GENERAL TERMS AND CONDITIONS OF BUSINESS OF PANINKRET CHEM.-PHARM. VERTRIEBS GMBH
The following general terms and conditions of business apply exclusively to inter-company business transactions. The authoritative basis of this agreement for all sales conducted
by us (Paninkret Chem.-Pharm. Vertriebsgesellschaft mbH) will be the following general terms and conditions of business and any individual agreements; these have priority over any deviating conditions of the purchaser’s. Any confirmation to the contrary by the purchaser, referring to his own terms and conditions of business and conditions of purchasing are hereby rejected.
II. Offers and Documentation
1. Offers made by the vendor are normally not binding and are subject to change without notice unless the offer already contains a commitment period. If a written offer has been received from the vendor and no other arrangements have been made, the offer is subject to change without notice.
2. Ancillary alterations, corrections and/or other deviations from these terms and conditions of business will only be recognised as valid with our consent.
3. We will not be bound by any information in offers or confirmations of orders respectively by us which are based on an obvious error (e.g. spelling and calculation errors). On the contrary, the obvious intention will apply.
4.With respect to any guarantee concerning the inherent nature or (shelf) life of goods and for information relating thereto, only express agreements concerning a certain inherent nature or a certain (shelf) life of the goods will be considered to be a guarantee.
III. Prices, Conditions of Payment, Arrears and Offsetting
1. All prices apply ex-sales branch and exclude the applicable Value Added Tax ex-warehouse (according to International Commercial Terms – Incoterms: EXW)
free on truck/rail unless other agreements have been made.
2. Any increase in Value Added Tax will be charged and passed on to the purchaser immediately.
3. Provided no other arrangements have been made, invoices will be due and payable to us immediately following delivery or installation/assembly of the goods.
All payments are to be made to us by the purchaser without any deduction (discount, rebate) within 10 (ten) days at the latest following receipt of the invoice. After expiry of the ten-day deadline the purchaser will be in arrears, provided he is not entitled to refuse payment under the terms of Paragraph 320 of the German Commercial Code (BGB). Should the purchaser fall into arrears, we will be entitled to charge interest on arrears applying at the time. We reserve the right to claim any damages caused by arrears over and above the arrears. For his part, if the purchaser is able to prove damages of a lesser nature, this will be then be authoritative.
4. Cheques and bills of exchange will only be accepted as conditional payment; the costs and expenses arising therefrom will be at the expense of the party liable for payment.
5. If we become aware of circumstances that call the creditworthiness of the purchaser into question (for example, unsecured cheques or agreed payments), we
will be entitled to require full payment of the entire remaining amount of the debt, even if we have already accepted cheques. In addition, we will in such cases be entitled to require advance payments or security deposits. Should the purchaser cease repayments once and for all and/or if insolvency proceedings are applied for in respect of his assets, we will also be entitled to withdraw from the unfulfilled part of the contract.
6. The purchaser can only offset payments with undisputed or legally valid counter-claims.
IV. Delivery Periods, Place of Delivery and Transfer of Risk
1. Adherence to delivery times presumes the adherence to any obligations on the part of the purchaser, in particular any agreed obligations concerning instalments.
2.We accept no liability for delivery delays as a result of Acts of God or due to other unavoidable circumstances for which we are not responsible such as industrial action. The delivery deadlines will be extended by the length of the period of delay. The delivery delays will apply conditional on our delivering the correct type,
number etc. of goods ourselves on time unless a binding delivery deadline has been expressly assured. If delivery or other performance is delayed due to circumstances for which we are responsible, our liability will be that prescribed by law. In cases of minor negligence, liability will be limited to foreseeable and contractually customary damage.
3. Partial deliveries may be made if they are reasonable or appropriate for the purchaser.
4. Deliveries will be made according to the regulations governing International Commercial Terms – Incoterms – in other words according to the regulations currently in force.
5. If delivery has been agreed free to place of delivery,the unloading will be carried out by us or by a freight
forwarder commissioned by us. In the case of delivery to the place of delivery, it will be assumed that there is sufficient access for trucks and trailers/tractor-trailer units. The time of delivery is to be agreed on. Waiting times or outage times caused by the purchaser will be charged for.
6. In the case of all deliveries, the risk transfers to the purchaser when the goods are handed over to him.
7. f the purchaser is in arrears with the acceptance of the item purchased, the risk transfers to him at the moment of delay in acceptance. Terms and Conditions of Business – Paninkret Chem.-Pharm. Vertriebs GmbH
V.Reservation of Title
1. We will retain ownership to and right of disposal of the items sold for any legal reasons whatsoever until we have received all contractually agreed payments. If the purchaser resells the item purchased, he will be required to inform the purchaser that we still retain ownership of it. Further, the purchaser may not agree to any covenant for assignment. If our rights are infringed, e.g., through attachment, the purchaser must inform us of this in writing immediately.
2. If delivery is made to business premises operated by the purchaser, the items purchased may be resold as part of the regular operation of the business. In this case the claims of the purchaser against his own customer from such a sale will already have been transferred to us. If the items are resold on credit, the purchaser will be required to retain ownership of the goods sold to his customer. The purchaser transfers all rights and claims from this retention of ownership in respect of such customers to us.
3. If items sold are firmly attached to another object or are mixed, blended or processed with another object, the purchaser will transfer his claims or rights of coownership of the new object to us up to the amount of our claim should any claims or co-ownership result from the affixing or processing. The purchaser will perform any processing or machining work on the items at no cost to us.
4. In the case of any acts or other behaviour on the part of the purchaser which are in breach of the contract, in particular in the case of arrears of payment, we will be entitled to take back the goods as delivered after reminding the purchaser of his arrears and declaring our withdrawal from the contract, and the purchaser will be required to return the goods. If the purchaser fulfils the contract, we will be obliged to return the items.
VI. Material Defects
1. The purchaser will be required to inform us immediately and in writing within 7 (seven) days following delivery of any visible defects to, shortages of or incorrect shipments of the items purchased before they are processed.
2.We will not be liable to the purchaser for any material defects which have no adverse effect on the value or the serviceability of the item sold or which have only a marginal adverse affect on it.
3. If the purchaser is obliged to make good a claim on behalf of his customer due to a defect to the item sold in case of supplier’s recourse within the meaning of Paragraph 478 of the German Commercial Code (BGB), he will be required to inform us of this immediately and, as far as possible, to select the least expensive method of correcting the defect.
4. The exemption from liability mentioned in Section VI. No. 2 above with the shortened deadline for submitting claims due to defects will not apply where liability has been prescribed by law, e.g., where the inherent nature of the goods has been guaranteed, where a defect has been maliciously concealed, in the case of liability for damage resulting from danger to human life, physical injury or danger to human health due to wilful or negligent breach of duty on our part or on the part of our agents or in cases of liability for any other damage due to wilful or negligent breach of duty on our part or on the part of our agents.
1. We will be liable for damage which has not occurred to the item purchased for any reason whatsoever in the case of: ¾ wilful or grossly negligent breach of duty but not for any negligent breach of duty by us or our agents; in the case of danger to human life, physical injury or danger to human health, even if this is due to negligent breach of duty; ¾ defects which we have maliciously concealed; ¾ the assumption of a guarantee for the inherent nature of the item purchased (including the guaranteed absence of a defect); ¾ the breach of fundamental contractual obligations; in the case of simple negligence (but not gross negligence or criminal intent), the compensation to which the purchaser is entitled will be limited to foreseeable damage customary in contracts, provided there is no liability for danger to human life, physical injury or danger to human health; ¾ liability within the meaning of the German Product Liability Act (ProdhaftG).
2. If the purchaser is entitled to compensation for damages as defined in this Section (“VII Liability”), these will lapse on expiry of the statutory period of limitation. Claims for damages within the meaning of the German Product Liability Act (ProdhaftG) will be subject to and governed by the period of limitation referred to in this Act.
VIII. Applicable Law and Legal Venue
1. These Terms and Conditions will be governed by the laws of the Federal Republic of Germany. The language used for negotiation will be German.
2.Our legal relations with purchasers abroad will be governed by the laws of the Federal Republic of Germany.
3. The legal venue for all claims arising from commercial relationships connected with these Terms and Conditions, including claims related to bills of exchange, cheques or tortious claims, will be the registered offices of the commercial premises of the vendor, provided either both contracting parties are merchants (“Kaufleute”) within the meaning of the German Commercial Code (HGB), or the purchaser is a legal entity in (German) civil law or a special fund under (German) public law and the vendor is a merchant (“Kaufmann”) within the meaning of the German Commercial Code (HGB). Terms and Conditions of Business – Paninkret Chem.-Pharm. Vertriebs GmbH
IX. Testing Clause Should any one of the above provisions in these terms and conditions of business be or become invalid, this will not affect the validity of the other provisions and agreements. In this case, a replacement provision that comes as close as possible to the intention of the contracting parties will then apply; alternatively, the relevant legal provisions will apply.