General Sales and Delivery Conditions of PENTACON GmbH Foto- und Feinwerktechnik
§ 1 Scope
(1) These sales and delivery conditions apply to all goods and services of PENTACON GmbH and are exclusively valid. They apply to all future deliveries even if they are not separately agreed to later.
(2) Contrary or additional terms and conditions of the ordering party are expressly refused. They will only become part of the contract if PENTACON GmbH consents to their integration in the framework of an individual agreement.
§ 2 Bid and Acceptance
(1) Bids from PENTACON GmbH are subject to change and non-binding; they are only an invitation to the ordering party to submit an offer of contract.
(2) The documents belonging to the bid, such as illustrations, drawings, weight and dimensioning specifications are only approximate and correspondingly conform to the degree of variation common in the trade, to the extent that they are not labelled as binding by PENTACON GmbH.
(3) The contract becomes effective if PENTACON GmbH accepts the ordering party’s offer (commission and/or order) within 2 weeks of submission of the bid or the ordered good is sent to the ordering party within this period.
§ 3 Price/Terms of Payment/Offset Prohibition
(1) The prices agreed upon apply to the extent that nothing else is agreed upon, ex works including loading, but excluding packaging and shipping. The ordering party will bear the costs of packaging and shipping.
(2) The price applies plus the VAT applicable on the day of delivery.
(3) Compensation to PENTACON GmbH is due and payable on completion of delivery/ service after receipt of the invoice at the ordering party’s premises. In the case of contracts with ordering parties who are not headquartered in the Federal Republic of German, “Cash against Documents” applies, departing from the rules stated above. The ordering party will bear the costs for transfer of the invoiced amount.
(4) Payments can be affected in cash or using EC-card or credit card. Costs incurred through payment using an EC-card or credit card will be accepted by PENTACON GmbH. Payment using bill of exchange and/or cheque will be effected on account of fulfilment and will only be accepted by prior special arrangement. The costs so incurred, such as discount fees, exchange fess, etc. will be borne by the ordering party.
(5) The employees of PENTACON GmbH are only authorised to accept payments on condition of presenting a written power to collect.
(6) If the ordering party’s credit worthiness worsens in the period between the concluding of the contract and delivery, or if PENTACON GmbH becomes aware after the fact that there are justified concerns about the ordering party’s credit worthiness, PENTACON GmbH is entitled,
- a) to demand payment before the agreed upon payment deadline,
- b) to retain outstanding deliveries until full payment is rendered,
- c) in the case of accepted bills of exchange, to demand payment before they come due.
(7) The ordering party is only entitled to a possibly existing statutory set-off right or possibly existing statutory rights of retention or to refuse performance, e.g., because of defective goods, with respect to accounts receivable resulting from the same contractual relationship with PENTACON GmbH or which are undisputed, final and binding or ripe for judgement.
(8) If PENTACON GmbH is entitled in an individual case to demand compensation for damages from the ordering party, PENTACON GmbH can demand a lump-sum compensation for damages in place of the actual damages inflicted on it as follows:
By the start of order processing by PENTACON GmbH, the ordering party must pay 20% of the net value of the order. After order processing by PENTACON GmbH begins, the ordering party must pay 40% of the net value of the order. The ordering party has the right to demonstrate that PENTACON GmbH incurred no damages or lesser damages.
§ 4 Delivery Deadline
(1) PENTACON GmbH will complete its services within the agreed upon period.
(2) The period begins– to the extent that nothing else is expressly agreed upon – with conclusion of the contract. If PENTACON GmbH needs documents from the ordering party, permits, releases or if payment of an advance is agreed upon, the period begins to count on receipt of the documents, permits, releases and/or advance payment at the premises of PENTACON GmbH.
(3) The delivery deadline is met if the goods have left the factory before the period expires or readiness for dispatch has been communicated to the ordering party.
(4) If delivery by PENTACON GmbH is delayed for reasons for which PENTACON GmbH cannot be held responsible – such as force majeure, illness, labour disputes, inter alia –, the delivery deadline will be extended correspondingly. This also applies if such conditions affect sub-suppliers for PENTACON GmbH. The ordering party cannot derive any claims for compensation for damages from such events.n.
(5) If shipping is delayed at the request of the ordering party, it must compensate PENTACON GmbH for any costs incurred by this especially costs for storage. In the case of storage in the PENTACON GmbH factory, the storage costs will amount to at least 0.5% of the net value of the order for each month started. The ordering party has the right to demonstrate that PENTACON GmbH incurred no costs or lower costs. PENTACON GmbH is entitled, after setting and fruitless expiration of an appropriate period, to otherwise dispose of the good and deliver to the ordering party with an appropriately extended deadline.
§ 5 Shipping, Transfer of Risk, Insurance
(1) Shipping and transport of goods will be affected at cost and risk to the ordering party.
(2) At the latest, risk transfers to the ordering party with dispatch of the goods, and this also if partial shipments are arranged or if PENTACON GmbH has taken on other services, e.g. shipping costs or carriage and set-up. At the expressed request of the ordering party, PENTACON GmbH will have the shipment insured against losses from theft, breakage, transportation, fire and water damage as well as other insurable risks at cost to the ordering party.
(3) If shipping is delayed due to conditions for which the ordering party is responsible, the risk transfers to the ordering party from the day the good is ready for dispatch and its communication to the ordering party; however, PENTACON GmbH is obligated, on request from and at cost to the ordering party, to affect the insurance coverage that this party demands.
(4) The delivered good is to be accepted by the ordering party even if it evinces insignificant defects.
(5) The ordering party is obligated to accept the goods as specified in the contract. If the ordering party comes into default of acceptance with the goods, PENTACON GmbH is entitled, after fruitless expiration of an extension of 14 days, to withdraw from the contract and/or demand compensation for damages or to deliver goods of the same type and value within an appropriate delivery period and under the agreed upon terms. Any additional costs incurred will be borne by the ordering party.
(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.
§ 6 Reservation of Title
(1) The ordering party is irrevocably authorised at all times, under due consideration of the following provisions, to process and sell the goods delivered in regular business transactions.
(2) PENTACON GmbH retains ownership of the object delivered until all payments deriving from the business relationship with the ordering party have been received. This reservation is based on the acknowledged balance. In the case of agreed-upon payment by cheque/bill of exchange, the reservation extends to redemption of cheque/bill of exchange accepted by PENTACON GmbH and does not expire when the cheque/bill of exchange received is credited at PENTACON GmbH.
(3) The ordering party will always undertake processing or alteration of the object delivered for PENTACON GmbH. Should there be mixture or combination in such a manner that the ordering party’s object is to be regarded as the primary object, it is deemed agreed that the ordering party will transfer proportional co-ownership to PENTACON GmbH.
PENTACON GmbH is obligated to release the security due to it on request from the ordering party insofar as the value of the claims to be secured – to the extent that these have not been settled – are exceeded by more than 20%.
(5) The good under reservation of title may only be sold in regular and proper business transactions and only then if claims from re-sales are not previously assigned to third parties. The claims owed to the ordering party deriving from re-sales are deemed, on conclusion of this contract, as assigned to PENTACON GmbH and this to the extent that the good under reservation of title is combined or processed with other objects. In this case, the claims assigned and serve as security only in the amount of the value of the good under reservation of title sold. PENTACON GmbH will not collect on the ceded claims, so long as the ordering party continues to meet its payment obligations. The ordering party is obligated, on request, to identify the third-party debtors to PENTACON GmbH and disclose the cession to them.
(6) If third parties assert ownership on the good under reservation of title, the ordering party will instruct PENTACON GmbH and inform PENTACON GmbH concerning this in order to facilitate the assertion of its rights.
(7) In the event of conduct in violation of the contract by the ordering party, especially in cases of default on payment, PENTACON GmbH is entitled to recovery of the object of delivery after withdrawal from the contract and the ordering party is obligated to surrender the object.
§ 7 Warranty
(1) The following provisions of sections 2-4 of this paragraph are valid only for contracts outside Consumer Goods Purchase law according to §§ 474 up to 479 BGB.
(2) The ordering party’s claims deriving from defects in the delivered goods expire twelve months after transfer of risk. The expiration of claims to compensation for expenses in accord with §§ 478 Para. 2, 479 Para. 1 BGB [German Civil Code] as well as the suspension of expiration in accord with § 479 Para. 2 BGB. Additionally, the following provisions of sub-paragraphs 3-4 of this paragraph apply exclusively for contracts outside of the consumer goods in accord with §§ 474 to 479 BGB. The warranty obligation for any defects in the completion of subsequent fulfilment ends likewise with the expiration of the original warranty period according to Sentence 1.
(3) If PENTACON GmbH’s obligation to remedy defect is not contractually excluded, PENTACON GmbH can, at its discretion, remedy the defect through repair provided free of charge or supplying a replacement shipment. In the event of a replacement shipment, the defect good is to be returned to PENTACON GmbH. If the defect cannot be remedied or if repair or replacement is to be regarded as failed, the ordering party can, at its discretion demand reduction of payment, withdraw from the contract and/or demand compensation for damages under the conditions given in § 8. A repair may be deemed failed only after the repair or replacement is impossible, when it is unreasonably delayed by PENTACON GmbH, if there are justifiable doubts of the prospects of success or if there are other reasons to deem it unreasonable.
(4) The ordering party must grant the required time and opportunity for undertaking all repairs and replacements that appear necessary to PENTACON GmbH in its reasonable judgment, after consultation with PENTACON GmbH. Only in urgent cases, such as endangering operational safety and to avoid disproportionately large losses if PENTACON GmbH is in default in remedying the defect does the ordering party have the right to remedy the defect itself or have it remedied by a third party and to demand compensation for the necessary costs from PENTACON GmbH.
(5) The ordering party has a duty to inspect and report in as defined in § 377 HGB [German Commercial Code]. A report must be made stating any information known to the ordering party that is relevant to recognising the defect. He must take reasonable measures to facilitate identification of the defects and their causes.
§ 8 Liability of PENTACON GmbH
(1) Liability on the part of PENTACON GmbH to provide compensation for damages is excluded, to the extent that the damage results from minor negligence. Should however the damages in the aforementioned case result from breach of essential contractual obligations (so-called cardinal obligations, i.e. obligations whose fulfilment are essential for the proper execution of the contract and on whose fulfilment the contracting parties may regularly depend), especially such duties whose breach endangers the achievement of the purpose of the contract, liability on the part of PENTACON GmbH is not fully excluded, in departure from the rule stated above, but restricted to the contractually typical and foreseeable damages up to a maximum amount of € 500,000.00 per loss event.
(2) The liability restrictions according to the paragraph above (1) do not apply if injury to life, limb or health occurs and/or to the extent that PENTACON GmbH has accepted a guarantee in the individual case and/or to the extent that the German Product Liability Act applies.
(3) Additionally, any claims to compensation for expenses in the area of sale of consumer goods as defined in § 478 Para. 2 BGB are not included in the liability exclusions under the paragraph above (1) .
§ 9 Prospectus, Price Lists
With regard to any improvements or other justifiable changes, PENTACON GmbH reserves deviations from its prospectuses. With respect to these changes, PENTACON GmbH is not obligated to inform the ordering party. No liability is accepted for typographical errors.
§ 10 Confidentiality/Copyrights /Advertising
(1) PENTACON GmbH will acquire, process, store and use the ordering party’s personal information within the framework of legal confidentiality provisions, to the extent that they are necessary for the establishment, determination of content, or modification of the contractual relationship and/or for billing the incoming financial obligations. Personal data include: Company, family name, first name, address, telephone and e-mail address. The ordering party can revoke any consent given for the acquisition and use of personal data at any time with immediate effect for the future.
(2) All of the cost estimates, drawings and other documents provided by PENTACON GmbH remain property of PENTACON GmbH and are subject to its copyright . The ordering party may use the cost estimates, drawings and other documents only for the purpose for which they were intended according to the agreement. Any sharing of the documents with third parties going beyond this, or any other type of use is only permitted with the prior consent of PENTACON GmbH.
(3) A review or disclosure of the existing business relationships with PENTACON GmbH in publications or for purposes of advertising is only permitted with the prior consent of PENTACON GmbH.
§ 11 Place of Fulfilment, Court of Jurisdiction, Applicable Law, Contract Language
(1) The place of fulfilment and sole court of jurisdiction for any disputes arising from or in connection with this contract is Dresden.
(2) The law of the Federal Republic of German applies under exclusion of the United Nations Convention on International Sale of Goods (CISG).
(3) The contract language is German.
Status: June 2015