§ 1 General
(1) These Conditions shall apply to all contracts between the purchaser and us with regard to the delivery of goods. The Conditions also apply to all future business activities, without the requirement for further confirmation of its application. All other terms and conditions including any terms and conditions which the purchaser may purport to apply are, without our express agreement excluded, with or without our express objection. The Conditions also apply when we fulfil the purchaser's orders in the knowledge of the purchaser having conditions that contradict these.
(2) All agreements, made between the purchaser and us in connection with the fulfilment of purchase orders must be in written form.
(3) These Conditions apply to companies, legal entities under public law or other special public assets.
§ 2 Offers and connected documentation
(1) A purchase order that is made in order to qualify for an offer can be confirmed by us within two weeks, either in written form or through delivery of the order.
(2) Offers are subject to confirmation and unless our explicit confirmation is given, nonbinding.
(3) We retain ownership and copyright of all illustrations, calculations and diagrams. The purchaser is entitled only with our express written agreement to pass these on to a third party, irrespective of whether they have been marked confidential.
(4) Documentation connected to the offer, such as illustrations, diagrams, weight and dimensions is only representative unless expressly designated as being binding.
§ 3 Price / payment conditions
(1) Prices are "ex works, Ahrensburg" or "ex Hamburg wharf", unless stated otherwise in the order confirmation. Packaging and insurance will be invoiced separately.
(2) Value Added Tax is not included in the prices and will be invoiced separately at the level applicable on the day of invoicing.
(3) Legal regulations will apply if the purchaser is late in paying.
(4) If nothing else results from the order confirmation, the purchase price is due in full within 30 days after receipt of the invoice. Late payment will result in default interest being charged at 8% over the base interest rate. Additional costs may be applied in the event of our proving further damages due to a delay in payment, the purchaser retains the right to provide evidence to the contrary.
(5) The purchaser is only entitled to offset payment for a valid claim or otherwise; if a legal judgement has been passed that confirms the counter claim; if our acceptance of the counter claim has been confirmed, or if it is not in dispute. The buyer is furthermore only entiled to exercise a right of retention according to the above conditions if his counterclaim is based on the same contractual relationship.
§ 4 Delivery
(1) Delivery dates or deadlines are only estimations and as such non-binding in unless express confirmation is given. The delivery time does not begin until all technical questions have been clarified. In addition, the purchaser must have correctly met all obligations within the time required.
(2) If the basic purchase contract is classed as a "firm deal" as according to § 271 BGB or of § 376 HGB, we are liable in accordance with the legal regulations. The same applies if the purchaser decides to cancel an order, due to a delivery delay for which we are responsible. In this case, liability is limited to foreseeable, typically occurring damages, if the delivery delay is not caused by wilful breach of contract on our part, but if it can be deemed that a representative, or employee acted negligently. We are also liable to the purchaser for delays in delivery within the constraints of applicable law in cases where our representatives or employees have displayed wilful or gross negligence. Our liability is limited to foreseeable, typically occurring damages when the delivery delay is caused by wilful breach of contract for which we are not responsible.
(3) Damage liability will be limited to foreseeable, typically occurring damages in the case of our being responsible for a delay in delivery which is caused by the culpable breach of an essential contractual obligation. We are liable for the negligence of our representatives or employees as provided for by applicable law.
(4) Otherwise the purchaser can, in the case of a delivery delay for which we are responsible, demand compensation for each full week of delay at a rate of 0.5% of the delivery value, but no higher than 5% of the delivery value.
(5) All further liability for delivery delays for which we are responsible is excluded. All other applicable legal claims and rights of the purchaser, external to damage claims due to delivery delays for which we are responsible, remain unaffected.
(6) We retain the right to implement partial deliveries/services where this can be considered reasonable for the purchaser.
(7) If the purchaser defaults in acceptance, we have the right to claim compensation for the resulting damages and any additional expenditure. The same applies if the purchaser culpably breaches cooperation obligations. Where acceptance or debtor delay occurs, the risk of accidental deterioration or breakdown is transferred to the purchaser.
§ 5 Transfer of risk - packaging costs
(1) Delivery is agreed as being "ex-works, Ahrensburg" or "Hamburg wharf" unless the contractual relationship dictates otherwise.
(2) We will attempt, with regards to shipping methods and routes, to meet the wishes and interests of the purchaser; any additional costs incurred – including the agreed freightfree delivery – will be borne by the purchaser.
(3) With the exception of pallets, we do not take back any packaging; transport or otherwise in connection with any packaging regulations that may apply. The purchaser is obliged to dispose of packaging at the purchaser's own cost.
(4) If the delivery is delayed at the purchaser's request or because of default in payment, storage of the goods is at the risk and expense of the purchaser. In this case, the notification of delivery readiness is equivalent to delivery.
§ 6 Warranty
(1) The purchaser's warranty claims presupposes that the obligations of inspection and notification, pursuant to §§ 377, 378 of the HGB, have been properly fulfilled.
(2) Insofar as there is a defect of the goods for which we are responsible, to the exclusion of the entitlement of the purchaser to withdraw from the contract or to reduce the purchase price (reduction), we are obliged to subsequent specific performance, unless such performance is only possible for us at disproportionate expense (§ 439, Paragraph 3 BGB). The purchaser must provide an appropriate period for us to implement the remedy. The remedy can be implemented by repairing the defect (improvement) or by delivering new goods, as requested by the purchaser. We are liable for the necessary expenditure in the case of repair, insofar as these are not increased by the contractua object being moved to a site other than the agreed place of performance. If our attempt to remedy is not successful, the purchaser can choose to reduce the purchase price or cancel the contract. Any improvement measures will be seen as invalid after the second unsuccessful attempt unless further improvement measures are appropriate according to the contract object and if acceptable to the purchaser. Damage compensation claims based on the following conditions, due to defects can only be applied by the purchaser when improvement attempts are unsuccessful. The right of the purchaser to apply further damage compensation claims, based on the following conditions, remains unaffected.
(3) The purchaser has a warranty claim period of three years following delivery of the goods. Our obligations as per § 6 para. 4 and para. 5 remain unaffected by this.
(4) We are obliged in accordance with the provisions of applicable law to accept return of new goods or to reduce the purchase price regardless of the normally required deadline if the purchaser's customer; the user of the new moveable goods (consumer goods purchase) is able to demand that either the purchaser accepts return of the goods, or reduction in price due to a defect. Or, if the purchaser's customer can apply the right of recouse or similar. We are also obliged to compensate the purchaser for costs incurred in connection with the demand placed on the purchaser, in particular transport, travelling, workingand material costs. This claim is excluded if the purchaser has properly fulfilled their obligation of inspection and notification pursuant to § 377 HGB.
(5) The obligation pursuant to § 6 para. 4 is excluded where the defect results from advertising statements or other legal agreements not published by us or if the purchaser has provided the end consumer with a special warranty. This obligation is also excluded if the purchaser was not obligated to implement the warranty rights with regards to the end consumer due to legal provisions, or where the end consumer has not informed the purchaser of an claims that may have arisen. This also applies if the purchaser has provided the end consumer with warranties that exceed legal requirements.
(6) We are liable without exclusion in accordance with legal provisions for any damage to life, body and health due to a wilful or negligent breach of obligation; this includes both our legal representatives and other representatives. We are also liable for damages in accordance with the product liability law. We are liable in accordance with applicable law fodamages not accounted for in clause 1, that can be deemed a wilful and gross breach of contract and/or fraudulent, this also includes both our legal representatives and other representatives. Our liability is limited in such cases to foreseeable, typically occurrin damages when the delivery delay is caused by wilful breach of contract for which we and both our legal representatives and other representatives are not responsible. In the event of our applying a consistency and/or shelf-life guarantee to a product or part; we are liable within the provisions of such guarantee. We are only liable for damages caused by malfunction of the guaranteed consistency or shelf-life guarantee but that do not directly affect the product insofar as there being a visible risk of damage covered by the consistency and shelf-life guarantee.
(7) We are also liable for damages that are caused by minor negligence, if such negligence injures our contractual obligations, compliance of which can be considered as having special importance in connection with the achievement of the contractual aims (cardinal obligation). However, we are only liable insofar that the damages were typically connected to the contract and that they were foreseeable.
(8) Further liability is, without consideration of the legal nature, excluded; this especially applies to tort claims or claims for compensation of futile expenditure instead of accomplishment. Our liability in accordance with § 6 para. 2 to para. 6 of these Conditions remain unaffected. If our liability is excluded or reduced, this also applies to the personal liability of all management, employees and representatives.
(9) Any damage claim in connection with a defect that the purchaser may hold is subject to a limitation period of one year from delivery. This does not apply to damage to life, body and health for which our management, employees and representatives can be deemed responsible, or if our management, employees and representatives have acted in a wilful or negligent manner.
§ 7 Retention
(1) The delivered goods remain our property (reserved goods) until complete fulfilment of all debts; this includes payment requests for open accounts to which we are, with regard to the purchaser entitled now or in the future. After giving suitable notice, we retain the right to repossess goods in cases where the purchaser acts in a manner contrary to the contract, e.g. delayed payment. Repossession of goods implies a withdrawal from the contract. Impounding of goods is a withdrawal from the contract. We retain the right to utilise repossessed goods as we see fit. After deduction of an adequate amount for the utilisation costs, proceeds will be offset against the amount owing.
(2) The purchaser is obliged to treat the reserved goods in a careful manner and, at its own cost, to insure these to the purchase value against fire and water damage and theft. Running maintenance and servicing must be dealt with by the purchaser at its own cost and in a timely manner.
(3) The buyer has the revocable entitlement to duly sell and/or use the reserved goods in the course of business in the event that the buyer is behind schedule with the settlement of the invoice. Pledges or security tranfers of title are inadmissible during the default period. Outstanding debts or other legal causes arising from the sale of the reserved goods (insurance or civil offences) are conveyed with immediate effect to us; we herewith accept the conveyance. We authorise the purchaser to collect such debts on its own account. The collection authorisation can be revoked at any time, if the purchaser does not fulfil its payment obligation in an orderly manner. The purchaser is not permitted to use factoring as a means of collection unless the factor accepts liability to us for the value of the outstanding debt for the time that the purchaser remains indebted to us.
(4) Conversion or reclassifying of the reserved goods by the purchaser will, in all cases be carried out for us. We acquire co-ownership to the value of the reserved goods if the reserved goods are converted together with other items not belonging to us (gross invoice value including value added tax). New changes arising from the conversion will be treatedthe same as reserved goods. In cases where reserved goods are inseparable with items not belonging to us, we acquire co-ownership to the value of the reserved goods (gross invoice value including value added tax). Both us and the purchaser agree that if the greater volume of combined goods belongs to the purchaser, the purchaser will convey co-ownership to us; we herewith accept the conveyance. We will appoint the purchaser to be cus-todian of the newly acquired sole or co-owned goods.
(5) Any attempt to seize the reserved goods by a third party, especially enforcement (attachment, distraint etc.) will result in the purchaser giving notice that the goods belong to us and immediately informing us, in order for us to enforce ownership. The purchaser is liable, if the third party is not in a position to reimburse connected costs, legal or otherwise.
(6) We are obliged to release securities to which we are entitled, if the feasible value of our securities exceeds the respective debt by more than 10%, such securities will be released at our discretion.
§ 8 Repairs
The purchaser must give explicit instruction if it requires a quote prior to our carrying out a repair. We retain the right to engage a third party to carry out a repair. Shipping and pakkaging costs will be charged to the purchaser separately.
§ 9 Revision
We retain the right to make changes to both the design and technical specification in line with technical advancements. We are under no obligation to deliver spare parts for discontinued goods.
§ 10 Price and quantity obligations
Both these Conditions and those of the respective manufacturer apply to ordered products that have connected pricing and/or quantity obligations.
§ 11 Special provisions
(1) The purchaser is obliged to adhere to special directives e.g. from the Federal Network Agency or similar in your country before operation of ready-to-use units. We cannot be held responsible for negligent behaviour on the part of the purchaser.
(2) Before operation and especially with imported goods, the purchaser is obliged, only to sell such goods to the consumer if the goods fulfil all regulations in accordance with applicable law and/or other German regulations. We cannot be held responsible if the purchaser does not make necessary enquiries in connection with the legal standing.
§ 12 Jurisdiction and Severability
(1) All deliveries, payments and any disputes between us and the purchaser arising out of the contractual agreement will be carried out at our company seat. However, we retain the right to prosecute legal action at the company seat or residential address of the purchaser.
(2) The contractual agreement between us and the purchaser is subject to the applicable law of the Federal Republic of German. The application of the uniform law governing the international purchase of movable goods and the act governing international sales orders of movable goods is excluded.
PeakTech Prüf- und Messtechnik GmbH