General Conditions of Sale Papiermaschinen-Systemtechnik GmbH
(last update 20.06.2018)
1. General remarks
1.1 All deliveries and performances of Papiermaschinen-Systemtechnik GmbH – called PMS - to its respective contractual partner (called “Purchaser” in the following) shall be exclusively carried out according to the following Conditions. This also applies to subsequent transactions, even if the application of these Conditions of Sale was not expressly agreed upon in the respective individual case. Diverging declarations of the Purchaser (no matter whether in contract terms, correspondence, counterdrafts and similar) are inoperative unless they were expressly acknowledged in writing by PMS.
2. Conclusion of the contract
2.1 The contract shall come into effect upon the receipt of PMS`s confirmation of order by the Purchaser.
2.2 Even if the Purchaser should refer to diverging terms of contract (for example: Purchaser`s Conditions of Purchase) in his written order or in a counter-reaction to the PMS confirmation of order, the contract shall be deemed concluded exclusively under these Conditions of Sale, notwithstanding the above Clause 1, if the PMS delivery is accepted by the customer.
3. Prices
3.1 The prices of PMS are not binding, unless they are specially named as fixed prices.
3.2 The prices are understood FCA Offenburg or DAP named place of destination (Incoterms 2010) including packing and excluding VAT.
4. Delivery time
4.1 The delivery time shall be laid down by PMS in the confirmation of order.
4.2 The delivery time shall be extended by the period of time by which the Purchaser is in default with his obligations arising from this or any other order (like confirmation of drawings, making of downpayment).
4.3 In the event of force majeure, operating trouble for which PMS is not responsible, industrial disputes, energy and rawmaterial shortages and comparable circumstances, the delivery time shall be extended, so far as the delaying circumstances only occur after the conclusion of the contract or were unknown to PMS through no fault of PMS.
5. Shipment
5.1 Shipment is effected according to agreed Incoterms 2010.
5.2 The choice of the forwarding agent, the means of transport, and the transport route as well as all accompanying decisions (for example: insurance) is left to PMS.
5.3 If it is agreed in the respective individual case that the goods will only be shipped or picked up by the Purchaser after the Purchaser`s call, the following applies; the Purchaser shall call or pick up the goods reported ready for shipment by PMS within three working days, failing which they shall be stored at the expense and risk of the Purchaser.
6. Terms of payment
6.1 Unless otherwise agreed upon, the terms of payment are 30 days from date of invoice, net. Transfer fees shall be debited to the Purchaser`s account.
6.2 In case of default in payment, interest on arrears in the amount of 4 % above the actual base rate shall be charged. The due date of invoice shall be decisive for the calculation of the interest on arrears.
6.4 Should the Purchaser be in default with partial payments, the entire outstanding purchase price shall become due immediately.
6.5 In case of default in payment, the Purchaser undertakes to make reimbursement of all costs resulting therefrom, in particular the costs of demands for payment and intervention by lawyers.
6.6 In the event of deterioration in the Purchaser`s financial position (for example: protest of a bill, measures of execution against Purchaser) after dispatch of the PMS offer, PMS can, without prejudice to other rights, make the delivery conditional upon a Letter of Credit, prior cash payment, or a similar security. In such a case PMS is furthermore entitled to immediately assert claims not yet due.
7. Reservation of proprietary rights
7.1 The goods supplied shall remain in the ownership of PMS until all claims – also future claims – arising from the business relation between the Purchaser and PMS including subsidiary claims have been paid in full.
7.2 The Purchaser may only resell the goods delivered within the scope of his usual course of business. Any pledging or transfer of ownership by way of security or the granting of other rights to third parties without the prior written consent of PMS is excluded.
7.3 The Purchaser herewith assigns all claims arising with regard to the goods by the way of resale or any other cause in law (for example: insurance benefits) in the amount of the gross invoice value to PMS in advance. PMS is authorised to collect these claims itself.
7.4 PMS is authorised to claim possession of the goods in which proprietary rights are reserved if the Purchaser is in default with other liabilities toward PMS.
7.5 In case of default in payment by the Purchaser, PMS can revoke the authorisation to resell the goods.
8. Guarantee/Warranty
8.1 The Purchaser shall inspect the delivered goods immediately after receipt and notify PMS of all defects in writing without delay, but no later than within 8 days, precisely describing the defects claimed. If there are separate guarantee provisions (for example in the offer), the period of guarantee shall supersede the statutory warranted period. The statutory warranty period is 12 months after delivery.
8.2 In circumstances bringing the warranty or guarantee into operation, the rights of the Purchaser are restricted to remedy of defects or replacement. A reduction in purchase price or a cancellation of the contract are excluded.
8.3 If the offer or a separate document contains guarantee provisions, such separate provisions together with these Conditions of Sale shall apply to any and all defects of the products supplied by PMS.
9. Liability, claims for damages
9.1 PMS shall only be liable for dimensions and tolerances, if the order was based on a drawing confirmed by the Purchaser.
9.2 Liability for damages caused by ordinary negligence as well as for pure property losses (in particular: loss of production) is completely excluded. This in particular also applies to consequential damages caused by defects (in particular: consequential damages to the machine, to the equipment of other suppliers or commercial losses), non-performance damage, and damage caused by default. In any event, all the Purchaser`s claims under the title of compensation for damages and other causes in law are restricted to the value of the order exclusive VAT.
9.3 The Purchaser needs to make sure that the installation is carried out by experts or by PMS. PMS shall otherwise not be liable for any defects of the contract products or damages resulting therefrom, no matter under which cause in law.
10. Industrial property rights
10.1 The Purchaser shall inform PMS within 8 days if the learns of alleged infringements of industrial property rights by PMS.
10.2 Designs, samples, models of PMS and similar are considered intellectual property and must not be copied, nor used in any manner for imitation or passed on to third parties by the Purchaser. Every infringement against this provision shall make the Purchaser liable for property damage, non-physical damage, and lost profits.
11. Set-off and retention
11.1 The Purchaser may only perform set-off with an undisputed or unappealable counterclaim. The assertion of a right retention is only permitted to the Purchaser if it is based on the same contractual relationship and if the counter-claims on which it is based are undisputed or unappealable.
12. Place of jurisdiction, choice of law
12.1 The place of jurisdiction is exclusively Offenburg. PMS can, however, assert its claims against the Purchaser in other competent courts. The Purchaser undertakes to reimburse PMS for all costs connected with the assertion of its claims (lawyer`s, court, translation fees) and not only those that are recoverable according to the respective code of procedure.
12.2 The law of Germany shall exclusively apply.
13. Partial invalidity
13.1 Should a provision of these Conditions be or become invalid, the validity of the other provision shall not be affected thereby. In place of the invalid provision, a valid provision shall be deemed agreed that most closely commercially approximates the provision desired by the parties to the contract.