General Terms and Conditions of

Valid from: 01.05.2024

1. General information

1.1. The contractual partner for all orders is PMA/TOOLS AG, Siemensring 42, 47877 Willich, Germany (hereinafter referred to as “PMA”, “Us” or “We”). The following General Terms and Conditions (“GTC”) apply to all Our business relationships with Our customers, albeit only if the customer is an entrepreneur (section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law. They shall also apply to all future transactions with Our customers, even if they are not expressly agreed again. Any conflicting or deviating terms and conditions of the customer shall only become part of the contract if and to the extent that We have expressly agreed to their validity. This requirement for our consent shall apply in all cases, for example even if We effect an unqualified delivery to the customer in the knowledge that the customer’s terms and con-ditions conflict or deviate from ours.
1.2. The GTC apply in particular to contracts for the sale and/or delivery of movable items (“Goods”), irrespective of whether We manufacture the Goods ourselves or purchase them from suppliers (sections 433, 650 BGB). Written form within the meaning of these GTC includes written and text form (e. g. letter, email, fax).
1.3. Individual agreements made with the customer in individual cases (including ancillary agreements, addenda, amendments) take precedence over these GTC.
1.4. Legally relevant declarations and notifications by the customer with regard to the contract (e. g. setting of a deadline, notification of defects, withdrawal, price reduction) must be made in writing. Legal formal requirements and further evidence, in particular in cases of doubt as to the declarant’s authority, remain unaffected.
1.5. References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions apply, unless directly modified or expressly excluded by these GTC.
1.6. Our General Terms and Conditions shall be effective; this shall not affect the customer’s obligation to carry out an examination of existing prohibitions and restrictions within the framework of the applicable foreign trade law (German Foreign Trade and Payments Act (AWG) and EU regulations) in the event of installation and/or resale to third parties. The place of sale is the Federal Republic of Germany.

2. Conclusion of contract, property rights/copyrights to documents

2.1. Our website and other information material (brochures, catalogues etc.) do not represent offers in legal terms, but merely an invitation to submit an offer (i. e. an order). This shall also apply if We have provided the customer with technical documentation (e. g. drawings, plans, calculations, cost estimates, references to DIN standards) or other product descriptions to which We fundamentally reserve ownership rights and copyrights.
2.2. An order for goods placed by the customer is deemed to be a binding offer to conclude a contract for the delivery of goods. Unless otherwise stated in the order for goods, We are entitled to accept this contractual offer within a reasonable period of time depending on the circumstances.
2.3. A contract shall only come about upon receipt of Our written order confirmation or upon delivery of the Goods.
2.4. If the order confirmation diverges significantly from the customer’s order, the order confirmation shall be regarded as a counter-offer which must be con-firmed by the customer.
2.5. Once the contract has been concluded, the customer can no longer unilat-erally withdraw its offer. The contract is then binding.
2.6. We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents (e. g. catalogues, posters etc.). The customer requires Our express written consent before reproducing, publishing, distributing, modifying, passing on to third parties or otherwise utilising them. This shall apply in particular to such written documents designated as “confidential”. It is expressly pointed out that any violation of the consent requirement may give rise to a claim for damages under the applicable laws and may result in criminal prosecution for copyright infringements (sections 106 et seq. of the German Copyright Act (UrhG)).

3. Prices and terms of payment

3.1. Unless otherwise agreed in individual cases, Our current prices at the time of conclusion of the contract shall apply, ex warehouse and net of statutory VAT.
3.2. Unless other payment terms have been agreed, invoices are due for payment without deduction within 14 days of invoicing and delivery or acceptance of the Goods. The agreement of a discount shall require a special written agreement.
3.3. If the customer defaults on a payment, We shall be entitled to default interest in the amount of nine percentage points above the Deutsche Bundesbank’s applicable base interest rate (section 288 (2) BGB). We reserve the right to prove higher damage caused by default.
3.4. We reserve the right to effect a delivery in whole or in part only against advance payment or cash on delivery, especially in the case of new customers. We shall declare a corresponding reservation at the latest upon order confirmation.
3.5. If after conclusion of the contract it becomes apparent that Our claim to the purchase price is jeopardised by the customer’s inability to pay, We shall be entitled to refuse performance and to withdraw from the contract in accordance with the statutory provisions (section 321 BGB). In the case of contracts for the manufacture of non-fungible goods, We may declare cancellation immediately. The statutory provisions on waiving a deadline shall remain unaffected.
3.6. The customer may only withhold or maintain payment of the purchase price to the extent that it is entitled to do so on the basis of a legally established claim or if a claim is not disputed by Us. The customer’s contrary rights, in particular in under these GTC, shall remain unaffected in the event of defects in the delivery.
3.7. Invoicing disputes must be reported immediately in writing.

4. Scope and delivery period

4.1. The scope of delivery is based on the relevant order confirmation for the order of goods.
4.2. If changes are made to the design or shape of a product due to technical improvements or legal requirements between conclusion of the contract for the delivery of goods and delivery, We will inform the customer of this in good time before delivery and agree a change to the scope of delivery.
4.3. Delivery shall be ex works in accordance with Incoterms 2020 of the International Chamber of Commerce (ICC), unless otherwise agreed in the order confirmation.
4.4. A guarantee within the legal meaning (section 443 BGB) requires an express declaration by Us.
4.5. A delivery period or delivery date specified by Us does not represent a fixed-date transaction. A fixed-date transaction requires express agreement.
4.6. If We are unable to meet delivery deadlines for reasons for which We are not responsible (non-availability of the service), We shall inform the customer of this immediately and of the anticipated new delivery deadline at the same time. If performance is also not available within the new delivery period, We are entitled to withdraw from the contract in whole or in part; We will immediately reimburse any consideration already paid by the customer. Performance shall be deemed to be unavailable, for example in the event of late delivery by Our suppliers, if We have concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, for example due to force majeure, or if We are not obliged to obtain the good or service in individual cases. This is without prejudice to the customer’s right to set a reasonable grace period for delivery in the event of non-delivery within the original delivery period and to withdraw from the contract in the event of non-delivery within this grace period.
4.7. The rights of the customer pursuant to clause 5 of these GTC and Our statutory rights, in particular in the event of an exclusion of the obligation to perform (e. g. due to impossibility or unreasonableness of performance and/or subsequent fulfilment), shall remain unaffected.
4.8. Whether a delay in delivery has occurred on Our part shall be determined in accordance with the statutory provisions. In any case, however, Our customer shall be required to issue a written delivery reminder with a reasonable grace period.
4.9. A temporary hindrance of acceptance shall also constitute a delay in acceptance if We have given the customer reasonable advance notice of the delivery. In the event of default of acceptance or the fault-based violation of other obligations to cooperate, We shall be entitled to demand compensation for losses incurred, including any additional expenditure. Further claims or rights shall remain reserved.
4.10. Unless otherwise stated in the order confirmation, shipping costs will be charged separately. The amount of the shipping costs is based on Our shipping costs file, which can be viewed in Our webshop after logging in or will be sent on request. Unless otherwise agreed, We are entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) ourselves.
4.11. PMA shall be entitled to effect partial performance and partial delivery. The right to withdraw from the entire contract in the event of partial performance shall be limited to cases where We are at fault for the incomplete fulfilment of the contract in addition to the restriction set out in section 323(5) sentence 1 BGB.
4.12. The risk of accidental loss or accidental deterioration of the Goods shall be governed by the Incoterm 2020 agreed in each case.
4.13. However, the risk of accidental loss or accidental deterioration of the Goods shall pass to the customer at the latest at the point in time at which the customer is in default of acceptance. In all other respects, We are entitled to demand compensation for the damage resulting from default in acceptance or from the failure to cooperate and for additional expenses incurred (e. g. storage costs).
4.14. If the customer so wishes and bears the costs, We will cover the delivery with transport insurance.
4.15. The rights of the customer pursuant to clauses 5 and 6 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), shall remain unaffected.

5. Claims for defects

5.1. The customer’s rights in the event of material defects and defects of title shall be governed by the statutory provisions, unless otherwise specified below. In all cases, the special statutory provisions on the sale of consumer goods (sections 474 et seq. BGB) shall remain unaffected.
5.2. Liability for defects shall be based in particular on the agreements reached between Us and the customer on the quality and intended use of the Goods.
5.3. In the case of Goods with digital elements or other digital content, We shall only be obliged to provide and, if applicable, update the digital content if this expressly results from a quality agreement in accordance with clause 5.2.
5.4. The customer must inspect the delivered Goods immediately after delivery, insofar as this is feasible in the ordinary course of business, for type, quantity and quality and, if a defect is found, notify Us immediately in writing within a period of five calendar days. If the customer fails to notify Us, the Goods shall be deemed to have been approved, unless the defect was not apparent during the inspection. If such a defect is discovered later, notification must be made without undue delay within five calendar days of discovery, otherwise the Goods shall be deemed to have been approved even in view of this defect. In the case of Goods intended for installation or other further processing, an inspection must be carried out in any case by no later than immediately prior to processing or installation.
5.5. If the delivered item is defective, We can first choose whether to perform subsequent performance by eliminating the defect (cure) or by delivering a defect-free item (replacement delivery). If the type of subsequent performance chosen by Us is unreasonable for the customer in individual cases, the customer may reject it. Our right to refuse subsequent performance under the applicable statutory conditions remains unaffected.
5.6. We are entitled to make the subsequent performance due contingent on the purchaser retaining no more than a reasonable proportion of the purchase price in relation to the defect and otherwise paying the remaining purchase price. A guide for an appropriate proportion is three times the expected costs of remedying the defect.
5.7. The customer shall allow Us the necessary time and opportunity to effect any remedy required and shall in particular hand over the defective good in question for our own inspection. In the event of a substitute delivery, the customer must return the defective item to Us in accordance with the statutory provisions.
5.8. The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs as well as removal and installation costs as the case may be, shall be borne or reimbursed by Us in accordance with the statutory provisions if a defect actually exists. Otherwise, We may demand compensation from the customer for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of a defect 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.
5.9. In urgent cases, e. g. when operational safety is at risk or to prevent disproportionate damage, the customer has the right to remedy the defect themselves and to demand compensation from Us for the expenses objectively necessary for this purpose. We must be informed immediately, if possible in advance, of any such self-remedy and any costs incurred as a result. The right of self-performance does not apply if We would be entitled to refuse subsequent performance in accordance with the statutory provisions.
5.10. If a reasonable deadline set by the customer for subsequent performance has expired without avail or may be waived under the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of a minor defect.
5.11. For the avoidance of doubt, in the event of defects of title, and in particular where third-party property rights are affected, the customer may only assert rights arising from the defect if the defect of title (third-party property right) existed when the Goods were handed over or the default of acceptance occurred. If the product is affected by a third-party industrial property right, which is limited in geographical or substantive terms, the customer is responsible for restricting the use of the product so as to be lawful.
5.12. Even in the case of defects, claims by the customer for damages or reimbursement of wasted expenses shall only be valid in accordance with clause 7 and shall otherwise be excluded. In accordance with clause 7.2, liability for consequential damage caused by a defect is also excluded.
5.13. Section 438(1) no. 3 BGB notwithstanding, the general limitation period for claims from material defects and defects in title shall be one year from the date of delivery. If acceptance has been agreed, the limitation period begins with acceptance. The rules on the limitation periods in the case of liability under the recourse provisions set out in sections 478 BGB, 445b BGB shall remain unaffected. Claims for damages pursuant to clause 7.2 sentence 1 and sentence 2 a) and b) of these GTC as well as claims under the German Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

6. Liability for preliminary inspection, liability for installation

6.1. If We make the product available to the customer for testing and evaluation prior to fulfilment of the order to enable the customer to check its suitability for the intended and normal use in combination with the customer’s own product, it is the sole responsibility of the customer to carry out the validation at system level, which includes the compatibility and functional suitability of the product with the customer’s specific product. This validation is intended to ensure that the overall system meets the technical requirements and standards. We carry out our own tests exclusively with the original equipment product (OE product) and can therefore accept no liability for defects resulting from the interaction of the product with diverging customer products. We shall only be liable for defects due to unfitness for purpose in cases in which the defect could not have been recognised during proper testing and inspection by the customer – taking into account the specific interaction with its product – or if the delivered products are different from the sample product provided.
6.2. The offer of a preliminary inspection shall be deemed to be equivalent to a successful preliminary inspection if it is rejected by the customer. Rejection does not release the customer from its responsibility to ensure validation at system level itself.
6.3. The customer is fully responsible for the correct assembly and installation of the product. The customer must take all necessary steps to ensure the suitability and correct installation of the product in accordance with the technical requirements and conditions of use. We shall not be liable for defects or damage resulting directly or indirectly from faulty installation carried out without adequate validation at system level by the customer.
6.4. We offer to support the customer with technical specifications and product information as required to enable proper installation and application. We ask the customer to contact Us proactively for support or additional information regarding technical requirements or product compatibility.
6.5. The product must be installed in accordance with the application guidelines/installation instructions. If the product is installed without or contrary to the application guideline/installation instructions, liability is excluded, in any case to the extent that a defect can be attributed to incorrect installation. The customer can request application guidelines/assembly instructions from Us at any time. Installation instructions are always provided when a product is purchased for the first time. Previously provided application guidelines/installation instructions are to be used for subsequent deliveries of a product to a customer.

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 – irrespective of legal grounds – within the scope of fault-based liability for intent and gross negligence. In the event of simple negligence, subject to a lower level of liability in accordance with statutory provisions (e. g. for due care in Our own affairs), We shall only be liable a) for damages resulting from injury to life, limb or health; b) for damages resulting from a non-minor breach of material contractual obligations (obligation whose proper fulfilment constitutes a condition sine qua non and on the fulfilment of which the customer regularly relies and may rely); in this case Our liability is limited, however, to the reimbursement of the foreseeable, typically occurring damages.
7.3. The limitations of liability resulting from clause 7.2 above shall also apply to third parties and in the event of breaches of duty by persons (including in their favour) for which We are at fault in accordance with statutory provisions. They shall not apply if We have fraudulently concealed a defect or have assumed a guarantee for the quality of the Goods and for claims of the customer under the Product Liability Act.
7.4. The customer may only withdraw from or cancel the contract due to a breach of duty that does not constitute a defect if We are responsible for the breach of duty.

8. Reservation of title

8.1. The consignment shall remain Our property until all claims against the customer arising from the business relationship have been fulfilled.
8.2. For the duration of the retention of title, the customer is prohibited from pledging or transferring ownership by way of security. The customer shall immediately notify Us in the event of distraints, confiscation or other disposition or inter-vention on the part of third-parties.
8.3. Up to the point of revocation, the customer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition: the retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of Our Goods, whereby We shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, the third party’s right of ownership remains, We shall acquire co-ownership in the ratio of the gross invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the Goods delivered subject to retention of title. The above sentence shall apply accordingly in the case of the inseparably mixed (or combination of) consignment with goods not belonging to PMA. To the extent that PMA acquires ownership or co-ownership in accordance with this clause 8, the customer shall store them for PMA free of charge. The customer hereby assigns to PMA by way of security any claims against third parties arising from the resale of the Goods or the product in total or in the amount of any co-ownership share in accordance with the above paragraph. PMA accepts the assignment. The obligations of the purchaser set out in clause 8.2. shall also apply to the assigned claims. Until notice of revocation, the customer shall be authorised to collect receivables assigned to PMA in accordance with clause 8 of 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. In addition, PMA may, after prior warning and within a reasonable period of time, disclose the assignment by way of security, realise the assigned claims and demand disclosure of the assignment by way of security by the customer to the buyers.
8.4. If a legitimate interest is substantiated, the customer must provide Us with the information required to assert Our rights against the purchasers and hand over the necessary documents.
8.5. If the realisable value of the securities exceeds PMA’s claims by more than ten percent, PMA shall release securities to be selected by PMA at the customer’s request.
8.6. In the event of breach of contract by the customer, in particular default in payment, We shall be entitled to withdraw from the contract in accordance with the statutory provisions or to demand the return of the Goods on the basis of the retention of title; the customer shall be obliged to surrender the Goods on request.

9. Data protection

PMA shall save and make use of personal customer data in accordance with the applicable data protection laws. Every data subject has the right of access to in-formation under Article 15 GDPR, the right to rectification under Article 16 GDPR, the right to erasure under Article 17 GDPR, the right to restriction of processing under Article 18 GDPR, the right to object under Article 21 GDPR and the right to data portability under Article 20 GDPR. The restrictions provided in sections 34, 35 Federal Data Protection Act (BDSG) apply to the right to information and the right of erasure. In addition, there is a right to lodge a complaint with a supervisory authority (Article 77 GDPR in conjunction with section 19 BDSG). Consent granted for data processing or Use can be withdrawn at any time.

10. Final provisions

10.1. If the customer is a merchant within the meaning of the HGB, a legal entity under public law or a special fund under public law, Our place of business shall be the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. However, We are also entitled in all cases to bring an action at the customer’s general place of jurisdiction.
10.2. The law of the Federal Republic of Germany shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
10.3. Unless otherwise stated in the order confirmation, the place of performance is Our registered office.