GENERAL TERMS AND CONDITIONS
Our “General Terms of Sale” given below solely apply. (Valid in transactions with companies in the sense of § 14 BGB (German Civil Code))
Unless otherwise contractually agreed, the contract on the part of the company PMS comes into being with the company PMS Thomin GmbH, represented by the Managing Directors Dirk Thomin and Heike Baschleben-Thomin, Meckesheimer Str. 71, 74939 Zuzenhausen. Offers by PMS are considered non-binding. A contract is fundamentally brought about by a declaration of acceptance on the part of PMS of a corresponding offer by a customer.
This declaration of acceptance may be made in writing, by fax or email. The acceptance may also be declared implicitly by delivery. Travelling sales employees are only empowered to accept offers but not however to conclude contracts. Delivery contracts with immediately delivered goods are excluded from the conclusion prohibition. We reserve the right to refuse assignments in individual cases.
- Invoicing and payment
Our invoices fall due net cash 20 days as and from the invoice date. We grant 2% discount in case of receipt of payment (credit to our account) within 8 days following the invoice date. The purchaser may only offset against claims that are undisputed or have been determined to be legally valid. Furthermore, he is only entitled to exercise a right of retention insofar as his counter-claim is based on the same contractual relationship. In case of cessation of payment, application for insolvency or opening of insolvency proceedings on the part of the purchaser, any discounts and bonuses already bindingly agreed will initially be added to our unsecured receivables. In these cases, PMS shall be entitled to a right of termination without notice.
Delivery deadlines are only binding when expressly agreed. Force majeure, mobilisation, war, operational disruptions, lack of employees, power or raw materials, strikes, lockouts, traffic disturbances and decrees of public authorities shall prolong the delivery deadlines to an appropriate extent. They furthermore entitle us, with exclusion of further liability, to withdraw from the contract insofar as the delivery has not yet been made.
- Transfer of risk
In case of delivery to the purchaser’s unloading point, risk is transferred to the purchaser on handing over the goods to the carrier, haulage contractor or the agent otherwise commissioned with performing shipping. Unloading is performed at the purchaser’s risk, even in the event of assistance by the driver; deliberate action and gross negligence are excluded. If delivery is delayed as a result of fault of the purchaser, the risk shall already be transferred to the purchaser from the day of readiness for shipping onwards. Also in case of forwarding of the goods by the purchaser owing to an unjustified complaint, the goods shall be transported at the purchaser’s expense and risk.
Notices of defects referring to the number of packages delivered and their visual integrity are to be reported by the purchaser immediately on goods reception. Other notices of defects and shortfall quantities are to be reported to us by the purchaser immediately in writing, within one week at the latest however following goods reception at the purchaser’s premises and in case of concealed defects immediately after discovery. Otherwise, assertion of guarantee claims shall be excluded. Timely forwarding of the notification of defects shall be sufficient for compliance with the deadline. Supplementary performance is effected by a replacement delivery. If we decline supplementary performance unjustifiably, if we are incapable thereof, or if supplementary performance is otherwise unsuccessful, the purchaser shall be entitled at his option to withdraw from the contract or demand an appropriate price reduction. In case of only slight defectiveness, the purchaser shall not however be entitled to any right of withdrawal. The guarantee does not extend to damage occurring after transfer of risk as a result of improper or negligent storage of other comparable causes for which we are not at fault. The claims for defects shall expire within one year after delivery. Rights of recourse on the part of the purchaser according to §478 BGB shall remain unaffected; claims for damages may however only be asserted within the context of item 6 below. The above rulings also apply accordingly to claims arising as a result of consultations, information or indications in printed documents before or after contract conclusion or as a result of breach of contractual secondary obligations.
a) Claims for damages are excluded regardless of the nature of the breach of obligation, including unauthorised actions, insofar as we have not acted deliberately or grossly negligently.
b) We shall be liable for any negligence in case of breach of essential contractual obligations, but only however up to the amount of the foreseeable damage.
c) Claims for loss of profits, those arising from third party claims for damages and claims for other indirect and consequential damages cannot be asserted unless a characteristic of state guaranteed by us is expressly intended to protect the purchaser against such damages.
d) The limitations of liability and exclusions of liability shall not apply to claims arising on account of malicious conduct on our part and in case of any liability on our part arising from acceptance of a procurement risk, for claims arising from the product liability act and for damages resulting from injury to life or limb or health.
e) The liability arising from a guarantee of characteristic of state or service life of the goods shall only exist according to items 6 b and c) above.
f) Insofar as our liability is excluded or limited, this shall also apply to our organs, legal representatives, agents of vicarious liability and employees.
- Retention of title
The ownership of the delivered goods is only transferred to the purchaser when the goods have been full and finally paid for. The purchaser is however entitled to alienate the goods within the scope of the ordinary course of business. Insofar as an item of goods which is still our property is alienated within the scope of the ordinary course of the purchaser’s business without immediate payment, the claim to the return payment shall be transferred to us without any further need for a specific act of transfer in emergence of the claim. The purchaser shall undertake to cooperate in any measures that we wish to take to protect our ownership of the delivered goods. In case of resale, the purchaser shall undertake to agree a retention of title corresponding to the above. In the event that third parties justify or wish to assert a right over the goods subject to retention of title, the purchaser must inform us immediately thereof. If the value of the securities existing in our favour exceeds our receivables by more than a total of 20%, we shall undertake at the purchaser’s request to release the surplus securities at our option.
Tools (moulds) that are produced by us or by third-parties on our behalf in order to process orders will be charged to the customer with a proportion of tool manufacturing costs. This proportion of costs shall be due on reception of the outturn samples (even if modifications are still required). Modifications before completion of the tools that entail postponement of submission of the outturn samples shall entitle us to demand immediate reimbursement of the proportion of tool manufacturing costs expended up to that point. Costs for tool modifications that need to be made at the customer’s request shall be down to the customer. We shall only bear the costs for replacement of tools which have become unfit for use if we are at fault. Since our expenditure for the design work, construction, running in, ongoing maintenance and care etc. of the tools is not covered by the proportion of tool manufacturing costs, the tools shall remain our property. We shall not be obliged to release the latter. Our mandatory storage period shall expire if no further orders have been received from the customer within 2 years following the last delivery. Tools according to a customer’s drawing or pattern shall be used solely for orders from this customer. Should the customer fail to pay for deliveries and services according to the agreement, these tools may be put to other use.
- Written form
Verbal agreements – including those regarding the main conditions in the individual agreement – shall only be binding for us if and insofar as confirmed by us in writing, by fax or by email or fulfilled by us by forwarding the goods and the invoice. Deviations from our terms of sale, particularly conditions of the vendor, shall only apply if confirmed by us in writing by fax or by email.
- Severability clause
Applicable law, place of jurisdiction and place of performance.
German Law shall apply to the contractual relationships with exclusion of uniform UN purchase law (CISG). The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the competent court for our head office. We are also entitled to take action at the purchaser’s head office. The place of performance is our company head office, Zuzenhausen.
translation for information purposes
Last revised: 1st July 2015