General terms and conditions
General terms and conditions of contract for the supply and installation of
weighing equipment and accessories as well as for work services
For use opposite:
- a person who, at the time of conclusion of the contract, acts in the exercise of his commercial or independent professional activity (entrepreneur);
- legal entities under public law or a special fund under public law.
- All services are based on these terms and conditions as well as any separate contractual agreements. Deviating terms and conditions of purchase of the Purchaser shall not become part of the contract even by acceptance of the order. In the absence of a special agreement, a contract shall be concluded with the written order confirmation of the Contractor.
- The contractor reserves the right of ownership and copyright to samples, cost estimates, drawings and similar information of a physical and non-physical nature. They may not be made accessible to third parties. The Contractor undertakes to make information and documents designated by the Purchaser as confidential accessible to third parties only with the Purchaser’s consent. The Contractor undertakes to make information and documents designated by the Purchaser as confidential available to third parties only with the Purchaser’s consent.
- Insofar as the Contractor is also commissioned with the calibration of a weighing system to be installed, this shall also be deemed a separate order if the item is also listed in the main order.
- Prices and payment
- In the absence of a special agreement, the prices shall apply ex works including loading at the factory, but excluding toll charges, packaging and unloading (net free site). Sales tax at the respective statutory rate shall be added to the prices unless proof of exemption from sales tax is provided.
- The prices quoted are based on the currently valid labor and material costs.
If a change in the cost basis occurs by the date of performance, the Contractor reserves the right to adjust the prices accordingly.
- The Customer agrees that the Contractor shall issue and send invoices in electronic form, unless otherwise agreed in individual cases. If you choose paper invoice, there will be a separate cost of 5 € for this.
- The Purchaser shall only be entitled to withhold payments or to set off payments against counterclaims to the extent that its counterclaims are undisputed or have been finally determined by a court of law.
- Electrical and electronic parts or spare parts, such as load cells, device boards and other assemblies as well as complete devices that are not installed by us or by a dealer certified by us are excluded from any return, redemption and exchange! Delivery of these parts is without exception against prepayment.
III. Time of Performance, Delay in Delivery, Impossibility of Performance, Non-acceptance of the Delivery Item, Costs in the Event of Cancellation of the Delivery Date and Lump-Sum Damages
- The time of performance results from the agreements of the contracting parties. The due date of performance shall be subject to the condition that all commercial and technical questions between the contracting parties have been clarified and that the Purchaser has fulfilled all obligations incumbent upon it, such as, for example, providing the necessary official certificates or permits or making a down payment. If this is not the case, the performance time shall be extended accordingly. This shall not apply if the Contractor is responsible for the delay.
- Compliance with the time of performance is subject to correct and timely self-delivery. The Contractor shall notify any emerging delays as soon as possible.
- The time of performance shall be deemed to have been complied with if the delivery parts or building materials have left the Contractor’s works or those of the supplier commissioned by the Contractor by the time of expiry of the time of performance or if notification has been given that the delivery parts or building materials are ready for dispatch. Insofar as acceptance is to take place, the acceptance date shall be decisive – except in the case of justified refusal of acceptance – alternatively the notification of readiness for acceptance.
- If the delivery of parts or building materials, or the acceptance, is delayed for reasons for which the Purchaser is responsible, the costs incurred by the delay shall be charged to the Purchaser, starting one month after notification of readiness for shipment or acceptance.
Storage costs are charged at a flat rate of 0.5% of the purchase price per month, up to a maximum of 5% thereof, with months commencing pro rata temporis. Both parties reserve the right to assert and prove higher or lower damages.
- If the failure to meet the delivery time is due to force majeure, labor disputes or other events,
which are beyond the control of the contractor, the delivery time shall be extended accordingly. The Contractor shall notify the Client of the beginning and end of such circumstances.
- If the Purchaser sets the Contractor – taking into account the statutory exceptions – a reasonable deadline for performance after the due date and if the deadline is not met, the Purchaser shall be entitled to rescind the contract within the scope of the statutory provisions. At the Contractor’s request, he shall be obliged to declare within a reasonable period of time whether he will exercise his right to withdraw from the contract.
Further claims arising from delay in performance and impossibility of performance of the contract shall be determined exclusively in accordance with Section VII. 1 of these Terms and Conditions.
- In the event of non-acceptance of the delivery item by the Purchaser, the Contractor may exercise its statutory rights. If he demands compensation for damages, this shall amount to a flat rate of 20% of the purchase price. Both parties reserve the right to assert and prove higher or lower damages.
- If the contract is rescinded, the Contractor shall be entitled to remuneration for the use of the delivery item during its term. This corresponds to the usual monthly rent for a comparable item on a flat-rate basis, if necessary pro rata temporis. Both parties reserve the right to assert and prove higher or lower damages.
- If appointments are cancelled by the purchaser, the costs incurred (e.g. calibration vehicle, calibration office, travel expenses), additional administrative expenses plus VAT will be charged. a reasonable processing fee will be charged.
- Transfer of risk, acceptance
- The risk shall pass to the Purchaser when the delivery item has left the factory, even if partial deliveries are made or the Contractor has assumed other services, e.g. shipping costs or delivery and installation. Insofar as an acceptance of parts of performance under a contract for work and services has to take place, this shall be decisive for the transfer of risk with regard to the performance of the work and services. It must be carried out immediately on the agreed acceptance date, alternatively after the Contractor’s notification of the completion of the performance. The Purchaser may not refuse acceptance in the event of a non-substantial defect. The Contractor shall be entitled to demand partial acceptance with regard to partial services that can be accepted.
- If shipment or acceptance is delayed or does not take place as a result of circumstances not attributable to the Contractor, the risk shall pass to the Purchaser from the date of notification of readiness for shipment or acceptance or completion of the performance. The Contractor undertakes to take out, at the Purchaser’s expense, the insurances requested by the Purchaser.
- Partial performance is permissible insofar as it is reasonable for the customer.
- Retention of title
- The contractor retains ownership of the delivered items,
which do not become part of a property, until receipt of all payments – including for any additional ancillary services owed – under the contract. This includes in particular all weighing equipment as well as hardware and software.
- The Contractor shall be entitled to insure the delivery item against theft, breakage, fire, water and other damage at the Purchaser’s expense, unless the Purchaser can prove that it has taken out the insurance itself.
- The customer may neither sell, pledge nor assign the delivery item as security. In the event of seizures or other interventions by third parties, the Purchaser shall immediately notify the Contractor in writing so that the Contractor can take the appropriate legal remedies, in particular file an action in accordance with § 771 of the German Code of Civil Procedure (ZPO). The customer shall be liable for the costs incurred for this if reimbursement cannot be obtained from the third party.
- The Purchaser shall be granted revocable permission to resell the reserved property only in the ordinary course of business. He shall be obliged to provide the Contractor with the name and address of the third party purchaser upon request. The Customer shall assign to the Contractor in advance by way of security all claims accruing to it from the resale of the reserved goods or from any other legal ground relating thereto. The Contractor revocably authorizes the Purchaser to collect the claims assigned to it in its own name. In the event of payment arrears for which the Contractor is responsible and if circumstances become known which could reduce the creditworthiness of the Purchaser and jeopardize the purpose of the security, the Contractor may revoke the authorization to resell and collect the assigned claims. In such cases, the Purchaser shall be obliged, at the Contractor’s request, to provide him with all documents and information enabling him to assert his security rights himself and to collect the claims himself.
- In the event of any breach of contract by the Customer, in particular in the event of default in payment, the Contractor shall be entitled to take back the delivery item after issuing a reminder and the Customer shall be obliged to surrender the delivery item. This shall not affect the Contractor’s right to withdraw from the contract.
The Contractor shall be liable for material defects and defects of title of the delivery to the exclusion of further claims – subject to Section VII – as follows:
- The warranty period is 12 months, beginning with the handover of the objects of performance to the purchaser. For construction work and concrete parts, the warranty period is determined by the law on contracts for work and services of the German Civil Code (BGB).
- In the event of defects, the Contractor shall have the right, at its option, to rectify the defect or to replace the goods free of defects, provided that the defect existed at the time of transfer of risk. The Contractor shall be notified immediately in writing of the discovery of such defects. Replaced parts become the property of the contractor.
- The Customer shall give the Contractor the necessary time and opportunity to carry out all repairs and replacements which the Contractor deems necessary after having notified the Contractor by setting a reasonable deadline; otherwise the Contractor shall be released from liability for the consequences arising therefrom. Only in urgent cases of danger to operational safety or to prevent disproportionately large damage, in which case the Contractor must be notified immediately, shall the Customer have the right to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary expenses from the Contractor.
- Of the costs arising from the rectification or replacement, the Contractor shall bear – insofar as the complaint proves to be justified – the direct costs of the rectification or replacement, including shipping. In addition, he shall bear any costs of dismantling and installation as well as the costs of providing the necessary fitters and assistants, including travel expenses, insofar as this does not result in a disproportionate burden on the Contractor. The latter shall not apply insofar as the installation/assembly/commissioning was not carried out by the Contractor. In this case, the Purchaser shall bear the costs of labor and travel time incurred in connection with the installation of parts replaced or repaired under warranty. The Contractor shall not bear the costs of any calibration.
- Within the scope of the statutory provisions, the Purchaser shall be entitled to rescind the contract if the Contractor – taking into account the statutory exceptions – allows a reasonable period of time set for it for the repair or replacement delivery due to a material defect to expire fruitlessly. If the defect is only insignificant, the Purchaser shall only be entitled to reduce the contract price. The right to reduce the contract price shall otherwise remain excluded.
- Further claims shall be determined exclusively in accordance with Section VII, 1 of these Terms and Conditions.
- No liability is assumed in particular in the following cases:
Unsuitable or improper use, faulty assembly or commissioning by the Purchaser or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable foundation soil, chemical (e.g. alkalis, acids), electrochemical, electromagnetic or electrical influences – unless the Contractor is responsible for them.
- If the Customer or a third party carries out improvements or changes to the object of performance without the prior written consent of the Contractor, the Contractor shall not be liable for the resulting consequences.
VII Liability of the Contractor, Disclaimer
- For damages that have not occurred to the delivery item itself, the Contractor shall only be liable – for whatever legal reasons – as follows
- a) in case of intent,
- b) in the event of gross negligence on the part of the owner/the executive bodies or senior employees,
- c) in case of culpable injury to life, body, health,
- d) in the case of defects which he has fraudulently concealed,
- e) within the framework of a guarantee commitment,
- f) in the event of defects in the delivery item, insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used items.
- In the event of culpable breach of material contractual obligations, the Contractor shall also be liable for gross negligence of non-executive employees and for slight negligence, in the latter case limited to reasonably foreseeable damage typical for the contract. Further claims, in particular those for damages due to loss of production and loss of profit, are excluded.
Pfister Waagen Bilanciai GmbH is not to be held responsible for obtaining/obtaining official permits relating to the installation and operation of the equipment and components supplied. The customer and/or operator is responsible for this.
All claims of the Purchaser – on whatever legal grounds – shall become statute-barred after 12 months; this shall also apply to the statute of limitations for claims under a right of recourse in the supply chain in accordance with. § 445b para. 1 BGB, provided that the last contract in this supply chain is not a purchase of consumer goods. The suspension of expiration from § 445b para. 2 BGB remains unaffected. The statutory time limits shall apply to claims for damages under Section VII. 2 a-d and f. They shall also apply to defects of a building or to delivery items which have been used for a building in accordance with their customary use and have caused its defectiveness.
- Software usage
Insofar as software is included in the scope of delivery, the Purchaser shall be granted a non-exclusive right to use the delivered software including its documentation. It is provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.
The Purchaser may only use the software to the extent permitted by law (§§ 69 a ff. UrhG).
The Purchaser undertakes not to remove manufacturer’s details – in particular copyright notices – or to change them without the Contractor’s prior express consent.
All other rights to the software and the documentation, including copies, shall remain with the Contractor or the software supplier. The granting of sublicenses is not permitted.
- Security obligation and replacement obligation of the purchaser
- Prior to the passing of risk (Clause IV.), the Purchaser shall be obliged to protect building materials and equipment delivered by the Contractor after notification against damage, deterioration and loss by taking suitable security measures.
- If, through no fault of the Contractor, the equipment or tools provided by the Contractor are damaged on the assembly site or if they are lost through no fault of the Contractor, the Purchaser shall be obliged to compensate for such damage. Damage due to normal wear and tear shall not be taken into account.
XII. Applicable law, place of jurisdiction
- All legal relations between the Contractor and the Purchaser shall be governed exclusively by the law of the Federal Republic of Germany applicable to the legal relations between domestic parties.
- The place of jurisdiction – insofar as this can be effectively agreed – shall be the court responsible for the Contractor’s registered office. However, the Contractor shall be entitled to bring an action at the principal place of business of the Customer.