General Terms and Conditions of Sale of Panzer GmbH
§ 1 Scope
(1) Our Terms and Conditions of Sale shall apply exclusively; we do not recognize any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we make delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our Terms and Conditions of Sale.
(2) All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
§ 2 Conclusion of contract
(1) Your order constitutes an offer (§ 145 BGB) to us to conclude a purchase contract. When you place an order with us, we will send you a message – by e-mail or fax – confirming that we have received your order and listing its details (so-called order confirmation). This order confirmation does not yet represent an acceptance of your offer, but is merely intended to inform you that we have received your order. A purchase contract is only concluded when we confirm acceptance of your offer in a second communication (order confirmation).
(2) No purchase contract shall be concluded for products that are not listed in the order confirmation.
§ 3 Offer documents
(1) We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents that are designated as “confidential”.
(2) The customer shall require our express written consent before passing them on to third parties.
(3) We reserve the right to make changes to our products or to use other materials as long as the function is not decisively changed.
§ 4 Prices – Terms of payment
(1) Unless otherwise stated in the order confirmation, our prices shall apply “ex works”.
(2) The statutory value-added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
(3) The deduction of a cash discount requires a special written agreement.
(4) Unless otherwise stated in the order confirmation, the net purchase price (without deduction) shall be due for payment within 14 days from the invoice date. The statutory rules concerning the consequences of default in payment shall apply.
(5) The customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been acknowledged by us. Furthermore, he shall be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 4 Delivery time
(1) The start of the delivery period stated by us shall be subject to clarification of all technical issues.
(2) Compliance with our delivery obligation further requires the timely and proper fulfillment of the customer’s obligation. The defense of non-performance of the contract remains reserved.
(3) If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.
(4) Provided that the requirements of par. (3) exist, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.
(5) We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of Section 286 (2). 2 No. 4 BGB or of Section 376 HGB. We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the customer is entitled to claim that its interest in the further performance of the contract has ceased to exist.
(6) Furthermore, we shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. Unless the delay in delivery is due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(7) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(8) Further legal claims and rights of the customer remain reserved.
§ 5 Transfer of risk – packaging costs
(1) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.
(2) If the customer so desires, we shall cover the delivery by transport insurance; the customer shall bear the costs incurred in this respect.
§ 6 Liability for defects
(1) Claims for defects on the part of the customer presuppose that the customer has properly fulfilled its obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
(2) Insofar as there is a defect in the purchased item, the customer shall be entitled, at its discretion, to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for the purpose of rectifying 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.
(3) If the supplementary performance fails, the customer shall be entitled, at its option, to demand rescission or reduction.
(4) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(5) We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(6) Insofar as the customer is entitled to claim compensation for damages instead of performance, our liability shall also be limited within the scope of para. (3) shall be limited to compensation for the foreseeable, typically occurring damage.
(7) Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.
(8) Unless otherwise stipulated above, liability is excluded.
(9) The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
(10) The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it amounts to five years, calculated from the delivery of the defective item.
§ 7 Joint liability
(1) Any further liability for damages than provided for in § 6 is excluded – regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for property damage pursuant to Section 823 of the German Civil Code (BGB).
(2) The limitation according to par. (1) shall also apply insofar as the customer demands reimbursement of useless expenses instead of a claim for damages.
(3) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
§ 8 Retention of title
(1) We retain title to the purchased item until receipt of all payments under the delivery contract. In the event of conduct by the customer in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. The taking back of the purchased goods by us shall constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to realize it; the proceeds of realization shall be credited against the customer’s liabilities – less reasonable costs of realization.
(2) The customer is obligated to treat the purchased item with care; in particular, he is obligated to sufficiently insure it at his own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at its own expense.
(3) In the event of seizures or other interventions by third parties, the customer shall notify us in writing without delay so that we can bring an action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
(4) The customer shall be entitled to resell the object of sale in the ordinary course of business; however, it hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim accruing to it against its customers or third parties from the resale, irrespective of whether the object of sale has been resold without or after processing. The customer remains authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets its payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
(5) The processing or transformation of the object of sale by the customer shall always be carried out for us. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the item created by processing as to the purchased item delivered subject to reservation of title.
(6) If the purchased item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it shall be deemed to be agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
(7) The customer also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the object of sale with a property.
(8) We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released shall be at our discretion.
§ 9 Invoicing
Invoices shall be sent to Panzer together with the associated documents and data separately with each individual delivery. Invoices not properly submitted shall be deemed not received. The invoice shall not be deemed to be a notice of shipment.
§ 10 Payment modalities to our suppliers
The term of payment is 60 days net from the date of receipt of the goods or within 30 days with a discount of 2% of the invoiced amount.
If certificates of material tests are to be provided, they shall be sent to Panzer together with the delivery. In any case, the payment period for the invoice shall not start until the receipt of the corresponding certificate.
§ 11 Delay in delivery
The agreed delivery dates are binding and must be observed. The receipt of the goods at the place of receipt or use specified by Panzer or a timely acceptance by Panzer shall be decisive for compliance with the delivery date.
If an agreed deadline can probably not be met, the Supplier shall be obliged to inform Panzer accordingly in writing without delay, stating the reasons and the expected duration of the delay.
Panzer shall have the right to obtain information on the respective current status of the order on the spot. In particular, the supplier shall be obliged to grant Panzer access to its premises and to allow it to inspect the necessary documents, if required, after giving appropriate advance notice.
Failure to meet delivery dates will result in the following consequences of delay:
In the event of default, Panzer shall be entitled, after setting a reasonable deadline of no more than 20 days, to insist on the delivery, to withdraw from the contract prematurely with the consequence of damages, or to have the delivery or service carried out by a third party at the Supplier’s expense after giving prior notice to the Supplier.
In the event of defective or incomplete delivery, Panzer shall be entitled to withhold payment at least pro rata until proper performance of the contract by the Supplier.
§ 12 Discontinuation of products
The Supplier undertakes to regularly inform Panzer about new products and developments and to ensure that the latest documentation is always available to Panzer. He also undertakes to inform Panzer in good time, but no later than 12 months in advance, of the discontinuation of products so that Panzer has the opportunity to place at least one last order.
§ 13 Place of jurisdiction – place of performance
(1) If the customer is a merchant, our place of business shall be the place of jurisdiction; however, we shall also be entitled to sue the customer at the court of his place of residence.
(2) The law of the Federal Republic of Germany shall apply; the validity of the UN Convention on Contracts for the International Sale of Goods is excluded.
(3) Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.
§ 14 Severability clause
Should any provision of our General Terms and Conditions of Sale or any provision incorporated in it in the future be wholly or partly invalid or unenforceable or subsequently lose its validity or enforceability, the validity of the remaining provisions of our General Terms and Conditions of Sale shall not be affected thereby.
§ 15 Data protection
The customer agrees to the processing of his data on business transactions with us in accordance with the provisions of the Federal Data Protection Act.