General Terms and Conditions of Sale
for sales of PeakTech Prüf- und Messtechnik GmbH, Gerstenstieg 4, DE-22926 Ahrensburg, Tel: +49 (0) 4102 97398-80, firstname.lastname@example.org, www.peaktech.de, registered in the Commercial Register of the Local Court of Lübeck 3 HRB 2201 AH, USt-IdNr. DE 135100534, tax number: 30 292 09928, represented by Mr. Heiko Boysen - hereinafter referred to as "Provider" or "we" - and you (hereinafter also referred to as "Customer", "Buyer" or "you") as Buyer.
PeakTech Prüf- und Messtechnik GmbH is also referred to as "Seller" or "we" in these General Terms and Conditions.
1 Scope, Form
1.1 These General Terms and Conditions of Sale (GTCS) apply to all our business relations with our customers (also referred to as "Buyer"). The GCS only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
1.2 The General Terms and Conditions of Sale apply in particular to contracts for the sale and/or delivery of movable goods ("Goods"), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GCS in the version valid at the time of the Buyer's order or in any case in the version last notified to the Buyer in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
1.3 Our General Terms and Conditions of Sale shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the buyer without reservation in the knowledge of the buyer's general terms and conditions.
1.4 Individual agreements made with the Buyer in individual cases (including side agreements, supplements and amendments) shall in all cases take precedence over these General Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
1.5 Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in the event of doubts about the legitimacy of the declarant, shall remain unaffected.
1.6 References to the applicability of statutory provisions shall only have a clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these General Terms and Conditions of Sale.
2 Conclusion of contract
2.1 Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which we reserve property rights and copyrights.
2.2 The order of the goods by the Buyer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 7 days of its receipt by us.
2.3 Acceptance can be declared either in writing or in text form by email/PDF (e.g. by order confirmation) or by delivery of the goods to the buyer.
3 Delivery period and delay in delivery
3.1 The delivery period shall be agreed individually or stated by us upon acceptance of the order. If this is not the case, we shall hand over the goods to the carrier within 7 days after conclusion of the contract.
3.2 If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this without delay and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the Buyer. A case of non-availability of the performance in this sense shall be deemed to be in particular the failure of our supplier to deliver on time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
3.3 The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the buyer is required. If we are in default of delivery, the buyer may demand lump-sum compensation for the damage caused by the default. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of the delay, however, to a maximum of 5% of the delivery value of the delayed goods. We reserve the right to prove that the Buyer has not suffered any damage or that the damage is significantly less than the aforementioned lump sum.
3.4 The rights of the Buyer pursuant to clause 8 of these General Terms and Conditions of Sale and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
4.1 Delivery shall be made "ex warehouse Ahrensburg" or "ex quay Hamburg", whichever is the place of performance for the delivery and any subsequent performance. At the Buyer's request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
4.2 The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon handover at the latest. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the buyer upon delivery of the goods to the forwarding agent, the carrier or any other person or company appointed to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. Handover or acceptance shall be deemed to have taken place if the buyer is in default of acceptance.
4.3 If the buyer is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation in the amount of EUR 200.00. 200.00 per calendar day, beginning with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for dispatch.
The proof of a higher damage and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; the lump sum shall, however, be offset against further monetary claims. The buyer shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the aforementioned lump sum.
5 Prices and terms of payment
5.1 Unless otherwise agreed in individual cases, our prices current at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax.
5.2 In the case of sale by delivery to a place other than the place of performance (clause 4.1), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. If we do not invoice the transport costs actually incurred in the individual case, a flat rate for transport costs (excluding transport insurance) of 4 percent of the value of the goods shall be deemed agreed. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.
5.3 The purchase price is due and payable within 14 days from the date of invoice and delivery or acceptance of the goods. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
5.4 Upon expiry of the aforementioned payment period, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. Our claim to the commercial due date interest rate (§ 353 HGB) against merchants shall remain unaffected.
5.5 The buyer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer's counter rights shall remain unaffected, in particular pursuant to 7.6 sentence 2 of these General Terms and Conditions of Sale.
5.6 If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardised by the buyer's inability to perform, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
6 Retention of title
6.1 We retain title to the goods sold until all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
6.2 The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The buyer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
6.3 In the event of conduct by the buyer in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the buyer does not pay the purchase price due, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
6.4 Until revoked in accordance with clause 6.4.3 below, the Buyer shall be entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
6.4.1 The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
6.4.2 The Buyer hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 shall also apply with regard to the assigned claims.
6.4.3 The buyer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the buyer meets his payment obligations towards us, there is no defect in his ability to perform and we do not assert the retention of title by exercising a right pursuant to para. 3. If this is the case, however, we may demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the buyer's authorisation to further sell and process the goods subject to retention of title.
6.4.4 If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the buyer's request.
7 Claims for defects of the buyer
7.1 The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier's recourse pursuant to §§ 478 BGB).
7.2 The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions and manufacturer's specifications which are the subject of the individual contract or which were publicly announced by us (in particular in catalogues or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods.
7.3 Insofar as the quality has not been agreed, whether or not there is a defect shall be assessed in accordance with the statutory regulations. However, we shall not be liable for public statements made by the manufacturer or other third parties (e.g. advertising statements) to which the buyer has not drawn our attention as being decisive for his purchase.
7.4 As a matter of principle, we shall not be liable for defects of which the buyer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Furthermore, the buyer's claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later time, we must be notified of this in writing without delay. In any case, obvious defects shall be notified to us in writing within 10 working days of delivery and defects which are not apparent on inspection within the same period of time from the time of discovery. If the buyer fails to carry out the proper inspection and/or to give notice of defects, our liability for the defect which was not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions.
7.5 If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). Our right to refuse subsequent performance under the statutory preconditions shall remain unaffected.
7.6 We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
7.7 The buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or its re-installation if we were not originally obliged to install it.
7.8 We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect is actually present. Otherwise, we may demand reimbursement from the buyer of the costs incurred as a result of the unjustified request for rectification of the defect (in particular also inspection and transport costs), unless the lack of defectiveness was not recognisable to the buyer.
7.9 In urgent cases, e.g. in the event of a risk to operational safety or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be notified immediately of such self-execution, if possible in advance. The right of self-performance shall not apply if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
7.10 If the supplementary performance has failed or if a reasonable period to be set by the buyer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there shall be no right of withdrawal.
7.11 Claims of the buyer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with clause 10 and are otherwise excluded.
Repairs which are not based on a claim for rectification of defects on the part of the buyer shall be carried out exclusively on the basis of a cost estimate to which the buyer agrees. Whether a repair is carried out in our own workshop or in an external workshop is at our discretion. Shipping and packaging costs shall be borne by the buyer.
9 Design changes
We reserve the right to make design changes and technical modifications in the interest of technical progress without being obliged to replace older designs or versions.
10 Other liability
10.1 Unless otherwise stipulated in these General Terms and Conditions of Sale, including the following provisions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.
10.2 We shall be liable for damages - irrespective of the legal grounds - within the scope of liability for fault in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), for
10.2.1 for damages resulting from injury to life, body or health,
10.2.2 for damages arising from the breach of a material contractual obligation (obligation the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
10.3 The limitations of liability resulting from clause 10.2 shall also apply to third parties and in the event of breaches of duty by persons (also in their favour) for whose fault we are responsible in accordance with statutory provisions. They do not apply if a defect was fraudulently concealed or a guarantee for the quality of the goods was assumed and for claims of the buyer under the Product Liability Act.
10.4 The buyer may only withdraw from or terminate the contract due to a breach of duty which does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
11.1 Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall begin with acceptance.
11.2 If the goods are a building or an object which has been used for a building in accordance with its normal use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provisions (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall remain unaffected.
11.3 The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages by the Buyer pursuant to Clause 10.2 sentence 1 and sentence 2 in conjunction with Clause 10.2.1 as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
12 Special provisions
12.1 Before putting into operation finished appliances which are subject to special regulations, e.g. of the Federal Network Agency, etc., the buyer is obliged to comply with these. We cannot be held liable for any culpable behaviour on the part of the buyer.
12.2 Prior to commissioning, in particular of imported products, the buyer shall be obliged to resell the equipment to the end consumer only if the goods comply with the statutory provisions or other German regulations. In this respect, we cannot be held liable for recourse against the buyer who fails to carry out this inspection.
13 Choice of law and place of jurisdiction
13.1 These General Terms and Conditions of Sale and the contractual relationship between us and the Buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
13.2 If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Ahrensburg. The same shall apply if the buyer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Sale or a prior individual agreement or at the general place of jurisdiction of the buyer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
Status of these General Terms and Conditions of Sale: 25 March 2022