General Terms and Conditions – Courtesy Translation
of the company ph-cleantec GmbH, Fellbach, hereinafter “ph-cleantec”
This is a courtesy translation prepared for the benefit of our foreign customers. When in doubt the German version of the General Terms and Conditions prevails.
§ 1 Validity
- All deliveries, services and offers of ph-cleantec are exclusively based upon these General Terms and Conditions. They are an integral part of all contracts which ph-cleantec may conclude with its contractual partners (hereinafter “customers”) for deliveries or services. They also apply to all future deliveries, services or offers to the customer even if they are not explicitly concluded again.
- Terms and Conditions of the customer or of third parties do not apply, even if ph-cleantec does not explicitly contradict them in the specific case. Even if ph-cleantec refers to a letter which contains or mentions terms and conditions of the customer this does not constitute an acceptance of the application of said terms and conditions.
§ 2 Prices and Payment
- Prices apply for the deliveries and services specified in the order confirmation. Additional or special deliveries or services are billed separately. Prices are in EURO ex works plus packaging, statutory value-added tax, in the event of deliveries for export also customs, fees, and any other public levies.
- Invoice amounts are payable within 30 days without any deductions unless agreed otherwise specifically and in writing. The relevant date for payment is the date of receipt by ph-cleantec.
- The set-off with counterclaims of the customer or the retention of payments because of such counterclaims is only permissible to the extent such counterclaims are undisputed or are legally binding.
§ 3 Delivery and Delivery Time
- Deliveries are ex works.
- Delivery periods and dates promised by ph-cleantec for deliveries and services are always only approximate unless a specific firm date or delay has been confirmed or agreed. If a delivery has been agreed then delivery periods and dates refer to the hand-over to the freight company, carrier or any other third party instructed to carry out the transportation.
- ph-cleantec is not responsible for the impossibility of delivery or for delivery delays to the extent they are caused by force majeure or other events that were unpredictable when a contract was concluded, e.g. interruption of operations of any sort, difficulties in procurement of materials or energy, delays in transportation, strikes, legal lockouts, lack of manpower, energy or raw materials, difficulties with procuring necessary approvals from authorities, official measures or the lack of, incorrect or delayed delivery by suppliers which are outside the control of ph-cl If such events make delivery or services materially more difficult or impossible and the impediment is not only of a temporary nature, the seller has the right to withdraw from the contract. In the event of a temporary impediment the delivery and service times or the delivery or service dates are prolongated by the duration of the impediment plus an appropriate warm-up period.
- ph-cleantec is allowed to make partial deliveries only if:
the partial delivery can be used by the customer in the frame of the contractually intended purposes,
delivery of the remaining goods ordered is assured and
the customer does not suffer additional material expenses or costs (unless ph-cleantec states it will carry these costs).
- Should deliveries or services by ph-cleantec be delayed or should a delivery or service become impossible, regardless of the reason, then ph-cleantec’s liability shall be limited to damages according to §8 of these General Terms and Conditions.
§ 4 Works
- In case of assembly or commissioning works resp. instruction works the customer is obligated to correctly and fully inform the employees of ph-cleantec about all relevant facts. The customer is responsible for the correctness of his statements and the making available of connections.
- Upon request the customer has to confirm the services rendered by the technicians after completion of the works on the activity reports. The signed activity reports are the incontestable basis for billing the customer.
- The technicians of ph-cleantec are not allowed to make legally binding declarations. They are not obligated and also not allowed to conduct work that extends beyond the services agreed to.
§ 5 Transfer of Risks
- Risks are transferred to the customer at the latest with hand-over of the delivery item, with the beginning of the loading procedure, to the freight company, carrier or any third party instructed to carry out the transportation. This also applies in the event of partial deliveries or if ph-cleantec has also taken on other services (e.g. transportation or installation). Should the delivery or handover be delayed because of circumstances caused by the customer, the risks are transferred to the customer from the day on which the delivery item is ready for delivery and ph-cleantec has informed the customer of this.
§ 6 Warranties and Material Defects
- The warranty is valid for one year from the delivery, or to the extent an acceptance is required, from the acceptance. Excepted from this are claims for damages because of damage to life, body, or health, and/or claims for damages caused due to gross negligence or wilful damage by ph-cleantec. For these the legal periods of limitation apply.
- The customer has to indicate manifest deficiencies to ph-cleantec in writing within a period of two weeks from receipt of the goods delivered; otherwise the enforcement of warranty claims is excluded. Upon request of ph-cleantec the rejected goods are to be returned to ph-cleantec free of transportation charges. If the notification of defects is justified ph-cleantec will reimburse the cost of the cheapest delivery; this does not apply if the goods are at a location different than the location of the intended use.
- In the event of material defects of the goods delivered ph-cleantec, after an appropriate time for consideration, has the right and the obligation to choose first to refit or to replace the goods delivered. In the event of a failure, i.e. the impossibility, unacceptability, refusal or inappropriate delay of the refit or replacement delivery the customer can rescind the contract or demand a reduction of the purchase price. Replaced parts will then become the property of ph-cleantec.
- If a defect is the fault of ph-cleantec the customer can demand damages subject to the terms defined in § 8 below.
- The warranty ceases if the customer changes the delivered good himself or has it changed by a third party without prior approval by ph-cleantec, as well as through unsuitable or improper usage, incorrect assembly resp. commissioning, natural wear and tear, incorrect or negligent treatment, improper maintenance, or chemical, electrochemical or electric influences.
§ 7 Property Rights
- ph-cleantec is responsible for delivering its goods free of commercial property rights or copyrights of third parties. Each contract party will inform the other contract party without delay in writing should claims be made against it because of the breach of such rights.
- In the event that a delivered good should breach a commercial property right or a copyright of a third party, ph-cleantec will at its discretion and at its expense change or replace the delivered good in such a way that no third party rights are violated but that the delivered good still fulfils the contractually agreed functions, or else it will procure the usage rights for the customer by signing a licencing agreement. Should this not be possible within an appropriate period of time the customer has the right to rescind the contract or to lower the purchase price appropriately. Possible damage claims of the customer are subject to the terms of 8 of these General Terms and Conditions.
§ 8 Liability for Damages
(1) For damages which – for whatever reason - extend beyond damages to the delivered good itself ph-cleantec is liable only:
a.) in the case of intent;
b.) in the event of gross negligence by the owner, the organs or one of the executives of ph-cleantec;
c.) in the event of culpable violation of life, body, or health;
d.) in the event of defaults which ph-cleantec has maliciously kept secret or if their absence has been warranted;
e.) in the event of defaults of the delivered goods, only to the extent there is a liability under the German product liability code (Produkthaftungsgesetz) for persons or damages to goods for privately used goods.
In the event of culpable violation of material contractual obligations ph-cleantec is also liable in the event of gross negligence by non-executive employees and of slight negligence, in the latter case limited to damages typical for this kind of contract and reasonably foreseeable. Any further claims are excluded.
§ 9 Reservation of Ownership
- ph-cleantec retains ownership of the goods delivered in extensive form (simple, extended and prolonged reservation of ownership) until all payments from the sales contract have been received.
- The customer has the right to resell the goods delivered. This right does not apply as long as payments by the customer are overdue or if the customer goes into default.
- If the event of non-compliance by the customer with the terms of the contract, in particular in the event of late payment, ph-cleantec has the right to take back, and the customer is obliged to surrender, the goods delivered after an overdue notice has been sent.
- In the event of an application for opening insolvency proceedings by the customer ph-cleantec has the right to rescind its contract and to demand immediate return of the goods delivered.
§ 10 Final Provisions
- The court of jurisdiction for any disputes from the commercial relationship between ph-cleantec and the customer is the court applicable for the location of ph-cleantec. However, ph-cleantec as the right to sue the customer at the location of the customer’s headquarters. Mandatory legal provisions regarding exclusive courts of jurisdiction remain unaffected by this clause.
- The relationship between ph-cleantec and the customer is subject to the laws of the Federal Republic of Germany exclusively.
- To the extent that the contract or these General Terms and Conditions contain loopholes such appropriate legal provision shall apply that the contract partners would have agreed upon if they had known about the loophole, given the commercial goals of the contract and the purpose of these General Terms and Conditions.
- Note: The customer takes notice and accepts that ph-cleantec saves data from the contractual agreement under §28 Federal Data Protection Act (Bundesdatenschutzgesetz) for the purpose of data processing and – to the extent necessary for fulfilling the contract - retains the right to share these with third parties such as insurances.