Terms and conditions
Terms and conditions of business of PEWOBAR GmbH
1. Scope of Application
The present General Terms and Conditions shall apply to all present and future business relations between any entity of the PEWOBAR GMBH (hereinafter referred to as “PEWOBAR”) and the Purchaser even if they are not explicitly agreed on again. They shall supersede all previous agreements between the parties relating to a purchase order and supplant any Purchaser`s terms and conditions for such order. Counter-confirmations by the Purchaser with reference to its own general terms and conditions are hereby rejected. In particular, and without limitation, a receipt, acceptance, acknowledgement or confirmation by PEWOBAR of any purchase order containing or referencing conflicting, different or additional terms, conditions or provisions shall not constitute a waiver, alteration or modification of the present General Terms and Conditions. These General Terms and Conditions are applicable as of the date of acceptance of the purchase order in full and as the sole and exclusive agreement between PEWOBAR and the Purchaser with regard to the order. They are an integral part of every contract, quotation or offer of PEWOBAR.
Any deviating, contradictory or supplementary general terms and conditions, even if known, shall not become a component part of the contract, unless their application has been expressly agreed in writing.
2. Quotation, Documents
2.1 PEWOBAR shall be the exclusive owner of all rights in particular, without limitation, property rights and copyrights in drawings or other documentation relating to the goods; they must neither be exploited nor made available to third parties without prior approval by PEWOBAR.
2.2 The Purchaser shall inform PEWOBAR already at the quotation stage of any unusual kind of stress to which the products to be delivered will be subjected and point out any other risks which could arise in the course of their use.
2.3 If quotations or order confirmations refer to PEWOBAR´S product catalogue or brochure material, only the most recent version thereof shall be relevant.
3. Conclusion of Contract
3.1 PEWOBAR quotations are subject to change without notice.
3.2 Within the limits of what is reasonable, PEWOBAR reserves the right to technical modifications of the products, modifications of form, color, and/or weight as well as formal and technical product improvements in order to maintain the state of the art.
3.3 By placing an order for the goods the Purchaser makes a binding offer to purchase the ordered goods.
3.4 PEWOBAR reserves the right to accept the offer based on the quotation within a period of two weeks following receipt of the order. The acceptance can be declared either in writing or by delivering the goods.
3.5 Purchase orders can only be made by the Purchaser up to a maximum net purchase value equal to the difference between the amount of an agreed credit limit and the amount currently owed to PEWOBAR for products purchased or otherwise outstanding to PEWOBAR. PEWOBAR reserves the right to apply for the first time or modify a credit limit for the Purchaser at any time by providing eight weeks prior written notice, provided that in such case the Purchaser shall be entitled within such eight weeks period to terminate the Agreement with immediate effect and that failing such termination the credit limit shall apply with effect of the first day following expiry of the eight weeks period.
3.6 PEWOBAR reserves the right to assign or to factor any demands or claims arising from the business relationship with the Purchaser to any third Party.
4.1 Prices are stated ex-work, excluding one-way packaging which shall be calculated separately and added at cost price.
4.2 Prices do not include V.A.T. which will be shown separately on the invoice in the respective legally applicable amount.
4.3 If the relevant factors for price-setting (e.g. wages and/or costs of materials and/or supplies) change subsequent to the conclusion of this contract, then PEWOBAR shall be entitled to adapt its prices accordingly, provided that the changes were not caused by PEWOBAR. Upon request by Purchaser, PEWOBAR shall provide evidence for such changes.
5. Payment, Payment Default, Insolvency
5.1 Invoices, of the net value of goods, are payable within 14 days following the invoice date.
5.2 Offsetting by the Purchaser shall be excluded, unless made with claims that are recognized by binding judgment or uncontested.
5.3 Purchaser shall only be entitled to withhold its performance to the extent his claim for performance is based on the same contract.
5.4 In the event that the Purchaser is in default with his payments, PEWOBAR shall be entitled to charge interest in the amount of 5% for non-commercial customers and 9% for commercial customers, above the basic interest rate. PEWOBAR reserves the right to claim additional damages.
5.5 In case of default PEWOBAR shall be entitled to call due any accounts not yet due in the current business relationship with Purchaser.
5.6 If it becomes evident subsequent to the conclusion of the contract that PEWOBAR’s payment claims are in jeopardy due to the Purchaser’s inability to pay, PEWOBAR shall be entitled, if PEWOBAR is obligated to make advance deliveries or payments, to withhold its performance and to set the Purchaser a reasonable time period until the expiry of which Purchaser shall either make contemporaneous payments against PEWOBAR’s delivery or furnish the respective collateral. If the term set expires unsuccessfully, PEWOBAR shall be entitled to withdraw from the contract and claim compensation of damages incurred.
PEWOBAR may also withdraw from the contract if the Purchaser or a third party files for insolvency over the assets of the Purchaser’s. The same shall apply in the event that insolvency proceedings are opened over Purchaser’s assets or such opening is denied due to lack of assets.
5.7 In any case, any late payment, after a formal demand, will apply a penalty the amount of which shall be set by PEWOBAR. In the event of dispute, the appropriateness of the penalty shall be reviewed by the competent court.
5.8 Whatever the means of payment used, payment shall not be deemed to have been affected before PEWOBAR’s account has been fully and irrevocably credited.
6. Delivery Dates
6.1 Agreed delivery dates or periods are deemed to be met if the goods to be delivered are ready for shipment before the set delivery date or period expires.
6.2 If the parties, instead of specifying the date of delivery, have specified a period of time until the expiry of which the delivery shall take place, such period shall start to run as soon as the contract is concluded, all statutory or contractual formalities have been completed, payments due at the conclusion of the contract have been made, any agreed securities have been given and any other statutory or contractual preconditions have been fulfilled. If instead the parties have specified a delivery date and any of such conditions are not met, then the delivery date shall be postponed accordingly.
6.3 PEWOBAR shall be entitled to make reasonable partial deliveries.
7.1 If delay in delivery is caused by any of the circumstances mentioned in Clause 12 or by an act or omission on the part of the Purchaser, including suspension under Clause 5.6, the time for delivery shall be extended by a period which is reasonable having regard to all the circumstances of the case. This provision applies regardless of whether the reason for the delay occurs before or after the agreed time for delivery.
7.2 If the Purchaser anticipates to be unable to accept delivery of the goods at the agreed delivery time, Purchaser shall forthwith notify PEWOBAR in writing thereof, stating the reason and, if possible, specifying the time when Purchaser will be able to accept delivery.
7.3 If the Purchaser fails to accept delivery at the agreed delivery time Purchaser shall nevertheless pay any part of the purchase price which becomes due on delivery, as if delivery had taken place. PEWOBAR shall arrange for storage of the goods at the risk and the expense of the Purchaser. PEWOBAR shall also, if the Purchaser so requires, insure the goods at the Purchaser’s expense.
7.4 Unless the Purchaser’s failure to accept delivery is due to any such circumstance as mentioned in Clause 12, PEWOBAR may by notice in writing require the Purchaser to accept the delivery within a final reasonable period of grace. If, for any reason for which PEWOBAR cannot be held responsible, the Purchaser fails to accept delivery within such period of grace, PEWOBAR may by notice in writing terminate the contract in whole or in part with immediate effect. PEWOBAR shall then be entitled to compensation of damages suffered by reason of the Purchaser’s default.
7.5 In the event that PEWOBAR is in default of delivery the Purchaser may withdraw from the contract, provided that the Purchaser had set a reasonable period of grace for effecting delivery and that PEWOBAR had not shipped the goods, or any parts thereof, when this period of grace expired. After the period of grace has expired, the Purchaser is entitled to withdraw from the contract for the outstanding part of the delivery. In the case that PEWOBAR made a partial delivery, the Purchaser can only withdraw from the contract as a whole if the Purchaser cannot use the partial delivery due to the default.
7.6 Risk shall transfer to the Purchaser as soon as the consignment has been handed-over to the person transporting it or has left PEWOBAR’s storage area in order to be dispatched, without prejudice to the right of PEWOBAR to rely on the benefit of the retention of title set forth in Clause 8 or to make use of its right of retention set forth in Clause 5.6. In case that dispatch becomes impossible for reasons not caused by PEWOBAR, risk is transferred to the Purchaser upon notification of readiness to dispatch. Unless otherwise agreed, all operations involving transport, handling, storage, insurance, customs and maintenance shall be carried out by and be paid for by the Purchaser.
7.7 All other claims against PEWOBAR for default shall be excluded except where PEWOBAR has been culpable of willful intent or gross negligence.
7.8 In the present General Terms and Conditions gross negligence shall mean an act or omission implying either a failure to pay due regard to serious consequences which a conscientious supplier/manufacturer would PEWOBAR Fully foresee as likely to ensue, or a deliberate disregard of the consequences of such act or omission.
8. Retention of Title
8.1 The delivered goods will remain our property until all our present and future payment claims against the Purchaser arising in connec-tion with the delivered goods, have been fulfilled.
8.2 The Purchaser shall be entitled to resell the goods retained in our property (hereinafter referred to as ”Reserved Goods”) in the ordinary course of business. The Purchaser hereby assigns to PEWOBAR all accounts
receivables arising from such resale, in particular, without limitation the payment claims against Purchaser’s customers.
8.3 In the event that Reserved Goods are combined with other goods that are not PEWOBAR’s property PEWOBAR shall have joint title in the combined goods pro rata to the delivery price agreed between the Purchaser and PEWOBAR for the Reserved Goods compared to the value of the other goods so combined with the Reserved Goods, at the time of the combination. For any combined goods the same rules apply as for the Reserved Goods.
8.4 In the event that Reserved Goods are resold together with other goods that are not PEWOBAR’s property, the Purchaser’s claim against its customer in the amount of the delivery price agreed between the Purchaser and PEWOBAR for the Reserved Goods is deemed assigned to PEWOBAR.
8.5 The Purchaser shall be authorized to collect these accounts receivable even after the assignment, without prejudice to PEWOBAR’s right to collect these receivables itself. PEWOBAR undertakes to refrain from doing so, however, as long as the Purchaser duly meets its payment obligations. In the event that the Purchaser makes use of the collection authorization, the collected proceeds in the amount of the delivery price agreed between the Purchaser and PEWOBAR for the Reserved Goods shall be payable to PEWOBAR.
8.6 In the event that PEWOBAR accepts bills of exchange as means of payment, PEWOBAR’s retention of title continues until it is established that recourse can no longer be taken to PEWOBAR for these bills of exchange.
8.7 PEWOBAR undertakes to release the collateral to which PEWOBAR is entitled in the amount in which its value exceeds the accounts receivable to be collateralized, to the extent that these have not yet been paid, by more than 20%.
8.8 The Purchaser shall notify PEWOBAR without undue delay of any seizure or similar acts by third parties in order to put PEWOBAR in the position to take legal steps against such acts or otherwise protect its interest.
9. Complaints/Liability for Defects
9.1 The Purchaser shall inspect the deliveries without undue delay after receipt and notify PEWOBAR without undue delay in writing of any apparent defects, short or wrong deliveries discovered upon inspection, stating the reasons for the complaint.
9.2 The notice shall contain a description of the defect.
9.3 If the Purchaser fails to notify PEWOBAR in writing of an apparent defect within the time limits set forth in Clause
9.4 Purchaser shall lose its right to have the defect remedied.
10. Rights in the Case of Defects/Warranty
10.1 The quality owed to the Purchaser shall be determined by the quality agreed with the Purchaser or the quality and general purpose of use stated by PEWOBAR. If PEWOBAR’s delivery is based on individual drawings, specifications or samples provided by the Purchaser, the same is also responsible for the suitability of the delivered goods for the intended purpose of use.
10.2 In case of a justified notice of defect, PEWOBAR shall provide subsequent fulfillment by replacement delivery or reworking. If PEWOBAR does not fulfill within a reasonable time period set by Purchaser or if such subsequent fulfillment fails then the Purchaser shall have the right to demand a price reduction or, in the case of a material breach of contract, to withdraw from the contract. If only parts of the delivery are defective, the right to subsequent fulfillment relates only to the defective part of the delivery, unless the Purchaser is unable to use the partial delivery.
10.3 If the Purchaser has given such notice as mentioned in Clause 9 and no defect is found for which PEWOBAR is liable, PEWOBAR shall be entitled to compensation for the costs incurred as a result of the notice.
10.4 PEWOBAR shall not be liable for defects arising out of the materials provided, or a design stipulated or specified by the Purchaser.
10.5 PEWOBAR shall be liable only for defects which appear under the conditions of operation provided for in the contract and under proper use of the goods. Such liability of PEWOBAR shall not cover defects which are caused by faulty maintenance, incorrect erection or faulty repair by the Purchaser, or by alterations carried out without the consent of PEWOBAR in writing.
10.6 Save as stipulated in Clause 10.1-10.4, PEWOBAR shall not be liable for defects including, without limitation, damages the defect may cause like for instance loss of production, loss of profit and other indirect damages.
11. Limitation of Liability, Product Liability
11.1 In the event of willful intent or gross negligence of PEWOBAR or its statutory representatives or vicarious agents PEWOBAR shall be liable pursuant to the applicable statutory provisions. Unless in the event of willful intent or gross negligence, PEWOBAR’s liability shall be limited to the direct average damage foreseeable in relation to such type of goods and typical for such contracts.
11.2 PEWOBAR shall not be liable for slightly negligent breaches of non-significant contract duties.
11.3 Unless otherwise stated in these General Terms and Conditions there shall be no liability for either party towards the other party for loss of production, loss of profit, loss of use, loss of contracts or for any other consequential or indirect damages whatsoever.
11.4 The above-mentioned limitations of liability do not concern claims of the Purchaser arising out of compulsory statutory product liability or in the case of personal injury or damage to health, or loss of life when these can be attributed to PEWOBAR.
11.5 Unless otherwise stated herein above, PEWOBAR’s liability shall be excluded.
11.6 Any claims for compensation of damages that can be raised by the Purchaser due to a defect become statute-barred on the expiry of twelve months following the transfer of the risk. This does not apply if PEWOBAR can be accused of fraudulent intent.
12. Disputes and Applicable Law
12.1 Any action or proceedings by one party against the respective other party may be brought in any court(s) having jurisdiction over the location of the respective supplying entity of the PEWOBAR GmbH .
12.2 This contract is to be construed according to the laws of the country (and state/province, if applicable) of the respective supplying entity of the PEWOBAR GmbH, excluding, however, the provisions of the United Nations Convention on Contracts for the International Sale of Goods and any provision on the conflict of laws that would require application of another choice of law.