General Terms and Conditions of Sale (GTC) of PS Concepts GmbH
§ 1 - Scope, General
These General Terms and Conditions of Sale (hereinafter referred to as "GTC") apply to all our business relationships with our customers (hereinafter also referred to as "Buyer"). The GTC apply only if the Buyer is an entrepreneur (Section 14 of the German Civil Code), a legal entity under public law, or a special fund under public law.
These General Terms and Conditions apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as: goods), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 651 of the German Civil Code). Unless otherwise agreed, these General Terms and Conditions, in the text form valid at the time of the buyer's order, also apply to similar future contracts without us having to refer to them again in each individual case.
Our General Terms and Conditions apply exclusively. Any differing, conflicting, or supplementary terms and conditions of the buyer shall only become part of the contract if and to the extent that we expressly agree to their validity. This requirement of express agreement applies in all cases, for example, even if we carry out delivery to the customer without reservation despite being aware of the customer's terms and conditions.
Individual agreements made with the buyer in specific cases (including side agreements, amendments, and modifications) always take precedence over these General Terms and Conditions. Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.
Legally relevant declarations and notices from the buyer relating to the contract (e.g., setting deadlines, reporting defects, withdrawal, or price reduction) must be submitted in writing, i.e., in written or electronic form (e.g., letter, email, fax). Statutory form requirements and further evidence, particularly in cases of doubt regarding the declarant's authorization, remain unaffected.
Our sales representatives are not authorized to make or receive legally binding statements on our behalf. Statements made by our sales representatives are only binding if we expressly confirm them in writing.
References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions apply unless they are directly amended or expressly excluded in these General Terms and Conditions.
§ 2 - Conclusion of Contract
Our offers are subject to change and non-binding. This also applies if we have provided the buyer with catalogs, technical documentation (e.g., drawings), other product descriptions or documents, including in electronic form, for which we reserve ownership and copyright.
The buyer's order constitutes a binding offer to enter into a contract. Unless otherwise stated in the order, we are entitled to accept this offer within 14 days of its receipt.
Acceptance of the order can be declared by us either in writing (e.g., by order confirmation) or by delivery of the goods to the buyer. If the buyer requests a delivery time or delivery date after 14 days from receipt of their order, acceptance of the order can also be effected by sending the goods at the requested delivery time or on the requested delivery date, even if we do not confirm the order in writing beforehand.
§ 3 - Delivery period, delivery delay
Delivery times stated by us are always non-binding unless they are expressly marked as binding or individually agreed upon with the customer. The same applies to delivery dates.
If we are unable to meet binding delivery deadlines or dates for reasons beyond our control (non-availability of the goods or services), we will inform the buyer immediately and simultaneously provide the expected new delivery deadline or date. If the goods or services are still unavailable within the new delivery deadline or by the new delivery date, we are entitled to withdraw from the contract in whole or in part; we will promptly refund any payments already made by the buyer. Non-availability of the goods or services in this sense includes, in particular, the failure of our supplier to deliver to us on time, provided that we have concluded a congruent hedging transaction, neither we nor our supplier are at fault, and we are not obligated to procure the goods or services in the specific case.
Our liability for late delivery is governed by statutory regulations. In any case, a formal demand for payment from the buyer is required. If we are in default of delivery, the buyer may claim liquidated damages for the delay. The liquidated damages amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but not exceeding a total of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the customer has incurred no damage or only significantly less damage than the aforementioned liquidated damages.
The customer's rights pursuant to Section 8 of these General Terms and Conditions and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
§ 4 - Delivery, Transfer of Risk, Default of Acceptance
Unless otherwise agreed, delivery will be made in accordance with Incoterms 2010 EXW - Ex Works.The risk of accidental loss or accidental damage to the delivery passes to the customer upon delivery to the forwarding agent, the carrier or any other person designated to carry out the shipment.If the customer is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons attributable to the customer, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g., storage costs).
§ 5 - Prices, Payment Terms
Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract apply, ex works and plus statutory value added tax.The buyer shall bear the transport costs from the factory and the costs of any transport insurance requested by the buyer. Any customs duties, fees, taxes and other public charges shall also be borne by the buyer.
The purchase price is due and payable within 30 days of invoicing and delivery or acceptance of the goods. However, even within the context of an ongoing business relationship, we reserve the right to require prepayment for all or part of any delivery. We will declare such a reservation no later than with the order confirmation.
The buyer will be in default upon expiry of the payment period specified in paragraph 3, sentence 1. During the period of default, the purchase price will accrue interest at the applicable statutory default interest rate. We reserve the right to claim further damages for default. With respect to merchants, our right to commercial default interest (§ 353 HGB) remains unaffected.
The buyer is only entitled to set-off or retention rights to the extent that their claim has been legally established or is undisputed. In the event of defects in the delivery, the buyer's counterclaims, in particular pursuant to Section 7 Paragraph 6 Sentence 2 of these General Terms and Conditions, remain unaffected. If, after conclusion of the contract, a significant deterioration in the buyer's financial circumstances becomes apparent (e.g., through the filing of a petition for insolvency proceedings), we are entitled to demand sufficient security or to withdraw from the contract.
§ 6 - Retention of Title
We retain ownership of the sold goods until full payment of all our current and future claims arising from the purchase agreement and an ongoing business relationship (secured claims).
Goods subject to retention of title may not be pledged to third parties or transferred as security before full payment of the secured claims. The buyer must notify us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties attempt to seize goods belonging to us (e.g., attachments).
In the event of a breach of contract by the buyer, particularly in the case of non-payment of the purchase price when due, we are entitled, in accordance with statutory provisions, to withdraw from the contract and/or demand the return of the goods based on our retention of title. A demand for return does not automatically constitute a declaration of withdrawal; rather, we are entitled to demand only the return of the goods and reserve the right to withdraw from the contract. If the buyer fails to pay the purchase price when due, we may only exercise these rights if we have previously set the buyer a reasonable deadline for payment without success, or if setting such a deadline is unnecessary under statutory provisions.
Until further notice, the buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
The retention of title extends to products resulting from the processing, mixing, or combining of our goods, to their full value, with us being considered the manufacturer. If, in the case of processing, mixing, or combining with goods belonging to third parties, their ownership rights remain, we acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. Otherwise, the same provisions apply to the resulting product as to the goods delivered under retention of title.
The buyer hereby assigns to us, as security, all claims against third parties arising from the resale of the goods or products, either in their entirety or to the extent of our potential co-ownership share as described in the preceding paragraph. We accept this assignment. The buyer's obligations set forth in paragraph 2 also apply with respect to the assigned claims.
The buyer remains authorized to collect the receivables alongside us. We undertake not to collect the receivables as long as the buyer fulfills their payment obligations to us, there is no deficiency in their ability to pay, and we do not assert our retention of title by exercising a right pursuant to paragraph 3. However, if any of these conditions are met, we may demand that the buyer disclose to us the assigned receivables and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment. Furthermore, in this case, we are entitled to revoke the buyer's authorization to resell and process the goods subject to retention of title.
If the realizable value of the collateral exceeds our claims by more than 10%, we will release collateral of our choice at the buyer's request.
§ 7 - Buyer's claims for defects
The statutory provisions apply to the buyer's rights in the event of material defects and defects of title (including incorrect or short deliveries as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions for the final delivery of goods to a consumer (supplier recourse pursuant to Sections 478 and 479 of the German Civil Code) remain unaffected.
The basis of our liability for defects is primarily the agreement reached regarding the quality of the goods. All product descriptions that are part of the individual contract or that we have publicly disclosed (in particular in catalogs or on our website) are considered agreements regarding the quality of the goods.
Unless otherwise agreed, the statutory provisions determine whether a defect exists (§ 434 para. 1 sentences 2 and 3 of the German Civil Code). However, we assume no liability for public statements made by the manufacturer (unless we are the manufacturer ourselves) or other third parties (e.g., advertising claims).
The buyer's warranty claims are contingent upon their compliance with their statutory obligations to inspect and report defects (Sections 377, 381 of the German Commercial Code). If a defect becomes apparent upon delivery, inspection, or at any later time, we must be notified immediately. In any case, obvious defects must be reported within 5 business days of delivery, and defects not detectable upon inspection must be reported within the same period after discovery. If the buyer fails to properly inspect the goods and/or report defects, our liability for the defect not reported, not reported in a timely manner, or not reported properly is excluded in accordance with statutory provisions.
If the delivered goods are defective, we may initially choose whether to remedy the defect by repair or by delivering a replacement. Our right to refuse subsequent performance under the statutory conditions remains unaffected.
We are entitled to make the required subsequent performance contingent upon the buyer paying the outstanding purchase price. However, the buyer is entitled to withhold a portion of the purchase price that is proportionate to the defect.
The buyer must grant us the necessary time and opportunity to fulfill our obligation to remedy the defect, in particular by providing the goods in question for inspection. In the case of a replacement delivery, the buyer must return the defective item to us in accordance with statutory regulations.
We will bear the expenses necessary for inspection and subsequent performance, in particular transport, travel, labor and material costs, if a defect actually exists. Otherwise, we may demand reimbursement from the buyer for the costs incurred due to the unjustified request for rectification (in particular inspection and transport costs), unless the lack of a defect was not apparent to the buyer.
In urgent cases, e.g., to prevent disproportionate damage, the buyer has the right to remedy the defect himself and demand reimbursement from us for the objectively necessary expenses incurred. We must be notified of such self-remedy immediately, and if possible, beforehand. The right to self-remedy does not exist if we would be entitled to refuse subsequent performance in accordance with statutory provisions.
If the subsequent performance fails, or if a reasonable deadline set by the buyer for subsequent performance expires without success, or if subsequent performance is unnecessary according to statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of an insignificant defect.
The buyer's claims for damages or reimbursement of futile expenses exist even in the case of defects only in accordance with § 8 and are otherwise excluded.
Section 8 - Other Liability
Unless otherwise stated in these General Terms and Conditions, including the following provisions, we shall be liable for breaches of contractual and non-contractual obligations in accordance with statutory regulations.
We are liable for damages – regardless of the legal basis – within the scope of liability for fault in cases of intent and gross negligence. In cases of simple negligence, we are liable only to the extent that a less stringent standard of liability may apply under applicable law (e.g., for due diligence in one's own affairs).
a) for damages resulting from injury to life, body or health,
b) for damages resulting from a significant breach of a material contractual obligation (an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for foreseeable damages that typically occur.
The limitations of liability arising from paragraph 2 also apply to breaches of duty by or on behalf of persons for whose fault we are responsible under statutory provisions. They do not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods, nor do they apply to claims by the buyer under the Product Liability Act.
The buyer may only withdraw from or terminate the contract due to a breach of duty that does not constitute a defect if we are responsible for the breach. The buyer's right to terminate the contract at will (in particular pursuant to Sections 651 and 649 of the German Civil Code) is excluded. Otherwise, the statutory requirements and legal consequences apply.
§ 9 - Choice of law, place of jurisdiction
These General Terms and Conditions and the contractual relationship between us and the buyer are governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
If the buyer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction – including for international disputes – for all disputes arising directly or indirectly from the contractual relationship is our registered office in Simbach am Inn. The same applies if the buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, in all cases, we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement, or at the buyer's general place of jurisdiction. Mandatory statutory provisions, in particular those concerning exclusive jurisdiction, remain unaffected.
These terms and conditions are valid as of January 2018.
