General Terms and Conditions
General Terms and Conditions – Courtesy Translation
of the company ph-cleantec GmbH, Fellbach, hereinafter “ph-cleantec” or “seller” as of 12/2021
This courtesy translation is prepared for the benefit of our foreign customers. When in doubt the German version of the General Terms and Conditions shall prevail.
§ 1 Validity
(1) All deliveries, services and offers of ph-cleantec are based exclusively upon these General Terms and Conditions. They form an integral part of all contracts concluded by ph-cleantec 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.
(2) Terms and Conditions of the customer or of third parties do not apply, even if ph-cleantec does not explicitly object to 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
(1) Prices apply to 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.
(2) 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. In case of non-payment, ph-cleantec reserves the right to charge late fees of €40 applicable by law, starting with the second reminder.
(3) The set-off with counterclaims by 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
(1) Deliveries shall be made ex works.
(2) Deadlines and delivery 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 shipment is 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.
(3) ph-cleantec shall not be liable for the impossibility of delivery or for delivery delays to the extent they are caused by force majeure or other events which 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, lawful lockouts, lack of manpower, energy or raw materials, difficulties in procuring necessary approvals from authorities, official measures, or the lack of, incorrect or delayed delivery by suppliers which are outside the control of ph-cleantec. 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.
(4) ph-cleantec is entitled to make partial deliveries only if:
- the partial delivery can be used by the customer in the scope of the contractually intended purposes,
- delivery of the remaining goods ordered is assured and
- the customer does not incur additional material expenses or costs (unless ph-cleantec agrees to bear these costs).
(5) Should deliveries or services by ph-cleantec be delayed or should a delivery or service become impossible, for whatever reason, then ph-cleantec’s liability shall be limited to damages in accordance with §8 of these General Terms and Conditions.
§ 4 Works
(1) 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 provision of connections.
(2) 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.
(3) The technicians of ph-cleantec are not allowed to make legally binding declarations. They are not obliged and also not entitled to carry out work that extends beyond the services agreed to.
§ 5 Transfer of Risks
(1) The risks shall be 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 shipment. This also applies in the event of partial deliveries or if ph-cleantec has also assumed 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 notified the customer thereof.
§ 6 Warranties and Material Defects
(1) The warranty shall be valid for one year from delivery, or if acceptance is required, from acceptance. Excepted from this are claims for damages due to injuries of life, body, or health, and/or claims for damages caused due to gross negligence or wilful damage by ph-cleantec. For these the statutory periods of limitation apply.
(2) The customer shall notify ph-cleantec of any manifest deficiencies in writing within a period of two weeks from receipt of the goods delivered; otherwise the enforcement of warranty claims shall be excluded. At the request of ph-cleantec, the rejected goods shall 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 costs increase because the goods are at a place different than the place of the intended use.
(3) In the event of material defects of the goods delivered ph-cleantec, after an appropriate time for consideration, shall be obliged and entitled to choose first to refit or to replace the goods delivered. In the event of a failure, i.e. the impossibility, unacceptability, refusal or unreasonable 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.
(4) If a defect is the fault of ph-cleantec the customer can demand damages subject to the terms stipulated in § 8 below.
(5) 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, faulty or negligent treatment, improper maintenance, or chemical, electrochemical or electric influences.
§ 7 Property Rights
(1) ph-cleantec warrants that goods delivered are free of industrial property rights or copyrights of third parties. Each contract party shall inform the other contract party without delay in writing should claims be made against it because of the breach of such rights.
(2) In the event that a delivered good should breach a commercial property right or a copyright of a third party, ph-cleantec shall, 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. Any damage claims of the customer shall be 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 injury of life, body, or health;
d.) in the event of defects which ph-cleantec has fraudulently concealed or if their absence has been warranted;
e.) in the event of defects 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.
(2) In the event of culpable breach of material contractual obligations ph-cleantec shall also be 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 Retention of Ownership
(1) ph-cleantec shall retain ownership of the goods delivered in comprehensive form (simple, extended and prolonged retention of ownership) until all payments from the sales contract have been received.
(2) 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.
(3) 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 shall have the right to take back, and the customer shall be obliged to surrender, the goods delivered after an overdue notice has been sent.
(4) In the event of an application for opening insolvency proceedings by the customer ph-cleantec shall have the right to withdraw from the contract and to demand immediate return of the goods delivered.
§ 10 Final Provisions
(1) The court of jurisdiction for any disputes from the commercial relationship between ph-cleantec and the customer is the court applicable for the registered office 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.
(2) The relationship between ph-cleantec and the customer shall be governed by the laws of the Federal Republic of Germany exclusively.
(3) 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.
(4) 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 or tax advisors.