Termos e Condições General Conditions of sale (GCS) "International Sales"

1. Scope of application

1.1 These general terms and conditions of sale (hereinafter ‘GTCs’) shall apply for the duration of the business relationship between August Rüggeberg GmbH & Co. KG (hereinafter ‘PFERD’) and the customer (hereinafter ‘Customer’), provided that the latter is not a consumer, for all services to be rendered by PFERD, in particular services under sales contracts and contracts for work and services (hereinafter ‘Contractual Services’). They shall also apply for all future transactions with the Customer.

1.2 These GTCs shall apply exclusively; conflicting or deviating general terms and conditions of business of the Customer shall not be recognized unless PFERD has expressly agreed to their application in writing.

2. Offers/documents

2.1 Offers from PFERD are subject to change until final confirmation of the order.

2.2 The Customer’s order constitutes a binding offer.

2.3 PFERD shall retain unrestricted ownership and copyright exploitation rights to cost estimates, drawings and other documents. These documents may only be made accessible to third parties with PFERD’s prior written consent. The data and information contained in the documents do not constitute warranty commitments; warranty commitments require express written confirmation by PFERD in each case.

2.4 PFERD reserves the right to technical and/or colour deviations of the Contractual Services as compared to images, in particular catalogue images, if such deviations are the result of technical progress or production-related circumstances, as long as the contractually agreed recognisable purpose is not compromised and such deviations are customary in the industry. Under the same conditions, PFERD also reserves the right to make model and design changes due to further developments of the Contractual Services based on technical progress.

3. Prices/payment terms

3.1 The price list of PFERD as amended from time to time shall additionally apply. Prices may be agreed as a binding fixed price, as a target price, on an hourly basis, or by measurement; prices are generally quoted before value added tax.

3.2 If the scope of the respective Contractual Service is changed by mutual agreement during the execution of an order, in particular if it is extended, PFERD shall be entitled to demand a corresponding adjustment of the agreed prices and remunerations, in particular an increase thereof. PFERD shall be entitled to temporarily suspend performance of the Contractual Services until agreement has been reached on a corresponding adjustment of the prices and remuneration provided that PFERD has notified the Customer of this in writing in advance. Any delays caused by this shall not be to the detriment of PFERD. No unilateral change to the Contractual Services by the Customer shall be permitted.

3.3 Unless otherwise agreed, PFERD shall be entitled, at its reasonable discretion, to demand an appropriate advance payment and to issue partial invoices in sections for work already performed or depending on the progress of the work.

3.4 All invoices from PFERD shall be due for payment net cash immediately upon receipt. Unless otherwise agreed, the Customer shall be in default of its payment obligations no later than 14 days after the due date and receipt of the invoice and/or receipt of the Contractual Services. In the event of default, statutory interest shall be due as a minimum in accordance with Sections 288 (2) and 247 of the German Civil Code (BGB).

3.5 The Customer shall only be entitled to rights of set-off if its counterclaims have been legally established, are undisputed or have been recognized by PFERD. The Customer shall only be entitled to exercise a right of retention if its counterclaim is based on the same contractual relationship.

4. Fixed dates/duties of cooperation

4.1 If no fixed dates have been agreed, PFERD shall determine them at its own reasonable discretion.

4.2 If the Customer does not fulfil its duties to cooperate in due time, in particular to provide required documents, information and data, any resulting delays shall be to the Customer’s detriment.

4.3 The Customer shall be liable to PFERD for ensuring that the deliverables provided by it and the documents, information, data and objects handed over as part of the cooperation are free from any third party property rights precluding or impairing their use by PFERD in accordance with the contract.

4.4 In the event of force majeure, the performance time shall be extended by the duration of the hindrance plus a reasonable lead time. If the above-mentioned circumstances make it impossible or unreasonable to perform or carry out the services, PFERD shall be released from its obligation to perform.

5. Annual and call-off orders

5.1 Annual and call-off orders oblige the Customer to purchase the total quantity on which the annual/call-off order is based.

5.2 If an annual or call-off order does not stipulate any specific call-off dates, the entire quantity shall be called off within 12 months.

5.3 If the Customer fails to adhere to call-off deadlines, PFERD shall be entitled to deliver and invoice the total quantity in full four weeks after giving written notice, making reference to the consequences of the failure to call-off. PFERD’s rights due to default on the part of the Customer shall remain unaffected.

6. Non-disclosure

6.1 The Customer and PFERD shall be mutually obliged to treat all information concerning the business and operational affairs of the other party as strictly confidential and to use such information only within the scope of the contractual purpose of the respective order placed. Within the scope of this contractual purpose, PFERD shall be entitled to pass on the information to third parties.

6.2 The Customer and PFERD mutually undertake to refrain from enticing away employees or attempting to entice away employees of the other party.

7. Liability/compensation/limitation period

7.1 PFERD shall pay compensation, irrespective of the legal grounds, exclusively in accordance with the principles set out below.

7.2 PFERD shall be liable without limitation in the case of intent and gross negligence for damage resulting from a breach of the duty of care.

7.3 In the event of simple negligence, PFERD shall be liable for the breach of essential contractual obligations for damage typical for the contract and foreseeable at the time of conclusion of the contract. In addition, liability shall be limited to the (net) order value per violation in the event of property damage or financial loss. In the event of negligently caused damage based on the same violations, liability shall be limited to the total (net) order value, even if the violations are committed in several years. For an increase of the above-mentioned maximum liability amount, separate insurance cover must be taken out. If damage typical for the contract and foreseeable at the time of conclusion of the contract exceeds the (net) order value, the Customer is recommended to take out such insurance.

7.4 In all other respects, liability for compensation – regardless of the legal nature of the claim asserted – is excluded. PFERD shall not be liable in particular for unforeseeable damage, consequential harm caused by a defect, other indirect damage, or damage from lost profits.

7.5 Claims for compensation by the Customer due to defects as well as all other claims due to defects shall lapse (subject to Section 475 (2) of the German Civil Code (BGB)) after 12 months. Other claims for compensation shall lapse after two years.

7.6 The limitation and restriction under Sections 7.3, 7.4 and 7.5 shall not apply to loss of life, bodily injury or damage to health, or to liabilities arising from guarantees given in writing or under other mandatory statutory provisions.

8. Warranty:

PFERD shall initially provide warranty for any defects in the results of the order by means of rectification or new manufacture, at its own discretion. If the rectification/new manufacture fails despite at least two attempts at subsequent performance, the Customer may demand a reduction in price or withdrawal from the contract as well as compensation within the scope of the limitation of liability in accordance with Section 7. In the event of only minor defects, the Customer shall not be entitled to withdraw from the contract. The warranty period for defects not caused intentionally shall be 12 months from the respective statutory commencement of the limitation period.

9. Custom-made products

9.1 Where custom-made products that are only manufactured by PFERD in certain sub-quantities for production reasons are delivered at the request of the Customer, PFERD reserves the right to deviate from the order quantity by up to a maximum of 10% due to production-related tolerances.

9.2 If custom-made products are ordered, the Customer guarantees that the samples or drawings submitted by it do not infringe any third-party property rights. PFERD shall not be obliged to verify the infringement of third-party property rights.

10. Rights of use

For all work and work results developed by PFERD on behalf of the Customer, PFERD shall grant the Customer, upon payment in full, an exclusive and permanent right of use to the extent described in the respective order.

11. Retention of ownership

11.1 Ownership of the goods delivered by PFERD shall not pass to the Customer until it has fulfilled all its obligations, including future obligations, arising from the delivery of goods by PFERD (balance or current account reservation).

11.2 The Customer is obliged to insure PFERD’s reserved goods at its own expense against breakage, water, fire and catastrophic damage, as well as against theft, embezzlement, etc. By completing the order, the Customer assigns in advance its claims against the insurance company to PFERD.

11.3 Acquisition of ownership of the reserved goods by the Customer in accordance with Section 950 BGB by processing and/or working the reserved goods into a new item is excluded. In this case, PFERD shall be entitled to co-ownership of the new item in the ratio of the value of the reserved goods to the other combined items at the time of combination. The delivery item to be processed and/or finished shall serve as security for PFERD in the amount of its co-ownership share. The Customer shall be obliged to inform the owner of the other item of PFERD’s reservation of ownership. The new item may now only be resold subject to retention of ownership.

11.4 The processing and finishing of delivered goods shall be carried out on behalf of PFERD, but without obligating PFERD. Upon completion of the order, the Customer shall transfer its ownership and co-ownership rights to mixed and/or processed goods to PFERD at the invoice value of the reserved goods; these goods shall be held in safe custody for PFERD and free of charge.

11.5 In addition, the Customer hereby assigns all claims against third parties arising from the resale of the reserved goods, including mixed and/or reworked goods, including all ancillary rights, in particular security rights, and in the case of mixed and/or reworked goods at the invoice value of the reserved goods. In the ordinary and proper course of business, the Customer shall be authorised to sell reserved goods and collect the claims assigned to PFERD; in the event of default in payment, this authorisation shall be deemed revoked.

11.6 At PFERD’s request, the Customer shall be obliged to provide PFERD with information about the reserved goods still in its possession and the sales already made (customer, quantity, invoice value and date). In addition, PFERD may at any time demand that the goods be stored separately and labelled and that the Customer keep separate accounts for receivables and monies from resales of reserved goods and immediately transfer the monies received to PFERD.

11.7 The Customer is prohibited from pledging or assigning as security any reserved goods or receivables assigned to PFERD. The Customer waives the objection of the agreement of a prohibition of assignment between it and the third-party buyer, and undertakes not to agree a prohibition of assignment with third-party purchasers of the goods. If third parties seize reserved goods and/or claims assigned to PFERD, the Customer shall be obliged to inform PFERD immediately and to reimburse any costs incurred by PFERD.

11.8 The right of the Customer to possess the reserved goods shall lapse if it fails to fulfil its obligations under this or any other contract concluded with PFERD. In this case, PFERD shall be entitled to take possession of the reserved goods and to dispose of them at its reasonable discretion.

11.9 The assertion of the reservation of ownership shall not be deemed to be a withdrawal from the contract; the proceeds of the disposal shall be credited to the Customer’s liabilities after deduction of the costs; any remaining payment claims and claims for compensation not covered by the disposal shall remain unaffected.

11.10 PFERD undertakes to release securities at the request of the Customer to the extent that the value of the securities exceeds the claims to be secured by more than 20%; PFERD shall be entitled to select the securities to be released.

12. Data protection

PFERD stores data within the scope of the intended purpose of the contractual relationship. All data is protected in accordance with the provisions of the German Federal Data Protection Act (BDSG), the Customer is entitled to all rights granted by the BDSG.

13. Place of performance/place of jurisdiction/applicable law

13.1 The place of performance for PFERD’s Contractual Services is PFERD’s registered office. The place of performance for the Customer’s payment obligation is PFERD’s registered office.

13.2 The place of jurisdiction is PFERD’s registered office. However, PFERD shall also be entitled to bring an action against the Customer at any other statutory place of jurisdiction.

13.3 The contract shall be subject to the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

13.4 Should individual provisions of the GTCs or the contract be invalid, become invalid or be unenforceable, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a provision that comes as close as possible to the legal and economic purpose of that provision.