General Conditions of sale (GCS) "International Sales"
1. Scope of application
1.1 The following General Conditions of Sale (hereinafter referred to as GCS) shall apply for the duration of the business relationship between August Rüggeberg GmbH & Co. KG (hereinafter referred to as PFERD) and the customer (hereinafter referred to as customer), insofar as such customer is not a consumer, in respect of all products and services to be rendered by PFERD, in particular for products delivered and services rendered under purchase agreements and work contracts (hereinafter referred to as contractual services). They shall also apply to all future transactions with the customer.
1.2 These GCS apply exclusively; conflicting or deviating general terms and conditions of the customer are not recognised unless PFERD gives its express written consent.
2. Offers and documents
2.1 All offers and quotations by PFERD shall be non-binding until the order is finally confirmed.
2.2 The purchase order received from the customer shall constitute a binding offer.
2.3 PFERD reserves any property and copyright exploitation rights for all cost quotations, drawings and other documents. Disclosure of such documents to third parties shall be subject to the prior written consent by PFERD. The data and information included in the documentation shall not constitute any promises of guarantee; guarantees shall in any event require the express written confirmation by PFERD.
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 model and design modifications due to a further development of the contractual services based on technical progress.
3. Prices/payment terms
3.1 Furthermore, the PFERD price list in its respective current version shall 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 service is altered, particularly extended, by mutual agreement during the execution of an order, PFERD may demand a corresponding adjustment of the agreed prices and remunerations, in particular an increase therein. PFERD shall be entitled to temporarily discontinue the execution of an order until an agreement is reached on the corresponding adjustment of prices and remunerations, provided that PFERD has previously informed the customer thereof in writing. Delays occurring as a result thereof shall not be to the detriment of PFERD. The unilateral change of an ordered performance by the customer shall be excluded.
3.3 Unless otherwise agreed upon, PFERD shall be entitled, according to reasonable discretion, to demand an adequate advance payment and to issue partial invoices for services already rendered under an order or in relation to the performance progress.
3.4 All PFERD invoices shall be due and payable net cash immediately upon receipt. Unless otherwise agreed upon, the customer shall be in default of his payment obligations no later than 14 days after the due date and receipt of the invoice and/or receipt of the contractual service. In the event of a payment default, default interest shall be payable pursuant to section 288 (2) BGB [German Civil Code], section 247 BGB.
3.5 The customer shall only be entitled to rights to offset counterclaims if his counterclaims have been confirmed by declaratory judgement, are undisputed or have been recognised by PFERD. The customer shall only be entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
4. Fixed dates/duty of cooperation
4.1 Where no fixed dates are agreed upon, PFERD shall determine dates according to its own reasonable discretion.
4.2 If the customer fails to comply with his duties of cooperation in due time, in particular regarding the submission of required documents, information, and data, any delays resulting therefrom shall be to his detriment.
4.3 The customer shall be liable to PFERD that the performance provided by the customer as well as the documents, information, data and items made available within the framework of the cooperation, are free from third-party property rights which preclude or impair the use by PFERD in conformity with the contract.
4.4 In the event of Force Majeure, the performance period shall be extended by the duration of the hindrance plus an adequate run-up time. If, due to the said circumstances, the performance or implementation of the service becomes impossible or unreasonable, PFERD shall be released form its performance obligation.
5. Annual and call orders
5.1 Annual and call orders shall oblige the customer to accept the total quantity on which the annual/call order is based.
5.2 Should an annual/call order not determine specific call dates, the total quantity is to be called forward within 12 months.
5.3 If the customer fails to adhere to call deadlines, PFERD shall be entitled to deliver and bill the total quantity in full four weeks after the written notice, making reference to the consequences of a failure to call. The rights of PFERD due to the default of the customer shall remain unaffected.
6.1 The customer and PFERD shall be mutually obliged to treat with strict confidentiality all information concerning the business and operational affairs of the other party and to use such information merely for the contractual purpose of the respective issued order. Within the framework of this contractual purpose, PFERD shall be entitled to disclose the information to third parties.
6.2 The customer and PFERD mutually undertake to refrain from luring away or attempting to lure away employees of the respective other party.
7. Liability/compensation for damages/limitation period
7.1 PFERD shall pay damages, regardless of the legal basis, exclusively in accordance with the principles set forth below.
7.2 PFERD shall be fully liable in cases of intent or gross negligence, for damages ensuing from a breach of its duty of care.
7.3 In cases of a breach of material contractual duties due to ordinary negligence, PFERD shall be liable for damages typical of this type of contract and foreseeable at the time of the conclusion of the contract. Furthermore, the liability shall be limited to the (net) order value per violation for property and financial damages. In the case of negligently caused damages due to the same violations, the total liability shall be limited to the (net) order value, even if the violations are committed in several years. An increase of the abovementioned maximum liability amount shall require the conclusion of separate insurance cover. If damages typical of this type of contract and foreseeable at the time of the conclusion of the contract could potentially exceed the (net) order value, the customer will be recommended to obtain such insurance.
7.4 Otherwise, liability to compensate for damages is excluded, regardless of the legal nature of the claim asserted. PFERD shall, in particular, not be liable for unforeseeable damages, consequential damages caused by a defect, other indirect damages and damages from loss of profit.
7.5 Claims by the customer for compensation of damages due to defects as well as any other warranty claims shall be subject to a 12-month limitation period (subject to the provisions of section 475 (2) BGB). For other damage claims, a limitation period of 2 years shall apply.
7.6 The restrictions and limitations according to sub-sections 7.3, 7.4 and 7.5 do not apply to damage to life, limb and health, to liabilities arising from guarantees given in writing or to liabilities according to other mandatory statutory provisions.
PFERD shall provide warranty for any defects in the results of the order, initially by rework or remanufacture at its own option. If rework/remanufacture fails despite at least two attempts at subsequent performance, the customer may demand a reduction, rescission or claim compensation for damages subject to the liability limitations of clause 7. In the case of only minor damages, the customer shall have no right of rescission. The warranty period for defects not caused by intent shall be 12 months from the commencement of the respective statutory limitation period.
9. Custom-made products
9.1 For the delivery of custom-made products at the customer’s request, which are manufactured by PFERD only as specific subsets due to production-related circumstances, PFERD reserves a variation from the ordered volume of up to max. 10% due to production-related tolerances.
9.2 For custom-made products the customer shall guarantee that the submitted samples or drawings do not infringe third-party property rights. PFERD shall have no obligation to verify the potential violation 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 full payment, the exclusive and permanent right of use to the extent described in the respective order.
11. Retention of title
11.1 Title to the goods delivered by PFERD is only transferred to the customer upon full payment of his liabilities including future liabilities resulting from the delivery of goods by PFERD (balance or current account reservation).
11.2 The customer is obliged to insure the goods of PFERD that are subject to retention at his own cost against breakage, water, fire and catastrophe as well as theft, embezzlement, etc. With the conclusion of the order, the customer transfers in advance to PFERD any claims against his insurance.
11.3 Acquisition of ownership by the customer of the goods subject to retention according to section 950 BGB by processing and/or modification resulting in a new item is excluded. In this case, PFERD shall be entitled to co-ownership of the new item relative to the value of the goods subject to retention to other connected items at the time of their connection. The processed and/or modified delivery item serves as a 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 the reservation of title by PFERD. The new item may only be sold under a reservation of title.
11.4 The modification and processing of delivered goods shall be made on behalf of PFERD, however, without establishing any obligation for PFERD. By concluding the order, the customer shall transfer his ownership and co-ownership right to mixed and/or modified goods to PFERD in the invoice amount of the goods subject to retention; the goods shall be stored for PFERD at no cost.
11.5 Furthermore, the customer here and now assigns all claims against third parties, including all subsidiary and collateral rights, arising from the resale of the goods subject to retention, including mixed and/or modified goods; in the case of mixed and/or modified goods, this shall be in the invoice amount of the goods subject to retention. In the context of usual and orderly business transactions, the customer shall be authorised to sell goods subject to retention and to collect claims assigned to PFERD; in case of a payment default, this authorisation shall be considered revoked.
11.6 PFERD shall be entitled to request information from the customer on the goods subject to retention still in his possession and on the sales made (customer, quantity, invoice value and date). Furthermore, PFERD may request at any time that goods are separately stored and identified and that the customer separately records in his books any receivables and money from the resale of goods subject to retention and that incoming payments are immediately transferred to PFERD.
11.7 The customer is not entitled to pledging and the transfer as security of goods subject to retention or of receivables assigned to PFERD. The customer waives the claim of agreement on an assignment prohibition with a third-party buyer. He undertakes to refrain from agreeing on an assignment prohibition with third-party buyers. In the event of a seizure by third parties of goods subject to retention and/or of receivables assigned to PFERD, the customer shall be obligated to immediately inform PFERD thereof and to reimburse PFERD for any expenses.
11.8 The customer’s right to hold the goods subject to retention shall lapse if he fails to comply with his obligations under this agreement or under another agreement concluded with PFERD. In this case, PFERD shall be entitled to take possession of the goods subject to retention and to dispose of them according to reasonable discretion.
11.9 The assertion of a retention of title shall not be considered to constitute a rescission of the contract; the earnings from the disposal shall be offset against the customer’s accounts payable after the costs have been deducted; this shall not affect any remaining claims for payment not covered by such disposal as well as claims for damages.
11.10 PFERD undertakes to release the securities at the request of the customer insofar as 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 purpose of the contractual relationship. All data are protected within the framework of the BDSG ([German] Federal Data Protection Act), the customer shall have all rights granted by BDSG.
13. Place of performance/place of jurisdiction/applicable law
13.1 The place of performance for the goods delivered and services rendered by PFERD is the location of PFERD´s registered place of business. The place of performance for the customer’s payment obligation is PFERD´s registered place of business.
13.2 The place of jurisdiction is the location of PFERD´s registered office. However, PFERD shall also be entitled to initiate legal proceedings against the customer at any other legal place of jurisdiction.
13.3 This contract is subject to the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
13.4 If these GCS are/were translated into other languages, the content of the German version of the GCS shall constitute the only valid version. The German version can be viewed at http://www.pferd.com/gcs
13.5 Should individual provisions of these GCS or of the contract be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall then be replaced by a provision which comes as close as possible to the legal and economic intent of this provision.