the customer’s authority to collect. Furthermore, after having set a reasonable deadline, and observing an appropriate period, PMA shall be entitled to disclose the assignment by way of security, exploit the assigned outstanding balance claims and require the customer to disclose any assignments by way of security to his sub-buyers.
8.5 When a legitimate interest is substantiated, the customer shall provide PMA with the information necessary to assert its rights against the sub-buyers and hand over the documents required.
8.6 For the duration of retention of title, the customer is prohibited to pledge the retained goods or assign them by way of security. The customer shall immediately notify PMA in the event of distraints, confiscation or other disposition or intervention on the part of third-parties. The resale of the consignment or of the new goods by the customer shall only be permissible in accordance with correct business procedures and allowed only on condition that payment of the counter-value of the consignment ensues to the customer. Furthermore, the customer shall agree with his purchaser, that the purchaser will acquire ownership only with this payment.
8.7 Insofar as the realisable value of all the security rights, to which PMA is entitled, exceeds the sum of all secured claims by more than 10%, PMA shall – at the customer’s request – release a corresponding part of the security rights. It shall be assumed that the requirements of the above sentence are satisfied when the estimated value of the securities due to PMA reaches or exceeds 150% of the value of the secured claims. PMA shall have the right to choose which various security entitlements are to be released.
8.8 In the event that the customer violates any of its obligations – particularly in relation to default of payment, PMA shall be entitled to demand surrender of the consignment or the new goods – even without setting a time limit, and/or withdraw from the contract – against a time limit, if necessary; the customer shall undertake said surrender. A demand for the surrender of the consignment / new goods shall not constitute a withdrawal declaration on the part of PMA, unless this is expressly declared.
9. Data protection
9.1 PMA shall save and make use of personal customer data in accordance with the applicable data protection laws.
9.2 Any data subject has the right of access under Article 15 DSGVO, the right to correction under Article 16 DSGVO, the right to cancellation under Article 17 DSGVO, the right to limitation of processing under Article 18 DSGVO, the right of opposition under Article 21 DSGVO and the right to data transfer under Article 20 DSGVO. The restrictions according to Sections 34, 35 BDSG apply to the right to information and the right of cancella-tion. In addition, there is a right of appeal to a data protection supervisory authority (Article 77 DSGVO in con-junction with Section 19 BDSG). Consent granted for data processing or use can be withdrawn at any time.
10. Final provisions
10.1 Insofar as the customer is a Kaufmann (with a business registered in the German Commercial Register), the place of jurisdiction shall be our place of business. We shall also be entitled, however, to sue the customer at the court of his place of residence.
10.2 The laws of the Federal Republic of Germany shall be applicable, to the exclusion of the application of the UN Sales Law.
10.3 Unless otherwise specified in the order confirmation, the place of performance shall be our place of business.