General Terms and Conditions of Sale and Delivery
1. General Provisions – Scope, Offer, and Conclusion of the Contract
1.1 The following “General Terms and Conditions of Sale and Delivery” of Peter Cramer GmbH & Co. KG (hereinafter referred to as the “Contractor”) shall apply exclusively to all offers, orders, and deliveries by the Contractor. Any terms and conditions of the customer—as the client—that deviate from or conflict with these contractual terms and conditions are expressly rejected. The Contractor expressly notes that additional, supplementary terms and conditions apply to the performance of repairs or rentals in connection with the contract governed in detail by these General Terms and Conditions. The Contractor’s offers are subject to change without notice. Orders placed become binding only upon the Contractor’s written confirmation.
1.2 The Contractor’s “General Terms and Conditions of Sale and Delivery,” as amended from time to time, shall also apply to future contracts for the purchase of movable property with the same Client.
1.3 Individual agreements made with the Client on a case-by-case basis (including ancillary agreements, additions, and amendments) shall take precedence over these contractual terms and conditions. The content of such individual agreements shall be governed by a written contract or the Contractor’s written confirmation.
1.4 The Contractor reserves the right of ownership and, to the extent they are subject to copyright, the copyright to cost estimates, drawings, information of a tangible and intangible nature—including in electronic form—and other documents. They may not be made available to third parties.
1.5 The underlying purchase agreement and these terms and conditions apply only to a business entity, a legal entity under public law, or a special fund under public law in accordance with Section 310(1), first sentence, of the German Civil Code (BGB).
2. Scope of the Obligation to Deliver
2.1 The scope of delivery shall be determined by the Contractor’s written order confirmation.
2.2 Dimensions, weights, illustrations, drawings, and other documents included in the bids are approximate only, unless they are expressly designated as binding. The Contractor is not obligated to verify the dimensions, weights, etc., provided by the Client.
2.3 To the extent that the delivered item includes software, the Client is granted a non-exclusive right to use the software supplied (with the item). The software is provided for use on the specific delivered item for which it is intended. Use of the software on more than one system or delivered item is not permitted. The granting of sublicenses is not permitted. The Client may use the software only to the extent permitted by law (Sections 69a et seq. of the German Copyright Act (UrhG)). The Client agrees not to remove or alter any manufacturer’s information (including, but not limited to, copyright notices) without the Contractor’s express consent. All other rights to the software, data collected and/or generated by the delivered item, and the documentation, including copies, remain with the Contractor.
3. Delivery Time
3.1 The delivery period is deemed to have been met if, by the time it expires, the goods to be delivered have left the contractor’s warehouse or the manufacturer’s plant, or if the contractor has notified the client that the goods are ready for shipment or pickup.
3.2 In the event of force majeure and the occurrence of unforeseen obstacles beyond the Contractor’s control (e.g., caused by or resulting from an epidemic, pandemic, labor disputes, strikes, government measures, insufficient procurement or delayed or restricted supply of raw materials and auxiliary materials, power, water, and, where applicable, gas outages, lack of transportation, etc.), the agreed-upon delivery time shall be adjusted accordingly. This also applies if the obstacles arose during an existing delay. The Contractor shall notify the Client of the start and end of such circumstances as soon as possible.
3.3 If the Client suffers damages due to a delay caused by the Contractor—in particular, in the case of a delivery date firmly agreed upon with the Contractor—the Client is entitled to claim compensation. In cases of slight negligence, such compensation shall amount to 0.5% for each full week the deadline is exceeded, up to a maximum of 5% of the net payment amount for the delivery that was not made on time as a result of the delay. Notwithstanding Section 8.5, further claims for damages arising from delay due to slight negligence are excluded.
3.4 If shipment is delayed due to circumstances for which the Client is responsible, the Contractor is entitled to claim reimbursement for the costs incurred as a result of the delay, including any third-party storage costs. The Contractor is entitled, after granting a reasonable grace period that has elapsed without result, to dispose of the delivery item as it sees fit and to supply the Client with a reasonable extension of the delivery period.
3.5 Compliance with the delivery schedule is contingent upon the customer’s fulfillment of its obligations under the purchase agreement.
3.6 If the Contractor does not receive delivery itself, even though it has placed identical orders with its suppliers or the manufacturer, the delivery period shall be extended accordingly. In this case, the Contractor shall immediately notify the Client of the unavailability of the delivery.
4. Prices and Payment
4.1 Unless otherwise agreed, prices are quoted in euros, ex works, including loading at the factory but excluding packaging and insurance, and plus applicable value-added tax.
4.2 If, after the conclusion of the contract—in cases where the delivery period for the subject matter of the contract exceeds 4 months—the manufacturer changes the delivery prices, e.g., due to increased procurement costs for production components or significantly fluctuating manufacturing costs (energy, raw material, and transportation costs)—each of the two contracting parties shall have the right to demand that the other party enter into supplementary negotiations regarding the future sales price to the client. The purpose of these negotiations is to reach a mutual agreement on an appropriate adjustment of the contractually agreed-upon sales price for the subject matter of the contract in question to align it with the manufacturer’s current delivery prices as the basis for calculation. The relevant letter from the manufacturer to the contractor regarding the increase or decrease in delivery prices, issued after the conclusion of the contract, shall be decisive in determining whether a percentage increase or decrease in delivery prices has occurred. If the parties are unable to reach an agreement, the contractor shall be entitled to make a reasonable adjustment to the sales price.
4.3 Unless otherwise agreed, payment of the purchase price must be made immediately upon receipt of the invoice, without any discount, to the Contractor or to the payees designated by the Contractor. Agents are not authorized to accept payments unless they have been expressly granted power of attorney to collect payments.
4.4 In the event of noncompliance with the terms of payment, or if the Contractor becomes aware after the conclusion of the contract that the payment claim is at risk due to the Client’s inability to pay, the Contractor shall be entitled to perform any outstanding deliveries and services only against advance payment or security.
4.5 The Client is entitled to withhold payments or set them off against counterclaims only to the extent that its counterclaims are undisputed or have been established by a final and binding judgment, or to the extent that such counterclaims are ready for decision in pending legal proceedings.
5. Transfer of Risk and Acceptance of the Delivered Goods
5.1 Upon handover of the delivered goods to the carrier, carrier, or the party picking up the goods—or, in the case of transport using the Contractor’s or the Client’s own means of transport, no later than when the goods leave the Contractor’s warehouse or the manufacturer’s plant—the risk shall pass to the Client, even if partial deliveries are made or the Contractor has assumed other obligations, such as shipping costs or delivery and installation.
5.2 If the order does not specify particular shipping instructions, the Contractor shall, at its reasonable discretion and without any obligation, select the most cost-effective method of delivery. At the Client’s express written request, the Contractor shall insure the shipment against breakage, damage during transport, fire, and water damage, at the Client’s expense.
5.3 If shipment is delayed due to circumstances beyond the Contractor’s control, the risk shall pass to the Client as of the date the goods are ready for shipment or the date the Client is notified that the goods are ready for pickup. However, the Contractor is obligated to provide the insurance coverage requested by the Client, upon the Client’s express written request and at the Client’s expense.
5.4 Provided they do not have any material defects, the Client shall accept the delivered items, without prejudice to the rights set forth in Section 7.
5.5 Partial deliveries to a reasonable extent are permitted.
6. Retention of Title
6.1 The delivered goods (goods subject to retention of title) remain the property of the Contractor until all claims arising from the business relationship with the Client have been paid in full. In the case of an open account, all goods subject to retention of title shall serve as security for the outstanding balance. If the Client is not a merchant, then—notwithstanding the foregoing provision—the delivered goods shall remain the property of the Contractor until all current claims to which we are entitled against the Client arising from the business relationship, plus interest and costs, have been paid in full.
6.2 The Client’s acquisition of ownership of the goods subject to retention of title pursuant to § 950 BGB in the event that the goods subject to retention of title are processed into a new item is excluded. Any processing shall be carried out by the Client on behalf of the Contractor. If the Client processes the goods with other goods not belonging to the Contractor, the Contractor shall be entitled to co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the value of the other goods used in the processing at the time of processing. Otherwise, the same provisions apply to the new item resulting from the processing as to the goods subject to retention of title. It shall be deemed goods subject to retention of title within the meaning of these terms and conditions. If the combination or mixing is carried out in such a way that the client’s item is to be regarded as the principal item, it is hereby agreed that the client shall transfer proportional co-ownership to the contractor.
6.3 The Customer is entitled to use the goods subject to retention of title and to resell them in the ordinary course of business, provided that the Customer is not in default of payment. The Customer’s claims arising from the resale of the goods subject to retention of title—whether sold alone or together with other goods—are hereby assigned to the Contractor, regardless of whether the goods subject to retention of title are sold unprocessed or after processing, and regardless of whether they are sold to one or more buyers. The assigned claim serves as security for the seller subject to retention of title only up to the value of the goods subject to retention of title sold in each instance. The client is not authorized to dispose of the goods subject to retention of title in any other way; in particular, any transfer of ownership by way of security or pledging of the goods subject to retention of title is prohibited.
6.4 The Client is authorized to collect the receivables arising from the resale, notwithstanding the assignment, subject to revocation at any time. The Contractor will not collect the receivables itself as long as the Client duly fulfills its payment obligations. Upon the Contractor’s request, the Client must inform the Contractor of the debtors of the assigned receivables and notify the debtors of the assignment.
6.5 The Client may neither pledge the delivered goods as collateral nor assign them as security without the Contractor’s written consent. In the event of attachment, seizure, or any other disposition by third parties, the Client must notify the Contractor immediately so that the Contractor can enforce its ownership rights. To the extent that the third party is unable to reimburse the judicial or extrajudicial costs incurred in this connection, the Client shall be liable for such costs. The Client undertakes not to agree to any prohibition on assignment with third-party purchasers of the delivered goods. The Client hereby waives the right to assert any objection to the agreement of a prohibition on assignment between the Client and the third-party purchaser.
6.6 If the delivered goods are financed by third parties and title thereto is transferred to them as security for a purchase loan, or if title is otherwise transferred to a third party as security, the Client shall simultaneously transfer its claims for surrender and its prospective claims arising from the acquisition of title (title subject to a condition precedent) to the Contractor as security for all existing and future claims against the Client. Ownership therefore passes directly from the financing institutions or third parties to the Contractor; the retransfer to the Client takes place only through the Contractor. The Contractor is entitled to satisfy the relevant creditors with respect to all their claims, provided that their security interest in the goods is transferred to the Contractor. To this extent, the Client hereby assigns to the Contractor in advance the right to the retransfer of ownership.
6.7 The Contractor’s retention of title is subject to the condition that, upon full payment of all claims of the Contractor arising from the business relationship with the Client, ownership of the goods subject to retention of title shall automatically pass to the Client, and the assigned claims shall also vest in the Client. If the realizable value of all collateral exceeds the coverage limit more than temporarily, the Contractor shall, at the Client’s request, release collateral of its choice in an amount equal to the amount by which the coverage limit is exceeded; in selecting the collateral to be released, the Contractor shall take the Client’s legitimate interests into account.
6.8 In the event of a breach of contract by the Client, particularly in the event of late payment, the Contractor shall be entitled to reclaim the subject matter of the contract following a written notice of default, and the Client shall be obligated to surrender it. The assertion of the retention of title is contingent upon the Contractor’s withdrawal from the contract.
6.9 The Client agrees, as long as ownership has not yet been transferred to it, to treat the goods subject to retention of title with due care and to insure them at its own expense for their replacement value, in particular against damage caused by fire, water, and theft. The Client shall have any necessary maintenance and inspection work performed by the Contractor at its own expense.
7. Liability for Defects in the Delivery
7.1 To the extent that the Client and the Contractor have entered into an agreement regarding the quality of the delivered item, objective requirements for the delivered item shall not apply in this respect.
7.2 All parts that exhibit a material defect within 12 months of delivery as a result of a circumstance occurring prior to the transfer of risk shall be repaired or replaced free of charge, at the Contractor’s discretion. The Contractor must be notified of such defects immediately in writing or in text form. Replaced parts shall become the property of the Contractor.
7.3 No liability is assumed for damage resulting from normal wear and tear.
7.4 No liability is assumed for damages resulting from the following causes:
– Inappropriate or improper use
– Incorrect installation or commissioning by the client or third parties
– In the event of improper or negligent handling of the delivered item, particularly with regard to these operating instructions
– In case of excessive strain
– Bei Verwendung ungeeigneter Betriebsmittel und Austauschwerkstoffe.
7.5 The Client shall, after consulting with the Contractor, provide the Contractor with the necessary time and opportunity to carry out any repairs or replacement deliveries that the Contractor deems necessary in its reasonable discretion; otherwise, the Contractor shall be released from liability for defects. Only in urgent cases where operational safety is at risk—of which the Contractor must be notified immediately—or if the Contractor is in default regarding the rectification of the defect, shall the Client have the right to rectify the defect itself or have it rectified by a third party and to demand reasonable reimbursement of its costs from the Contractor.
7.6 Of the direct costs incurred as a result of the repair or replacement delivery, the Contractor shall bear—provided that the complaint is deemed justified—the costs of the replacement part, including shipping, as well as the necessary costs for removal and installation, provided that this does not impose a disproportionate burden on the Contractor. In addition, when selling a new item, the Contractor shall, to the extent of its legal obligation, reimburse the Client for expenses incurred in connection with recourse claims within the supply chain. In all other cases, the Client shall bear the costs.
7.7 Any modifications or repair work performed improperly by the Client or third parties without the Contractor’s prior consent shall void any liability for the resulting consequences.
7.8 Any further claims by the Client shall apply only in the cases specified in Section 8.5 of these Terms and Conditions.
7.9 Used goods are sold with no warranty against defects. This exclusion does not apply to claims under Section 8.5 of these Terms and Conditions.
7.10 Unless otherwise agreed, the Contractor shall provide its deliveries within Germany free of third-party industrial property rights and copyrights. Should an infringement of such rights nevertheless occur, the Contractor shall either obtain the necessary license from the third party or modify the delivered item to the extent necessary to ensure that no infringement of intellectual property rights exists. If the Contractor is unable to do so under reasonable and fair terms or within a reasonable period of time, both the Client and the Contractor are entitled to terminate the contract.
7.11 In all other respects, the provisions of this Section 7 shall apply mutatis mutandis in the event of legal defects; however, the Client shall only be entitled to claims if it immediately notifies the Contractor in writing of any claims asserted by third parties, does not acknowledge—either directly or indirectly—any alleged act of infringement, ensures that the Contractor retains all defenses without restriction, the legal violation is not due to the Client having modified the delivered item or used it in a manner not in accordance with the contract, or the legal defect is attributable to an instruction from the Client.
8. The Client’s Rights to Withdrawal or Reduction, and Other Liability of the Contractor
8.1 The Client may withdraw from the contract if it becomes definitively impossible for the Contractor to perform the entire service. The same applies in the event of the Contractor’s inability to perform. The Client may also withdraw from the contract if, in the case of an order for items of the same type, it becomes impossible to fulfill part of the delivery in terms of quantity and the Client has a legitimate interest in rejecting a partial delivery. If this is not the case, the Client may reduce the consideration accordingly.
8.2 If there is a delay in performance as defined in Section 3 of these Terms and Conditions, and if the Client grants the Contractor in default a reasonable grace period and the Contractor fails to meet that grace period, the Client shall be entitled to terminate the contract.
8.3 If the impossibility arises during the period of default in acceptance or through the fault of the client, the client remains obligated to provide consideration.
8.4 The Client also has the right to rescind the contract if the Contractor allows a reasonable grace period granted to it for remedying the defect to elapse without result. The Client’s right to rescind the contract also applies in other cases where the Contractor fails to repair the defect or provide a replacement.
8.5 Any further claims for compensation for damages of any kind—including damages that did not occur to the delivered item—shall exist only
– in cases of gross negligence or willful misconduct
– in the event of injury to life, body, or health
– in the event of a culpable breach of material contractual obligations, to the extent that the fulfillment of the purpose of the contract is jeopardized, with respect to foreseeable damages typical for this type of contract
– in cases where, under the Product Liability Act, liability arises for defects in the delivered item, or for personal injury or property damage to items used for private purposes
– in the case of defects that were fraudulently concealed or whose absence the Contractor guaranteed.
Otherwise, any further claims for damages are excluded.
9. Liability for Incidental Obligations
If, through the Contractor’s fault, the delivered item cannot be used by the Client in accordance with the contract as a result of the Contractor’s failure to carry out or incorrect execution of proposals and advice provided before or after the conclusion of the contract, as well as other ancillary contractual obligations—in particular instructions for the operation and maintenance of the delivered item— then, to the exclusion of any further claims by the Client, the provisions of Sections 7 and 8 of these Terms and Conditions shall apply accordingly.
10. Statute of Limitations
10.1 Claims for material defects and defects of title are subject to a 12-month statute of limitations beginning on the date of delivery.
10.2 The time limit specified in the first sentence of Section 10.1 above does not apply if the matter concerns defects in a structure or materials intended for a structure and these defects have caused the material defect. Notwithstanding the first sentence of Section 10.1, the statutory limitation periods shall also apply in the event of contractor recourse pursuant to Sections 478 and 479 of the German Civil Code (BGB) as well as in cases of any claims by the Client pursuant to Section 8.5 of these Contract Terms; these also apply to the statute of limitations for recourse claims in the supply chain pursuant to Section 445b(1) of the German Civil Code (BGB). The suspension of the statute of limitations under § 445b(2) of the German Civil Code (BGB) remains unaffected and ends no later than five years after the date on which the contractor delivered the goods. These provisions regarding the statute of limitations for recourse claims and the suspension of the statute of limitations do not apply if the final contract in the supply chain is a sale of consumer goods.
11. Governing Law, Place of Performance, and Jurisdiction
11.1 All legal relationships between the Contractor and the Client shall be governed exclusively by the laws of the Federal Republic of Germany, without regard to any possible renvoi under the rules of private international law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) are expressly excluded.
11.2 If the Client is a merchant, a legal entity under public law, or a special fund under public law, the place of performance and exclusive venue for both parties and for all present and future claims arising from the business relationship shall be the Contractor’s principal place of business or—at the Contractor’s option—the location of the branch office that concluded the contract. However, the Contractor may also bring an action before the court having jurisdiction over the Client.
§12 Special Provisions for Resellers
The Contractor’s products may be resold only subject to retention of title and in accordance with the Contractor’s terms of delivery (downstream retention of title) as long as the Client still has outstanding obligations to the Contractor.