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General Terms of Sale and Delivery of PH  Industrie-Hydraulik GmbH & Co. KG


1. General

Deliveries and sales of our company are subject solely to the following General Terms and Conditions of Sale and Delivery (Terms and Conditions), unless other written agreements are made in individual cases. They apply only to merchants (§ 14 German Civil Code), governmental entities or special governmental estates.

Purchasing Terms of the purchaser apply only if we have expressly acknowledged them in writing.

Our General Terms and Conditions of Sale and Purchase apply in particular to contracts for the sale and/or delivery of movable assets (goods) irrespective of whether we manufacture the products ourselves or purchase them from suppliers (§§ 433, 651 German Civil Code). Unless otherwise agreed, the Terms and Conditions apply in the written form that is valid at the time of the order or the last version communicated to the purchaser as a framework agreement also for similar future contracts, without our having to refer to them in each individual case.

Legally relevant declarations and notices to be submitted to us by the purchaser after conclusion of the contract (e.g. time limits, notices of defects, declarations of cancellation or reduction in price) must be in writing in order to be valid.

References to statutory regulations are only of explanatory significance. The statutory regulations therefore apply even without such explanation, unless they are directly amended or expressly excluded in these Terms and Conditions.

2. Conclusion of the contract

Our offers are free and non-binding. This also applies if we have provided the purchaser with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – of which we reserve rights of property rights and copyrights.

The order of the goods by the purchaser is deemed a binding offer of contract. Our acceptance can be declared either in writing (e.g. by an order confirmation) or by delivery of the goods to the purchaser (immediate delivery).

3. Prices

a) Unless agreed otherwise in an individual case our current prices at the time of conclusion of the contract apply, ex works plus packaging and value-added tax.

b) We will charge the purchaser for packaging materials at cost price.

c) In the case of sale by delivery the purchaser will bear the costs of transport ex works, in addition to the costs of transport insurance, if desired. The purchaser will pay any customs duties, fees, taxes and other governmental charges.

4. Terms of payment

a) Our invoices are due and payable within 10 days of the invoice date and delivery or acceptance of the goods with a 2% discount or within 30 days of the invoice date with no discount. However, we are entitled at any time during ongoing business relations to carry out a delivery entirely or partially based on advance payment. Checks will be accepted for payment only subject to availability of funds.

b) The purchaser is in default upon expiry of the aforementioned payment deadline. During default of payment, interest will be charged on the purchase price at the applicable statutory interest rate. However, the enforcement of further claims for damages caused by default is not affected by this clause. Our entitlement vis-a-vis merchants to interest on arrears (§ 353 German Civil Code) is not affected by this clause.

c) The retention of payments or offsetting is permissible only if the claim of the purchaser is non-appealable or undisputed. In the event of defects in the delivery the reciprocal right of the purchaser is not affected, especially pursuant to section 8 of these Terms and Conditions.

d) If the purchaser is in default of payment for more than one week or if circumstances arise that jeopardize our entitlement to the purchase price due to inability of the purchaser to pay, then we are entitled in accordance with the statutory regulations to refuse performance and – after setting a deadline – to cancel the contract (§ 321 German Civil Code). In the event of contracts for the manufacture of unwarrantable objects (single production) we can declare the cancellation immediately; the statutory regulations concerning dispensing with setting a deadline are not affected.

5. Transfer of risk

a) The risk of accidental loss or damage of the goods is transferred to the purchaser no later than the time at which the goods leave our factory.

b) If the purchaser is in default of acceptance, omits an act of cooperation or delays our delivery for other reasons for which the purchaser is responsible, we are entitled to request compensation for the resulting damages, including additional expenditures (e.g. storage costs). In this case the default of acceptance is equivalent to delivery to the customer.

6. Delivery period

a) The delivery deadline will be agreed individually or stipulated by us upon acceptance of the order by means an order confirmation. However, it does not begin before the purchaser has furnished all documents, permits, approvals and before the receipt of any stipulated advance payment.

b) The delivery date shall be deemed to have been met if the goods on order have left the works by that date or the customer has been notified that they are ready for dispatch.

If we cannot meet delivery deadlines for reasons beyond our control (non-availability of performance), we will inform the purchaser of this without delay, and simultaneously of the new expected delivery date. If the service is still not available by the new delivery deadline, we are entitled to cancel the contract entirely or partially; we will reimburse any payment already made by the purchaser. Non-availability of performance in this respect means in particular if our supplier fails to deliver to us on time, if we have concluded a congruent hedging transaction, if neither we nor our supplier is at fault or if we are not obligated to procurement in a particular case.

c) The occurrence of our default in delivery is defined in accordance with the statutory regulations (§ 286 German Civil Code). In any case, a dunning notice by the purchaser is required.

Our statutory rights, in particular in the case of exclusion of the obligation to perform (e.g. due to impossibility or impracticability of performance) is not affected by this clause.

7. Reservation of title

a) We retain ownership of the delivery item until full payment of all our current and future claims from the contract and current business relations.

b) The purchaser is entitled to resell and/or process the goods subject to reservation of title in the normal course of business. This entitlement can be revoked at any time. However, the purchaser may neither pledge the delivery item nor transfer ownership to third parties as security until payment in full has been received. The purchaser shall notify us without delay of any pledges or attachments or other dispositions by third parties.

The reservation of title also extends to the products resulting from processing, combination or connection of our goods at their full value, in which case we are deemed the manufacturer. If third-party right of ownership continues to exist in the case of processing, combination or connection with third-party goods, then we acquire co-ownership in proportion to the invoice value of processed, combined or connected goods. Otherwise, the resulting product is subject to the same stipulations as for the goods delivered subject to reservation of title.

c) The purchaser hereby assigns to us as security the claims vis-a-vis third parties resulting from the resale of the goods or the product, in total or for the amount of our co-ownership pursuant to the preceding paragraph. We hereby accept this assignment of claims. In the event of insolvency the purchaser is obligated to inform us of his customers from the resale, including their complete address, tax number and bank information.

d) Besides ourselves, the purchaser is also authorised to collect the sums due. We will not to collect the sum due as long as the purchaser complies with his payment obligations to us, there is no lack of ability to pay and we have not asserted the reservation of title by exercising our respective rights.

e) In the event of breach of contract on the part of the purchaser, in particular in the event of default of payment, we are entitled to take back the delivered goods after issuing a warning and the purchaser is obligated to surrender the goods.

f) If the convertible value of our security interests exceeds our claim by more than 10% we will release securities of our choosing at the request of the purchaser.

8. Warranty

a) The rights of the purchaser in the event of material and legal defects (including incorrect and short deliveries as well as incorrect assembly or incorrect assembly instructions) are governed by the statutory regulations unless otherwise stipulated in the following.

b) The basis for our liability for defects is above all the agreement made concerning the quality of the goods. The agreement concerning the quality of the goods is constituted by the product descriptions designated as such that were provided to the purchaser prior to his order or included in the contract in the same manner as these Terms and Conditions.

c) All claims of the purchaser based on defects assume that he has complied with his statutory obligations to inspect and make a complaint in respect of defect immediately upon receipt of the goods (§ 377, 381 Commercial Code). Any defects must be notified in writing without delay, however no later than 10 days after receipt at the destination; timely dispatch of the notification is sufficient for compliance with the deadline. Regardless of this obligation to inspect and make complaint the purchaser must notify apparent defects (including incorrect and short deliveries) within 10 days of delivery in writing; timely dispatch of the notification in this case is likewise sufficient for compliance with the deadline.

d) We must be given the opportunity to examine the notified defect in situ. Our examination must take place without delay if the purchaser expresses interest in immediate handling of the matter. The goods notified as defective may not be changed in any way without our permission.

e) If the delivered goods are defective, they will be replaced at no charge (including transport charges within the Federal Republic of Germany). Replaced parts become our property. However, we are entitled to make the subsequent performance owed by us dependent on the purchaser paying the purchase price. However, the purchaser is entitled to retain a reasonable part of the purchase price in proportion to the defect.

f) We will pay the expenses required for the purpose of the inspections for subsequent performance, in particular transport, travel, labour and material costs, if a defect actually exists. Otherwise, we can request reimbursement by the purchaser for costs arising from the unjustified request for removal of defects, unless the lack of defects was not recognizable for the purchaser. Other claims of the purchaser, in particular for compensation of processing costs, installation and removal costs and damages not related to the delivered goods themselves, are – to the extent permitted by law – excluded. With the same limitations we are liable for the lack of warranted qualities.

g) If the subsequent performance has failed or if a reasonable period for the subsequent performance to be set by the purchaser has expired fruitlessly or is unnecessary pursuant to the statutory regulations, the purchaser can cancel the contract or reduce the price. A right of cancellation does not exist in the case of negligible damage.

h) Claims of the purchaser for damages or compensation of futile expenses exist even in the case of damages only in accordance with section 9 and are otherwise excluded.

9. General limitation of liability

a) Unless it follows otherwise from these Terms and Conditions, including the following provisions, we are liable in the event of violation of the contractual and non-contractual obligations to the extent of the statutory regulations.

b) In the event of intentional and gross negligence – regardless of the legal grounds – we are liable for damages within the scope of liability based on fault. In the case of ordinary negligence and except as otherwise stipulated by statutory regulations (e.g. for duties of care in our own matters) we are liable

  • for damages resulting from infringement of life, body or health,
  • for damages resulting from the considerable breach of an essential contractual duty (obligation whose fulfilment makes possible the proper execution of the contract and in which the contract party regularly and rightly puts his trust); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.

c) The limitations of liability resulting from b) also apply in the event of neglect of duties by or in favour of persons whose negligence we are accountable for pursuant to the statutory regulations. They do not apply if we have deceitfully concealed a defect or given a guarantee and for claims of the purchaser based on product liability laws.

d) Due to a neglect of duty that does not constitute a defect, the purchaser can cancel the contract only if we are accountable for the neglect of duty. An unrestricted right of termination on the part of the purchaser (especially pursuant to §§ 651, 649 German Civil Code) is excluded. In all other cases, the statutory regulations and legal consequences apply.

e) If we accept the contractual obligation to inspect our products for the existence of particular properties, then we are liable for every negligence, however only if the damage can be attributed to our having failed to observe the purchaser’s inspection regulations.

10. Period of limitation

The period of limitation for all claims from material and legal defects is 1 year from the date of delivery. If an acceptance inspection is arranged, the period of limitation begins with the acceptance inspection. Claims for damages on the part of the purchaser pursuant to section 9 b) sentence 1 and c) sentence 2, however, expire based solely on the statutory periods of limitation. The same period applies to contractual or non-contractual claims for damages on the part of the purchaser.

11. Applicable law and place of jurisdiction

a) These Terms and Conditions and the contract relations between us and the purchaser are subject to the laws of the Federal Republic of Germany, excluding uniform international law, in particular the UN Convention on Contracts for the International Sale of Goods.

b) If the purchaser is a merchant in accordance with the Commercial Code, a governmental entity or special governmental estate, the exclusive place of jurisdiction – also internationally – for all disputes arising directly or indirectly from the contractual relationship is Essen, North Rhine-Westphalia. In all cases, however, we are entitled to take legal action at the place of performance of the obligation in accordance with these Terms and Conditions or an overriding individual agreement or at the purchaser’s general place of jurisdiction. Overriding statutory regulations, in particular concerning exclusive jurisdictions, are not affected by this clause.

October 2016