Terms and Conditions of Business

General Terms and Conditions of Business PCM Products GmbH, Krefeld

We confirm your order subject to the exclu-sive application of our general terms and conditions of sale.

§ 1 Application

(1) These terms and conditions of sale shall apply exclusively. Differing or contrary terms shall not apply except if expressly agreed upon in writing.
(2) These terms and conditions of sale shall also govern all future transactions between the parties and shall also apply if we perform delivery despite our know- ledge of differing or contrary terms.
(3) These terms and conditions of sale shall only apply vis á vis entrepreneurs, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code).

§ 2 Offer, Acceptance

Insofar as the order constitutes an offer within the meaning of § 145 BGB we are entitled to accept the offer within two weeks.

§ 3 Prices, Payment

(1) Prices are according to Incoterms (up-to-date version) ex works (EXW), except as otherside agreed upon, exclusive of the respective statutory VAT but exclusive of costs for packaging.
(2) The purchase price is due and payable net within 30 days from the date of the invoice, except as otherside agreed upon. From the due date default interest in the amount of 8 % above the respective base interest rate p. a. shall accrue. We reserve all rights to claim further damages for delay.

 § 4 Offset, Retainer

The purchaser shall be entitled to offset only insofar as the purchaser’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgement. The purchaser is entitled to claim retainer rights only to the extent such rights are based on the same transaction.

§ 5 Delivery

(1) Delivery is conditioned upon timely and proper performance of all duties of the purchaser. Defences based on non-performance of the contract are reserved.
(2) In case of default in acceptance or other breach of duties to cooperate by the purchaser we are entitled to claim any resulting damage including but not limited to additional expenses, if any. Further damages are reserved. In this case, the risk of loss or damage to the goods passes to the purchaser at the time of such default or breach of duty to cooperate.

§ 6 Passage of Risk, Shipment

The passage of risk shall primarily be regulated by the Incoterms (as mentioned in §3), otherwise the following takes effect:
If the purchaser demands shipment of the goods the risk of loss or damage to the goods passes to the purchaser upon dispatch.

§ 7 Retention of Title

(1) We retain title to the goods until receipt of all payments in full. In case of breach of contract by the purchaser including, without limitation, default in payment, we are entitled to take possession of the goods.
(2) The purchaser shall handle the goods with due care, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods.
(3) As long as the purchase price has not been completely paid, the purchaser shall immediately inform us in writing if the goods become subject to rights of third persons or other encumbrances.
(4) The purchaser may resell goods subject to the above retention of title only in the course of his regular business. For this case, the purchaser hereby assigns all claims arising out of such resale, whether the goods have been processed or not, to us. Notwithstanding our right to claim direct payment the purchaser shall be en- titled to receive the payment on the assigned claims. To this end, we agree to not demand payment on the assigned claims to the extent the purchaser complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.
(5) Insofar as the above securities exceed the secured claim by more than 10 %, we are obligated, upon our election, to release such securities upon the purchaser’s request.

§ 8 Warranty

(1) Precondition for any warranty claim of the purchaser is the purchaser’s full compliance with all requirements regarding inspection and objection established by sec. 377 HGB (German Commercial Code).
(2) §8 (1) is especially applicable for a correct entrance test by the Customer due the reason that any of the test certificates/certificates of analysis of the Seller serve only for information purposes. Furthermore the customer is unable to insist on the applicability of the product concerned based on the designated use, as previously declared by the customer, in accordance with the European Community Regulation No. 1907/2006, accordingly the Seller is not liable for the delivered goods being suitable for the Buyer’s intended use.
(3) If the Buyer wrongly complains about the existence of a defect for reasons for which we are not responsible, we shall be entitled to charge the reasonable expenses incurred by us for the rectification and/or determination of the defect.
(4) Warranty claims shall be time-barred after 12 months of the passage of risk.
(5) In case of non-conformity of the goods the purchaser is entitled to alternative performance in the form of subsequent improvement or delivery of conforming goods. If such alternative performance has failed, the purchaser is entitled to reduce the purchase price or to withdraw from the contract.

§ 9 Liability

(1) In case of intent or gross negligence on our part or by our agents or assistants in performance we are liable according to the provisions of applicable law; the same applies in case of breach of fundamental contract obligations. To the extent the breach of contract is unintentionally our liability for damages shall be limited to the typically predictable damage. This limitation of liability also applies to consequential damages.
(2) Our liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected.
(3) Any liability not expressly provided for above shall be disclaimed.

 § 10 Applicable law, Jurisdiction

(1) This contract shall be governed by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods).
(2) Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Krefeld, Germany
(3) The German version of these terms prevails over the English translation.

Preamble

The following retention of title agreement shall secure all existing and future claims between the contractual parties which the Seller may have against the Buyer by virtue of any legal basis.

§ 1 Products Subject to the Retention of Title

The Seller retains title to the goods until complete payment of all secured claims including any balances from a current account relationship. The products as well as all goods replacing the products which are subject to the retention of title pursuant to this clause, are referred to in the following as products subject to retention of title.

§ 2 Rights of the Buyer

The Buyer may process and seil the products subject to retention of title in the course of normal business as long as he is not in delay. Pledges or the creation of security interests are not admissibie.

§ 3 Processing, Modification, Connection and Mixture

Processing or modifying the products subject to retention of title shall always be accomplished on behalf of the Seller as producer within the meaning of 950 BGB. An obligation on the side of the Seller, however, shall not be created thereby. In the event that the products subject to retention of title are processed, modified, so connected to or mixed with other goods which do not belong to the Seller, it is hereby agreed that the Seller shall acquire
co-ownership of the new goods based on the relation of the value of the products subject to retention of title to the goods processed, modified, connected or mixed at the time of the processing, modification, connection or mixture.

§ 4 Deposition of the Products Subject to Retention of Title

The Buyer shall deposit the products subject to retention of title on behalf of the Seller and without consideration.

§ 5 Transfer of Claims and direct Debit Authorization

For security purposes, the Buyer hereby transfers all his claims (including all balances from the current account) which resuit from the sale of the products or from any other legal basis (insurance or tort law) with regard to the products subject to retention of title to the Seller. The Seller authorizes the Buyer to collect the transferred claims in his own narre on behalf of the Seller. This direct debit authorization, however, may be revoked if the Buyer does not properly fulfil his payment obligations.

§ 6 Obligation of the Buyer upon Intervention of Third Parties

In the event of pledges, seizure or other disposals or interventions concerning the products subject to retention of title by third parties, the Buyer is obliged to inform the third party of the property of the Seller and to notify the Seller thereof without delay. All costs and damages caused thereby shall be borne by the Buyer.

§ 7 Clause of Release

Upon demand of the Buyer, the Seller is obliged to release his granted securities to the extent as their value is exceeding the open claims to be secured by more than 20 %.

§ 8 Right to Withdraw by the Seller

If the Buyer does not comply with his duties provided by this Agreement, the Seller may withdraw from this Agreement and may claim the products subject to retention of title to be returned. In particular, a delay in by the Buyer.

§ 9 Applicable Law, Jurisdiction

(1) This contract shall be governed by the laws of the Federal Republic of Germany (excluding the Convention an Contracts for the International Sale of Goods).
(2) Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Krefeld, Germany
(3) The German version of these terms prevails over the English translation.