I. General provisions

1. The Supplier's General Terms and Conditions of Sale and Delivery apply exclusively to the legal relationships between Pulsotronic Anlagentechnik GmbH (Supplier) and the Customer. We hereby explicitly object to any of the Customer's terms and conditions that may contradict or deviate from our terms and conditions of delivery. Our terms and conditions of delivery apply even if we deliver to the Customer without reservations even though we are aware that his terms and conditions deviate and contradict our conditions. Our terms and conditions of delivery also apply to all future legal transactions with the Customer.

2. Our written Order Confirmation is exclusively relevant for the scope, type and method as well as any deadlines for deliveries. Our quotations are always subject to change without notice, inasmuch as they are not explicitly stated to be binding. The contract only materializes upon our written confirmation and in accordance with its contents or delivery/service. In the event of doubt, silence on our behalf in response to a quotation indicates a negative answer.

3. We reserve the proprietary rights and copyrights without reservations for any estimations of costs, drawings or other documents (referred to herein as Documents). The documents may only be made accessible to third parties after our prior written agreement and must be returned to us immediately upon demand. Clauses 1 and 2 apply to the Customer’s documents accordingly. These may however be made accessible to such third parties who we have delegated to make such deliveries.

4. Part deliveries are permitted, provided they are reasonable to the Customer.

II. Prices and payment terms

1. The prices are quoted ex works, excluding insurance and packaging, plus the respectively applicable legal rate of value added tax. Ancillary services will be invoiced separately.

2. If we have taken over the setup or assembly and nothing to the contrary is agreed, the Customer will be responsible for all the necessary ancillary costs such as travel expenses, costs for the transportation of the commodities required for the setup or assembly, as well as the personal luggage and the per diems, in addition to the agreed payment.

3. An order is a binding quotation. We can accept this quotation at our discretion within 2 weeks by responding with our Order Confirmation or by sending the ordered goods to the Customer within this period.

4. Our invoices are due for payment without deductions within 30 days of the date of invoicing. If the Customer defaults on payment, we are entitled to demand late payment interest in the amount of 10% over the prime rate. If we can prove the damages caused by the delay are higher, we are entitled to enforce these. The Customer is however entitled to prove to us that we suffered no loss or a much lower loss as a result of the default.

5. Payments shall be made to our designated account without any transaction charges.

6. Deductions require special written agreement.

7. The Customer can only offset his own demands against us, if these have been legally ascertained, are undisputed or have been acknowledged by us.

8. A right of retention can only be exercised by the Customer if the counterclaim is based on an individual contract from the same legal relationship.

9. Payments are always applied against the oldest debt.

10. Bills of exchange and cheques are only considered as payment after they are cashed. Payments by bills of exchange must be agreed in advance in writing. Discount costs and other costs from bills of exchange go to the account of the Customer and must be paid immediately plus the respectively valid rate of value added tax.

11. If the Customer makes no payments when they are due, then we can discontinue working on ongoing orders and demand immediate prepayment for all orders that are not yet completed or demand corresponding collateral security. If the Customer does not comply with our demands for advance payment or collateral security, we are entitled to withdraw from the contract and to invoice the Customer for the costs incurred to date.

12. Payment with a discharging effect can only be made to representatives or agents if the representative or agent has written proof of his collection authorization.

III.  Reserved ownership

1. The delivery items (goods subject to retention of title) remain our property until full performance of any entitlements we may have against the Customer as a result of the entire business relationship. In the event that the value of all the security interests to which we are entitled exceeds the amount of all the secured entitlements by more than 20%, we will release a corresponding portion of the security interests at our discretion at the Customer’s request.

2. During the existence of the reserved ownership, the Customer is prohibited from mortgaging or transferring the goods by way of security; reselling to resellers during the course of normal business is only permitted under the condition that the ownership only passes to the Customer, once he has fulfilled his payment obligations. The Customer assigns all the outstanding moneys in the amount of the final invoice total of our demands which he would receive as a result of a resale to his customers or third parties to us at this time. This applies irrespective of whether the object of sale is resold without or after further processing. We are authorized to collect these demands ourselves. The Customer’s right to collect the demands revocably continues to exist even after collecting the demands. The Customer obliges himself to notify us of the names of the third-party debtors and to supply us with all other information and documents so that we are in a position to implement the demands assigned to us.

3. The processing, handling or alteration of our goods is always carried out on our behalf. In the event of processing, installing, joining or intermixing with other items that are not our property, we acquire joint ownership in the new item based on the percentage invoice value between our goods and the other goods at the time of processing, joining or intermixing. The same conditions apply to the item that is produced as a result of the processing as well as for the conditionally supplied object of sale.

4. The Customer must notify us immediately in the case of levies of execution, confiscations or other court orders or official action by third parties. The Customer will be responsible for any costs incurred by us as a result of such measures.

5. In the case of breaches of duty by the Customer, especially payment defaults, we have the right of redemption; the Customer is obliged to give up possession. This also applies if the Customer has already installed the subject matter of the contract. The Customer will then be responsible for all the costs of redemption and the utilization of the goods including fair utilization costs. The redemption or enforcement of the reserved ownership or the seizing of the goods with reserved ownership by us does not represent the cancellation of the contract, unless we have explicitly stated this is the case.

IV. Delivery deadlines and delays

1. Observing the agreed delivery deadlines is conditional on the timely receipt of all the documents, required permits and approvals, especially with regard to drawings, as well as the observance of the agreed payment terms and other obligations that are to be supplied by the Customer. If these conditions are not fulfilled punctually, the deadlines will extend themselves appropriately. This does not apply if we are responsible for the delay. The burden of proof here is with the Customer.

2. If the non-observance of the period can be attributed to Acts of God (e.g. mobilization, war, unrest or similar events such as strikes or lockouts) or other circumstances for which we cannot be held responsible, the deadlines extend themselves appropriately.
Occurrences of Acts of God, which completely or partially prevent Pulsotronic from fulfilling its contractual obligations, release us from fulfilling the contract in question until the Act of God is eliminated. The inability to be adequately supplied with raw or auxiliary materials as well as the inability to procure modes of transport is considered equal to an occurrence of an Act of God.

3. In the case of supply delays, the Customer can demand damages for every completed week of the delay in the amount of 0.5%, provided he can prove that he has suffered damages as a result of this, but he may not demand more than 5% of the price for that part of the deliveries which could not expediently be taken into operation as a result of the delay. If we are able to prove that the Customer's damages caused by the delay are lower than those specified, then we are only obliged to reimburse the incurred damage.

4. Claims for damages by the Customer, which exceed the limits specified in Para 3, are excluded in all cases of late delivery, even after the period of grace set for us has expired. This does not apply, if, in cases of intent, gross negligence or damages involving health effects, human injury or loss of life, where liability is mandatory. Within the framework of the legal provisions, the Customer can only withdraw from the contract if we can be held responsible for the delay in delivery. A change in the burden of proof to the disadvantage of the Customer is not connected to the aforementioned rulings.

5. The Customer is obliged to explain within an appropriate period on demand whether he is withdrawing from the contract due to the delivery delay or if he insists on delivery.

6. If the shipping or delivery is delayed at the request of the Customer by more than one month after being notified the goods are ready to be shipped, the Customer can be charged 0.5% of the price of the subject matter of the deliveries for every started month, but no more than a total of 5% as storage charges. Notwithstanding this, the contracting parties must prove the storage costs were higher or lower.

V.  Passing of the risk

1. The risk of accidental loss and accidental deterioration passes over to the Customer in the case of deliveries without setup or assembly upon handover of the item to the forwarding agent, freight carrier or other persons or agents designated to perform the shipment. Deliveries are insured by us against the usual transportation risks at the request and expense of the Customer.

2. In the case of deliveries with setup or assembly at the Customer's location, the danger passes upon the acceptance at the Customer’s site or after the successful completion of a trial operation, inasmuch as this was agreed.

3. If the consignment, delivery, commencement, setup or assembly, acceptance in his own operation or the trial operation is delayed for reasons for which the Customer is responsible, or if the Customer has an acceptance delay due to other reasons, then the risk passes to the Customer.

VI. Setup and Assembly

The following provisions apply for the setup and assembly, provided nothing to the contrary is agreed in writing:

1.The Customer must promptly take over and provide the following at his expense:

a) All earthwork, construction and other industry-unrelated additional work including all the specialist and non-skilled workers, construction materials and tools required for this,
b) All implements and materials required for the assembly and commissioning such as scaffolding, lift equipment and other equipment, fuel and lubricants,
c) Energy and water at the location including connections, heating and illumination,
d) Sufficiently large, suitable, dry and lockable rooms and appropriate working and accommodation space suitable for the assembly staff at the assembly location to store machinery parts, apparatus, materials, tools, etc; in addition, the Customer must undertake measures to protect the property of his Supplier and the assembly staff at the construction site, similar to what he must undertake to protect his own property,
e) Protective clothing and devices, which are required as a result of the special circumstances at the assembly location.

2. Before commencing with the assembly work, the Customer must provide the necessary details concerning the location of any hidden power, gas, water lines or similar systems as well as the necessary structural details without this needing to be requested.

3.Before commencing with the setup or assembly, all the provisions and items required in order to commence with the work must be in existence at the setup or assembly location and all the preparatory work must have advanced to such a stage before commencement of the setup work that the setup or assembly can commence in accordance with the agreement and without any interruptions. Approach routes and the setup or assembly site must be level and cleared.

4. If the setup, assembly or commissioning is delayed due to circumstances for which the Supplier cannot be held responsible, the Customer must bear the costs for the waiting time and additional travel costs for the Supplier or the assembly staff.

5. The Customer must confirm the duration of the assembly staff`s working time as well as the completion of the setup, assembly and commissioning work without delay to the Supplier on a weekly basis.

6. If the Supplier demands the delivery be accepted after completion, then the Customer must take care of this within two weeks. If this does not occur, then acceptance will be considered to have taken place. Acceptance is also considered to have occurred if the delivery has been put into operation, after completion of an agreed test phase, if necessary.

VII. Acceptance

The Customer may not refuse the acceptance of deliveries due to slight faults.

VIII. Quality defects

The Customer's quality defect claims are conditional on the Customer having properly complied with his duty to examine and give notice of defects in accordance with § 377 HGB.
We are liable for quality faults, as follows:

1. All those parts or services, which reveal a quality defect within the limitation period must be repaired, re-supplied or re-performed at no charge at our discretion provided the cause of the defect already existed at the time the risk was transferred. Initially, we must be given the opportunity for supplementary performance within an appropriate period of time. If the supplementary performance fails, the Customer may withdraw from the contract or reduce the payment, irrespective of any entitlements for compensation for damages in accordance with Section XI.

2. Quality defect claims are statute-barred after 12 months: This does not apply inasmuch as the law according to § 438 Sub-section 1 No 2 (structures and items for structures), § 479 Sub-section 1 (claims under the right of recourse) and § 634a Sub-section 1 No 2 (construction defects) BGB stipulates longer periods and in cases of damages involving health effects, human injury or loss of life, breaches of duty due to intent or gross negligence by us or malicious concealment of a defect. The legal regulations on interrupting work flow, restraint and the recommencement of deadlines remains unaffected.

3. The Customer must immediately report any quality faults to us in writing.

4. In the case of quality complaints, the Customer`s payments may be held back to an extent that is appropriate to the quality faults that have occurred. The Customer may only hold back payments, if a quality complaint is enforced for which there is no doubt about its validity. If the quality complaint proves to be wrong, we are entitled to demand the Customer reimburse us for any expenses that are incurred.

5. No warranty claims are allowed for negligible deviations from the agreed appearance and workmanship, for natural wear or damages, which occur after the transfer of risk as a result of faulty or careless handling, excessive strain, inappropriate equipment, defective construction work, inappropriate foundation soil or because of special external influences, which are not a prerequisite according to the contract, as well as for non-reproducible software errors. If the Customer or a third party performs improper modifications or repair work, then no warranty claims can be made for these or for the ensuing consequences.

6. The Customer’s claims for the expenses required for the purpose of subsequent performance, especially transportation, mileage costs, labour and material costs, are excluded, inasmuch as the expenses increase because the object of the delivery was subsequently taken to another location than the Customer`s establishment, unless the transfer/transportation corresponds with its intended use.

7. The Customer's claims against us under the company's right of recourse according to §478 BGB only exist inasmuch as the Customer has not reached any additional agreements with his Customer concerning legal warranty claims.  § 478 Sub-section 2 BGB, Section 6 applies to the extent of the Customer`s recourse entitlements against us.

8. Moreover, Section XI (Other claims for damages) applies to claims for damages. Advanced claims by the Customer or claims due to a quality defect against us or persons employed performing an obligation for whom we are vicariously liable that are different from those governed in Sub-section VIII are excluded.

IX. Industrial property rights and copyrights; defects of title

1. If nothing to the contrary is agreed, we are only obliged to provide the delivery free of industrial property rights and third party copyrights (referred to as Property Rights in the following) in the country of the delivery location. If a third party asserts justified claims against the Customer due to violations of industrial property rights for deliveries supplied us and used in accordance with the contract, we will be liable to the Customer within the period specified in Section VIII, Para 2:
a) We will either impose a right of use at our discretion and at our expense for the deliveries concerned, or modify these so that the industrial property right are not infringed or supply a replacement. If this is not possible for us under appropriate conditions, the Customer is entitled to the legal rights of recourse or the right to a reduction in price due to a defect.
b) Our obligation to provide compensation for damages complies with Section XI.
c) The aforementioned obligations only exist if the Customer immediately notifies us about any claims being enforced by third parties via us, does not acknowledge an infringement and if the right to undertake all further defensive measures and conciliatory negotiations is reserved for us. If the Customer ceases using the product for damage mitigation or other important reasons, he is obliged to inform third parties that no acknowledgement of a breach of a property right is involved with this discontinuance of use.

2. The Customer‘s claims are excluded inasmuch as he is responsible for the property right violation.

3. Furthermore, the Customer's entitlements are excluded inasmuch as the property right violation was not caused by special requirements by the Customer, as a result of unforeseen use or because the delivery was modified or has been used together with products that were not supplied by us. In the event of special requirements, the Customer bears the responsibility for the risk of property right violations; no duty of information or legal duty to give advice with regards to us exists. In the event of property right violations due to utilization, the Customer bears the burden of proving that we were able to foresee such an utilisation.

4. In the event of property right violations, the provisions in Section VIII, Paras 1, 4 and 7 apply to the Customer`s entitlements governed in Para 1a.

5. In the event of the existence of miscellaneous defects of title, the clauses in Section VIII apply accordingly.

6. Advanced claims by the Customer or claims due to defects of title against us or persons employed performing an obligation for whom we are vicariously liable, which are different from those governed in this section, are excluded.

X.  Impossibility; Contract adaptation

1. In the event of an impossibility for which we can be held responsible, the Customer is entitled to demand compensation for damages. Claims for damages by the Customer are limited to 5% of the value of that part of the delivery, which cannot be put into the intended operation as a result of the impossibility. This limitation does not apply to cases where liability is mandatory in the event of intent or gross negligence. No change in the burden of proof to the disadvantage of the Customer is involved with this. The Customer`s right to withdraw from the contract is not affected by this.

2. If unforeseen events in terms of Section IV Para 2 considerably change the importance or the contents of the delivery or have a considerable effect on our operation, the contract will be adjusted fittingly taking good faith into consideration. Inasmuch as this is not economically justifiable, we have the right to withdraw from the contract. The Supplier will notify the Customer that he is exercising the right to withdraw from the contract immediately after recognising the implications of the occurrence. The legal transaction will then be reversed in accordance with the legal regulations, so that the Customer has no entitlements to damages. The right of withdrawal continues to exist even if an extension of the delivery period is initially agreed with the Customer.

XI.  Other claims for damages

1. Claims for damages and expenses by the Customer (referred to herein as claims for damages), irrespective of their legal grounds, especially because of breaches of duties as a result of the contractual obligation or unauthorized actions, are excluded.

2. This does not apply in cases of mandatory liability in accordance with the product liability legislation, in the event of intent, gross negligence, and damages involving health effects, human injury or loss of life or because of breaches of fundamental contractual obligations. The claims for damages for the breaching of fundamental contractual obligations is limited to the foreseeable damages typical for the contract provided the liability is not the result of damages which relate to health effects, human injury or loss of life. A change in the burden of proof to the disadvantage of the Customer is not connected to the aforementioned rulings.

3. Inasmuch as the Customer is entitled to claims for damages in accordance with this Section, these claims are statute-barred upon the expiry of the limitation period that is in effect in accordance with Section VIII Para 2.  The legal statutes of limitation apply for claims for damages according to the product liability legislation.  

XII. Place of performance, legal venue and applicable law

1. The place of performance and sole legal venue is the location in which the Customer has his place of business, provided the Customer is a businessman. The Supplier is also entitled to bring an action against the Customer at his general legal venue.

2. German material law, excluding the UN Convention on contracts for the international sale of goods (CISG), applies to the legal relationships in conjunction with this contract.

XIII. Severability Clause

The invalidity of individual provisions of these Terms and Conditions of Sale and Delivery does not affect the validity of the remaining provisions. In place of the invalid provisions, a provision which comes closest to the economic implications of the invalid provision will take its place.

 

Date January 2017, Rev 1701eng