General Terms and Conditions 02/2006
1 General
1.1 These General Terms and Conditions (hereinafter “GTC”) shall apply to all contracts between Pietig Intralogistik GmbH (hereinafter “Pietig”) and the customer
via
– the sale of storage technology, shelving, conveyor technology and protective equipment for machines and systems (hereinafter “standard products”);
– the assembly of standard products or customer-specific products (hereinafter collectively “Products”).
1.2 These GTC of pietig apply exclusively. Any terms and conditions of the customer deviating from these GTC shall not be recognized unless pietig has expressly agreed to their validity. This shall also apply if pietig performs its services without reservation in knowledge of the customer’s terms and conditions that contradict or deviate from these GTC.
1.3 These GTC shall also apply to all future transactions with the customer regarding the services mentioned in clause 1.1.
2. Offers
2.1 The offers of pietig are subject to change. Orders require confirmation by pietig to be legally effective. The information contained in pietig’s offer or order confirmation is decisive for the content and scope of performance.
2.2 The documents belonging to the offer (e.g. illustrations or drawings) as well as weight and dimension specifications are only approximately authoritative, unless they are expressly designated as binding by pietig.
3. Product Description
3.1 The general quality of the products results from the samples and information provided by pietig and, in the case of customer-specific products, also from the plans or drawings approved by the customer in accordance with clause 9. pietig does not owe any further quality of the products to be delivered. In particular, the customer cannot derive such an obligation from other representations of the products in public statements or in advertising, unless pietig has expressly stated in writing the
has expressly confirmed in writing the quality going beyond this.
3.2 The customer has informed himself about the essential functional characteristics of the products and bears the risk that these correspond to his wishes and needs; the customer must seek advice from pietig employees on questions of doubt before concluding the contract.
3.3 The products of pietig are manufactured according to the state of the art. They comply with the law on technical work equipment and its supplementary provisions, in particular the guidelines for storage facilities and equipment of the German Federation of Institutions for Statutory Accident Insurance and Prevention (BGR 234) and – if a corresponding quality mark has been issued for the products – the quality and testing regulations of the quality association RAL-RG 614.
4. Delivery
4.1 The delivery period begins with the conclusion of the contract, but not before the customer has provided the necessary documents, approvals or releases and not before receipt of an agreed down payment.
4.2 The delivery period shall be deemed met if the goods have left pietig’s factory or warehouse by the end of the delivery period or if pietig has notified the customer that the goods are ready for shipment.
4.3 If the customer does not accept the products duly delivered or notified ready for shipment, they shall be stored by pietig at the customer’s expense. Furthermore, after setting a reasonable grace period and its fruitless expiration, pietig is entitled to withdraw from the contract and – if the customer is responsible for the lack of acceptance – to claim damages instead of performance.
4.4 If the delivery is unreasonably impeded due to circumstances for which neither pietig nor the customer are responsible or due to circumstances for which the customer is solely or predominantly responsible, the agreed delivery period shall be extended by the period of the existence of the circumstance in question.
5. Packaging / Shipping
5.1 The risk shall pass to the customer at the latest when the goods are handed over to the carrier, even if pietig has assumed the shipping costs.
5.2 Unless otherwise agreed, packaging, shipping route and means of transport are left to pietig’s choice. The customer is free to take out transport insurance.
5.3 If the shipment is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer upon separation of the products to be delivered and notification of readiness for shipment.
5.4 Complaints due to transport damage shall be asserted by the customer directly against the transport person.
6. Prices / Payments
6.1 Prices are based on the price list valid on the day of delivery. If the prices have been changed between the conclusion of the contract and delivery, pietig shall notify the customer. In case of a price increase, the customer is entitled to withdraw from the contract within eight days after receipt of the price change notification.
6.2 The prices do not include the statutory value added tax at the current rate and are generally ex warehouse, i.e. excluding shipping. If, by way of exception, free domicile or free place of use prices are agreed, the prices shall include shipping costs. If the customer does not ensure unhindered access and immediate unloading in this case, he shall bear the resulting costs separately.
6.3 If, after conclusion of the contract, freight charges, duties or fees for the delivery, which are to be borne by pietig and are shown separately in the invoice, are introduced or increased, pietig shall be entitled to change the total price accordingly.
6.4 Packaging costs shall be borne separately by the customer. Depending on the agreement, a flat rate or the cost price will be charged in this respect.
6.5 Unless otherwise agreed, the purchase price shall be due immediately and payable within 30 days of the invoice date. Assembly costs are due for payment immediately upon receipt of the invoice. Pietig reserves the right to request 1/3 of the order amount upon confirmation of the order, 1/ 3 upon notification of readiness for shipment and the remainder upon completion of delivery or installation for orders of € 15,000.00 or more. If delivery is delayed for reasons beyond pietig’s control, pietig may demand 2/3 of the contract sum as a down payment, even for orders up to 5,000.00 €.
6.6 The acceptance of bills of exchange requires prior agreement. All expenses and costs associated with the submission of the bill of exchange shall be borne by the customer.
6.7 If the customer is in default of payment, pietig is entitled – without prejudice to other claims and rights – to charge default interest in the amount of 8 percentage points above the respective base interest rate. In addition, any outstanding (partial) payments shall become due immediately. The due date of the remaining debt shall also apply if bills of exchange with a later due date are running.
6.8 If the customer’s financial situation deteriorates significantly, pietig is entitled to demand advance payments for outstanding deliveries.
7. Retention of Title
7.1 pietig retains title to the delivered products until all claims of pietig against the customer arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled. This shall also apply if individual or all claims of pietig have been included in a current account and the balance has been struck and acknowledged.
7.2 In the event of a combination or mixing of the delivered products with other items not belonging to pietig leading to an expiration of pietig’s ownership, pietig shall be entitled to co-ownership of the processed, combined or mixed item in proportion to the invoice value of all items used in the processing, combination or mixing. Rights of the customer to the delivered products that have already arisen shall continue to apply to the processed, combined or mixed item. The items resulting from the processing, combination or mixing shall be goods subject to retention of title within the meaning of these GTC.
7.3 In the event of seizures or other interventions by third parties, the customer shall immediately notify pietig in writing and provide all necessary clarifications. Furthermore, the customer has to inform the third party about the existing ownership. The customer may not pledge the delivered products or assign them as security.
7.4 If, in connection with the payment of the purchase price by the customer, a bill of exchange liability of pietig is established, the retention of title including its agreed special forms and other securities agreed for payment security shall not expire before the bill of exchange is honored by the customer as drawee.
7.5 The customer is entitled to resell the delivered products in the ordinary course of business. He already now assigns to pietig all claims with all ancillary rights, which accrue to him from the resale against the customer. This applies regardless of whether the goods subject to retention of title are resold without or after processing.
7.6 If the delivered products are resold together with other goods not belonging to pietig, the customer’s claim against the customer shall be deemed assigned in the amount of the delivery price agreed between pietig and the customer.
7.7 The customer shall be authorized to collect the claims against the buyer even after assignment. The authority of pietig to collect the claims itself shall remain unaffected; however, pietig undertakes not to collect the claims as long as the customer duly fulfills its payment obligation. pietig may demand that the customer discloses to it the assigned claims and debtors, provides all information necessary for collection, hands over the associated documents and informs the debtors of the assignment.
and inform the debtors of the assignment.
7.8 pietig is obligated to release the securities to which it is entitled at the customer’s request if their realizable value – taking into account customary bank valuation discounts – exceeds the claim to be secured by more than 20%. For this purpose, the dealer purchase prices for goods and the nominal value for receivables shall be used as a basis.
7.9 In case of breach of contract by the customer, in particular in case of default of payment, pietig is entitled to withdraw from the contract after setting a reasonable grace period and its fruitless expiration. After withdrawal, the customer is obligated to return the delivered products. All costs of repossession shall be borne by the customer.
8. Liability
8.1 Pietig shall be liable in accordance with the statutory provisions for personal injury and for damages under the Product Liability Act.
8.2 For other damages, pietig is liable according to the following provisions, unless otherwise stated in a guarantee given by pietig:
8.2.1 pietig shall be liable according to the statutory provisions for damages caused by fraudulent conduct and for damages caused by intent or gross negligence of its legal representatives or executives.
8.2.2 pietig shall be liable limited to the amount of the foreseeable damage typical for the contract for damages resulting from a slightly negligent breach of essential contractual obligations or cardinal obligations (1st alternative) as well as for damages caused by simple vicarious agents of pietig due to gross negligence or intent without breach of essential contractual obligations or cardinal obligations (2nd alternative).
8.2.3 Within the scope of clause 8.2.2 1st alternative, pietig is not liable for loss of profit, indirect damages, consequential harm caused by a defect and claims of third parties.
8.3 Otherwise, any liability of pietig is excluded.
9. Release of Plan Drawings
9.1 In the course of manufacturing customer-specific products, pietig shall design or revise plans or drawings according to the specifications provided by the customer. The designed or revised plans or drawings are sent to the customer in the version designated by pietig as final, which requires release by the customer. If the customer does not expressly declare the release, it is considered granted if the customer does not object to the version designated by pietig as final within a period of two weeks after its dispatch or if the customer does not communicate corresponding change requests. After release, the plans or drawings in the version
version designated as final by pietig shall become part of the contract.
9.2 The customer shall receive the version designated by pietig as final with the express notice that the plans or drawings in this version shall be deemed accepted by him as binding for the manufacture of the customer-specific products if he expressly declares their release or if pietig does not receive the customer’s objection or corresponding change requests within two weeks after sending the plans or drawings.
9.3 pietig reserves the copyright to the plans or drawings designed or revised by it.
10. Duty to Examine When Selling Products
10.1 If the Customer is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch) and if ordering the Products is part of the operation of its commercial business, it shall be obliged to inspect the Products immediately upon receipt. Furthermore, the customer shall notify pietig in writing without delay of any defects (“obvious defects”) which become apparent during this inspection and without delay of any defects (“hidden defects”) which become apparent during this inspection, in each case giving as detailed a description as possible. If obvious or hidden defects are not duly notified, the products shall be deemed to have been approved in view of such defects. Claims for defects by the customer are excluded in this respect, unless pietig has fraudulently concealed the defect in question or has assumed a corresponding guarantee.
10.2 If the customer is not a merchant within the meaning of the German Commercial Code or the order of the products is not part of the operation of a commercial business, the customer is obligated to inspect the products upon receipt and to notify pietig immediately in writing of any defects found during the inspection, describing them as precisely as possible.
11 Acceptance of Assembly Services
11.1 If pietig is also responsible for the assembly of products, these services shall be subject to acceptance. Acceptance shall take place after the installation services have been rendered.
11.2 Acceptance may not be refused due to insignificant defects.
11.3 If acceptance is not carried out, the installation service shall be deemed to have been accepted if
– the customer does not accept the installation service within a reasonable period of time set by pietig, although the customer is obligated to do so;
– the customer uses the installation service for a period of four weeks without having given notice of significant defects;
– the customer unconditionally settles the (partial) invoices.
11.4 By acceptance, the Customer acknowledges that the installation service complies with the contractual agreements. The period of limitation for defects shall commence upon acceptance.
12. Liability for Defects
Pietig shall be liable for defects of the products sold and delivered by it or the assembly services provided by it in accordance with the following provisions:
12.1 Defects shall be remedied by pietig within a reasonable period of time (subsequent performance). This shall be done at pietig’s discretion with respect to products sold and delivered by eliminating the defect (rectification) or by delivering defect-free goods (replacement) and with respect to assembly services by eliminating the defect (rectification) or by providing the service again (re-assembly). If the supplementary performance fails, is unreasonable for the customer or is rejected by pietig, or if this is justified for other reasons after weighing the interests of both parties, the customer shall be entitled to the statutory rights due to defects without limitation. However, there is no right to withdraw from the contract if the defect is merely insignificant.
12.2 Pietig shall not be liable for defects caused by normal wear and tear, improper use, excessive stress or external influences for which pietig is not responsible.
13 Limitation of Warranty Claims
13.1 Unless a case of fraudulent intent exists, the customer’s claim for supplementary performance under the warranty due to a material
– a material defect or
– a defect in title which does not consist in a claim for restitution by a third party on the basis of ownership or any other urgent right, shall become statute-barred within 12 months. In the case of the sale of products, this limitation period shall commence upon delivery in accordance with Clause 4; in the case of assembly services, it shall commence upon acceptance in accordance with Clause.
11.
13.2 Unless there is intent or gross negligence, damages shall become statute-barred as a claim of the customer due to:
– a material defect or
– a defect in title which does not consist in a claim for restitution by a third party on the basis of ownership or another urgent right, within 12 months. This limitation period shall commence in the case of the sale of products upon delivery in accordance with clause 4 and in the case of assembly services upon acceptance in accordance with clause 11. This shall not apply if the damage in question suffered by the customer is personal injury. Claims for personal injury shall become time-barred within the statutory period of limitation.
13.3 Claims of the customer based on the breach of an obligation not consisting in a defect shall become statute-barred – unless there is intent or gross negligence – within two years beginning with the accrual of the claim. This shall not apply if the customer’s damage in question is personal injury. Claims for personal injury shall become time-barred within the statutory limitation period.
14. Miscellaneous
14.1 The customer shall only be entitled to a right of retention or set-off if its counterclaims are legally established, undisputed or recognized by pietig.
Furthermore, he is only authorized to exercise his right of retention insofar as his counterclaim is based on the same contractual relationship according to § 273 BGB.
14.2 The place of performance is pietig’s place of business.
14.3 The contractual relationship is exclusively subject to German law. Both parties agree to the exclusive jurisdiction of the place of jurisdiction at pietig’s place of business. pietig shall also have the right to sue at the court having jurisdiction for the customer or at any other court which may have jurisdiction according to national or international law.
15. Should any provision of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions.