General Terms and Conditions of Pfeuffer GmbH
§ 1 General
(1) Our deliveries, services and offers are made exclusively on the basis of the following terms and conditions.
(2) We refer to our terms and conditions when submitting offers and confirming orders.
These terms and conditions shall be deemed accepted at the latest upon acceptance of the goods or services.
Counter-confirmations of the buyer with reference to his terms and conditions of business or purchase are hereby rejected.
(3) In accordance with the provisions of the Federal Data Protection Act, we draw the attention of customers to the fact that we process their personal data required for the handling of business relationships with the aid of electronic data processing and pass on information.
(4) Should a provision of these terms and conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining terms and conditions.
(5) If we are commissioned to carry out installation work, our Terms and Conditions of Installation in the current version shall apply exclusively in addition to our General Terms and Conditions of Business.
If these are not available to you, they can be viewed or requested from us at any time.
§ 2 Offer and conclusion of contract
(1) Our offers are revocable until they are accepted.
(2) With the exception of the managing directors and authorized signatories, our employees are not authorized to make verbal collateral agreements or verbal assurances.
(3) We reserve the right to make design changes insofar as they are customary in the trade and/or insignificant changes, in particular improvements to the goods.
However, we are not obliged to make such changes to products that have already been delivered.
(4) We reserve ownership, copyright and other rights to the documents belonging to the offer (e.g. illustrations, drawings, descriptions); they may only be made accessible to third parties if they are expressly intended for disclosure.
§ 3 Prices/compensation
(1) Our prices are ex works without assembly plus the value added tax applicable on the day of delivery.
(2) All cost increases (material, wage, energy costs, statutory provisions) occurring after the expiry of one month after the conclusion of the contract shall entitle us to a subsequent charge insofar as our services are not to be rendered within 4 months.
This shall not apply to continuing obligations.
(3) For orders for which no prices have been agreed, our prices valid on the day of delivery shall apply in accordance with our price list.
Otherwise, the customary and appropriate remuneration shall be paid.
(4) In the event of significant changes to the order (increases or reductions of 10% or more), a new price shall be agreed taking into account the additional or reduced costs.
If a service not provided for in the contract is required, the Contractor shall be entitled to special remuneration.
The remuneration shall be determined on the basis of the price calculation for the contractual service and the special costs for the requested service.
(5) In all cases of withdrawal from the contract for which we are not responsible, we shall be entitled to demand a processing fee of up to 8% of the total purchase price, including special requests subject to a charge, or compensation for the expenses actually incurred, without proof of damage.
The customer is permitted to prove that no damage was incurred at all or that the damage was significantly lower than the lump sum.
§ 4 Terms of payment
(1) Unless otherwise agreed, our claim shall be due for payment on the 10th of the month following invoicing.
If payment is made by bank transfer, payment shall be deemed to have been made upon execution of the transfer if the account has sufficient funds.
If payment is made by check, payment shall be deemed to have been made as soon as the check has been sent or, if not sent, has been received by us, provided that the check is credited to our account.
Bills of exchange shall only be accepted on the basis of express agreement and only on account of payment and subject to our acceptance in individual cases.
Discount and other charges shall be borne by the customer.
(2) The withholding of payments or offsetting against any counterclaims of the customer that are disputed by us or have not been legally established is not permitted.
(3) We are entitled to offset payments against the customer’s oldest debt first, despite any provisions of the customer to the contrary.
If costs and interest have already been incurred, we shall be entitled to offset the payment first against the costs, then against the interest and finally against the principal claim.
(4) The customer shall be in default at the latest if he does not make payment within 30 days of receipt and due date of the invoice.
If the customer is in default, we shall be entitled to charge interest at a rate of 8% above the respective base interest rate within the meaning of § 288 BGB from the relevant date.
If we make use of an overdraft facility at an interest rate which is higher, we shall be entitled to charge an interest rate corresponding to this interest.
(5) If the customer does not meet his payment obligations, e.g. if a check or bill of exchange is not honored, if the terms of payment are not complied with or if proceedings are instituted to settle the debt, we shall be entitled to declare our entire claim due for payment immediately.
(6) We are entitled to offset all our claims against the customer.
This shall apply to all claims that the customer has against us from deliveries or other legal grounds, provided that there is no prohibition on offsetting within the meaning of §§ 390 – 395 BGB.
§5 Retention of title and other securities
(1) The goods shall remain our property until full payment of the total liabilities arising from the business relationship (including any ancillary claims and any expenses incurred in the interest of the customer).
In the case of a current account (current account relationship), the reservation of title shall apply.
(Current account reservation)
(2) In the case of a current account, the reserved property shall be deemed to be security for our balance claim, even if payments are made on specially designated claims.
A balance shall be deemed accepted if the customer does not object to the balance notification within 2 weeks of receipt.
(3) Processing or transformation of goods delivered by us which are still our property shall always be carried out on our behalf, but without any obligation for us.
The new item shall become our property.
In the event of processing together with goods not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other goods at the time of processing.
If the goods subject to retention of title are combined with goods not belonging to us in accordance with §94 BGB, we shall become co-owners in accordance with the statutory provisions.
If the customer acquires common property through combination, he hereby transfers co-ownership to us in the ratio of the value of the reserved goods to the other goods at the time of combination.
The customer shall store our co-ownership free of charge with the care of a prudent businessman.
(4) The customer is entitled to process and sell the reserved goods in the ordinary course of business.
(5) The customer hereby assigns to us by way of security all claims to which he is entitled in respect of the reserved goods, including balance claims from current account agreements, from a sale, processing or combination of the goods delivered by us and/or services rendered. We accept the assignment. This applies equally to claims of the customer arising from loss of or damage to the reserved goods (insurance, tort etc.). The amount of the assignment shall be limited to the price of our goods and services in accordance with § 3.1
(6) The customer hereby assigns to us all security interests to which it is entitled against its customers in proportion to the value of the claims and rights assigned to us within the scope of the extended reservation of title. If this is not possible, the customer shall assign to us the claims collected and the proceeds obtained from the realization of the security interest on a pro rata basis. The customer likewise assigns to us his rights vis-à-vis his customers to the granting of a builder’s security mortgage and to the granting of security benefits in accordance with § 648 ABGB. We accept the assignment.
(7) We revocably authorize customers to collect the claims assigned to us for their account in their own name.
We hereby revoke this direct debit authorization in the event that the customer does not fulfill an obligation to us, in particular does not meet his payment obligations.
We shall then be entitled to disclose the assignment of the claim and any security rights transferred to us.
Any costs arising from the realization and prosecution of the assigned claims and security interests shall be borne by the customer.
(8) The delivered goods may not be pledged or transferred by way of security without our consent.
In the event of seizure of the reserved goods by third parties, the Buyer shall draw attention to our ownership, notify us immediately and provide us with all assistance necessary to safeguard our rights.
(9) In the event of breach of contract by the customer, in particular default of payment, impairment of the securities, improper handling and passing on of the reserved goods in breach of duty, we shall be entitled to assert our retention of title and immediately demand the return of the reserved goods and to obtain direct possession of them ourselves or through authorized representatives or, if necessary, to demand assignment of the customer’s claims for return against third parties.
The assertion of the retention of title does not include withdrawal from the contract.
(10) If the value of the securities existing for us exceeds our claims by more than 10% in total, we shall be obliged to release securities of our choice at the customer’s request.
(11)
Haftung und Sicherheitsvorkehrungen bei Kühlzellen.
Die ausgelieferten Kühlzellen sind ausschließlich selbsttragend.
No liability is assumed for installation work on the cell ceiling by the customer.
The customer or the installing company is obliged to take
appropriate safety measures when working on the cell ceiling and to wear suitable personal protective equipment (PPE).
In addition, the
suspension devices must be visually inspected during maintenance.
The customer is responsible for compliance with these safety precautions
and is liable for any damage resulting from non-compliance.
§ 6 Delivery and performance deadlines
(1) The dates and deadlines specified by us are only authoritative if they are determined by calendar.
– in the case of assembly owed, when the service is ready for acceptance,
– in the case of an obligation to be performed at the creditor’s place of business, upon handover; in other cases, when the delivery item has left the factory or readiness for dispatch has been notified.
(3) The delivery and performance period shall be extended appropriately in the event of industrial disputes, in particular strikes and lockouts, as well as in the event of unforeseen obstacles beyond our control, insofar as such obstacles demonstrably have a considerable influence on the completion or delivery of the delivery item or the performance of the service.
This shall also apply if the circumstances occur at our supplier.
In important cases, we shall inform the customer as soon as possible of the beginning and end of such hindrances.
(4) In the event of default, the customer, unless he is a consumer, shall only be entitled to withdraw from the contract if he has set us a reasonable grace period in writing, stating that he will refuse to accept the subject matter of the contract after expiry of the grace period and that the grace period has expired without success.
In this case, withdrawal can only take place if it is declared in writing.
(5) If we are in default, the customer may only demand compensation for the damage caused by the delay in addition to delivery/performance if we are guilty of intent or gross negligence.
Liability shall be limited to typically foreseeable damages.
(6) If dispatch or installation is delayed for reasons for which the customer is responsible and if the customer does not accept our performance despite a request to do so with a deadline set, we shall be entitled to demand liquidated damages for delay amounting to 0.5% per month from the expiry of the deadline, up to a maximum of 10% of the invoice amount.
Further statutory claims are reserved.
The customer has the right to prove to us that no or less damage has been incurred as a result of his default.
(7) Insofar as we are not in default, we shall be released from compliance with the delivery and performance deadlines for the duration of the customer’s non-fulfillment of the contractual obligations.
(8) The type of transportation, the means of shipment, the transport route as well as the type and scope of the required means of protection and the selection of the forwarding agent or carrier, as well as the packaging, shall be at our discretion.
This shall be done at our discretion and with the care customary in the trade, to the exclusion of any liability.
At the customer’s request and expense, we shall insure the consignment against theft, breakage, transport, fire and water damage and other insurable risks.
(9) If assembly by us has been agreed, the customer must ensure that our products can be brought in and accessed without hindrance.
§ 7 Liability for defects and other liability
(1) If there is a defect in the delivered goods for which we are responsible, we shall be entitled, at the customer’s discretion, to remedy the defect or to make a replacement delivery.
In the event that the defect is remedied, we shall bear the expenses necessary for the purpose of remedying the defect, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance.
(2) The customer’s right to demand either the rectification of the defect or the delivery of a defect-free item in accordance with § 439 ABS 1 BGB shall pass to us after the fruitless expiry of a reasonable period set for him to make the choice.
(3) If the rectification of defects fails for the second time or if we are unable to remedy the replacement delivery, the customer may demand a reduction of the remuneration (reduction) or, at his discretion, rescission of the contract (withdrawal).
(4) In the case of construction services, the customer’s right of withdrawal due to a defect is excluded.
(5) In the case of insignificant defects, subsequent performance is excluded for all deliveries/services.
(6) Liability for minor visual defects in the sheet metal surfaces of cell panels and doors is excluded.
This does not apply if the customer places an order with us for a complete, continuous batch of sheet metal.
If this is not the case, different brushing and circular matting patterns and slight waviness will occur due to different sheet metal batches at the steelworks.
(7) In the event of a merely negligent breach of duty by us or by our vicarious agents, our liability shall be limited to the foreseeable damage typical of the contract.
This shall not apply if we have assumed a guarantee for the quality of the item.
Liability for damages resulting from injury to life, body or health is not limited.
(8) We provide a warranty for our building materials for a period of 5 years, provided that the customer uses the building material in the usual and intended manner and a defect in the building materials purchased from us leads to a defect in a building.
Otherwise, a warranty period of 2 years shall apply, or 1 year in the case of transactions with non-consumers.
The period begins with the handover of the item(s) to the customer.
– unsuitable and improper use,
– incorrect assembly or commissioning by the customer or third parties,
– natural wear and tear, incorrect or negligent handling, unsuitable operating materials,
– replacement materials,
– defective construction work,
– unsuitable building ground,
– chemical, electrochemical or electrical influences.
(10)
Keine Gewährleistung wird übernommen für Schäden, die der Kunde selbst verschuldet hat durch ungeeignete oder unsachgemäße Verwendung, fehlerhafte Montage bzw. Inbetriebsetzung durch den Kunden oder Dritten, fehlerhafter oder nachlässiger Behandlung, Beschädigung der lackierten Oberfläche und dadurch entstehenden Korrosion, ungeeignete Betriebsmittel, chemische oder elektrochemische oder elektrische Einflüsse, Nichtbeachtung der Montage-, Betriebs- und Wartungsanleitungen, unsachgemäße Anwendung oder Instandsetzungsarbeiten durch den Kunden oder Dritten und aus Einwirkung von Teilen fremder Herkunft sowie natürlicher Abnutzung.
Wir weisen ausdrücklich darauf hin, daß keine Gewährleistungspflicht vorliegt, wenn sich Verschleißteile wie z.B. Dichtungen, Türverschlüsse und Scharniere, durch natürlichen Verschleiß abnutzen.
Unsere Gewährleistungspflicht umfasst ferner nicht Schäden, die durch Weiterbenutzung trotz Auftretens eines Mangels entstanden sind.
(10)
Zur Mängelprüfung eingesetzte Personen sind nicht befugt, Mängel anzuerkennen oder für uns verbindliche Erklärungen abzugeben.
§8 Place of performance, place of jurisdiction, applicable law
(1) The place of performance for delivery and payment shall be Marktsteft
(2) The place of jurisdiction shall be determined in accordance with the statutory provisions.
If the customer is an entrepreneur or a legal entity under public law or a special fund under public law, our registered office shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
(3) These Terms and Conditions and the entire legal relationship between us and the customer shall be governed exclusively by the law of the Federal Republic of Germany.
(4) Should a provision in these General Terms and Conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
The invalid or void provision shall be replaced by the valid provision which the parties would have agreed in order to achieve the same economic success.
Marktsteft, August 2006
