GENERAL TERMS AND CONDITIONS
Unless the contracting parties have agreed in writing on deviating terms or conditions, the Terms and Conditions defined herein are deemed to apply to all inspection, repair, overhaul, modification and other commissioned work (hereinafter referred to as “Commissioned Work”).
2. QUOTES AND CONCLUSION OF CONTRACTS
2.1. All offers shall be without obligation and subject of change without notice.
2.2. These Terms and Conditions are deemed to have been accepted by the ordering party, irrespective of whether that party avails itself of the services of P+S TECHNIK or provides its own services.
2.3. Other terms and conditions not approved in writing by P+S TECHNIK are deemed not to constitute an integral part of the contract if running counter to the Terms and Conditions set forth herein.
3. SCOPE OF PERFORMANCE
3.1. In all cases, the scope of performance shall be governed by the confirmation of order issued by P+S TECHNIK in writing. If deemed necessary, for achieving the objectives of the contract, P+S TECHNIK shall be entitled to amend the scope of performance as applied to the limits of Section 4.3, Sentence 2 of these Terms and Conditions.
P+S TECHNIK shall be entitled to rectify any errors due to data inadvertently appearing in sales literature, price lists, bid documents or any other form of documentation issued by P+S TECHNIK without incurring any liability for damages arising there from.
3.2. All public dues (taxes, charges, duties, etc.) levied outside the Federal Republic of Germany from or in connection with the conclusion or handling of the contract shall be borne by the ordering party.
4.1. Unless fixed prices are stipulated, P+S TECHNIK invoices all performance according to costs incurred. All prices are valid ex works; unless specifically stated, the relevant current price list is deemed to apply. For sales affected by delivery, any costs incurred for packaging, shipping, freight, customs or other related costs will be charged separately.
4.2. All prices are computed on the basis of a cost estimate or quote.
4.3. Estimates given in respect of the total cost of commissioned work are deemed to be without obligation.
If the commissioned work cannot be implemented at the estimated cost or if additional work is deemed necessary by P+S TECHNIK for achieving the objectives of the contract, approval of the ordering party shall be obtained if the quoted prices are exceeded by more than 15%.
5. COMMISSIONED WORK INCAPABLE OF BEING REALIZED
5.1. Services performed for submitting a cost estimate as well as other outlay (trouble shooting time = working time) shall be invoiced to the ordering party in cases where the commissioned work cannot be implemented due to reasons for which P+S TECHNIK is not responsible, in particular because –
(a) – the fault subject to complaint failed to occur during inspection;
(b) – the ordering party failed to be present at the agreed appointment through its own fault;
(c) – Spare parts were not procurable; or
(d) – the contract was revoked or cancelled during implementation.
5.2. If and where the commissioned work is impossible of being realized, the object of the said commissioned work shall only need restoring to its original state if expressly requested by the ordering party against reimbursement of expenses, unless the work carried out was unnecessary.
5.3. P+S TECHNIK incurs liability solely in accordance with the regulations set forth in Section 10.
6. TERMS OF PAYMENT
6.1. All payments are due within (10) ten days of issue of the invoice, in all cases strictly net without deductions or discounts of any kind and free to the bank at which P+S TECHNIK keeps its account. Value added tax becomes due for payment on the date on which the invoice is rendered. Where the acceptance of any bill of exchange has been agreed upon, this is deemed to be in the form of conditional payment. Any rectification of the invoice made by P+S TECHNIK or complaints made by the ordering party must be effected in writing four weeks at the latest after receipt of the invoice.
6.2. P+S TECHNIK may request the ordering party to effect reasonable payment in advance or to open an irrevocable confirmed letter of credit in the Federal Republic of Germany to an appropriate amount, available in instalments and free of expenses.
6.3. Assertion of setting-off rights or rights of retention shall only be possible in the event of counterclaims being uncontested or established by declaratory judgement in court.
6.4. In the event of the date set for payment being exceeded – irrespective of other legal claims – annual interest shall be charged amounting to 7% above the minimum bidding rate for major refinancing transactions of the European Central Bank plus value added tax, if any, without this necessitating any reminders to be sent out.
6.5. In the event of the ordering party failing to meet its financial obligations, or in the event of any essential worsening of its financial situation occurring, or in the event of the ordering party suspending its payments, the total balance owing shall immediately become due, even where bills of exchange are running at later maturity.
6.6. The customer shall only be allowed to effect setting-off where counterclaims have become res judicata or recognised by declaratory judgement. Any retention rights on the part of the customer are only deemed to apply in respect of counterclaims resulting from one and the same contract.
6.7. Ownership of the delivered goods shall remain with P+S TECHNIK until it has received full payment for such goods. Title to the goods shall first pass to the customer upon P+S TECHNIK´s receipt of all payments which are due under the current applicable contract.
7. TIME LIMIT FOR PERFORMANCE
7.1. Data or representations given on any time or limit for performance are deemed to be without obligation.
7.2. In the event of the commissioned work being delayed due to cases of force majeure (including epidemics, war, civil war or conditions similar to war / civil war or the imminence of such contingencies) or due to action involving industrial dispute, in particular strike and lockout, as well as the occurrence of circumstances not caused by P+S TECHNIK, this shall result in an appropriate extension of the time limit for performance. This is also deemed to apply if and where such circumstances occur after P+S TECHNIK has defaulted in performance.
In the event of it becoming impossible for P+S TECHNIK to perform commissioned work for a period of three months due to force majeure, obligation to effect delivery shall cease to apply.
In the event of P+S TECHNIK being released from its obligation to effect delivery, the customer shall be entitled to withdraw from the contract. The customer may only assert claims for compensatory damages due to non-performance if default in delivery is based on gross negligence or malice aforethought committed by P+S TECHNIK.
7.3. P+S TECHNIK shall be entitled to effect advance consignments and partial deliveries.
8. TRANSFER OF RISK
8.1. The risk of loss or damage to the goods passes to the buyer as soon as P+S TECHNIK has dispatched the goods from its premises (i.e., plant, factory or warehouse) or upon surrendering of the goods to the applicable carrier or the customer itself, as the case may be. The above shall also apply in the event that P+S TECHNIK serves as the carrier for the goods.
8.2. If the forwarding or collection of the goods is delayed due to reasons attributable to the customer, the risk of loss shall be transferred to the customer upon readiness of the goods for dispatch.
9. WARRANTY CLAIMS
9.1. The customer must inspect the delivered goods immediately upon its receipt of such. The customer must notify P+S TECHNIK in writing of any apparent defects within one week of goods` receipt. P+S TECHNIK must be notified of hidden defects in writing within two weeks of their emergence but no later than one year after delivery of such goods. In the event that the customer fails to meet the aforementioned notification obligations, the goods shall be deemed to have been accepted and the rights set forth in Section 9.2 and 9.3 shall not be in effect.
9.2. Should the customer be entitled to any claim for subsequent performance based on a defect reported in due time, P+S TECHNIK shall be entitled to remove such defect free of charge.
9.3. If P+S TECHNIK twice fails to remedy a defect of if P+S TECHNIK is otherwise unable to accomplish its re-performance obligation or fails to do so within a time period reasonably set forth by the customer, the customer shall be entitled to reduce the purchase price under the contract or to cancel the contract. Instead of seeking performance, the customer can make a claim for damages of for compensation for expenses. However, if the customer elects to rescind the contract it shall have no right to make any claim for damages with respect to the defective goods.
9.4. The statute of limitations applied to warranty claims is governed in accordance with Section 9.
10.1. Liability on the part of P+S TECHNIK is restricted to malice aforethought and gross negligence.
10.2. In the case of simple negligence by P+S TECHNIK, P+S TECHNIK shall only be liable for typical contractual and foreseeable damage to the extent of this affecting violation of essential contractual obligations (cardinal obligations) as well as imputable physical injuries and attributable injuries to health.
10.3. In regards to simple negligence, liability for indirect and unforeseeable damages is ruled out, the same applying to consequential damage resulting from any defect as well as loss of profits.
10.4. All further liability on the part of P+S TECHNIK apart from that provided for in these General Terms and Conditions of Trade is ruled out.
10.5. Where and in so far liability on the part of P+S TECHNIK is ruled out or limited, this is also deemed to apply to any persons or entities employed by P+S TECHNIK in the performance of its contractual obligations.
10.6. Such limitations of liability are not deemed to apply to no-fault liability provided by law, resulting in particular from guarantee or the Product Liability Act.
11. RIGHTS OF ORDERING PARTY TO REDUCTION OF PRICE AND WITHDRAWAL FROM CONTRACT
11.1. If and where statutory provisions prevail, the ordering party may withdraw from the contract in writing –
(a) - if it has become impossible for P+S TECHNIK to fulfil the contract. Where such impossibility affects partial performance, rights of withdrawal shall only apply if it is proved that the said partial performance is of no interest to the ordering party. In all other respects the ordering party is under obligation to accept such partial performance and may demand a reasonable reduction in price. If P+S TECHNIK is not responsible for impossibility to fulfil the contract, P+S TECHNIK shall be entitled to that portion of payment corresponding to the work performed.
(b) - in the event of P+S TECHNIK defaulting in performance and the ordering party having granted P+S TECHNIK a reasonable period of grace following the stipulated date for performance and such period of grace not having been observed through the fault of P+S TECHNIK.
11.2. If the ordering party unavailingly allows a reasonable period of time to expire that has been set to the ordering party by P+S TECHNIK for removal of a recognised defect for which P+S TECHNIK is responsible (in accordance with Section 9), the ordering party shall be entitled to a reduction in price provided that further statutory provisions prevail. The ordering party’s right to a reduction in price also applies in all other cases of failure to bring about fault removal as well as in cases in which withdrawal is ruled out by statutory provisions. The ordering party may only withdraw from the contract if it is proved that the commissioned work is of no interest to the ordering party despite reduction in price.
11.3. Section 10 applies in all other respects.
12. RIGHTS OF P+S TECHNIK TO WITHDRAWAL FROM CONTRACT
Notwithstanding further legal claims and rights resulting from the contract, P+S TECHNIK shall be entitled to withdraw from the contract, in whole or in part, if the ordering party fails to fulfil any essential obligation, or in the event of unforeseen circumstances bringing about any essential change to the commercial importance or content of performance or having a substantial effect on the business of P+S TECHNIK and it not being possible to adapt the contract appropriately according to the principle of good faith, or in the event of the ordering party’s financial standing essentially worsening. If P+S TECHNIK decides to avail itself of its rights of withdrawal, it shall notify the ordering party thereof immediately after becoming aware of the consequences of the incident in question.
13. NON-TRANSFERABILITY OF CONTRACTUAL RIGHTS
Without having obtained the prior expressed approval of P+S TECHNIK, the ordering party shall not be allowed to transfer any of the contractual rights to third parties.
14. STATUTE OF LIMITATIONS
The rights and claims of the ordering party resulting from this contract due to defects of workmanship shall become statute-barred within 12 months of performance. Applicable in all other cases, in particular as regards malice aforethought or cases involving malicious non-disclosure of defects, are the statutory limitation periods.
15. APPLICABLE LAW AND BINDING CHARACTER OF CONTRACT
15.1. The parties hereto agree that the exclusive jurisdiction for any transaction and/or contract between the parties is Munich, Germany.
15.2. All contractual relations shall be governed by German Law under exclusion of the UN Convention on Contracts for the International Sale of Goods.
15.3. In the event of any part of the contract being or becoming invalid, this shall have no effect on the remaining parts thereof provided that such invalidity does not affect the essential fundamental features of the contract.