General Terms and Conditions of Sale
PCM Products GmbH, Krefeld

We confirm your order subject exclusively to our General Terms and Conditions of Sale.

§ 1 Scope

(1) These terms and conditions of sale apply exclusively. We do not recognize any differing or conflicting terms and conditions unless we have expressly agreed to them in writing.
(2) These terms and conditions of sale also apply to all future transactions between the parties, even if we carry out the delivery of goods with knowledge of differing or conflicting terms and conditions.
(3) These General Terms and Conditions of Sale apply only to entrepreneurs, legal entities under public law, or special funds under public law within the meaning of Section 310 Paragraph 1 of the German Civil Code (BGB).

§ 2 Offer, Acceptance

If the order constitutes an offer within the meaning of § 145 BGB, we are entitled to accept it within a period of two weeks.

§ 3 Prices, Payment

(1) Our prices are quoted ex works (EXW) in accordance with the Incoterms (latest version), unless expressly agreed otherwise, plus applicable VAT and excluding packaging costs.
(2) The purchase price is due net within 30 days of the invoice date, unless expressly agreed otherwise. Interest on overdue payments will be charged at a rate of 8% above the respective base interest rate per annum. We reserve the right to claim further damages for late payment.

 § 4 Offsetting, Retention

The buyer is only entitled to set-off to the extent that his counterclaims are undisputed or have been legally established. The buyer is only entitled to assert rights of retention based on counterclaims arising from the same contractual relationship.

§ 5 Delivery

(1) Delivery is contingent upon the buyer’s timely and proper fulfillment of their obligations. The right to raise the defense of non-performance of contract remains reserved.
(2) In the event of default of acceptance or other culpable breach of the buyer’s duty to cooperate, we are entitled to compensation for the resulting damage, including any additional expenses. Further claims remain reserved. In this case, the risk of accidental loss or accidental deterioration of the goods passes to the buyer at the time of the default of acceptance or other breach of the duty to cooperate.

§ 6 Transfer of Risk, Dispatch

The transfer of risk shall primarily be governed by the Incoterms specified in §3; otherwise, the following applies:
If the goods are dispatched at the buyer’s request, the risk of accidental loss or accidental damage to the goods passes to the buyer at the time of dispatch.

§ 7 Retention of Title

(1) The goods remain our property until all payments have been received in full. In the event of a breach of contract by the buyer, including default of payment, we are entitled to repossess the goods.
(2) The buyer must handle the goods with care, insure them adequately, and maintain them as necessary.
(3) If the purchase price has not been paid in full, the buyer must inform us immediately in writing if the goods are encumbered by third-party rights or are subject to any other third-party interference.
(4) The buyer is entitled to resell the goods subject to retention of title in the ordinary course of business. In this case, however, the buyer hereby assigns to us all claims arising from such resale, whether before or after any processing of the goods delivered subject to retention of title. Notwithstanding our right to collect the claim ourselves, the buyer remains authorized to collect the claim even after the assignment. In this context, we undertake not to collect the claim as long as and to the extent that the buyer fulfills its payment obligations, no application for the opening of insolvency or similar proceedings has been filed, and no suspension of payments has occurred.
(5) Insofar as the aforementioned securities exceed the secured claims by more than 10%, we are obligated to release securities of our choice at the buyer’s request.

§ 8 Warranty

(1) Any warranty rights of the buyer are conditional upon the buyer’s proper fulfillment of all inspection and notification obligations owed under Section 377 of the German Commercial Code (HGB).
(2) Section 8 (1) applies in particular to the customer’s proper incoming inspection, as any test/analysis certificates issued by the seller serve only informational purposes. Furthermore, the customer cannot demand the suitability of the product in question for a previously communicated purpose, as this was/is only requested for registration purposes in accordance with Regulation (EC) No. 1907/2006. Accordingly, the seller is not liable for the suitability of the delivered goods for the buyer’s intended purpose.
(3) If the buyer wrongfully claims the existence of a defect for reasons beyond our control, we are entitled to charge the buyer for the reasonable expenses incurred in remedying and/or determining the defect.
(4) Warranty claims can be asserted within 12 months of the transfer of risk.
(5) In the event of defects in the goods, the buyer has the right to subsequent performance in the form of rectification of the defect or delivery of a defect-free item. If subsequent performance fails, the buyer is entitled to reduce the purchase price or to withdraw from the contract.

§ 9 Liability

(1) In the event of intent or gross negligence on our part or on the part of our representatives or agents, we shall be liable in accordance with statutory provisions; the same applies in the event of a culpable breach of essential contractual obligations. Unless there is an intentional breach of contract, our liability for damages shall be limited to foreseeable damages that typically occur. This limitation of liability also applies to consequential damages.
(2) Liability for culpable injury to life, body, or health, as well as liability under the Product Liability Act, remains unaffected.
(3) Unless expressly stipulated otherwise above, our liability is excluded.

§ 10 Applicable Law, Jurisdiction

(1) This contract is governed by the laws of the Federal Republic of Germany (excluding the UN Convention on Contracts for the International Sale of Goods).
(2) The place of performance and exclusive venue for all disputes arising from or in connection with this contract is Krefeld.
(3) The German version of these terms and conditions takes precedence over the English translation.

preamble

The following agreed retention of title serves to secure all current and future claims existing between the contracting parties that the seller may have against the buyer for any legal reason.

§ 1 Goods subject to reservation of title

The seller retains title to the goods until all secured claims, including any outstanding balances from current accounts, have been fully satisfied. The goods, as well as any goods that replace them under this clause and are subject to the retention of title, are hereinafter referred to as reserved goods.

§ 2 Rights of the buyer

The buyer is entitled to process and sell the goods subject to retention of title in the ordinary course of business, provided he is not in default. Pledging or assigning the goods as security is prohibited.

§ 3 Processing, Transformation, Combination and Mixing

Processing or transformation of the goods subject to retention of title is always carried out for the seller as manufacturer within the meaning of Section 950 of the German Civil Code (BGB). However, this does not create any obligation for the seller. If the goods subject to retention of title are processed, transformed, combined, or mixed with other movable property not owned by the seller, it is hereby agreed that the seller acquires co-ownership of the new item in proportion to the value of the goods subject to retention of title relative to the other processed, transformed, combined, or mixed movable property at the time of processing, transformation, combination, or mixing.

§ 4 Safekeeping of the goods subject to reservation of title

The buyer shall hold the goods subject to retention of title for the seller free of charge.

§ 5 Assignment of emerging claims and collection authorizations

The buyer hereby assigns to the seller, as security, all claims (including all balance claims from current accounts) arising from the resale or any other legal basis (insurance, tort) relating to the goods subject to retention of title. The seller authorizes the buyer to collect the assigned claims on the seller’s behalf and in the buyer’s own name. This authorization to collect may be revoked, but only if the buyer fails to meet its payment obligations.

§ 6 Obligations of the buyer in case of access by third parties

The buyer is obligated to inform the seller of any attachments, seizures, or other dispositions or accesses by third parties to the goods subject to retention of title, and to notify the seller immediately. The buyer shall bear any costs and damages arising therefrom.

Section 7 Release Clause

The seller undertakes to release, at the buyer’s request, the securities to which he is entitled insofar as their value exceeds the claims to be secured and not yet settled by more than 20%.

§ 8 Seller’s right of withdrawal

In the event of a breach of contract by the buyer, the seller is entitled to withdraw from the contract and demand the return of the goods subject to retention of title. A breach of contract includes, in particular, default of payment.

§ 9 Choice of law, place of jurisdiction

(1) This contract is governed by the laws of the Federal Republic of Germany (excluding the UN Convention on Contracts for the International Sale of Goods).
(2) The place of performance and exclusive venue for all disputes arising from or in connection with this contract is Krefeld.
(3) The German version of these terms and conditions takes precedence over the English translation.