General terms and conditions of Pfeuffer GmbH

Section 1 General

(1) Our deliveries, services and offers are made exclusively conditional on the following conditions.
(2) In each offer and order confirmation, we make reference to our terms and conditions. At the latest upon acceptance of the goods or services, these terms will be considered to have been accepted. Any counter-confirmations of the purchaser referring to their own Business Conditions/Conditions of Purchase are hereby expressly excluded.
(3) We inform the customer according to the provisions of the Federal Data Protection Act that we process personal data that is necessary for handling business transactions by means of electronic data processing, and that we transfer information.
(4) Should a provision in these conditions be or become invalid, in part or in full, the validity of the remaining conditions shall not be affected.
(5) If we are engaged to carry out assembly, the latest version of our assembly terms shall apply exclusively alongside our General Terms and Conditions. If these are not in your possession, you can inspect them or request them from us at any time.

Section 2 Offers and contractual conclusion

(1) Our offers may be revoked until they have been accepted.
(2) With the exception of the managing directors and their authorised representatives, our employees are not authorised to make verbal ancillary agreements or offer verbal assurances.
(3) We reserve the right to make changes to construction insofar as these involve customary and/or insignificant changes, in particular improvements to the goods. However, we are not obligated to make such changes to products that have already been delivered.
(4) We reserve ownership, copyrights and other rights to the documents included in the offer (e.g. figures, drawings, descriptions); these may only be made available to third parties if they are expressly intended for transfer.

Section 3 Prices/Compensation for damages

(1) Our prices are given ex works without assembly, excluding the valid VAT on the date of delivery.
(2) All cost increases occurring one month or more after contract conclusion (material costs, salary costs, energy costs, statutory provisions) entitle us to charge additional amounts as long as our services do not need to be performed within 4 months. This does not apply for continuing obligations.
(3) For orders without any agreed prices, the valid prices shall apply according to our price list as of the date of delivery. Otherwise, the customary and appropriate remuneration for this location will be charged.
(4) For significant changes to the order (increases or decreases of 10% or more), a new price must be agreed taking into account the extra costs or decreased costs. If a service is requested that is not stipulated in the contract, the contractor will be entitled to separate remuneration. Remuneration will be based on the foundations for determining the price of the contractual service and the separate costs of the requested service.
(5) In all cases involving withdrawal from the contract for which we are not responsible, we are entitled to request a processing fee of up to 8% of the total purchase price, including special requests subject to a fee or compensation of actually incurred expenses, without providing proof of damages. The customer is permitted to offer proof that no damages were incurred, or that these damages were significantly lower than this flat rate.

Section 4 Payment conditions

(1) Unless otherwise agreed, our claim becomes due for payment on the 10th of the month following the month of invoicing. If payment is made via bank transfer, payment will be considered as completed when the transfer has been carried out, as long as the account has a sufficient balance to cover the transaction. If payment is made via check, payment will be considered as completed as soon as the check was mailed, or as soon as we have received it if not sent by mail, as long as the check is credited to our account. Bills of exchange will only be accepted based on explicit agreements and only as payment, subject to our acceptance in the individual case. Discounts and other expenses must be borne by the customer.
(2) The customer is not permitted to withhold payments or offset them against any counterclaims that are contested by us or that have not been legally established.
(3) We are entitled to first allocate payments to the customer’s oldest debts despite any deviating terms stipulated by the customer. If costs and interest have already been incurred, we are entitled first to allocate payment to the costs, then to the interest and finally to the principal claim.
(4) The customer will enter into default at the latest if payment has not been made within 30 days after receipt and maturity of the invoice. If the customer is in default, we are entitled to charge interest amounting to 8% above the relevant basic interest rate within the meaning of Section 288 BGB (German Civil Code) starting from the corresponding date. If we have arranged for overdraft facilities at a higher interest rate, we are entitled to calculate interest according to this interest rate.
(5) If the customer fails to fulfil its payment obligations, for instance if a check or bill of exchange bounces, or the customer fails to comply with the payment terms or if proceedings for debt settlement are initiated, we are entitled to declare our entire claim due for payment.
(6) We are entitled to offset all our claims against the customer with any claims the customer has against us based on deliveries or other legal grounds, unless an offsetting ban applies within the meaning of Sections 390-395 BGB.

Section 5 Retention of title and other securities

(1) Until full payment of all liabilities resulting from the business relationship (including any ancillary claims and any expenses incurred in the customer’s interests), the goods will remain our property. In case of an open account (current account relationship), retention of title shall apply. (Current account retention)
(2) With respect to current accounts, retention of title will serve as a security for our payment balance claims even if payment is made for specially designated claims. The balance will be deemed as acknowledged if the customer does not object to the balance report within 2 weeks after receipt.
(3) Processing or transformations carried out on goods we deliver that are still our property will always occur based on our orders, yet without any obligation on our part. The new object will become our property. In case of processing together with goods that are not our property, we acquire co-ownership of the new object based on the ratio of the value of the reserved goods to the value of the other goods at the time of processing. If the retained goods are connected with other goods not belonging to us pursuant to Section 94 BGB, we will acquire co-ownership according to the statutory provisions. If the customer obtains common property due to this connection, the customer hereby transfers co-ownership to us now based on the ratio of the value of the reserved goods to the value of the other goods at the time of processing. The customer will preserve our co-ownership free of charge with proper commercial diligence.
(4) The customer is entitled to process and sell the reserved goods in the proper course of business.
(5) As a security, the customer assigns to us with immediate effect all claims relating to the reserved goods included balance claims from current account agreements, from the sale, handling, processing or connection of the goods delivered and/or the services performed by us. We accept this assignment. This applies equally for the customer’s claims due to loss or damage of the reserved goods (insurance, improper handling etc.). The amount of assignment is limited in each case based on the price of our goods and services pursuant to Section 3.1.
(6) The customer also hereby transfers to us all security rights held against its clients proportionally according to the value of the claims and rights assigned to us within the context of extended retention of title. If this is not possible, the customer will assign to us any received claims or returns generated by exercising the security right. The customer will also assign to us its rights vis-à-vis its clients regarding granting a construction lien and providing a security in accordance with Section 648 ABGB. We accept this assignment.
(7) We grant the customer revocable authorisation to collect the claims assigned to us for its own account and in its own name. We hereby revoke this authorisation to collect in case the customer fails to fulfil one of its obligations toward us, in particular if the customer fails to comply with payment obligations. We are then entitled to disclose the assignment of the claim and any security rights that have been transferred to us. Any costs for exercising and legally pursuing assigned claims and security rights will be borne by the customer.
(8) The delivered goods may neither be pledged nor assigned as a security without our approval. If third parties access the reserved goods, the buyer will make reference to our ownership, inform us promptly and provide any assistance necessary to safeguard our rights.
(9) If the customer acts in breach of contract, particularly through default of payment, damage to securities, improper handling and transfer of reserved goods contrary to duty, we are entitled to assert our retention of title and immediately demand that the reserved goods be handed over and obtain direct possession of the goods ourselves or via authorised representatives, or demand assignment of the client’s handover claims vis-à-vis third parties if necessary. Asserting retention of title does not involve withdrawal from the contract.
(10) If the value of our existing securities exceeds our claims by a total of more than 10%, we are obligated to release securities of our choice at the customer’s request.

Section 6 Delivery and service periods

(1) The deadlines and periods named by us are only authoritative if they are determined based on calendar dates.

– In case of assembly owed, when the services are ready for acceptance,
– In case of backlog with delivery, in special cases, when the object of delivery has left the factory or readiness for shipment has been communicated.

(3) Delivery and service periods will be extended accordingly in case of measures involving labour disputes, particularly strikes or lockouts, or if unforeseen impediments occur that are outside our sphere of influence, as long as these impediments have a significant, demonstrable influence on the preparation or shipment of the object of delivery or the provision of services. This also applies if these circumstances occur for our upstream supplier. In crucial cases, we will inform the customer as soon as possible regarding the start and end of such impediments.
(4) In case of delay, the customer is only authorised to withdraw from the contract, insofar as the customer is not a consumer, if the customer granted us an appropriate subsequent deadline in writing indicating that acceptance of the contractual goods would be refused after that deadline had elapsed, and if that grace period ended unsuccessfully. Withdrawal may only occur in these cases if it is declared in writing.
(5) If we enter into default, the customer may only claim compensation for default damages along with delivery/service if we are responsible for wilful intent or gross negligence. Liability is limited to typically foreseeable damages.
(6) If shipment or assembly are delayed for reasons owing to the customer, and if the customer refuses to accept our services despite a request specifying a deadline, we are then entitled to request lump-sum default damages amounting to 0.5% per month up to a maximum of 10% of the invoice amount. More extensive legal claims are reserved. The customer has the right to demonstrate to us that no damages or only insignificant damages have been caused by the customer’s delay.
(7) If we are not in default, we are released from the obligation to comply with delivery and service periods as long as the customer fails to fulfil its contractual duties.
(8) The type of transport, shipping method, transport route, nature and extent of required protective materials and selection of forwarding company or carrier, as well as packaging, are left to our choice. This occurs at our discretion and based on typical commercial diligence, to the exclusion of any liability. At the customer’s request, we will insure our shipment at the customer’s cost against theft, breakage, transport damages, fire damage and water damage as well as other insurable risks.
(9) If the agreement involves assembly by us, the customer must ensure unimpeded placement of our products as well as access.

Section 7 Liability for defects and other liability

(1) If there are defects in the delivered goods for which we are responsible, we are obligated to eliminate the defect or perform a replacement delivery at the customer’s choice. If elimination of defects is chosen, we will bear the necessary expenses for eliminating the faults, particularly transport costs, road tolls, work costs and materials costs, as long as these costs are not increased as a result of the purchased object being moved to a location that is not the place of fulfilment.
(2) The customer’s option according to Section 439 (1) BGB either to request elimination of the defect or delivery of defect-free goods will be transferred to us after an appropriate period granted to the customer to make this decision has elapsed unsuccessfully.
(3) If repair fails a second time or if we are not able to rectify the replacement delivery, the customer may request a reduction of remuneration (decrease) or rescission of the contract (withdrawal) at its discretion.
(4) For construction services, the customer is not entitled to withdraw due to a defect.
(5) In case of insignificant defects, supplementary performance is excluded for all deliveries/services.
(6) Liability for slight visual defects in sheet surfaces on room panelling and doors is excluded. This does not apply if the customer places an order with us for complete, continuous batch of sheets. If this is not the case, different sheet batches from steel mills exhibit various brushing patterns as well as circular tarnish patterns and slight corrugation.
(7) In case of merely negligent breach of duty by us or one of our agents, our liability is limited to typical foreseeable damages for this type of contract. This does not apply if we have assumed a guarantee for the quality of the goods. Liability for damages due to injury to life, body or health is not limited.
(8) We provide a guarantee for our construction materials for a period of 5 years if the customer uses the construction materials in a typical and foreseeable manner and a defect in the materials procured from us leads to a defect in the structure. Otherwise, a guarantee period of 2 years applies, or 1 year for transactions with non-consumers. This period begins upon transfer of the good(s) to the customer.

– ungeeignete und unsachgemäße Verwendung,
– fehlerhafte Montage bzw. Inbetriebsetzung durch den Besteller oder Dritte,
– natürliche Abnutzung, fehlerhafte oder nachlässige Behandlung, ungeeignete Betriebsmittel,
– Austauschwerkstoffe,
– mangelhafte Bauarbeiten,
– ungeeigneter Baugrund,
– chemische, elektrochemische oder elektrische Einflüsse.

– Unsuitable and improper use,
– Incorrect assembly or commissioning by the buyer or a third party,
– Natural wear, incorrect or negligent handling, unsuitable operating materials,
– Replacement materials,
– Faulty construction work,
– Unsuitable building site,
– Chemical, electrochemical or electrical influences.

(10) No warranty is assumed for damages owing to the fault of the customer itself or due to unsuitable or improper use, incorrect assembly or commissioning by the customer or third parties, incorrect or negligent handling, damage to varnished surfaces and resulting corrosion, unsuitable operating materials, chemical, electrochemical or electrical influences, failure to comply with assembly, operating and maintenance instructions, improper use or maintenance work by the customer or third parties, impact caused by parts of third-party origin and natural wear. We expressly note that there is no warranty obligation if wearing parts such as seals, door latches and hinges deteriorate due to natural wear. Furthermore, our warranty obligation does not include damages caused by continued use despite the occurrence of a defect.
(11) Persons employed to inspect for defects are not authorised to acknowledge defects or submit binding declarations on our behalf.

Section 8 Place of fulfilment and jurisdiction, applicable law

(1) The place of fulfilment for delivery and payment is Marktsteft.
(2) The place of jurisdiction will be determined based on the statutory provisions. If the customer is an entrepreneur or legal entity under public law or special fund under public law, our registered office will be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
(3) For these terms and conditions as well as all legal relationships between ourselves and the customer, the laws of the Federal Republic of Germany shall apply exclusively.
(4) If a provision in these general terms and conditions or a provision in other agreements should be or become invalid, the validity of all other provisions or agreements will not be affected. The invalid or void provision will be replaced by the valid provision which the parties would have agreed upon to achieve the same commercial result.

Marktsteft, August 2006

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