Terms and conditions of penstocks.de GmbH
As at 31. July 2015
TRANSLATION FOR INFORMATION PURPOSES ONLY! – ONLY THE GERMAN VERSION OF THE TERMS AND CONDITIONS IS BINDING!
§ 1 Application
(1) The following terms and conditions only apply for companies in the sense of § 14 BGB (German Civil Code), in the following: “customer”. All deliveries and services of penstocks.de GmbH, Stangenhaustraße 96, D-89542 Herbrechtingen, (in the following: penstocks.de) at shop.ibs-technics.com („Online-Shop“) are exclusively subject to the following terms and conditions.
(2) Terms and conditions issued by the customer which conflict with or differ from these terms and conditions shall not be recognized, unless penstocks.de has explicitly agreed thereto in writing. If penstocks.de unconditionally delivers goods or services to the customer although penstocks.de is aware of the customer’s terms and conditions of business then there will be no acceptance of conflicting or deviating conditions of the customer. Even in this event, the following terms and conditions of business apply exclusively.
§ 2 Conclusion of contract
(1) penstocks.de will sell to companies in the sense of § 14 BGB (German Civil Code) only.
(2) The presentation of penstocks.de’s products in the Online Shop does not constitute binding offer, but merely serve the purpose of submitting a binding offer by the customer. By clicking the button "order" at the end of the ordering process, the customer submits a binding offer.
(3) penstocks.de will confirm the order by sending a separate email. Confirmation of receipt of customer’s order is provided by email immediately after sending the order and does not constitute a contract.
§ 3 Prices and conditions of payment
(1) Prices to be paid by the customer are set forth in the Online-Shop. penstocks.de prices apply ex works, exclusive value-added tax.
(2) penstocks.de will grant discounts and other reductions only, if penstocks.de has explicitly agreed thereto in writing in advance.
(3) penstocks.de’s employees and representatives are entitled to accept payment only on basis of an authority to collect signed by penstocks.de’s management.
§ 4 Delivery and passing of risk
(1) Unless otherwise expressly agreed in writing between the parties, all deliveries of penstocks.de will take place ex works Germany, i.e. at customer’s expense and risk. Delivery dates shall only be binding in the event penstocks.de has explicitly confirmed them as such in writing.
(2) If customer wishes delivery other than ex works this must be agreed separately between the parties. In respect of the various possibilities, e.g. worldwide shipping destinations, number and weight, it is impossible for penstocks.de to quote shipping costs in the Online Shop. Therefore, shipping costs quoted in the Online Shop and in the chart at shop.ibs-technics.com/versand/ are estimated values only and not binding. Only shipping cost quoted in penstocks.de’s offers send to customers are binding.
(3) penstocks.de’s delivery obligation shall be subject to the reservation of proper and timely deliveries from penstocks.de’s suppliers. In cases of force majeure, for example operational disturbances or breakdowns, delay in transportation, strikes, lock-outs or other industrial action, and in case of incorrect, delayed or non-delivery by penstocks.de’s suppliers, irrespective of its cause (reservation of self-supply), and in any other case of insufficient performance for delivery which penstocks.de is not responsible, penstocks.de shall be entitled to withdraw from the contract. In such event penstocks.de will immediately inform the customer and refund any consideration that the customer has already paid. In case of a delay of penstocks.de’s delivery of more than 4 weeks caused by such event the customer shall be entitled to withdraw from the contract.
(4) The risk of loss or deterioration shall transfer to the customer at the time the goods are delivered to the carrier, shipping company or other person or institution selected for shipment of the goods. The same shall apply for deliveries effected by penstocks.de’s vehicles or if freight or carriage paid and packing included has been agreed between the parties. The same applies to the delivery of products when the customer defaults the acceptance of the products.
(5) Instalment deliveries shall be permissible, provided this does not conflict with any legitimate interest of the customer.
§ 5 Retention of title
(1) penstocks.de retains title to the goods until receipt of all payments in full, existing from penstocks.de’s business relationship with the customer.
(2) The customer shall be entitled to resell the delivered goods in the ordinary course of business, however, the customer herewith assigns to penstocks.de any and all claims to the amount of the invoice sum total (including value-added tax) accruing to him from the resale against his customers or third parties, irrespective of whether the delivered goods have been resold without or after having been processed. The claim assigned also refers to a recognized, and/or in the case of insolvency of the customer's customer, the “causal” balance.
The customer shall be authorized to collect this claim even after assignment. However, penstocks.de shall be authorized to collect the claim itself if the customer does not perform his obligations to pay from the collected proceeds, defaults in payment or has filed a petition for the institution of insolvency proceedings or such a petition has been filed or payments have ceased. In such cases, penstocks.de may demand that the customer states which claims have been assigned and their debtors, furnishes all information necessary for the collection, hands over all appurtenant documents and notifies the debtor (third party) of the assignment. However, it will not be possible for penstocks.de to collect the claim if the German Insolvency Code (InsO) precludes this.
(3) Any processing or transformation of the delivered goods by the customer shall always be carried out on penstocks.de’s behalf. If the delivered goods is processed with other goods not belonging to penstocks.de, penstocks.de shall acquire joint title to the new item in the proportion of the value of the delivered goods to the other processed goods at the time of the processing. In all other respects, the provisions applicable to the goods delivered with a reservation shall also apply to the item resulting from the processing.
(4) If the goods delivered by penstocks.de are mixed with other goods not belonging to penstocks.de to form an integral part, penstocks.de shall acquire joint title to the new item in the proportion of the value of the goods delivered by penstocks.de to the other mixed goods at the time of the mixing. If the mixing is done in such a way that the customer's goods must be deemed to be the main object, it is agreed that the customer will have transferred joint title to penstocks.de proportionally. The customer shall hold the sole or joint title in safekeeping for penstocks.de.
(5) The customer also assigns to penstocks.de claims for securing claims by the latter against him that arise by connection of the object with a property against third parties.
(6) penstocks.de undertakes to release the securities to which penstocks.de is entitled at the customer’s request to the extent that the value of his securities exceeds the claims to be secured by more than 20 %; the selection of security to be released shall be at sole discretion of penstocks.de.
§ 6 Assignment, Set-off, Withholding rights
(1) The customer shall not assign claims arising from contracts without the prior written consent of penstocks.de.
(2) The customer may invoke set-off or withholding rights only if the claims made have been acknowledged by penstocks.de or have been adjudicated in court with legal effect.
§ 7 Duty of inspection and reporting
(1) Any complaints regarding material defects or complaints due to wrong quantities must be reported to penstocks.de within 8 days after the delivery of goods; the report must be done in writing
describing the detected defects. Besides, the regulations of § 377 of the German Code of Commercial Law (HGB) apply.
(2) Minor or commercial deflections compared to the information and images in weight, form, color, dimensions, patterning, quality, constitution or changes are deemed to be no defects.
(3) In case the parties deviating from these terms and conditions agreed on delivery to be at penstocks.de’s risk, the customer has to prepare written claims assessment with the collaboration of the transporter/forwarder prior to accepting visibly damaged consignments and in the cases in which after acceptance damages in transit become visible. The customer is obligated to hand out this claims assessment and all explanations and original documents (bill of consignment, etc.) to penstocks.de that are necessary for assertion.
§ 8 Further reasons for withdrawal
In the event of a breach of contract the costumer, penstocks.de is entitled to withdraw from the contract and reclaim the delivered goods, if and insofar as the customer has not paid the consideration. penstocks.de is entitled to withdraw from the contact if a customer has provided false information on his creditworthiness or solvency or if insolvency proceedings have been instituted on the customer's assets or an application for such proceedings has been filed.
§ 9 Material Defects, Limitation
(1) Warranty claims shall be time-barred after 12 months after passing of risk.
(2) In case of defects of delivered services or goods, penstocks.de will at its own discretion extent warranty by an appropriate discount, free repair or replacement. In case of failure of the repair or replacement, the importer may demand a price reduction.
(3) If the customer, for reasons for which penstocks.de is not responsible, wrongfully gives notice of a defect for which penstocks.de are not responsible, penstocks.de shall be entitled to charge the customer for reasonable expenses incurred by penstocks.de in connection with the repair and/or determination of defects.
(4) penstocks.de is entitled to charge the customer for additional costs of the expenses necessarily incurred for subsequent performance, particularly transport charges, travelling expenses, cost of labor and materials insofar as the expenses are increased as a result of taking the delivered goods to another place than the agreed place of delivery, unless the delivered goods are taken to such other place in conformity with the contractual purpose.
§ 10 Liability limitation and Disclaimer
(1) penstocks.de’s liability for (1) damages for loss of life, physical injury, injury to health, (2) intention or gross negligence, or (3) liability pursuant to law on a no-fault basis (e.g. under the German Product Liability Act) is governed by German statutory law.
(2) For damages due to the breach of key contractual duties caused by ordinary negligence, Company's liability is limited to foreseeable damages that are typically associated with such breach.
(3) If the customer's damage is covered by an insurance taken out for the relevant risk (except insurances on a fixed-sum basis), penstocks.de shall only be liable for any loss suffered by the customer in association therewith (e.g. higher insurance premiums or interest payable until settlement by the insurance). The same applies to damages caused by faulty services or goods.
(4) Any other liability for damages is excluded.
(5) The aforementioned liability rules shall apply to affiliated companies in accordance with § 15 German Stock Companies Act (AktG), representatives, agents, servants or members of the company and its affiliated companies as well.
§ 11 Data protection
(1) penstocks.de will use data provided by customers for the handling of the concluded contracts between the customer and penstocks.de only.
(2) penstocks.de will disclosure customer’s data to (i) the shipping company that penstocks.de outsource the delivery of customer’s order, to the extent they are required to deliver the goods; and (ii) the company instructed with payment processing and invoicing, to the extent they are required insofar. Besides that penstocks.de will not disclose customer’s data.
(3) According to the German Federal Data Protection Act (BDSG), customers have a right to information and, under certain conditions, a right to the correction, barring or deletion of the data stored by penstocks.de.
(4) With questions to the elevation, processing or use of personal data, for information, correction, blockage or deletion of data customers please contact: penstocks.de GmbH, Stanghenhausstraße 96, D-89542 Herbrechtingen, phone: +49 7324 96887-50, fax: +49 7324 96887-79, firstname.lastname@example.org.
§ 12 Place of Jurisdiction and Applicable Law; Final Provisions
(1) Place of jurisdiction is Augsburg, Germany. penstocks.de as plaintiff is entitled to take legal action at the competent court of the customer ́s registered office.
(2) Contracts are subject to the law of the Federal Republic of Germany; the United Nations Convention on Contracts for the International Sale of Goods does not apply.
(3) If any provisions of this terms and conditions are or become invalid, the validity of the remaining provisions remains unaffected thereby. The same applies to bridging possible gaps in this terms and conditions. In lieu of the null and void provision the legal provision shall apply.
(4) This terms and conditions can be unilaterally changed by penstocks.de for future orders at any time.