Terms and Conditions
General Terms and Conditions of Business of PERFACTS! marketing und vertriebs GmbH
1 Scope of application
1.1 These General Terms and Conditions of Sale (GTCS) shall apply exclusively and only to business enterprises, legal entities under public law or special funds under public law within the meaning of sec. 310, para. 1 BGB (German Civil Code). We do not recognise contradictory or differing terms or conditions of the person or company placing an order (in the following referred to as “customer”) unless we have expressly agreed to their validity in writing.
1.2 These Terms and Conditions of Business also apply to all future transactions with the customer if these involve legal transactions of a related kind.
2 Offer, conclusion of contract
If the customers order is to be classified as an offer according to sec. 145 BGB (German Civil Code), we can accept this within two weeks.
3 Submitted documents
We reserve all proprietary rights and copyrights to and in any and all documents provided to the customer, including but not limited to, cost estimates, drawings, etc. Such documents may not be made available to any third parties without our consent. Should we not accept the customer’s offer within the period of time stipulated in section 2, said documents and data shall be returned to us immediately.
4 Prices and terms of payment
4.1 Through the appearance of new leaflets, catalogues and/or the respective price lists all previous leaflets, catalogues and/or price lists lose their validity. Unless regulations to the contrary are agreed in writing, our delivery-day prices shall be applicable plus legal VAT at the currently valid amount. The customer shall bear all costs of money and payment transactions.
4.2 Payment of the purchase price must be made ex-clusively to one of the bank accounts specified on the corresponding invoice. No deductions or discounts shall be granted unless agreed in writing.
4.3 Unless otherwise agreed, the purchase price shall be due within 10 of the delivery date. In the event of default or delay in payment, while reserving the right to enforce higher claims for compensation, we shall be entitled to demand default interest in accordance with the provisions of the Interest Law Amendment Act, Fed. Law Gazette No. 118/2002. All costs of dunning and collection shall be charged to the customer. If the customer falls into arrears by more than 10 days in the payment of a due amount or partial amount, the entire sum of all his outstanding debts arising out of the business relationship will become due for payment immediately.
4.4 Unless a fixed price agreement was made, adequate price changes are reserved due to changes in wages, materials and distribution costs for deliveries, which are made three months or later after contract conclusion.
4.5 Delivery ex works Dorsten. Owing to the disproportionate cost of dealing with small orders we reserve the right to make a small order surcharge for orders under €50 net value. The surcharge rates can be obtained from us on request.
5 Offsetting and retention rights
Offset and retention rights which the customer may have in respect of the same contractual agreement shall equally be excluded if the counterclaim is contested or if the existence thereof has not yet been determined in a legally valid manner.
6 Delivery time
6.1 Any delivery schedule which we specify shall be deemed to take effect only insofar as the customer fulfils all his obligations in a timely and proper manner. The right to assert the legal defence of contractual non-performance shall remain unaffected.
6.2 If the customer delays acceptance or culpably breaches some other obligation to cooperate, we shall be entitled to indemnification for any resulting damages, including any excess costs. We also reserve the right to assert additional claims. Insofar as the aforementioned conditions obtain, the risk of accidental perishing or deterioration of purchased merchandise shall pass to the customer once he defaults on acceptance and/or payment.
6.3 We make ourselves responsible for every completed week of delivery delay which is not caused by a deliberate reason paying 3% of the value of the goods to be delivered. The maximum amount we make ourselves responsible for equals 5% of the value of the goods to be delivered.
6.4 We reserve the right to modify, suspend or cancel our delivery commitments in cases as follow:
-other industrial disruption of any nature or subsequently occurring difficulties with the procurement of any raw materials and/or utilities, with the shipment or transport of the goods, unless we, our boards or those vicarious agents who are in charge of special management tasks should have caused such circumstances willfully or by gross negligence;
-Failure of correct or timely self-delivery
-or other circumstances which are beyond our control If in such cases the impediment to delivery persists for more than six months and should we not have made use of the right to rescind our delivery obligation, after elapse of an appropriate period of notice the customer shall have the right, with the exclusion of any further claims on his part, to reject acceptance of the affected quantity ordered unless we have offered an appropriate substitute solution.
6.5 Further statutory claims and rights of the customer will remain unaffected
7 Transfer of risk upon delivery
Insofar as the customer requests that delivery be made to him, the risk of accidental perishing/ deterioration of the purchased merchandise shall pass to the customer once the merchandise has been dispatched to the customer, or once the merchandise leaves the works/warehouse, whichever is earlier. The foregoing shall apply regardless of whether or not the merchandise is shipped from the place of performance, and regardless of who actually bears the shipping costs.
8 Retention of title
8.1 We shall retain title to all delivered merchandise until such time as all receivables arising from the corresponding delivery agreement have been paid in full. This shall also apply to all future deliveries, even if we do not explicitly claim said right of retention. We shall be entitled to repossess any delivered merchandise if the customer is in breach of contract. Asserting our rights arising from the reservation of title shall not be construed as a cancellation of contract. The customer must neither pledge the goods or the receivables thereof as security nor assign them as security to a third party, unless we have received all payments due in full.
8.2 As long as ownership has not yet passed to the customer, he shall be obligated to treat all purchased merchandise with due care. As long as ownership has not yet passed to him, the customer must promptly inform us in writing if the delivered merchandise is confiscated or subjected to some other intervention by a third party. Insofar as said third party is not in a position to indemnify us for the legal costs and out-of-court costs associated with a lawsuit (as per section 771 of the German Code of Civil Proce-dure (ZPO)), the customer must indemnify us for any corresponding loss that we incur.
8.3 The customer shall be entitled to resell merchandise that is subject to retention of title in the context of normal business operations. The customer hereby assigns to us in advance any and all receivables owed to him by sub-customers in connection with his future re-sale of merchandise subject to retention of title. The scope of said assignment shall equal the final invoice amount agreed between us and the customer (including VAT). Said assignment shall be valid regardless of whether the merchandise in question is re-sold “as is” or following further processing. The customer shall retain the right to collect receivables even after they have been assigned, but this shall not affect our right to collect such receivables ourselves. We shall not exercise our right of collection, however, as long as the customer forwards all revenues owed to us in a timely manner, does not default on his payment obligations and/or stop payment, and does not become the subject of an insolvency proceeding.
8.4 Any treatment or processing, adaptation and/or modification of purchased merchandise by the customer shall be deemed to occur in our name and for our account. In this case, the customer’s remainder interest shall extend to the processed, adapted and/or modified merchandise. Insofar as purchased merchandise is combined with items not owned by us in the course of processing, adaptation and/or modification, we will obtain a prorata, co-ownership right in the newly created item based on the objective value of our merchandise in proportion to the other components at the time of creation. The foregoing shall also apply in cases of commingling. Insofar as the property of the customer can be deemed to constitute the primary portion of commingled property, the customer shall assign to us a prorata, co-ownership right to said commingled property, and shall safeguard all resulting wholly owned/co-owned property on our behalf. In order to guarantee the receivables which he owes to us, the customer also hereby assigns to us in advance any claims which he may have against third parties due to the bundling of real property with merchandise subject to retention with title; we hereby accept said assignment in advance.
8.5 We commit ourselves to give free securities on behalf of the customer as long as their value exceeds the demands to be secured by more than 20%.
9 Warranty and notice of defects as well as regress
9.1 Warranty rights require that the customer complied with his obligation to investigate and reprimand according to § 377 HGB (German Commercial Code). Warranty claims should be communicated to us in written form within 8 days after receipt of the goods. Our approval is required to return the goods. Complaints do not release the customer from payment obligation. At our discretion we may forward subsequent deliveries.
9.2 All defect claims shall lapse 12 months after the corresponding merchandise supplied by us has been fully delivered to the customer. Our approval must be obtained before any merchandise is returned. However, the foregoing provision shall not apply insofar as a longer warranty/limitation period is legally stipulated under either sec. 438, para. 1, No. 2 of the German Civil Code (BGB) (Construction and Construction-related Goods), sec. 479 para. 1 of the German Civil Code (BGB) (Rights of Recourse) and/or section 634a para. 1 of the German Civil Code (BGB) (Construction Defects).
9.3 If, despite exercising all due care, we deliver merchandise that was already defective before the transfer of risk, we shall have the option of either replacing said merchandise or taking remedial action, provided the defect has been reported in a timely manner. In all cases, we shall have the option of supplementary performance within a reasonable deadline. The preceding provision shall in no way limit the right of recourse.
9.4 If this supplementary performance fails the customer may-irrespective of any demand of replacement of damage-withdraw from the contract or diminish the commission.
9.5 Warranty claims do not apply in case of insubstantial deviation of the agreed condition, insignificant detriment of the serviceability, natural wastage due to damages caused by faulty or disregardful treatment, excessive exposure, improper equipment, defective construction works, improper construction ground, or special outer influences which are not taken into account within the contract after the passage of risk. If the customer or third parties carry out improperly repairs or changes, the customer does not have the right to demand warranty payments.
9.6 The customer may not demand posterior payments for the requied costs of supplementary performance such as transport, road, wages or material in case the goods have been transferred to another place after they have been delivered to the customer’s headquarters, unless the transfer corresponds to the intended use.
9.7 The rights of recourse of the customer apply up to the point that the customer did not make an agreement with the recipient exceeding the legally obligatory warranty claims. Clause six applies for the amount of the warranty claim of the customer.
9.8 If disclosure of a defect is maliciously withheld by us or a warranty is given that the goods will be of a particular quality at the time the risk passes in accordance with article 444 of the German Civil Code (representation by seller that the goods will have certain qualities at the time the risk passes and acceptance by seller of strict liability in the event that they do not), the Customer's rights shall be governed exclusively by the statutory provisions.
9.9 Any warranty regarding quality or durability shall only be considered to have been granted if we have expressly stated the grant of such a warranty in writing.
10 Further claims, liability
10.1 Unless the following does not stipulate otherwise, any further and more far-reaching claims on us by our cusotmer are ruled out. This applies particularly to claims for damages as a result of breaches of duties arising from the obligation and from unauthorized acts. We are, therefore, not liable for damages arising from missed profits or other pecuniary losses suffered by our customer.
10.2 The above-mentioned limitations of liability do not apply in the case of wilfulness, gross negligence on the part of our legal representatives or senior staff as well as in the case of culpable breaches of essential contractual obligations. In the case of culpable breaches of essential contractual obligations we are only liable for damage typical of the contract and reasonably foreseeable -except for the case of wilfulness or gross negligence on the part of our legal representatives or senior staff.
10.3 To the extent to which our liability is excluded or limited, this applies also to the personal liabilities of our staff, employees, legal representatives and assistants.
11 Infringement of third-party rights
If goods are supplied based on plans, drawings, models, analytical specifications or other instructions of the customer and thirdparty rights are thereby infringed, particularly property rights, the customer shall release us from any such claims upon our request.
12 Consultancy and information
Our recommendations for using our products and our technical advice regarding use are given based on our experience and the information given by the customer. The customer is solely responsible for inspecting and deciding if the goods are suitable for the intended application, use or processing. We neither guarantee the results to be achieved nor do we warranty that third-party property rights are not being infringed.
13 Miscellaneous provisions
13.1 This agreement, as well as all legal relationships between the Parties, shall be subject to the laws of the Federal Republic of Germany, with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
13.2 As long as the orderconfirmation does not specify otherwise the place of performance and exclusive legal venue for all disputes arising from this agreement shall be our place of legal domicile.
13.3 Amendments and supplements of this agreement are required to be in writing. This shall also apply to the rescission or modification of this written form requirement. There are no oral subsidiary agreements.
13.4 Should individual regulations of the present licensing terms be or become invalid or contain a gap, the validity of the remaining regulations will remain inviolate.