General Terms and Conditions of Sale of perfecdos GmbH (B2B)
§ 1 Scope of application
- All offers, deliveries, services and contracts of perfecdos GmbH (hereinafter referred to as “perfecdos”) are made exclusively under the following conditions, even if not specifically referred to in individual cases. Deviating terms and conditions of the customer, in particular terms and conditions of purchase, do not apply, even if they are not expressly contradicted.
- These General Terms and Conditions do not apply to contracts with consumers (consumer contracts).
§ 2 Offer and conclusion of contract
- All offers are subject to change.
- A contract is only concluded by formal order confirmation from perfecdos. However, an order shall be deemed to have been confirmed under the terms of the offer if delivery is made without a formal order confirmation.
- perfecdos is entitled at any time to make changes to the delivery items that do not impair functionality and that perfecdos considers necessary for technical reasons or for reasons of model maintenance.
§ 3 Documents provided
All rights to and from execution documents, e.B drawings, models, calculations and the tools required for the execution of the order are exclusively perfecdos. The customer has no claim to the surrender of execution documents and tools. These documents may not be made accessible to third parties unless perfecdos gives the customer formal consent to this.
§ 4 Prices and price adjustment
- Decisive are the prices stated in the order confirmation, in the absence of order confirmation, the prices stated in the valid price list. Unless otherwise agreed, the prices are ex warehouse perfecdos, in euros, plus packaging, freight, postage, insurance, customs clearance and the value added tax legally owed at the time of delivery.
- The deduction of cash discount is only permitted with a written special agreement.
- In the event of cost increases for the purchase or manufacture of the delivery items (increase in wages, costs for prefabricated products and primary materials, raw materials, customs duties and other public charges, etc.) between conclusion of the contract and delivery, perfecdos is entitled to increase the agreed prices accordingly. At the request of the customer, perfecdos is obliged to prove the cost increases. However, the customer is entitled to withdraw from the contract if the price increase significantly exceeds the increase in the general cost of living between order and delivery. The right of withdrawal expires if it is not exercised within one month of notification of the price increase.
- In the case of deliveries to countries within the European Union, the customer must provide proof of his exemption from VAT with his VAT identification number in good time before the contractually agreed delivery date. In the event of failure to provide timely and complete notification, the Supplier reserves the right to charge the applicable value added tax. For services outside the European Union, perfecdos is entitled to charge the statutory value added tax if the customer does not send perfecdos proof of export within one month of the respective shipment.
§ 5 Terms of payment and default of payment
- Unless otherwise stated in the order confirmation, the purchase price is due for payment net (without deduction) within 14 days of the invoice date. Payment deadlines are met if perfecdos can dispose of the payment (credit to the account of perfecdos, cashing of cheques).
- If the customer is in default, interest in the amount of eight percentage points per year above the base interest rate shall be due for payment to perfecdos without prejudice to further claims.
§ 6 Offsetting, rights of retention
The set-off on the part of the customer is only permitted with legally established, undisputed or decision-ready claims. This also applies to the assertion of rights of retention.
§ 7 Delivery and line time
- Delivery, performance and execution periods are non-binding for perfecdos, unless expressly agreed otherwise. Delivery periods begin with the dispatch of the order confirmation, but not before receipt of all necessary information, documents and supplies to be provided by the customer.
- In the case of call-off orders, the customer must determine the delivery or service time in such a way that perfecdos has sufficient time and opportunity to make appropriate dispositions. If the customer – for whatever reason – does not properly fulfil his obligation to call off deliveries and services, perfecdos is entitled to determine the time of performance and the batch sizes itself or to withdraw from the contract and to demand compensation for damages instead of performance.
- Delay in delivery shall only occur after a formal reminder, even if a time has been agreed for the delivery or service that can be determined or calculated according to the calendar.
- The conclusion of the contract is subject to correct and timely self-supply by suppliers of perfecdos. In particular, perfecdos is entitled to withdraw from the contract if perfecdos has concluded a congruent hedging transaction and is abandoned by its supplier. In this case, the customer must be informed immediately about the unavailability of the service. Claims for damages of the customer are excluded.
- All unforeseeable events or obstacles through which perfecdos is not responsible and which delay the delivery or service in whole or in part, in particular strikes, lockouts, unforeseeable operational disruptions in the operation of perfecdos or in the operation of an upstream supplier, unavoidable shortages of raw materials, destruction already services provided by third parties or by events of force majeure (e.B. fire, floods, earthquakes) or obstructions due to a circumstance for which the customer is responsible entitle perfecdos to extend the delivery or service periods by the duration of the hindrance after notification of the obstacle to the customer. If the hindrance lasts longer than six weeks or if the delivery or service becomes impossible for one of the reasons mentioned in sentence 1 above, perfecdos is entitled to withdraw from the contract. The customer must be informed immediately of the impediment to performance and is also entitled to withdraw from the contract under the conditions of sentence 2 above. The customer’s right of withdrawal expires if it is not exercised by the customer within one month of becoming aware of the reason for withdrawal. Consideration already provided by the customer must be reimbursed immediately in the event of justified withdrawal. Further claims of the customer, in particular for damages, are excluded.
§ 8 Transfer of risk upon dispatch
- The risk of accidental loss or accidental deterioration of the delivery item shall pass to the customer as soon as the delivery item is handed over to the person carrying out the transport or leaves the warehouse of perfecdos for the purpose of dispatch. This also applies to carriage paid delivery.
- If the customer does not accept the delivery item offered to him in accordance with the contract or if the dispatch or delivery is delayed at the request of the customer, the risk of accidental loss or accidental deterioration of the delivery item shall pass to the customer upon notification of readiness for dispatch. In these cases, perfecdos is entitled, without prejudice to further claims, to demand storage money from the customer in the amount of 0.5%, but a maximum of 5% of the contract value, starting one month after notification of readiness for dispatch, unless the customer proves a lower damage.
§ 9 Retention of title
- Until all claims and claims, including all current account balance claims, which perfecdos is entitled to against the customer – regardless of the legal basis – have been settled, perfecdos shall be granted the following securities, which shall be released at the customer’s request at perfecdos’ discretion, insofar as their value exceeds perfecdos’ claims against the customer by more than 20% on a sustained basis.
- All delivery items remain the property of perfecdos (hereinafter referred to as “reserved goods”). Processing and transformation are carried out for perfecdos as the manufacturer, but without perfecdos being obliged to do so. If the reserved goods are inseparably combined or mixed by processing or other movable objects not belonging to perfecdos, perfecdos shall acquire co-ownership of the new item.
- The customer is entitled to sell the reserved goods in the ordinary course of business as long as he meets his payment obligations, is not in default with perfecdos and no application for the opening of insolvency proceedings has been filed. The customer is not entitled to other dispositions (assignment by way of security, pledges, etc.) over the reserved goods. The claims arising from the resale or for other legal reasons (insurance services, claims from tort, etc.) (including all balance claims from current account) are hereby assigned by the customer to perfecdos by way of security (insofar as perfecdos is only entitled to co-ownership of the reserved goods: pro rata in the amount of the co-ownership share). perfecdos accepts the assignment. The customer is revocably authorized to collect the claims. perfecdos is entitled to revoke the authorization if the customer does not meet his payment obligations. In this case, the customer is obliged to notify perfecdos of the assigned claims, to provide all information necessary for the collection of the claims and to notify the debtors of the assignment.
- The customer shall store the reserved goods for perfecdos free of charge. He must receive the reserved goods in proper condition and insure them in a commercial care accordingly at his own expense. In the event of seizure due to a court order or other access by third parties, the customer must notify perfecdos immediately, object to access and point out the (co-)ownership of perfecdos. The costs for averting access shall be borne by the customer.
- In the event of breach of contract by the customer, in particular in the event of default in payment, perfecdos is entitled to withdraw from the contract after setting a grace period and to demand the surrender of the reserved goods, without the customer being entitled to a right of retention, to enter the customer’s business premises, to take possession of the reserved goods and, if necessary, to demand assignment of the customer’s claims for surrender. Further claims, in particular for damages, remain unaffected.
§ 10 Warranty
- Delivery items shall be delivered in a customary manner. The quality of the delivery item is conclusively determined by the product description of perfecdos. We expressly reserve the right to make technical changes to the delivery items, even compared to previous deliveries. Advertising statements and promotions that only have advertising-like content do not represent quality information.
- Claims for defects do not exist in the case of only insignificant deviations from the agreed quality or in the case of only insignificant impairment of usability. Claims for defects do not exist in the event of normal material wear as a result of intended use, in the event of natural wear and tear and in the event of limitations of functionality due to causes beyond the control of perfecdos, e.B. damage resulting from incorrect or negligent handling, faulty, unsuitable or improper use, excessive stress, use of unsuitable operating resources/replacement materials, incorrect operation, assembly or commissioning by the customer, improper maintenance by the customer, unsuitable installation conditions or operating environments or external influences such as voltage fluctuations in the power grid or chemical, electrochemical or electrical influences arise, as well as changes made to the delivery item without the consent of perfecdos.
- Defective assembly instructions shall only constitute a defect if they preclude the proper assembly of the delivery item.
- In order to preserve the warranty rights, the customer must formally notify incorrect deliveries, quantity deviations and obvious defects immediately after delivery and non-obvious defects immediately after their discovery.
- Rejected delivery items must be sent carriage paid to the destination designated by perfecdos for inspection and, if necessary, remedying of defects. In the event of a justified notification of defects, the customer will be reimbursed for the transport costs incurred in the required amount.
- perfecdos is entitled to remedy defects in delivery items at perfecdos’ discretion by remedying the defect or delivering a defect-free item (supplementary performance). If the supplementary performance fails in accordance with § 440 sentence 2 BGB, the customer may, at his discretion, demand a reduction in the remuneration (reduction) or withdraw from the contract. In the case of minor defects, withdrawal is excluded.
- All warranty claims shall become statute-barred one year after delivery.
- Unless expressly agreed otherwise, perfecdos assumes no procurement risk and does not provide any guarantees in the legal sense.
§ 11 Breaches of duty outside the warranty
- The withdrawal of the customer due to non-performance or non-contractual performance is excluded if the breach of duty is insignificant and/or perfecdos is not responsible for it.
- Withdrawal from the contract due to breach of an ancillary obligation within the meaning of § 241 paragraph 2 BGB is only permissible if perfecdos is guilty of intent or gross negligence and the customer can no longer be expected to adhere to the contract and the performance by perfecdos.
- Unless shorter limitation periods apply due to the law, claims of the customer due to breaches of duty outside the warranty shall become statute-barred one year after the time at which the customer becomes aware of the facts giving rise to the claim and the person of the debtor or should have become aware of them without gross negligence, without regard to knowledge, but no later than five years after the commission of the breach of duty.
§ 12 General limitations of liability
- Claims for damages in lieu of performance can only be asserted if the customer perfecdos has previously formally set a grace period for subsequent performance, combined with the threat to demand damages instead of performance after expiry of the deadline and/or to withdraw from the contract, and this period expires fruitlessly. Performance claims of the customer expire upon expiry of the set grace period, but at the latest if and as soon as the customer demands damages instead of performance.
- Claims for damages instead of performance due to breach of an ancillary obligation within the meaning of § 241 paragraph 2 BGB can only be asserted under the conditions of the right of withdrawal in accordance with § 11 number 2 above.
- Insofar as – for whatever legal reason – perfecdos is liable for damages or in its place a claim for reimbursement of futile expenses against perfecdos comes into consideration, perfecdos is liable as follows:
a) for damages resulting from injury to life, limb or health, if perfecdos is responsible for the breach of duty,
b) for intentional and grossly negligent conduct of the organs and executives of perfecdos as well as for serious organizational fault,
c) in the event of a breach of essential contractual obligations as well as in the case of at least grossly negligent conduct of simple vicarious agents, limited in amount as follows: The compensation may not exceed the loss and loss of profit incurred, which was foreseeable at the time of conclusion of the contract, taking into account the circumstances that perfecdos knew or should have known, as a possible consequence of the breach of contract.
d) Any claim for reimbursement of futile expenses is excluded in cases in accordance with lit. c) above if and to the extent that the expenses do not serve commercial purposes and/or in the case of expenses for further transactions that the customer has concluded with regard to the contractual relationship with perfecdos.
- The personal liability of the organs and employees of perfecdos who act as vicarious agents is excluded.
- Further claims against perfecdos are excluded.
§ 13 Formal requirements
In order to comply with the requirement of formal notification provided for in these General Terms and Conditions, it is necessary and sufficient for the communication in question to be transmitted in writing, by fax or electronically.
§ 14 Final provisions
- German law shall apply. The application of the United Nations Convention on International Contracts for the Sale of Goods (UN Convention on Contracts for the International Sale of Goods) is excluded.
- Place of performance is Munich.
- The place of jurisdiction for all disputes – including actions on bills of exchange and cheques – is Munich in the event of disputes with merchants, with legal entities under public law and with special funds under public law. However, perfecdos is also entitled to sue the customer at his general place of jurisdiction.
- Ineffective provisions shall be replaced by provisions that come closest to the intended purpose.