PARATGeneral Terms and Conditions
General Terms and Conditions of Sale and Deliveryof PARAT GmbH + Co. KG and for use vis-á-vis merchants and companies
§1 -General Provisions
- All of our deliveries, services and offers shall be made on the basis of these terms and conditions notwithstanding the fact that they may not have been expressly referred to during negotiations. We will not accept any differing terms and conditions notwithstanding that we may not have expressly rejected them nor by means of our referring to correspondence with the contractual partner in which reference is made to the contractual partner’s terms and conditions. Our terms and conditions shall also apply to future business relationships in respect of contracts with tradesmen, legal entities under publiclaw and special public law funds notwithstanding their not having been agreed afresh. Our terms and conditions shall be deemed to have been accepted from no later than the time at which the goods are accepted.
- Any conditions of the purchaser which are contrary to,or which deviate from our terms and conditions shall not apply unless we have expressly consented in writing to their applying.
- Legally relevant declarations and notifications of the buyer with regard to the contract (e.g. setting a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declarant.Remain unaffected.
- References to the validity of statutory provisions have only a clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTC.
- Our sales assistants are not authorised to make verbal supplemental agreements nor to give oral assurances that go beyond thescope of the written contract. All provisions agreed under this contract are recorded within the written contractual documentation. There shall be no supplemental verbal agreements.
- Delivery dates are estimates only and are without obligation unless we have expressly agreed to their being binding. Statements relating to the goods to be supplied (e.g. technical data, tolerances, measurements, weight specifications etc.) and their illustration shall be for descriptive and identification purposes only and shall not be binding unless express confirmation in writing is given by us in this respect. We reserve the right to make technical changes or changes to the design of the goods to be supplied provided such changes are customary in the trade and provided they do not compromise the customer to an unreasonable extent and do not affect the goods’ fitness foruse.
- Our offersare subject to changeand non-bindinguntil the contract is concluded.
- We reserve all ownership and copyrights in design drawings, samples, price quotations and similar business objects, whether tangible or intangible. They must be treated with the utmost confidence at all times. They must not be made available to any third party without our consent. In the event of any breach of these duties the purchaser shall be liable to us in full in accordance with legal provisions. Advertising using our name as a reference and similar promotional activities shall be prohibited unless our prior approval is sought.
- The order of the goods by the buyer is considered a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offerwithin 2 weeks after its receipt by us.
- Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the buyer.
- Our prices are quoted ex works exclusive of shipment and exclusive of packaging, both of which will be invoiced separately. Deviations from this require the written form and our explicit written consent. Unloading and storage of the goods are the purchaser’s responsibility. Value added tax as chargeable at the date of the invoice will be added to our prices. The cost of any transport insurance or similar insurance that has been arranged shall be borne by the purchaser unless otherwise agreed. In the case of partial deliveries, each delivery may be invoiced separately. Customs duties and levies as well as taxes of any kind in the country of the place of performance, which are to be paid according to the applicable law are also excluded or are to be borne by the customer if the are imposed on us.
- If on any given delivery date, which is at least four months after the date on which the contract was concluded, any changes should occur to the basis on which prices have been established (e.g. an increase in the price charged for raw materials, materials, wages, transportation or storage), we shall reserve the right to adapt our prices accordingly after informing the purchaser of this change, whereby the individual cost elements and their increase shall be given a fair weighting in determining any new prices. In the event that individual cost elements should increase whilst others decrease,this shall also be taken into consideration when determining the new price.
- Our prices as applicable on the date of delivery shall apply in the event that prices are not agreed at the time the contractis concluded.
§4 -Conditions of Payment
- Unless the confirmation of order (or alternatively the invoice) states otherwise, payment of the net purchase price shall be due (without deductions) within 10 days from the date of invoice.However, even in the context of an ongoing business relationship, we areentitled at any time to carry out a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.
- Upon expiry of the above payment period,the purchaser shall be in default andwe reserve the right to charge interest on late payments at 9% above the base rate. We may at all times provide evidence of a higher rate loss due to interest and may charge the purchaser accordingly. In the event of any default in payment we shall be entitled to withdraw any allowances, discounts or other concessions granted.
- Breach of any of the conditions for payment, default or circumstances which may undermine the purchaser’s creditworthiness shall result in the immediate acceleration of all claims.
- The purchaser shall have no rights of set-off unless the purchaser’s counterclaims have been established in a legally binding manner, or,admitted by usor they are indusputed.
- The purchaser may exercise a right of retention insofar as the purchaser’s counterclaim is based on the same contractual relationship or the counterclaim has been accepted,decided by a court of law or is pending judgement.
- We are not obliged to accept bills of exchange or cheques. Credit given on either basis shall in all instances be deemed do be subject to redemption (by payment, not in lieu of payment); it shall be credited to the purchase less the discount charged to us on transfer, less stamp duty and bank charges and also less collection fees where applicable.
- If, after conclusion of the contract, it becomes apparent (e.g. by filing for the opening of insolvency proceedings) that our claim to the purchase price is endangered by the purchasers inability to pay, we are entitled to refuse performance in accordance withthe statutory provisions and -if necessary after setting a deadline –to withdraw from the contract (§321 BGB). In the case of contracts from the manufacturer of unjustifiable items (custom-made products), we can declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
- We reserve the right to raise other contractual or legal claims in the event of default.
§5 -Delivery Period and Barriers to Delivery
- The delivery period shall commenceat the time at which the confirmation of order is dispatched, but no sooner than the purchaser has providedthe relevant documentation, authorisation and clearances required to be provided, made a down-payment and clarified all technical issues.
- The delivery period shall be deemed to have been observed ifthe goods to be delivered have left the factory before expiry of the delivery period, or the purchaser has been notified that the goods are ready to be dispatched.
- In the event on any unforeseencircumstances which are not of our volition and which we are unable to avert despite reasonable efforts in the circumstances -regardless of whether they shall occur on our part or on the part of a supplier –such as force majeure (war, fire. pandemicor natural disasters) of delays in the supply of significant raw materials etc. –we shall be entitled to rescind the contract in part or in full or to extend the delivery period for the duration of the hindrance. We shall be entitled to the same rights in the case of any strike or lockout on our part or on the part of our suppliers. We will notify the purchaser without delay of any such circumstances.
- Delivery is subject to our receiving the correct and timely supplies ourselves.If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (unavailability of the service), we will inform the customer immediately and at the same time inform the customer of the expected new delivery period. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already provided by the customer. In particular, the non-availability of the service in this sense shall be deemed to be non-timely self-supply by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or if we are not obliged to procure in individual cases.. Alternatively,we may in this instance elect to rescind the contract in respect of such goods as have not been delivered. Insofar as permitted under competition law we will assign to the purchaser any claims we may have against suppliers in respect of any delivery that has not been made as agreed under the contract. The purchaser shall not have any other rights to claim damages or reimbursement of expenses.
- In the case of any delay in delivery the purchaser shall have a right to rescind the contract provided that a reasonable period of grace has passed in which delivery has not occurred; the purchaser shall be entitled to exercise this right without having granted a period of grace if it becomes impossible for us to provide the relevant goods. Without prejudice to clause 6 and §9, neither of which are intended to reverse the burden of proof, all claims for damages (including any consequential loss) shall be excluded; the same shall apply in respectof any claim for reimbursement of expenses. If a fixed deal has been agreed,then we shall be liable in accordance with the applicable laws; the same applies in the event of a purchaser being able to assert that its interest in the contract being fulfilled has fallen away asa result of the delay for which we are responsible.
- If a fixed transaction has been agreed, we shall be liable in accordance with the statutory provisions; the same applies if the customer can assert that his interest in the fulfilment of the contract has ceased to exist due to the delay for which we are responsible.
- If shipment of goods is delayed at the purchaser’s behest, the purchaser will be charged for the cost of storage from a period commencing one month after the date on which the purchaser was notified that the goods were ready to be dispatched.
- Delivery takes place from warehouse, where the place of the performance for the delivery and any subsequent performance is.
§6 -Passing of Risk
- In the eventof accidental loss and accidental deterioration of the goods,the purchaser is obliged to collect the goods, risk shall pass to the purchaser at the time the goods are singled out and made available as agreed under the contract. The same shall apply if the seller is using a carrier to convey the goods to the purchaser, in which case risk shall pass when the goods are handed to the courier. If it is the seller’s duty to deliver the goods to the purchaser then risk shall pass when the goods leave the seller’s factory premises. The same shall apply in the event of any default in acceptance. In the case of contracts for work and services, the transfer of risk shall take place upon acceptance in accordance with the statutory provisions.
- Without prejudice to the purchaser’s rights arising from §8 and §9, goods delivered must be accepted by the purchaser notwithstanding any immaterial defects in the goods. Delivery in parts shall be permissible provided it is reasonable to expect the purchaser to accept delivery in parts.
- If the purchaseris in default of acceptance, fails to cooperate or our delivery is delayed for other reasons for which the buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). The proof of higher damages and our statutory claims (in particular compensation for additional expenses, appropriate compensation, termination) remain unaffected; however, the lump sum is to be offset against further monetary claims. The purchaseris permitted toprove that we have incurred no damage at all or only a significantly lower damage than the above lump sum.
§7 -Retention of Title
- We shall reserve title to all goods delivered until such a time as the purchaser has paid all current and future debts resulting from the business relationship. This right of retention of title shall also apply to spare or replacement parts such as motors, control units etc. notwithstanding that such parts may have been built in already, since this does not mean that they have become major components within the meaning of §93 of the German Civil Code (BGB).
- We may retract the goods ifthe purchaser is in breach of the contract, particularly in relation to payment default. Such retraction of goods shall not constitute rescission of the contract unless we have granted a period of grace which has passed without the purchaser fulfilling its obligation and we have expressly indicated that we intend to rescind the contract. Any costs incurred by us in retracting thegoods (transportationcosts, in particular) shall be at the purchaser’s expense. We further have the right to prohibit the purchaser from reselling goods or from processing goods delivered the title of which we have retained, and to recall the direct debit mandate (§7V). The purchaser may not request the delivery of goods that have been retracted where no express declaration of rescission was made until such time as the purchase price and all costs have been paid in full.
- The purchaser must handle the goods with care (and this includes an obligation to carry out inspections and maintenance).
- The purchaser may not mortgage, give as security or assign the goods delivered nor make any claims in lieu/a transfer of claims. If an application for the opening of insolvency proceedings is filed, as well as in the event of the goods being mortgaged or of any other third party intervention, thepurchaser must notify us in writing without delay so that we may commence proceedings in accordance with §771 of the German Code of Civil Procedure (ZPO). The costs of any such legal action under §771 of German Code of Civil Procedure (ZPO) that may remain despite our winning the case shall be borne by the purchaser.
- The purchaser may resell, process or combine the purchased goods in the usual course of business; however,the purchaser agrees to assign to us all claims resulting from any resale, processing, merging or any other legal grounds (insurance or illegitimate acts, in particular) up to the value of the final amount invoiced (including value-added tax), along with any ancillary rights. Should any delivered goods continue to be part-owned by us by virtue of our having retained title to them, then assignment of any claims shall be in proportion to our share in the goods’ ownership. Should the delivered goods be sold on jointly with any third party goods that are not owned by the purchaser then the resulting claims shall be assigned to us in such a proportion as equates to the final invoice value of our goods compared with the final invoice amount of the third party goods. If the assigned claims are to be included in any running invoice/account?then thepurchaser hereby agrees to assign to us an appropriate proportion of the balance (including the final balance) from the open account; should interim invoices be drawn up and should it have been agreed that the amounts be carried forward then any claim resulting from the interim invoice to which we may be entitled in accordance with the aforementioned provision shall be treated as being assigned to us to be dealt with under the next invoice. The purchaser shall continue to have a right to enforce any such claim notwithstanding any assignment, however this shall not affect our right to enforce a claim ourselves. We agree to not enforce a claim so long as the purchaser can meet its payment obligations from the proceeds received and provide the purchaser is noton payment default, no petition for bankruptcy or liquidation has been filed and payment has not been suspended. Should this be the case then the purchaser shall on request provide us with details of any claims that have been assigned and of who the debtors are, provide all the necessary details required for collection along with the corresponding documentation, and inform the (third party) debtor of the assignment. In addition, in this case we are entitled to revoke the customer’s authorization to furthersell and process the goods subject to retention of title.This shall also apply in the event of the purchaser reselling, processing or mixing the goods in breach of contract.
- Our right to retention of title extends to all products at full value resulting from the processing or modification of our goods, whereby these procedures shall be deemed to be carried out on our behalf so that we are deemed to be the manufacturer under property law. Should any third party rights of retention survive in the course of any processing or modification of our goods on connection with goodsof third parties, the purchaser agrees to grant us joint ownership to the goods in proportion to the objective value of these goods; in this case the p also agrees to store the goods for us in a diligent manner. If goods to which we have retained title are joined with other moveable goods from a uniform item or are inseparably combined with other goods, wherebythe other goods are deemed to be the principal goods, the purchaser hereby agrees to assign to us its right to part ownership in proportion to its ownership of the principal goods; the p shall store the (part) owned goods for us. The same shall apply to goods created in this manner as to those goods delivered the title to which has been retained.
- As security for our claims the purchaser agrees to assign its claims against third parties resulting from the combining of the delivered goods with other property. This assignment shall rank in priority to any other security.
- The security to which we are entitled shall not be ascertained to the extent that the value of our security exceeds the nominal value of the claims that are to be secured by 50%; we shall be free to decide which security has been released.
- The purchaser must ensure that any special conditions or formalitiese.g. is linked to a notarial certification,that are required by any country of destination of the goods in order for the retention of title to be valid are fulfilled.
§8 -Liability for Material Defects and Defects of Title
In principle, we are not liable for defects that the purchaserknows at the time of conclusion of the contract or is grossly negligent (§ 442 BGB). Furthermore, the buyer's claims for defects presuppose that he has fulfilled his statutory inspection and notification obligations (§§ 377, 381 HGB). In the case of building materials and other goods intended for incorporation or other further processing, an examination must in any case be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later date, we must be notified of this immediately in writing. In any case, obvious defects must be reported in writing immediately upon delivery and defects not recognizable during the inspection must be reported in writing within the same period of time from discovery. If the buyer fails to carry out a proper inspection and/or notification of defects, our liability for the defect that is not or not reported in time or not properly reported is excluded in accordance with the statutory provisions. Insofar as the parties have agreed on specifications, these shall take precedence over the usual quality. In the event of a deviation, no liability is assumed for the suitability of the purchased item for normal use or for its usual quality.
- If goods are defective we shall have a right to chose whether to rectify the defect or to deliver non-defective goods (subsequent performance), provided the defect is not an immaterial defect. We may refuse to remedy a defect if one or both of these methods of subsequent performance are impossible ordisproportionate. In addition, we may refuse subsequent performance if the purchaserhas not met its payment obligations to an extent corresponding to the non-defective portion of the goods.Purchasermust give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the purchasermust return the defective item to us in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or the re-installation if we were not originally obliged to install it.We shall bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs as well as any dismantling and installation costs in accordance with the statutory provisions, if a defectactually exists. Otherwise, we may demand reimbursement from the buyer for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to the buyer. However, the claim for reimbursement of dismantling and installation costs only exists if the lack of conformity of the purchased item became apparent only after installation or assembly, i.e. would have imposed itself on an average buyer. Costs are excluded to the extent that additional costs areincurred as a result of the transfer of the item to a place other than the place of performance.
- If subsequent performance as set out at clause 1 above is impossible or fails, the purchaser shall be entitled to choose whether to reduce the purchase price or to rescind the contract in accordance with the applicable laws; it shall apply in the case of culpable delay or refusal tocarry out subsequent performance, in particular, or where subsequent performance fails for the second time. All other claims by the purchaser on whatever legal grounds shall be excluded or limited in accordance with §10.
- We do not accept liability for loss on the following grounds: inappropriate or improper use, defective assembly by the purchaser or a third party, fair wear and tear, defective or negligent handling, inappropriate equipment, defective construction works, an inappropriate building site, alternative materials, chemical, electrochemical or electrical influences (unless these are our responsibility), or improper alterations or repairs by the purchaser or a third party which have not been authorised by us in advance.
- The limitation period for claims for defects shall expire one year after delivery of the purchased goods,provided the claims are ones for which we have limited liability in accordance with §8 or §9and §10. In the case of any goods used for a building in accordance with their usual application and which have become defective, the limitation period for claims shall expire after five years. Claims to a reduction in price and to the exercise of a right of rescission shall be excluded. If the situation set out in the third sentence of this clauseapplies, the purchaser may nevertheless refuse to pay the purchase price insofar as the purchaser would be entitled to do so as a result of the price reduction or contractual rescission; we shall be entitled to rescind the contact in the event of an exclusion of rescission and subsequentrefusal to pay.
- Warranties or guarantees shall not be deemed to have been validly given unless we have given them expressly in writing.
§9 -Contracts for work and services
- We provide a warranty for defects in contractual services in accordance with § 8 I –V, § 9 and §10.The customer is entitled to the legal right to self-performance in accordance with § 637 BGB; the claim is excluded if we may also refuse supplementary performance.
- Notwithstanding § 438 (1) No. 3 BGB (German Civil Code), the general limitation period for claims arising from material defects anddefects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period begins with acceptance.This does not apply to buildings and works whose success consists in the provision of a planning or monitoring service for this purpose; in this case, the limitation period is 5 years from delivery or acceptance.The claims for self-performance, reduction and the exercise of a right of withdrawal are excluded insofar as the claim for subsequent performanceis time-barred and we invoke it.In the case of sentence 3, however, the customer may refuse to pay the purchase price to the extent that he would be entitledto do so on the basis of the withdrawal or reduction; in the event of exclusion of withdrawal and a subsequent refusal of payment, we are entitled to withdraw from the contract.
- In the case of contracts for the delivery of work and services for movable property, § 8 shall apply.
- Cost estimates are to be remunerated.
§10-Rescission by the Purchaser and Miscellaneous Liability on our part
- The purchaser’s legal right of rescission –with the exception of cases that fall within §§8and 9–shall be neither excluded nor limited. Likewise it is not intended to exclude or limitany legal or contractual rights or claims to which we may be entitled.
- We shall be liable for damages –regardless of the legal grounds –within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty), for damages resulting from injury to life, limb or health, for damages resulting from the breach of an essential contractualobligation (obligation the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.This shall not affect any liability under the recourse principles under §478 et seq. of the German Civil Code (BGB).
- The limitations of liability resulting from paragraph 2 shall also apply to third parties and to breaches of duty by persons (also in their favour) whose fault we are responsible for in accordance with statutory provisions. They do not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the purchaserunder the Product Liability Act.
- All other forms of liability shall be excluded from this contract regardless of their legal grounds, in particular claims resulting from a breach of any main or ancillary duties under the contract, illegal acts and any other tortious acts.
- The same exclusions, limitations and exceptions shall apply in respect of claims based on fault at the time the contract was concluded.
- §9 shall apply analogously in the case of any reimbursement of expenses (with the exception of any reimbursement of expenses in accordance with §439 II or §635 II of the German Civil Code (BGB)).
- Any exclusion or limitation of our liability shall also apply to our legal representatives and agents.
- No reversal of the burden of proof is intended. Cardinal duties are significant duties, i.e. such duties which characterise the contract and on which the contractual partner can rely; theseare therefore the significant rights and duties which are the prerequisites for contractual performance and which are indispensible in order to fulfil the contractual purpose.
§ 11-Place of performance, Jurisdiction Applicable Law, Contractual Language and Burden of Proof
- The place of performance shall be the place at which the goods are dispatched (the factory or place of storage)
- The place of jurisdiction shall be our head office provided the purchaser is a merchantwithin the meaning of the German Commercial Code, corporate body governed by public law or a public law fund. The same shall apply if the purchaser does not have a place of jurisdiction in Germany, or if thepurchaser’s head office has moved abroad since conclusion of the contract, or the purchaser’s head office is not known at the time at which the legal action is brought. The same applies if the purchaser is an entrepreneur within the meaning of § 14 BGB (German Civil Code). We may, if we wish, sue the purchaser in other permissible courts of jurisdiction.
- This contract shall be governed be the non-harmonised law of the Federal Republic of Germany (German Civil Code (BGB), German Commercial code (HGB)). The application of UN sale of goods law (CISG) and any conflict of laws provisions under the Introductory Act to the German Civil Code (EGBGB) are expressly excluded from this contract. The contractual language is English.
- None of the provisions agreed in any of the terms and conditions are intended to alter the legal or common law distribution of the burden of proof.
- Amendments to this contract shall not be valid unlessit’s in writing andagreed with us.
- Should any provision contained in these terms and conditions be invalid or void in part or in full, this shall not affect the validity of the remaining provisions. The contractual partners undertake to consent to a provision that achieves as bestaspossible the purpose of the invalid or void provision within the business sphere.
- We will not use any data regarding the purchaser for any purpose other than for the conclusion of business in accordance with the provisions of the relevant applicable data protection provisions. The purchaser may on written demand request access to any personal data of thepurchaser that has been collected, processed or used.
- All terms and provisions are gender-neutral and in all other respects non-discriminatory within the meaning of the German Equality Act (AGG).