Terms and conditions

Terms and conditions of delivery and payment of PHOENIX MECANO POWER QUALITY GmbH & Co. KG

Last revised: August 2015

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1. SCOPE


1.1 Our terms and conditions of delivery and payment apply exclusively; we do not acknowledge any contradicting or deviating terms and conditions of the customer, unless we have expressly agreed to them in writing. Our terms and conditions of delivery and payment also apply if we supply goods and/or services to the customer without reservation even though we are aware of any terms of the customer that contradict or deviate from these terms and conditions.

1.2 Our terms and conditions of delivery and payment apply only to enterprises in accordance with § 310 para. 1 German Civil Code."

2. CONCLUSION OF CONTRACT

2.1 If an order of the customer is to be deemed an offer according to § 145 German Civil Code, we can accept it within two weeks.

2.2 We are bound by our offer to the customer pursuant to § 145 German Civil Code for 8 calendar days after receipt of the offer by the customer. If the customer does not accept our offer within this period, our offer, in particular - but not exclusively - is no longer binding with regard to execution, prices and deadlines. 2.3 If the offer is accepted, the contract is brought about. If the offer is accepted with supplements or amendments, this is deemed a new offer."

3. DELIVERY / DELIVERY PERIOD


3.1 Delivery periods or delivery dates are binding only if confirmed by us in writing. They refer to the time of dispatch and are deemed complied with upon notification of readiness for dispatch.

3.2 Partial deliveries or partial services are permissible to a reasonable extent provided that they do not involve any unreasonable additional expense for the customer.

3.3 Cases of force majeure and other events over which we have no control and which make delivery significantly more difficult or impossible for us, such as operational or traffic disruptions, difficulties in procuring raw materials or energy, labour disputes, governmental measures, armed conflicts, delays in or in connection with transport as well as failed delivery on the part of our suppliers, for whatever reason, release us from our obligations in accordance with the delivery contract. However, this applies to hindrances of a temporary nature only for the duration of the hindrance plus an appropriate lead time. If acceptance of deliveries by the customer is unreasonable as a result of the delay, he can cancel the delivery contract by notifying us promptly in writing.

3.4 If we are in default of delivery or if delivery becomes impossible for any reason whatsoever, the customer is entitled to claim damages only for the amount of the foreseeable and typical damage arising for disruptions of this kind and this business field, provided that we are responsible for the circumstance giving rise to liability and a reasonable grace period for subsequent performance or performance has been set for us without success beforehand, unless this setting of a deadline is dispensable under the circumstances.

3.5 If the customer is in default of acceptance or if dispatch is delayed at the customer's request or if the customer culpably fails to comply with his obligations of cooperation, we are entitled to demand compensation for the damage, including any additional expenses (e.g. storage costs). Delivery periods will be extended by the period by which the customer does not fulfil his obligations to us from this contract (e.g. provision of securities or down payments). This applies accordingly to the delivery dates. Further rights or entitlements are reserved.


4. PRICES, SHIPPING, PACKAGING

4.1 Unless a separate agreement has been made, our prices, fees and incidental costs are based on the price lists valid on the day the services are rendered. The prices and fees do not include travel costs, travel expenses, packaging costs, freight costs and insurance. These costs will be invoiced to the customer separately and in accordance with the principles stated in clause 4.2. All prices and fees are understood to be ex works, excluding packaging, plus the applicable statutory value added tax.

4.3 Shipment is carried out at the risk of the customer. The risk of accidental loss and accidental deterioration is transferred to the customer upon delivery to the carrier, no later than upon leaving the works. If dispatch is delayed for reasons beyond our control, the risk is transferred upon notification of readiness for dispatch.

5. INVOICING, PAYMENT AND ASSIGNMENT OF RECEIVABLES

5.1 Invoices are due within 30 days of the date of invoicing to the contractor without deduction, provided that the customer has received the delivery.

5.2 Stipulated payment deadlines are deemed met if the amount owed is available to us on the due date.

5.3 The customer is entitled to a right of retention only with respect to claims arising from the same contractual relationship which are undisputed or non-appealable.

5.4 Payment of the remuneration in the event of defects in parts of the delivery or service can be withheld only up to the amount corresponding to the value of the defective delivery or service.

5.5 We will first set off payments against older outstanding receivables against the customer. If interest charges have already accrued, then we are entitled to apply the payments first to the interest, and then to the principal claim.

5.6 In the event of doubts as to the customer's solvency, in particular in the event of delinquent payments, suspension of payment, a petition for a settlement or a moratorium on the part of the customer, the entire claim owed to us is due immediately. The same applies if insolvency proceedings have been instituted against the customer's assets or if such proceedings have been rejected for lack of funds. In this case, we can demand advance payments or securities and revoke payment terms already granted. The right to cancel the contract remains unaffected.

5.7 The customer may only set off claims of its own if they are undisputed or are non-appealable."

6. RESERVATION OF TITLE

6.1 The delivered goods remain our property until full payment of the purchase price and complete settlement of all claims connected with the business relationship. Any disposition by the customer whatsoever of the goods subject to retention of title is permitted only in the customer’s regular course of business. Under no circumstances, however, may the ownership of the goods be transferred to third parties as security within the course of regular business transactions.

6.2 In the event that the goods are sold in the regular course of business, the paid purchase price will replace the goods. The customer hereby assigns to us all claims arising from any sale of the goods. The customer is authorised to collect these claims as long as he meets his payment obligations to us. With regard to the extended retention of title (assignment in advance of the respective purchase price claim), an assignment to third parties, in particular to a financial institution, is contrary to the contract and therefore impermissible. We are entitled at any time to inspect the customer's sales documents and to inform his customers of the assignment.

6.3 If the customer's claim from the resale has been included in a current account, he hereby also assigns to us his claim from the current account vis-à-vis his customer. The assignment corresponds to the amount which the supplier had charged the customer for the resold reserved goods.

6.4 In the event of distrainment of the goods held by the customer, we are to be notified immediately by sending a copy of the enforcement protocol and a statutory declaration that the distrained goods are the goods delivered by us and subject to retention of title.

6.5 If the value of the securities pursuant to the above paragraphs of this clause exceeds the amount of the outstanding claims secured in this way for the foreseeable future by more than 10%, the customer is entitled to demand our release of securities if the amount has been exceeded.

6.6 The assertion of our rights in connection with the retention of title does not release the customer from his contractual obligations. The value of the goods at the time of repossession will be used only to offset our claim against the customer.

6.7 Processing or transformation of the reserved goods is performed on our behalf as the manufacturer, in accordance with § 950 of the German Civil Code, without any obligation on our part. The processed or modified goods are reserved goods in accordance with this agreement. In the event that the goods are processed or modified by the customer with other articles not owned by us, we are entitled to co-ownership of the new article in proportion of the invoice value of the reserved goods to the total invoice values of the other articles used and the value of the processing or modification. The customer will store the new article for us at no charge. If the reserved goods are combined or connected with other articles and our ownership of the reserved goods is forfeited as a result (§§ 947, 948 German Civil Code), the ownership or co-ownership rights of the customer to the combined goods or the uniform article will be transferred to us in proportion of the invoice value of our reserved goods to the total invoice values of the other combined or connected articles. The customer will store them for us at no charge.

7. CONDITION / OBLIGATIONS TO GIVE NOTICE OF DEFECTS


7.1 The stipulated condition of the goods is based exclusively on the stipulated product description, system descriptions or our product information. We are liable only for the suitability of the goods for specific purposes if this suitability has been expressly stipulated.

7.2 Our services are rendered in accordance with the state of the art and the stipulated execution. Deviations in the delivered goods from the order, in particular with respect to material and execution, are expressly reserved within the scope of technical progress.

7.3 We will accept no procurement risk or guarantees whatsoever, unless an express written agreement has been concluded with the customer.

7.4 Services are performed by qualified employees or service partners in conformity with the principles of good professional practice.

7.5 After acceptance in the case of contracts for work and services, any complaints about the work are possible only with respect to hidden defects. After the defect has been discovered, notification must be made without delay, however within three (3) work days at the latest. If no claim is made within two (2) weeks after discovery of the defect, the work will be deemed to have been approved by the customer. The claim must be in writing and must include a detailed description of the defects.

7.6 For purchase contracts, the obligations to inspect and give notice of defects stated in § 377 of the German Commercial Code apply. Any waiver by the customer is expressly opposed. Any return of the goods to us in connection with a defect requires our prior consent. We do not have to accept returns that are initiated without our prior consent. In this case the customer will bear the costs of the return."

8. WARRANTY


8.1 The customer may not refuse acceptance of deliveries on account of minor defects.

8.2 In the event of a legitimate notice of defect, we will, at our discretion, repair the defective goods at no charge or replace them with goods that are free of defects.

8.3 The customer will allow us the opportunity to subsequent performance twice within a reasonable period.

8.4 Any claims raised by the customer for expenses required for subsequent performance, in particular transport costs, travel expenses, costs for labour and materials are excluded to the extent that the expenses increased because the delivered object had been brought to a place different from the customer’s place of business, unless shipment resulted from the object's intended use.

8.5 Within the scope of subsequent performance, we will not bear the costs for assembly and disassembly of the defective article.

8.6 The customer's right of recourse against us pursuant to § 478 German Civil Code (recourse of the entrepreneur) is inadmissible if we function only as a supplier of components within the framework of the contractual relationship with the customer. In all other respects, rights of recourse are valid only insofar as the customer of our customer is a consumer and our customer has not entered into any agreements with his customer that exceed the statutory warranty claims.

8.7 Liability for all damage is excluded unless this is expressly stated in the above provisions, even if the damage was not to the delivery item itself. Damages caused by intentional action or gross negligence on the part of our owners, executives or vicarious agents or which result from culpable infringement of a cardinal duty are excepted from this clause. In the latter case, however, liability will be accepted only for the typically occurring, foreseeable damage. Essential contractual duties are duties, the fulfilment of which is essential for the proper execution of the contract and the compliance of which the customer can regularly rely on.

8.8 Furthermore, the exclusion of liability does not apply in cases of liability for damage to life, limb or health caused by defects in the delivery item or for damage to property caused by privately used items.

8.9 The warranty period is twelve (12) months after delivery of the goods to the customer. In the case of compensation for damages to body or health or if the damage was caused through intentional action or gross negligence by us or our vicarious agents, the statutory limitation period applies.

8.10 The warranty claim is void if the result of the services or execution, or the delivery item of the contractor has been modified. If the customer refuses to allow us to inspect and examine the notified defects or rectifies them without our prior consent, the warranty claim is likewise void, unless the customer himself had to take immediate action due to the risk of deterioration. The warranty claim does not apply to natural wear and tear, nor to damage that occurs after the transfer of risk due to faulty or negligent handling, due to excessive strain, due to unsuitable equipment and due to electrical and/or mechanical influences that exceed normal use.


9. LIABILITY / OTHER CLAIMS FOR DAMAGES

9.1 Any liability beyond that stipulated in clause 8 is excluded – regardless of the legal nature of the asserted claim. This applies in particular to claims for compensation of damages resulting from culpa in contrahendo, other infringements of duties or tortious claims for compensation of material damages pursuant to § 823 German Civil Code.

9.2 The limitation stated in clause 9.1 also applies if the customer demands reimbursement of futile expenses in lieu of compensation for damages.

9.3 Insofar as the liability for damages vis-a-vis the customer is excluded or limited, this also applies with respect to the personal liability for damages of our employees, representatives and vicarious agents.

9.4 Compensation for damages incurred by the customer during the use of test products, pre-series devices and/or prototypes that are still in the development stage and have not yet been released is excluded.

9.5 Insofar as we are liable for compensation of damages due to a defect pursuant to the provisions of the Product Liability Act (ProdHaftG), the scope of liability is based exclusively on the provisions of this Act. Any further liability requires an express written agreement.


10. CANCELLATION / TERMINATION


10.1 If the delivery or service subsequently becomes impossible for reasons beyond the control of the contractor, the customer is entitled to cancel the contract. In the event of partial impossibility, he is entitled to cancel the contract with respect to that part of the contractual services for which fulfilment has become impossible. If the partial fulfilment of the contract is no longer of interest to the customer, he may cancel the contract as a whole. In such cases, the customer is entitled only to compensation for damages based on the conditions specified in clauses 8 and 9.

10.2 If we are not liable for the impossibility of contract performance, the contract will be modified by mutual agreement as far as this is economically feasible. Otherwise, both parties may cancel the contract in whole or in part.

10.3 If the delivery or service subsequently becomes impossible for reasons beyond the control of the customer, if the customer terminates the contract (without the existence of an explicitly stipulated right of termination), or if the customer cancels the contract, the customer will reimburse us for all expenses, costs and other direct and indirect damages incurred.


11. PROPRIETARY RIGHTS

11.1 Concerning all documents, objects and so forth provided to us for the purpose of delivery or performance, the customer will ensure that third-party industrial property rights are not infringed. The customer will release us from third-party claims and compensate us for any damages incurred. If a third party prohibits us from performing, manufacturing or delivering with reference to a property right owned by him, we are entitled – without examining the legal situation – to cease work and demand reimbursement of our expenses. Documents, objects and so forth provided to us and not resulting in an order will be returned on request against reimbursement of the costs. Otherwise, the contractor is entitled to destroy them three (3) months after submission of the quotation.

11.2 We reserve our unrestricted proprietary and copyright exploitation rights to samples, models, cost estimates, drawings, calculations and similar information of a physical or immaterial nature - also in electronic form - and other documents; they may only be made accessible to third parties with our prior written consent. The drawings and other documents attached to the quotation are to be returned to us without delay upon our request."

12. INDUSTRIAL PROPERTY RIGHTS; DEFECTS OF TITLE

12.1 If not otherwise agreed in writing, we are obligated to effect delivery free of third-party industrial property rights and copyrights (hereinafter: proprietary rights) only within the country of destination. If a third party asserts legitimate claims against the customer due to the infringement of property rights resulting from deliveries made by us and used in accordance with the contract, we are liable to the customer within the period specified in clause 8.9 by either obtaining a right of use for the deliveries concerned, modifying them so that the property right is not infringed, or exchanging them, at our discretion and expense. If this is not possible under reasonable conditions, the customer is entitled to the statutory rights of to cancel the contract or reduce the price. The aforementioned obligations apply only if the customer notifies us immediately in writing of the claims asserted by the third party, does not acknowledge an infringement, and leaves all defensive measures and settlement negotiations to our discretion. If the customer ceases to use the delivered items in order to reduce damages or for any other substantial reason, he is obligated to inform the third party of the fact that the discontinuance of use does not imply any acknowledgement of infringement of proprietary rights.

12.2 Any claims on the part of the customer are precluded insofar as the customer is responsible for the infringement of proprietary rights.

12.3 Further, any claims on the part of the customer are precluded insofar as the infringement of proprietary rights was caused by specific instructions given by the customer, by any use which was unforeseeable to us or by the fact that the delivery was modified by the customer or used with products supplied not by us.

13. Obligations acc. to the Electrical and Electronic Equipment Act (ElektroG)


13.1 The customer assumes the obligation to dispose of the delivered goods properly after termination of use at his own expense in accordance with the statutory provisions and releases the contractor of the obligations pursuant to § 10 para. 2 ElektroG (obligation of the manufacturer to take back the goods) and related third-party claims.

13.2 Insofar as the customer passes on the goods to commercial third parties and they are not contractually obligated to be responsible for the disposal of the goods and to pass on this obligation, it is the customer’s responsibility to take back the delivered goods at his own expense after termination of use and to dispose of them properly in accordance with the statutory provisions. Our entitlement to takeover / release by the customer will not lapse before the expiration of two years after the final termination of the use of the device. The two-year period for suspension of expiry will commence at the earliest upon our receipt of a written notification from the customer of the termination of use."

14. Order forwarding

The contractor is entitled to pass on the order or parts of the order to third parties without the prior written consent of the customer. The contractor is liable for the third party as for his own vicarious agent."

15. Data privacy


15.1 Within the framework of the execution of the contract, we also process personal data from our customers and their employees (e.g. contact data and other personal data for the execution of the contract). This data is identified with the legal entity of the customer and is processed only by us or companies of the Phoenix Mecano Group and possibly by its sales representatives. All of our employees and commercial agents are obligated in writing to maintain data secrecy in accordance with §5 Federal Data Protection Act (BDSG) and process this data in accordance with the BDSG.

15.2 The customer is likewise obligated to handle personal data he receives from us in accordance with the provisions of the BDSG."

16. Transfer of risk


16.1 The risk is transferred to the customer as follows, also in the case of carriage paid delivery:
a) for deliveries without installation or assembly, when they have been dispatched or collected. At the request and expense of the customer, deliveries will be insured against the usual transport risks;
b) for deliveries involving installation or assembly, on the day of acceptance at the customer’s facilities or, if agreed, after faultless trial operation.

16.2 If dispatch, delivery, start-up, execution of assembly or assembly, acceptance at the customer's facilities or the trial operation is delayed for reasons within the control of the customer, or if the customer defaults on acceptance for other reasons, the risk is transferred to the customer."

18. Suspension of payments, insolvency


If the customer suspends his payments, if a preliminary insolvency administrator is appointed, if insolvency proceedings are opened against his assets or if bills of exchange or cheques are protested against him, we are entitled to cancel the contract in whole or in part without this being grounds for any claims against us. If we cancel the contract, the services rendered up to that time will be invoiced at contract prices.


19. Partial invalidity


Should individual parts of these General Terms and Conditions of Delivery and Payment be or become invalid, this will not affect the validity of the remaining provisions; the same applies to any gaps in these Terms and Conditions of Delivery and Payment."

20. Jurisdiction / applicable law


20.1 Exclusive place of jurisdiction is the registered office of our company if the customer is a merchant. However, the contractor reserves the right to assert his claims at any other admissible place of jurisdiction.

20.2 The legal relations in connection with this contract are governed by German substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CiSG).

 
(REVISED: August 2015)