GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF PENTACON GMBH FOTO- UND FEINWERKTECHNIK
§ 1 AREA OF APPLICABILITY
(1) These terms and conditions of sale and delivery form the basis of all deliveries and services which PENTACON GmbH provides to entrepreneurs as defined in § 14 of the German Civil Code (BGB), legal persons under public law or public law special funds and apply exclusively, unless otherwise stated in the provisions below. These also apply to all future deliveries, even if these are not agreed separately on another occasion.
(2) Conflicting or additional terms and conditions of business of the customer are hereby now being expressly objected to. These shall only become part of the contract if PENTACON GmbH declares its agreement to their inclusion in the course of an individual agreement.
§ 2 OFFER AND ACCEPTANCE
(1) Offers of PENTACON GmbH are subject to confirmation and non-binding; these only represent an invitation to the customer to submit a contractual offer.
(2) The documents which form part of the offer, such as images, drawings, weight and quantity statements are only of an approximate nature and are subject to deviations which are customary in the trade, unless these have been expressly designated as binding by PENTACON GmbH.
(3) The contract will only come into effect if PENTACON GmbH accepts the offer of the customer (engagement and/or order) within two weeks of its submission or if the ordered goods are received by the customer within this deadline. PENTACON GmbH can unilaterally forego compliance with this deadline.
§ 3 PRICE, PAYMENT TERMS, PROHIBITION OF SET OFF
(1) Unless otherwise stated, the agreed prices apply ex-works inclusive of loading, however exclusive of packaging and shipping. The costs of packaging and shipping must be borne by the customer.
(2) The price is subject to the value added tax which applies on the day of delivery.
(3) The remuneration of PENTACON GmbH shall become due and payable at the time of provision of the delivery/service and following receipt of the invoice. In case of contracts with customers who are not located in the Federal Republic of Germany, then in deviation from the provision above "payment following receipt of documents" will apply, whereby the customer shall remain free to set off against undisputed claims or claims which have been recognised by a court. The costs connected to the remittance of the invoice sum shall be borne by the customer.
(4) Should the payment capacity of the customer deteriorate between the time of conclusion of the contract and delivery or should PENTACON GmbH subsequently become aware of justified concerns concerning the capacity of the customer to make payment, PENTACON GmbH shall be entitled as follows:
- a) to request payment of a maximum of 20 percent of the total contractually agreed remuneration prior to the agreed payment date
- b) to retain outstanding deliveries until full payment has been made.
(5) Any statutory right of set off and any statutory right of retention or refusal to make payment, for example due to defects to the item shall only be due to the customer in connection with undisputed claims, claims which have been recognised by a court, claims which are pending judgement or such claims which arise from the same contractual relationship with PENTACON GmbH.
(6) Should PENTACON GmbH be entitled to demand damages in lieu of performance from the customer in an individual case, PENTACON GmbH can request fixed damages as follows instead of asserting the concrete loss which it has incurred:
Prior to the start of the order processing by PENTACON GmbH, the customer must pay 20% of the net order value. After to the start of the order processing by PENTACON GmbH, the customer must pay 40 % of the net order value. The customer has the right to provide proof that PENTACON GmbH has not suffered a loss or that the loss which has been incurred is lower.
(7) Invoices of PENTACON GmbH are due for payment within 30 days of the date of the invoice without any deduction. Should the customer enter payment default, PENTACON GmbH is entitled to charge default interest to the sum of 9 percentage points above the base rate of interest (§ 288 Paragraph 2 of the German Civil Code - BGB). Should PENTACON GmbH be able to provide proof of higher losses due to default, it is entitled to bring a claim for these.
(8) Unless otherwise agreed, in particular by means of fixed price agreements, PENTACON reserves the right to adjust the offer price to current market conditions as follows:
- in case of contracts with an agreed term of more than 3 months or
- in case of contracts where more than 3 months have passed since the issuing of the offer in accordance with § 2 Paragraph 1 and the issuing of the engagement or
- in case of contracts where more than 3 months have passed between conclusion of the contract and the service provision
(including delivery of the goods). For example, this may be necessary due to increased procurement costs or general cost increases (for example connected to the supply of energy) for which PENTACON GmbH is not responsible and over which it has no influence and where such costs do not simply represent internal cost factors of PENTACON GmbH (such as wage costs). Should the increase amount to more than 5% of the agreed price, the customer will have a right of termination.
§ 4 DELIVERY TIME
(1) PENTACON GmbH will provide its services within the agreed deadline.
(2) Unless expressly agreed otherwise, the deadline will start to run at the time of conclusion of the contract. Should PENTACON GmbH require documents of the customer, permits or approvals in order to perform the order or should an advance payment have been agreed, the deadline shall not start to run until after receipt by PENTACON GmbH of the documents, permits, approvals or advance payment.
(3) The delivery deadline shall be deemed to have been complied with if the goods have left the factory prior to its expiry or if readiness for dispatch has been notified to the customer.
(4) Should the delivery of PENTACON GmbH be delayed for reasons for which it is not responsible, for example due to lack of supply, force majeure, illness or industrial disputes which are outside of the control of PENTACON GmbH, the delivery deadline shall be extended accordingly. This also applies if such circumstances arise on the part of sub-suppliers of PENTACON GmbH. The customer cannot bring any damages claims due to a delay for which PENTACON GmbH is not responsible.
(5) In case of a delivery delay for reasons for which PENTACON GmbH is responsible, the customer is initially obliged to set PENTACON GmbH a reasonable period of grace to perform the delivery, which can amount to up to three weeks in an individual case, before the customer can assert other rights due to the delay.
§ 5 SHIPPING, TRANSFER OF RISK, INSURANCE
(1) Shipping and carriage will take place at the expense and risk of the customer, unless individual agreements to the contrary have been concluded.
(2) The risk will be transferred to the customer at the latest at the time of dispatch of the goods, even if partial deliveries take place or if PENTACON GmbH has assumed other services, such as shipping costs or delivery and assembly. Following an express request by the customer, PENTACON GmbH will take out insurance at the expense of the customer against theft, breakage, damage during transportation, fire and water damage, as well as other insurable risks.
(3) Should the shipping be delayed for reasons for which the customer is responsible, the risk shall be transferred to the customer from the day of readiness for dispatch and the notification of such to the customer; however, PENTACON GmbH is obliged to take out the insurance which is requested by the customer, the costs of which shall be borne by the customer.
(4) The customer must reimburse PENTACON GmbH all costs which are incurred due to delays for which the customer is responsible, in particular the costs of storage. In case of storage at the factory of PENTACON GmbH, the costs amount to a minimum of 0.5% of the order value for each month commenced or 0.25% of the order value for each week commenced.
The customer has the right to provide proof that PENTACON GmbH has not incurred any costs or that the costs which have been incurred are lower. Following the fruitless expiry of a deadline which has been set, PENTACON GmbH is entitled do dispose of the goods elsewhere and to supply the customer following a reasonable, extended period of notice.
(5) The customer is obliged to accept goods which comply with the contract. Should the customer enter acceptance default, then following the unsuccessful setting of a period of grace of 14 days, PENTACON GmbH is entitled to rescind the contract and/or demand damages or to deliver equivalent goods in accordance with the agreed condition within a reasonable delivery deadline. Any additional costs which are incurred shall be borne by the customer. Any further statutory rights of PENTACON GmbH shall remain unaffected.
(6) In the event of damages to or loss of the goods, the ordering party must immediately initiate a determination of facts with the transporter. In the event of damages, PENTACON GmbH must be provided with a proper documentation of transport damages without delay.
(7) Unless otherwise agreed, additional or reduced deliveries up to 5% of the originally agreed delivery quantity are permitted, provided that the additional or reduced deliveries are due to objective circumstances for which PENTACON GmbH is not responsible and over which it has no control.
§ 6 Reservation of Title
(1) In compliance with the following provisions, the customer is entitled to process and sell the goods in the course of ordinary business dealings, however this permission can be revoked at any time.
(2) PENTACON GmbH reserves ownership in relation to the object of delivery until all payments under the business relationship with the customer have been received. The reservation relates to the recognised balance.
(3) The customer will always carry out processing or alterations to the object of delivery for PENTACON GmbH. Should mixing or connection take place in such a way that the item of the customer is considered to be the principal object, it is hereby agreed that the customer will assign pro-rata co-ownership to PENTACON GmbH.
(4) PENTACON GmbH shall be obliged to release the security to which it is entitled under Paragraphs (2) and (3) following a request by the customer, provided that the value of the claims to be secured be exceeded by more than 20% and should the said claims not yet have been settled.
(5) The goods subject to reservation of ownership may only be sold in the course of normal and proper business dealings and only then if claims under resales have not been assigned to third parties in advance. The claims in connection with the resale to which the customer is entitled shall be deemed to have been assigned to PENTACON GmbH at the time of conclusion of the contract, also if the goods subject to reservation of ownership are connected or processed with other objects. In such a case, the assigned claims shall only serve the purpose of security to the value of the respective goods subject to reservation of ownership which have been sold. PENTACON GmbH will not collect the assigned claims, provided that the customer complies with its payment obligations. Following a request, the customer is obliged to notify PENTACON GmbH of the third party debtor and to notify these of the assignment.
(6) Should third parties attack the goods subject to reservation of ownership, the customer shall immediately inform them of the ownership of PENTACON GmbH and inform PENTACON GmbH of such, so that PENTACON GmbH can assert its rights.
(7) In case of behaviour on the part of the customer which is in breach of contract, in particular in case of payment default, PENTACON GmbH is entitled to rescind the contract and retake possession of the object of delivery and the customer is obliged to surrender this.
§ 7 WARRANTY
(1) The claims of the customer due to defects in relation to the delivered goods will be time barred 12 months after the transfer of risk. The warranty obligation for any defects when performing supplementary performance will also end on the expiry of the original warranty period in accordance with Sentence 1. The warranty period in accordance with Sentence 1 does not apply if the customer has intentionally deceived in relation to a defect or if the defect was fraudulently concealed. In such a case, the warranty periods shall be determined in accordance with the statutory regulations. The same applies should PENTACON GmbH, one of its legal representatives or one of its vicarious agents have acted gross negligently or intentionally and/or should injury to life, body or health have occurred and/or should PENTACON GmbH have assumed a guarantee in an individual case.
(2) Should the obligation of PENTACON GmbH to correct the defect not be excluded, PENTACON GmbH can remedy the defect by means of free-of-charge improvement or the provision of a replacement delivery, depending on its choice. In case of a replacement delivery, the defective goods must be returned to PENTACON GmbH. Should it not be possible to remedy the defect or should the improvement or replacement delivery be considered to have failed, the customer can choose between requesting a reduction in the remuneration, rescinding the contract and/or bringing a damages claim. The improvement will only be deemed to have failed if the improvement or replacement delivery is impossible, if this is unreasonably delayed by PENTACON GmbH, if justified doubts concerning the likelihood of success exist or if unreasonableness for other reasons is present.
(3) Should the customer bring a damages claim, § 8 shall remain unaffected.
(4) The customer must provide PENTACON GmbH with the necessary time and opportunity by agreement in order to carry out all improvements and replacement deliveries which PENTACON GmbH considers necessary according to its equitable discretion. Only in urgent cases, such as endangerment of operational security and in order to defend against disproportionate damage or in cases where PENTACON GmbH has entered default in relation to the correction of the defect does the customer have the right to correct the defect itself or have the defect corrected by a third party and to demand that PENTACON GmbH reimburse the necessary costs involved.
(5) The customer is subject to an inspection and complaint obligation in accordance with § 377 of the German Commercial Code (HGB). A complaint must take place, stating the necessary information for the recognition of a defect which is known to the customer. Within the framework of what is reasonable, the customer must take the measures which facilitate the determination of the defects and their causes.
§ 8 LIABILITY OF PENTACON GMBH
(1) The liability of PENTACON GmbH to pay damages shall be excluded, should the loss incurred be due to simple negligence. However, should the loss stated above be due to a breach of essential contractual obligations (so-called cardinal obligations, ie such obligations whose fulfilment is necessary in order to perform the contract and on whose compliance the contracting partner may regularly rely), in particular such obligations where a breach endangers the attainment of the contractual purpose, the liability of PENTACON GmbH shall not be excluded in full in accordance with the provision above, rather it shall be limited to losses which are typical of the contract and foreseeable up to a total sum of 500,000.00 € per incidence of loss.
(2) The restrictions of liability in accordance with Paragraph (1) above shall not apply in case of injury to life, body or health and/or if PENTACON GmbH has assumed a guarantee in an individual case and/or in cases which come under the German Product Liability Act (Produkthaftungsgesetz).
(3) In cases of force majeure (unforeseeable occurrences and circumstances which are outside of the area of influence of PENTACON GmbH, in particular environmental disasters, events of nature, war, labour disputes, shortage of raw materials and energy, transport and operational disruptions, fire and explosions), the contractual obligations of PENTACON GmbH will be suspended for the duration of the disruption. In such a case, PENTACON GmbH is not obliged to procure the goods from third parties. Sentences 1 and 2 shall also apply if the events and circumstances of force majeure make the performance of the transaction concerned fully and finally economically infeasible for PENTACON GmbH or should such events occur on the part of its sub-suppliers. Should the events above last for more than 3 months, both the customer and PENTACON GmbH are entitled to rescind the contract for the delivery quantity affected by the disruption, to the exclusion of any damages claims.
§ 9 DATA PROTECTION, COPYRIGHT, ADVERTISING
(1) Within the framework of the statutory provisions of the EU General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG) and other applicable special legal regulations, PENTACON GmbH will gather and process personal data of the customer and its employees, should this be necessary in order to negotiate, enter into, determine the content of, alter or perform the contractual relationship or to determine the obligations which have been entered into. Personal data includes: surname, first name, address, telephone number and email address of natural persons. Otherwise, our reference to the data processing processes in accordance with Article 13 GDPR applies https://www.pentacon.de/en/data-protection-policy/
(2) All cost quotations, drawings and other documents which are handed over by PENTACON GmbH are its property and are subject to copyright protection. The customer may only use the cost quotations, drawings and other documents for the purpose which is intended under this agreement. Any disclose of the documents to third parties which goes beyond the above or any other type of use is only permitted with the prior agreement of PENTACON GmbH.
(3) Any exploitation or disclosure of the business relationships which exist with PENTACON GmbH in publications or for advertising purposes is only permitted with the prior agreement of PENTACON GmbH.
§ 10 PLACE OF PERFORMANCE, PLACE OF JURISDICTION, APPLICABLE LAW
(1) The place of performance and place of jurisdiction for all disputes under or in connection with this contract is Dresden, Germany. However, PENTACON GmbH can bring a lawsuit before any other competent court.
(2) The law of the Federal Republic of Germany shall apply.