General terms and conditions of business
Our general terms and conditions of business apply, unless expressly agreed otherwise, to all the offers, orders, purchase contracts and deliveries which we make to our customers (buyers). They also apply to future business relationships - even if not expressly agreed upon again. Any deviating general terms and conditions of business of the buyer will not be accepted even if we do not explicitly contradict them.
I. Performance and repair conditions
1 General information
1.1 As far as the following conditions do not include any regulations, when working on buildings (construction services), the official contract terms for the award of construction contracts (VOB) part B and pursuant to DIN 18299 and 18382 shall apply. DIN 18384, DIN 18385 and DIN 18386 as "General technical specifications in construction contracts (ATV)," and also excerpts of part C (VOB/B or VOB/C).
1.2 Other features of PS-System GmbH documentation, such as illustrations, drawings, etc., shall only be considered approximate with respect to dimensions and weight accuracy, unless the latter has been expressly confirmed. PS-System GmbH reserves property rights and copyrights in these documents. They may not be made accessible to any third party without the consent of PS-System GmbH, or otherwise misused. If an order is not placed with us, any documentation created specifically for the customer in question is to be handed back unsolicited, and in all other cases immediately returned upon request.
2.1 The agreed delivery or completion date is only binding where adherence is made impossible due to circumstances beyond the control of PS-System GmbH. Such circumstances are also to be considered changes as well as lack of documentation (building permit, among others) that
are necessary to execute the order.
2.2 In cases of delay (when performing construction services), the customer shall only have a claim under para. 8 no. 3 of the VOB/B regulations if a calendar date for work beginning and completion was agreed in writing, and after this period the customer has set an appropriate grace period and declared that the order will be withdrawn upon the expiry thereof.
3 Costs of not completed orders
As troubleshooting time is working time, in the event that no warranty applies, the resulting expenses (to be documented) shall be charged to the customer if an order cannot be performed because:
3.1 The disputed errors could not be ascertained in compliance with the rules of technology
3.2 The customer has culpably missed the agreed date
3.3 The order has been withdrawn while being performed
4 Warranty and liability
4.1 The warranty period for all the work performed, repairs, etc. other than construction services, and for built-in materials is 1 year. For construction services, the VOB/B regulations agreed upon shall apply in their entirety.
4.2 In the presence of a defect, the customer shall grant PS-System GmbH a reasonable time period to rectify the defect. The customer is particularly responsible for ensuring that the item in question shall be made available to PS-System GmbH for investigation and to carry out the supplementary performance or assignment.
4.3 If PS-System GmbH is obliged to supplementary performance, it can, at its own discretion, either eliminate the defect or re-manufacture the item.
4.4 If subsequent fulfilment fails, the customer is entitled to reduce payment or withdraw from the contract. Withdrawal is excluded if there is no breach of duty on the part of PS System GmbH or if the subject of the contract is a construction service.
4.5 In case of loss of life, bodily injury or damage to the health of a person based on a negligent breach of duty on the part of PS-System GmbH, or an intentional or negligent breach of duty by its legal representative or agent, PS-System GmbH shall be liable under the statutory provisions. The same applies for any other damage based on a grossly negligent breach of duty on the part of PS-System GmbH or an intentional or grossly negligent breach of duty by its legal representative or agent. For any other damage that is based on the breach of fundamental obligations due to slight negligence by PS-System GmbH, its legal representatives or agents, PS-System GmbH liability shall be limited to the foreseeable damage that is typical of the contract,
namely to a maximum of twice as much the value of the order item. Compensation claims for any other damage due to the breach of accessory obligations in the event of slight negligence are excluded. PS-System GmbH is not liable for other damage due to delay and based on simple negligence; the customer's statutory rights after a reasonable grace period remain unaffected. The above liability exclusions and/or restrictions do not apply if PS-System GmbH has fraudulently concealed a defect or has a separate warranty for the quality of the item. Claims by the client for reimbursement of futile expenses instead of claims for damages in place of the performance remain unaffected.
5 Extended of PS-System GmbH on movable objects
5.1 Concerning its claim relating to the order, PS-System GmbH has a right of lien on the customer's item of which it obtained possession as a result of the order. A right of lien shall also be asserted for claims arising from previously performed work, the supply of replacement parts and other services insofar as they are related to the item in context. For other claims due to the business relationship, the lien shall only apply insofar as they are uncontested or legally binding.
5.2 If an item is not picked up within 4 weeks after a pick-up prompt by PS-System GmbH, an appropriate storage fee may be charged upon expiry of that period. If the item is not picked up within max. 3 months after the pick-up prompt, there is no obligation for further storage and any liability for negligent damage or loss will be excluded. 1 month before the expiry of this period, a notice shall be sent to the customer warning that the item(s) referred to shall be sold. PS-System GmbH is entitled to sell the item(s) referred to upon expiry of this period to cover its claims at fair value. Any surplus proceeds shall be reimbursed to the customer.
6 Retention of title
Insofar as the replacement parts and the like installed in the course of repairs do not become essential components, PS-System GmbH shall reserve the proprietary rights thereon until all the claims by PS-System GmbH resulting from the contract are settled. If the customer is in default or fails to fulfil its obligations under the retention of title and has thus notified PS-System GmbH the withdrawal from the contract, PS-systems GmbH can reclaim the item for the purpose of removing any built-in parts. All retrieval and disassembly costs shall be borne by the customer. If the repair is to be carried out on the customer’s premises, the customer shall give PS-System GmbH the opportunity to carry out disassembly on its premises. In this case, work and travel costs shall be borne by the customer. If the customer does not allow for disassembly on its premises, subparagraph 6, section 2, sentences 1 and 2 shall apply.
II. Sales terms
1 Retention of title
The items and systems sold remain the property of PS-systems GmbH until all its claims against the customer resulting from this contract have been settled The right to retention of title shall also apply for all payments due to PS-System GmbH by the customer for all services related to the purchase item, e.g. repairs or spare parts deliveries and other services. The latter shall not apply if a repair by PS-systems GmbH is unreasonably delayed or has failed. Until the fulfilment of the aforementioned claims of PS-systems GmbH, the items may not be sold, hired out, lent or given away and not given to third parties for repair. Likewise, chattel mortgage and pawning are prohibited.
If the customer is a dealer (reseller), resale is permitted in the ordinary course of business provided that the accounts receivable from the resale against its customers or third parties, including all ancillary rights, are transferred to PS-System GmbH in the amount of the value of the latter’s invoice.
During the period of retention of title, the customer is entitled to possess and use the purchase item, provided it meets its obligations under the retention of title and is not in default of payment. If the customer is in default of payment or fails to fulfil its obligations under the retention of title and has thus notified PS-System GmbH its withdrawal from the contract, PS-System GmbH can reclaim the purchase item from the buyer and, after giving a warning with reasonable time limit, realise it in the best possible way through direct sale, offsetting the proceeds against the purchase price. All costs for returning and realising the purchased item shall be borne by the buyer. In case of third parties’ seizure, in particular if the purchase item is pledged or if the contractor’s lien of a workshop is exerted, the customer shall immediately notify PS-System GmbH in writing alerting the third party of the retention of title of PS-System GmbH. The buyer shall bear all costs that must be incurred for cancellation of the seizure and recovery of the purchase item insofar as this may not be reclaimed from the third party. During the period of retention of title, the buyer has the duty to keep the purchase item in proper condition and ensure that all scheduled maintenance work and necessary repairs are immediately carried out by PS-systems GmbH. PS-System GmbH undertakes to release the securities to which it is entitled insofar as their value exceeds the accounts receivable to be protected - provided that these have not yed been settled - by more than 10%.
2 Delivery acceptance and default in taking delivery
If the customer does not accept the delivery of an item, PS-System GmbH is entitled to set a reasonable grace period after which the seller can make other use of the item, and supply the customer within a reasonably extended period. The rights of PS-systems GmbH to withdraw from the contract after granting an additional respite or to demand compensation shall remain unaffected. As part of a compensation claim, PS-System GmbH may demand 20% of the agreed price without VAT as compensation without proof, unless it can be proved that no or significantly slight damage was caused. The assertion of actually higher damage remains reserved. The customer is required to accept partial deliveries (advance deliveries) as long as this is reasonably acceptable.
3 Warranty and liability
3.1 Claims for defects for all new items sold have a 2-year limitation period (in case of non-consumers, such as crafts, industry, commercial farms and communities a 12-month limitation period), and for used items a 1-year limitation period after delivery of the goods. Obvious defects must be notified within two weeks after delivery - as indicated on the notice for readiness of dispatch - to PS-systems GmbH, otherwise PS-System GmbH is exempt from any liability.
3.2 If a delivered item is defective, the buyer has the following rights:
3.2.1 PS-System GmbH is obliged to subsequent performance and will provide this by removing the defect or delivering a flawless item.
3.2.2 Should the subsequent improvement fail, the purchaser is entitled to withdraw from the contract or have the purchase price reduced. Withdrawal is excluded if any breach on the part of PS-System GmbH is insignificant.
3.2.3 A delivered item is not considered defective: In case of faults that are caused by damage, incorrect connection or incorrect operation by the customer; any damage caused by force majeure such as lightning; faults resulting from overstressing mechanical or electromechanical parts due to improper use or soiling or unusual, mechanical, chemical or atmospheric influences.
4 Liability for compensation
4.1 In case of loss of life, bodily injury or damage to the health of a person based on a negligent breach of duty on the part of PS-System GmbH, or an intentional or negligent breach of duty by its legal representative or agent, PS-System GmbH shall be liable under the statutory provisions.
4.2 For any other damage the following applies:
4.2.1 For any damage based on a grossly negligent breach of duty on the part of PS-System GmbH, or an intentional or grossly negligent breach of duty by its legal representative or agent, PS-System GmbH shall be liable under the statutory provisions.
4.2.2 For any damage based on the breach of essential contractual obligations due to slight negligence on the part of PS-System GmbH, its legal representatives or agents, the liability of PS-Systems GmbH is limited to the foreseeable typical damage up to a maximum of twice as much the value of the delivered goods.
4.2.3 Compensation claims for any other damage due to the breach of accessory obligations or non-essential obligations in the event of slight negligence are excluded.
4.2.4 Compensation claims due to delay and based on simple negligence are excluded; after a reasonable grace period, the legal rights of the buyer remain unaffected.
4.2.5 No liability exclusion and/or restriction shall apply if PS-System GmbH has fraudulently concealed a defect or has a separate warranty for the quality of the item.
4.2.6 The buyer's claim for reimbursement of futile expenses instead of claims for damages in place of the performance remains unaffected.
In case of withdrawal, PS-System GmbH and the customer are obliged to return the benefits received from one another. Reimbursement shall be made for the permission to use and the use of the goods with allowance for the decrease in value.
III. Common provisions for services, repairs and sales
1 Prices and payment terms
1.1 Final prices shall be understood plus value-added tax ex Holdorf.
1.2 All invoiced amounts are payable immediately upon issuance of the invoice, in a one-time installment. Partial payments for sales are possible only if they have been previously agreed in writing.
1.3 Invoices for repairs shall be paid cash. Cheques and drafts are only accepted on account of payment and only after special agreement.
1.4 For services that are not included in the order or differ from the performance description, a supplementary offer can be requested by the customer or delivered by PS-System GmbH. If this is not done, said benefits shall be charged on the basis of the amount of work done and the time spent. With regard to the indication and proof of the time spent for work when performing construction work, please refer to para. 15 no. 5 of the VOB/B regulations.
1.5 For orders whose execution lasts over a week, advance payments amounting to 90% of the value of the work carried out shall be provided proportionally to the progress of work. PS-System GmbH shall request advance payments and the customer shall settle them within 10 days from invoice date.
2 Place of jurisdiction
For all current and future claims arising from the business relationship with merchants, including invoice-based or cheque-based receivables, the exclusive place of jurisdiction is Vechta.
According to the aforementioned provisions, when performing construction work, the VOB/B shall apply in their entirety.