Terms of Delivery and Payment (GTC) of the company Albert Ponsel GmbH & Co. KG
1. Scope of Application
a. Exclusively these GTC shall apply to the entire business relationship between Ponsel and the purchaser. Subject to any changes, these GTC shall also apply to the future business relationship between Ponsel and the purchaser without the requirement to include them again.
b. We expressly object to the inclusion of other terms of purchase or other general terms and conditions of the purchaser. These GTC shall apply exclusively even if Ponsel performs a delivery to the purchaser without any reservation while being aware of opposing or deviating terms and conditions of the purchaser.
c. If the purchaser and Ponsel have entered into a framework agreement, these GTC shall apply both to the framework agreement and individual orders.
d. These GTC shall not apply to consumers as defined by Section 13 of the German Civil Code [Bürgerliches Gesetzbuch, BGB]. In this respect, the contracting parties shall warrant to one another that each of them has the status of a businessperson within the meaning of the German Commercial Code [Handelsgesetzbuch, HGB]. In the case that circumstances change in that regard, the respective other party shall be informed of this without delay.
2. Conclusion of Contracts
a. Quotations by Ponsel shall not be binding and – unless it arises otherwise from the circumstances – shall constitute only an invitation to the purchaser to submit to Ponsel certain definitive offers to enter into a contract (“invitatio ad offerendum”).
b. Ponsel shall be permitted to accept offers by the purchaser to enter into a contract, e.g. in the form of purchase orders, within 14 days. During that time, the purchaser shall be bound by their contractual declaration.
3. Delivery Periods, Scope of Delivery, Delays in Delivery and Acceptance
a. Unless otherwise indicated, the delivery periods shall be approximate periods. The compliance with the delivery obligations by Ponsel shall require the timely and orderly fulfilment of the purchaser’s obligations. This shall include in particular that purchaser ensures the acceptance of the ordered goods at the delivery address indicated by the purchaser.
b. Ponsel shall be permitted to carry out partial deliveries and performances if these are appropriate, whereby the situation of Ponsel and the purchaser’s own legitimate interest shall be reasonably assessed, in particular if the deviation is within the scope of the tolerances that are customary in the trade or if the relevant delivery items are different delivery items that do not belong together.
c. If there are delays in delivery due to the occurrence of unforeseeable events that Ponsel is not liable for, in particular operational disruption, regulatory action, the non-arrival of supplies to Ponsel, or due to force majeure, any possible delivery periods shall be extended by the term of the existence of the impediment. Force majeure shall exist in particular in cases of industrial action including strikes and lawful lockouts at the company of Ponsel or any upstream supplier of Ponsel.
In these cases, claims for damages by the purchaser shall be excluded, except in cases of intention and gross negligence.
4. Prices, Terms of Payment
a. The prices shall be understood as net factory prices (ex works) plus the currently applicable statutory VAT. The prices shall not include customs duties, insurance premiums, transportation charges, and other expenses.
If the contract value amounts to EUR 750.00 or more, we will carry out a free delivery. If any contract value amounts to less than EUR 750.00, Ponsel shall charge 7.5% of the net contract value, but at least EUR 15.00 for freight and packaging.
Installation and assembly hours shall be invoiced on the basis of work and expenses. The prices shall be indicated in the price list of Ponsel that is applicable in each case.
b. Invoice amounts shall be due for payment immediately and without any deductions, if no other specific agreements have been reached. Ponsel shall be permitted to request advance payments or securities at the expense of the purchaser when the parties enter into a contract.
c. If the purchaser enters into a default in payment, Ponsel shall be permitted to claim default interest amounting to 9 percentage points above the basic rate of interest applicable in each case. The assertion of a specific exceeding damage caused by a delay shall be reserved.
d. The statutory limitation periods shall apply.
5. Passing of the Risk of accidental Deterioration, Destruction or Loss
The risk of the deterioration, destruction or loss shall pass to the purchaser if the item has been delivered to the forwarding agent, the carrier or any other person or institution designated for performing the shipment, even if partial deliveries are made or Ponsel has also assumed other performance components such as the shipping charges.
6. Warranty, Notification of Defects
a. The warranty period shall amount to two years and shall commence with the delivery of the goods from the retailer.
b. The nominal conditions of the goods shall depend on the contractual agreements. Unless expressly provided, Ponsel shall not provide any no-fault guarantee in that regard. This shall apply in particular to the reference to DIN standards.
c. Any damage that has been caused by incorrect handling by the purchaser or in the sphere of the purchaser, in particular improper placement and treatment, incorrect operation or maintenance, the non-compliance with the user, assembly, and/or care instructions, corrosion or usual wear and tear, shall be excluded from the warranty.
d. We refer to Section 377 of the German Commercial Code.
e. Ponsel shall be notified of obvious transport damages immediately after the receipt of the goods. The purchaser shall arrange with the carrier the formalities that are required in that regard and in particular perform all assessments that are necessary for the purpose of safeguarding rights of recourse vis-à-vis third parties.
a. Ponsel shall only be liable for any damage that Ponsel or their performing agents [Erfüllungsgehilfen] have caused intentionally or with gross negligence. In cases of ordinary negligence, Ponsel shall only be liable in cases of injury to life, body or health as well as in cases of the infringement of cardinal obligations. A cardinal obligation shall be an obligation the fulfilment of which enables the due performance of the contract in the first place and on the compliance with which the purchaser usually relies or may rely.
b. If Ponsel is liable on the basis of the infringement of obligations and on the grounds of ordinary negligence, the amount of their liability shall be limited to the typical damage that is related to the relevant type of contracts and that has been foreseeable when the contract was concluded or at the latest when the obligation was infringed. This shall not apply in cases of injury to life, body or health.
c. Claims for damages regarding which no fault is required according to the law shall remain unaffected thereof.
8. Reservation of Title, Securities
a. Ponsel shall reserve the title to the delivery item until the receipt of all payments required under the delivery contract. In the case of a conduct by the purchaser that is in breach of the contract, in particular in the case of any delay in payments, as well as if an application for the institution of insolvency proceedings is filed, Ponsel shall be entitled to withdraw the delivery item and the purchaser shall be obliged to return it. In cases of attachments or other interventions by third parties, the purchaser shall notify Ponsel without delay and in writing.
b. The purchaser shall be entitled to resell the delivery item in the ordinary course of business. However, the purchaser has already now assigned to Ponsel all receivables that arise for the purchaser vis-à-vis the acquirer or third parties from the resale, and irrespective of the fact whether the goods that are subject to a reservation of title are resold without or subsequent to any processing. The purchaser shall be entitled to collect the outstanding amounts even after the assignment. The entitlement of Ponsel to collect the outstanding amounts themselves shall remain unaffected thereof; however, Ponsel shall undertake to not collect the outstanding amounts as long as the purchaser duly complies with their payment obligations. Ponsel shall be permitted to request that the purchaser discloses to Ponsel the assigned receivables and the related debtors, submits all information required for the collection, provides the related documents and informs the debtors of the assignment. If the delivery item is resold together with other goods that are not in the ownership of Ponsel, the relevant receivable of the purchaser vis-à-vis the acquirer shall be deemed to be assigned in the amount of the delivery price agreed upon between Ponsel and the purchaser.
c. Ponsel shall be permitted to request appropriate securities for the due settlement of the purchaser’s liabilities. Ponsel shall undertake to release the securities that they are entitled to insofar as their value exceeds the receivables to be secured (to the extent that the outstanding amounts have still not been paid) by more than 10%.
9. Obligation to Perform, Impossibility of Performance
a. If the entire performance becomes impossible for Ponsel before the passing of the risk of accidental deterioration, destruction or loss due to a circumstance that Ponsel is liable for, the purchaser shall be permitted to rescind the contract. In the case of a partial impossibility or partial inability to perform, the foregoing provision shall only apply to the relevant part. In that case, the purchaser shall be permitted to rescind the entire contract only if the purchaser may prove a legitimate interest in the rejection of the partial delivery. Any further claims of the purchaser, in particular claims for damages, shall be excluded in accordance with the provisions of items 6 und 7.
b. If the impossibility occurs during any delay in acceptance or due to the fault of the purchaser, the purchaser shall remain obliged to perform.
10. Place of Performance, Place of Jurisdiction, Applicable Law
a. If the purchaser is a business person, a legal person under public law or special fund under public law and no exclusive place of jurisdiction is stated, Ponsel’s place of business shall be the place of jurisdiction for all legal disputes, also within the scope of any special procedure related to claims arising out of a bill of exchange or claims concerning the payment of a cheque; proceedings against Ponsel may only be instituted there.
b. German law shall apply to all legal relationships between Ponsel and the purchaser arising out of or in connection with the business relationship that Ponsel and the purchaser entered into; the UN Convention on Contracts for the International Sale of Goods shall be excluded.
11. Other Provisions
a. If agreements reached by Ponsel and the purchaser are subject to the requirement of the written form, any amendments or supplements in that regard shall also require the written form to be effective.
b. In accordance with the Sections 32 and 33 of the German Federal Data Protection Law [Bundesdatenschutzgesetz, BDSG], Ponsel hereby refers to the fact that data accrued in connection with the business relationship will be stored in compliance with the statutory provisions. We refer to the separate information on data processing.