General Terms and Conditions
of the company Plock GmbH
– hereinafter referred to as the Seller –
- Please note, these Terms and Conditions were issued first in the German language, the following are a translation from German into English -
§ 1 General and Application
1.1 The following Terms and Conitions are valid for every, also future, business relations between us and the Customer. The valid version at the conclusion of the contract is decisive in each case.
1.2 Our Terms and Conditions are valid exclusively; we do not accept diverging or conflicting general terms and conditions, unless, their validity is expressly agreed. Our Terms and Conditions are also valid when we, aware of the conflicting or diverging terms and conditions of the Customer, deliver to the Customer without any reservation.
1.3 We deliver only to Entrepreneurs. Our Terms and Conditions shall apply only to Entrepreneurs according to § 14 BGB (German Civil Code).
§ 2 Offer, Contract Conclusion
2.1 Our offers are subject to change and non-binding, provided that nothing else arises from it. This shall also be applied regarding the prices and product-related specifications.
2.2 If the order qualifies as an offer according to § 145 BGB (German Civil Code), we can accept this within 5 working days. An acceptance also takes place if the Seller delivers the ordered goods within this period.
2.3 Technical changes, as well as changes in form, colour and/or weight, are reserved in a reasonable manner. This applies in particular for commercial quality, amounts, weight, material thickness or other divergences. Ordered goods can slightly deviate from the goods shown on brochures or on the Internet.
2.4 The complete, or partially, contract conclusion is subject to correct and punctual supply of the Seller. This applies only for the case that the non-delivery is beyond our control, in particular by conclusion of a congruent hedging transaction with our supplier. In case of non-availability, or only partial availability, of the product, the Customer is immediately informed. The consideration is immediately refunded.
2.5 New customers without corresponding references shall pay in advance. If the Seller has evidence of an essential deterioration of assets of the Customer or he is in default, the Seller can make the fulfilment of the delivery dependent on a previous deposit.
2.6 If the Seller has, after contract conclusion, evidence of an essential deterioration of assets of the Customer, which makes expect that the Customer will probably not be able to fulfil the existing payment obligations on maturity; the Seller is entitled to require the entire payment of all invoices and to accelerate maturity of the not yet due invoices.
§ 3 Prices and Payment Terms
3.1 Unless stated otherwise in the order confirmation, the prices are “ex works” prices, including packaging. The prices do not include the at the time statutory value added tax.
3.2 The minimum order value amounts to 500 € of merchandise net value. Unless anything else is mentioned on the order confirmation, the deliveries up to 1.000 € merchandise net value follow freight-free.
3.3 Unless anything else is mentioned on the order confirmation, the purchase price is due net (without deduction) within 20 days from the date of invoice. The deduction of discounts requires a special agreement.
3.4 The Customer is only entitled to set-off rights, if his counterclaims have been ascertained legal, are recognized or undisputed by the Seller. The Customer shall be entitled to execute his right to withhold payments only to the extent that his counterclaims based on the same contractual relationship.
§ 4 Delivery time and delivery
4.1 Unless anything else is agreed, the Seller accepts no guarantee for the obeying of certain delivery deadlines.
4.2 The obeying of the delivery obligation assumes the timely and proper fulfilment of the obligation of the Customer. The objection of the non fulfilled contract is left.
4.3 If the ordered product is not in stock, the Seller will immediately order it, inform the Customer about it and about the expected delivery date. Concerning the subject to correct and punctual supply the Seller refers to § 2 paragraph 2.4. of these regulations.
4.4 The Seller is entitled to deliver in partial deliveries, taking into consideration that any conflicting interests of the Customer are not affected. In case of a partial delivery, no additional costs will be originated for the Customer.
4.5 The delivery takes place to kerb or ramp. The Customer shall inform the Seller, at the latest however timely before delivery, about particularities of the delivery, as for example, arrival times, limited way through heights, maximum vehicle lengths, delivery by car hoist or maximum pallet height.
§ 5 Packaging
Delivered euro-pallet must be immediately exchanged, otherwise 10 €/ p. pallet will be charged. In case of return or return delivery in the warehouse of the Seller, the returned pallets will be again credited.
§ 6 Passing of risk
6.1 In case of Entrepreneurs, once the goods have been given to the shipper, carrier or to the forwarding agent or company, all risk of damages to, or loss of, the goods shall pass to the Entrepreneur.
6.2 If the Customer is in default of acceptance, the delivery shall be deemed occurred.
§ 7 Retention of title
7.1 The seller reserves himself the property of the sales item up to the entire payment of the delivery contract. With behaviour contrary to the contract of the Customer, in particular with default, the Seller is entitled to demand the products back. With the withdrawal of the sales item by the Seller, a cancellation of the contract occurs. Any claims for compensation of the Seller remain hereof unaffected. The Seller is authorised to use the sales item which has been taken back. The proceeds of sales shall be credited on the liabilities of the Customer – less adequate utilisation expenses.
7.2 The Customer is obliged to handle the sales item with care; in particular he is obliged, at his own expenses, to insure it sufficiently to the replacement value against damage resulting from fire, water and theft. The Customer transfers a title, originated in case of damage, to the invoiced value to the Seller.
7.3 In case of attachment or other interventions by third parties, the Customer shall immediately inform the Seller by writing to enable him to take action, according to § 771 ZPO (German Code of Civil Procedure). Same is valid in case of damages or destruction of the goods. As far as the third party is unable to refund the juridical and extrajudicial expenses of an action, according to § 771 ZPO (German Code of Civil Procedure), the Customer shall be liable for the resulting loss.
7.4 The Customer is entitled to resell the sales item in the regular course of business; now, he already transfers to the Seller all demands, to the invoice amount, which result from the resale against his buyer or third party, no matter whether the sales item has been resold without or after processing. The Customer remains authorised to collect this debt even after the assignment. The authorisation of the Seller to collect the debt himself remains unaffected. The Seller commits to refrain from collecting the debt as long as the Customer meets his payment obligations from the collected proceeds, has no delay of payment and there is no application for opening settlement or insolvency proceedings or bankruptcy is given. Otherwise, the Seller can require the Customer to disclose the transferred demands and the respective debtors, give all information necessary for collection, deliver the corresponding documents and notify his debtors (third parties) of the assignment. If the Customer has sold the demand within the scope of the real Factorings, he resigns to the Seller the demand stepping in her place against the Factor.
7.5 Processing or alteration of the sales item by the Customer is always carried out for the Seller. If the sales item is processed with other objects, which do not belong the Seller, the Seller acquires co-ownership of the new product proportionally to the value of the sales item (invoiced amount) to the other processed objects at the time of processing. For the originated product furthermore the same conditions apply as for the delivered sales item.
7.6 If the sales item is inseparably combined with other objects which do not belong to the Seller, the Seller acquires the co-ownership of the new product proportionally to the value of the sales item (invoiced amount) to the other processed objects at the time of processing. If the combination takes place in a way that the object of the Customer may be treated as main product, it is considered as being agreed that the Customer assigns proportional co-ownership to the Seller. The Customer keeps the resulted joint property for the Seller.
7.7 The Customer resigns to the Seller also the demands for the protection of the Seller’s receivables against him arising from the connection of the sales item with property against a third party.
7.8 The Seller accepts the preceding assignments.
7.9 The Seller commits himself to flout the entitled securities, at the Customer’s request, when the realizable value of the securities of the Seller exceeds the demand to be protected about more than 10%: the choice of the securities to be flouted is incumbent upon the Seller.
§ 8 Warranty
8.1 The delivered goods can slightly diverge from the goods shown on the Internet or in catalogues. § 2 paragraph 2.3 from these Terms and Conditions refers to it.
8.2 Warranty claims in case of mechants assume that these have followed, according to § 377 HGB (German Commercial Code) the obliged investigation and notification of defects. Ascertained defects must be noted in writing on the shipping document. The Seller shall be immediately informed of the defects.
8.3 For the rest, the Customer shall give notice to the Seller of defective delivered goods at the latest within two weeks after receiving the goods; otherwise the enforcement of the warranty claim is excluded. To protect the deadline, timely mailing, or notice, shall suffice. The Customer shall carry full burden of proof for all conditions to assert claims, in particular for the defect itself, for the time of the statement of the deficiencies and to the timely notice of defects.
8.4 The Seller is entitled to choose by himself the form of remedy of supplementary performance or delivery.
8.5 If the supplementary performance misses, the Customer is entitled to demand a reduction of the purchase price (reduction) or to cancel the contract (withdrawal) as well as to demand compensation instead of performance. Instead of demanding damages in lieu of performance, the Customer may demand reimbursement of the expenses, according to § 284 BGB (German Civil Code),which he has incurred in reasonable reliance on the receipt of performance.
8.6 A withdrawal from the contract is excluded – taking into consideration the interest of both parties – if the defect is irrelevant. If the Customer chooses compensation of damages instead of performance or demands reimbursement of the expenses, the restrictions of liability are valid according to § 9.
8.7 As condition of the goods, only the product description of the Seller is valid as a description of the product. Public statements, targeting or advertising of the manufacturer show no stipulated description of the product.
8.8 The warranty period amounts, deviating from the legal regulation, one year from delivery of the product. The one-year-old warranty period does not apply if the Seller is accusable of gross culpability or fraudulent intent, further not in case of personal injury, impairment to health and death of the Customer, in case of a guarantee as well as in case of a delivery recourse in accordance with §§ 478, 479 BGB (German Civil Code). The liability of the Seller according to the Product Liability Act remains unaffected.8.9 The Seller hands no guarantees in the legal sense over the Customer, provided that nothing else was agreed. Manufacturer's guarantees remain unaffected.
§ 9 Restrictions of liability
9.1 With slightly negligent breaches of duty the liability limits on, depending on the kind of product, predictable, contractual, immediate average damages. This is also valid to slightly negligent breaches of duty of the statutory agents or assistant or agent of the Seller. The Seller is not liable for slightly negligent violation of inessential contractual obligations. However, he is liable for the violation of the Customer’s essential contract obligated legal positions. Essential contract obligated legal positions are those which the contract has to grant to the Customer according to the subject matter and purposes of the contract. The Seller is further liable for the violation of liabilities whose fulfilment allows the proper realisation of the contract and in whose realisation the Customer shall trust.
9.2 The preceding restrictions of liability do not concern Customer’s claims from guarantees and/or product liability. The restrictions of liability will not be applied in case of fraudulent intent, violation of the essential contractual obligations or if the Seller is accusable of personal injury, impairment to health and death of the Customer.
§ 11 Final Clause
11.1 This agreement shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
11.2 If the Customer is a merchant, according to HGB (German Commercial Code), statutory juristic person or public law special legal estate, the jurisdiction for all litigations from this contract shall be the Court in which circuit the Seller has his business location, provided that an exclusive jurisdiction is not given. Nevertheless, the Seller is also entitled to sue the Customer in his residential court or business location court. The competence based on an exclusive jurisdiction remains unaffected.
11.3 If nothing else is agreed, the place of performance is the business location of the Seller.
11.4 The ineffectiveness of single regulations does not affect the validity of the remaining regulations.
