1. Scope of Application
1.1. The following terms and conditions apply to natural persons or legal entities or to partnerships with legal capacity who, upon conclusion of this contract, are acting in exercise of their commercial or independent professional activity (entrepreneur) as well as to legal entities of public law and to public fund assets. Our terms and conditions of purchase apply exclusively. Terms and conditions of the respective contracting party which are contrary to, or deviate from, our terms and conditions are not recognized. This also applies if we do not expressly object to the general terms and conditions or other contractual conditions of the respective contracting party. Our terms and conditions also apply to all future transactions with the respective contracting party. Our terms and conditions of purchase are to be fully acknowledged with the performance of our order.
1.2. Deviations from our terms and conditions of purchase only apply if they have been set out in writing in the respective contract and confirmed by us in writing or by fax. The same applies to the application and inclusion of delivery terms of the respective contracting party.
1.3. These terms and conditions apply to all companies of the Pruftechnik Group. These companies are hereinafter referred to solely as Pruftechnik.
2. Conclusion of Contract
2.1. For our part, all offers are free of charge and without obligation.
If the respective contracting party makes an offer on the basis of an inquiry from Pruftechnik, he must adhere exactly to the specifications contained in our inquiry. Furthermore, he is to clearly and explicitly indicate any deviations from the specifications contained in our inquiry.
2.2. Orders, agreements, amendments and verbal ancillary agreements are only binding if they have been agreed to and confirmed by us, in writing, by letter or fax or in any other text form such as e-mail or electronic fax.
2.3. If the respective contracting party does not accept the order from Pruftechnik in writing within 10 working days of receipt, we are thus entitled to revoke the order. An order from Pruftechnik is deemed to have been received no later than 3 working days subsequent to the order being issued. If Pruftechnik is able to prove by means of a transmission report that Pruftechnik has sent a declaration by fax or data transmission (including e-mail), the declaration is deemed to have been received by the respective contracting party on the date indicated thereon.
2.4. Pruftechnik may also insist upon changes to the delivery item at a point in time subsequent to conclusion of the contract insofar as this is reasonable for the respective contracting party with particular consideration being given to potential additional or reduced costs as well as delivery dates.
2.5. The respective contracting party is to treat conclusion of the contract as confidential. Vis-à-vis third parties, the respective contracting party may only refer to Pruftechnik as a contracting party if we, in this regard, have granted our express written consent. This also applies to any indications in advertising materials.
2.6. All correspondence is subject to confidentiality unless it has been explicitly exempted from this obligation or has been released by us.
3. Prices, Transportation and Packaging
3.1. The price stated in the order is binding and is a fixed price. The price is subject to the applicable VAT and includes the cost of delivery to the place of use as well as packaging and freight costs. In the absence of an explicit alternative written agreement, this also applies to rail shipments "free as far as Munich East station" as well as to all other shipments "ex works Ismaning". Insofar as a price has been agreed "ex works" or "ex warehouse", the freight forwarder designated by Pruftechnik is to be commissioned. All costs (including loading and excluding carriage), incurred up to the point at which the goods are transferred to the carrier are to be borne by the respective contracting party. If the order does not contain any price specifications, the current list prices of the respective contracting party applies with the customary trade discounts. The agreement about the place of performance is not affected by the pricing structure.
3.2. Delivery notes, bills of lading, invoices as well as all correspondence are to include the Pruftechnik order number. Offers from the respective contracting party are to include our inquiry number.
3.3. We reserve the right to approve or reject surplus or short deliveries. Insofar as such deliveries are unavoidable, we are to be contacted beforehand and our approval is required.
3.4. The respective contracting party bears the risk associated with shipping. The risk of accidental loss and accidental deterioration is thus borne by the respective contracting party until the goods have been delivered to the shipping address or place of use chosen by Pruftechnik.
3.5. The goods must be packaged in a manner that seeks to avoid transport damage. Packaging material must be environmentally friendly and must only be used to the extent necessary. Proper disposal of the packaging material is the responsibility of the respective contracting party and is to be done at his own expense. Otherwise, the take-back obligation for packaging material is to be determined in accordance with the relevant mstatutory provisions. Insofar as Pruftechnik is invoiced separately for packaging in exceptional cases, we are entitled to return packaging, which is in good condition, to the respective contracting party, free of charge, for two-thirds of the amount stated in the invoice.
4. Terms of Payment
4.1. Invoices are to be submitted in full, i.e. including all associated documents and stating the Pruftechnik order number, in duplicate and in the correct form following delivery of the goods. The invoice can also be sent to invoice(at)pruftechnik.com. The actual quantities, weights or other units on which the delivery is based as well as the agreed prices are decisive for payment.
4.2. Insofar as no agreement to the contrary has been made in writing, Pruftechnik is to pay the purchase price within 14 days with a 3% discount or after 30 days net following delivery and receipt of the invoice.
4.3. Insofar as material test certificates have been agreed, they form an essential element of the delivery and are to be sent to Pruftechnik together with the delivery. However, they must be in Pruftechnik's possession within 5 days of the invoice being received. The payment period does not begin until the agreed certificate has been received.
4.4. Payments is not considered acknowledgment of the correctness of the invoice and/or acknowledgment of performance compliant with the terms of the contract. In the event of a defective delivery, Pruftechnik is entitled to withhold paymentproportionate to the value until proper performance of the contract has been effected. Further claims remain unaffected.
4.5. Insofar as Pruftechnik makes down payments or payments in advance on its orders, we are thus entitled, at any time, to insist upon the provision of an appropriate security from the respective contracting party in the form of a bank guarantee [according to our text].
4.6. Pruftechnik is not liable to pay any additional interest from the due date. Insofar as no agreement to the contrary has been made, an interest rate per year of 5% above the base rate pursuant to § 247 BGB (German Civil Code) is to apply in the event of a default on the part of Pruftechnik. At our own discretion, we shall pay either by bank transfer or by check. Payment is deemed to have been made in a timely manner if we can provide evidence that our check has been sent or that our bank transfer has been effected by the due date for payment.
4.7. We may offset against all claims, which the respective contracting party has against us, against all claims, which Pruftechnik or any domestic companies, in which Pruftechnik directly or indirectly has a majority share, may have against the respective contracting party.
4.8. The assignation of claims to third parties, which the respective contracting party has against us on the basis of this contract, requires our written consent. With regards to assignations made on the basis of a prolonged retention of title, consent is deemed to have been granted from the outset.
4.9. The contracting party shall only have a right of offset or retention in the event of res judicata or undisputed counterclaims.
5. Delivery dates, Delay in Delivery, Force Majeure
5.1. The delivery time stated in our order is binding. Insofar as the delivery time is not agreed, it is to be a maximum of 4 weeks from the point at which the contract is concluded depending on the delivery item. If a fixed delivery date is missed, the respective contracting party is in default with the delivery without a written reminder being required. The point at which the goods are received at the reception point or place of use specified by Pruftechnik is decisive for adherence to the delivery date. Insofar as confirmation of acceptance is required, the respective contracting party is in default without a written reminder being issued if, by the agreed date, he has not effected performance in a manner in which acceptance cannot be refused (§ 640 Sec.1 Clause 2 BGB).
5.2. If the respective contracting party realizes that the agreed deadline cannot be adhered to, we, irrespective of the reason, are to be informed immediately, verbally and in writing, about non-adherence to the deadline and the expected duration of the delay.
5.3. In the event of the default being on the part of the respective contracting party, we are entitled to rescind the contract and to claim damages in lieu of performance following expiration of a revised deadline which the contracting party has been set. Any further statutory claims remain unaffected.
5.4. If the respective contracting party does not effect delivery in a timely manner, we are entitled to seek a contractual penalty amounting to 0.1% of the total order value per business day by which the delivery date is exceeded, but not exceeding 5% of the total order value, in addition to performance. Pruftechnik is entitled to assert the claim for the contractual penalty until payment of the final invoice; § 341 Sec. 3 BGB (German Civil Code) is waived in this regard. The contractual penalty is to be offset against any claim for damages arising from a default and is only the minimum value of the damages.
5.5. The respective contracting party can only rely on the absence of requisite documents that Pruftechnik is to provide if he has submitted a written reminder for such documents and has not received them within a reasonable period of time.
5.6. All events of force majeure entitle each contracting party to postpone performance of contractually assumed obligations for the duration of prevention by force majeure or, if performance of the contract becomes wholly or partly unreasonable, to rescind the contract in this respect without incurring claims for damages from the other contracting party. Force majeure is deemed to be all events which occur unexpectedly and are not culpably committed by any of the parties. Force majeure specifically includes natural catastrophes, fire, lightning, explosions, poison or gas leaks, flood, general interruptions in supply, acts of war, terrorism or acts of a comparable nature, labor disputes in the operations of a contracting party or in third-party operations as well as state interventions. Events equivalent to force majeure are severe operational disturbances resulting in a restriction or suspension of operations and other circumstances which render performance of obligations substantially more difficult, or impossible, irrespective of whether they occur for a contracting party or for third parties insofar as the contracting party or the third party are not responsible for such circumstances.
5.7. In the event of delivery in advance of the agreed delivery date, Pruftechnik may choose to return the goods at the expense of the respective contracting party or store the goods at the expense and risk of the respective contracting party until the agreed delivery date. Early delivery does not affect any due date.
5.8. Pruftechnik only accepts partial deliveries if such deliveries have been expressly agreed to in writing. If a partial delivery has been agreed, the respective contracting party is to list the quantity of goods that is outstanding.
The respective contracting party shall be liable for any form of contractual breach in accordance with statutory provisions unless otherwise stipulated in these terms and conditions of purchase.
7.1. The respective contracting party is to ensure that delivery/performance is in accordance with the state of the art, regulations regarding technical safety, occupational and environmental protection in the relevant statutes, directives and regulations of authorities and trade associations as well as special contractual arrangements. If deviations from these provisions are necessary in individual cases, the respective contracting party is to obtain our written consent for such deviations. This does not affect any claims on the part of Pruftechnik. If the respective contracting party is in doubt as to the type of performance sought by Pruftechnik, he is to provide Pruftechnik with written notification of such doubt immediately.
7.2. Contractual specifications of a technical and other nature relating to deliveries or services to be rendered constitute, in each case, an agreed condition. This also applies to a description of the scope of delivery as well as to a drawing. Any changes to the agreed specifications are to be made consensually and in writing or in some form of written communication such as e-mail or fax.
7.3. The respective contracting party is obligated to use environmentally friendly products and processes for his deliveries/services as well as for deliveries or ancillary services rendered by third parties insofar as it is economically and technically possible to do so. The respective contracting party is liable for the environmental compatibility of the delivered products and packaging materials as well as for all consequential damages resulting from the breach of his statutory disposal obligations. If requested to do so by Pruftechnik, the respective contracting party is to issue us with a certificate of inspection for the delivered goods.
7.4. Insofar as we are responsible for inspection of the service and for notification of defects in commercial transactions pursuant to § 377 Sec.1 HGB (German Commercial Code), inspection and notification of defects are performed in a timely manner it they are performed within five (5) working days of delivery. Notification of a defect, which only becomes apparent at a subsequent point in time, is given in a timely manner pursuant to § 377 Sec. 3 HGB (German Commercial Code) if it is given within five (5) working days of the defect being detected.
7.5. We are entitled to statutory warranty claims without restriction. The right to choose the nature of supplementary performance, rectification or replacement delivery is also to be granted to us in the event of a contract for work and services unless the respective contracting party is entitled to refuse supplementary performance or if Pruftechnik’s demand for supplementary performance is unreasonable for the respective contracting party given the circumstances of the individual case.
7.6. If the respective contracting party does not commence supplementary performance within a reasonable time period set by us, Pruftechnik is entitled – notwithstanding the statutory provisions for the right of self-help in § 637 BGB (German Civil Code) – in urgent cases, in particular to prevent an acute risk of significant damage, to effect performance themselves or have performance effected by a third party at the expense of the respective contracting party. The delivery of a defect-free item or a defect-free plant by a third party is only permissible in such cases if this seems justified upon consideration of the interests of the two parties.
7.7. If supplementary performance by the contracting party has failed or is unacceptable to us (e.g. due to particular urgency, a risk to operational safety or imminent occurrence of disproportionate damages), there is no need to set a deadline. We shall inform the contracting party of such circumstances without delay and in advance wherever possible.
7.8. Warranty claims due to defective delivery prescribe 24 months from the point at which risk is passed. Warranty claims for defective spare parts and for commercial goods prescribe 24 months after commissioning or after delivery to the customer, but not later than 3 years after delivery to us. In the event that delivery parts had to be inspected for defects or defects in delivery parts had to be corrected and the delivery parts could therefore not be put into operation, the warranty prescription period is extended by the length of time for which operations were suspended. With regard to parts that are repaired or re-supplied, the aforementioned warranty prescription period begins at the point at which repair or re-supply of new parts has concluded.
7.9. If the goods are subject to a defect of title at the time of being purchased by Pruftechnik, the respective contracting party shall indemnify Pruftechnik from any existing claims made by third parties. Warranty claims arising from defects of title prescribe after three years starting from the end of the year in which the claim arose and Pruftechnik became aware of the circumstances substantiating the claim and of the identity of the debtor or would have become aware thereof without gross negligence, regardless of the knowledge or lack of knowledge due to gross negligence within 10 years of such claims arising.
8. Product Liability
8.1. If a claim is raised against Pruftechnik due to a breach of official safety regulations or due to domestic or foreign product liability regulations as a result of a defect in the product attributable to the goods supplied by the respective contracting party, Pruftechnik is entitled to seek compensation insofar as far as the damage was caused by the product supplied by the respective contracting party. This compensation also includes the costs of any recall action that may be necessary. If a defect occurs in a part supplied by the respective contracting party, it is to be assumed that the defect originated exclusively within the area of responsibility of the respective contracting party.
8.2. The respective contracting party is obligated to carry out appropriate quality assurance measures according to the type, scope and state of the art, and to demonstrate to Pruftechnik that such measures have been carried out if requested to do so. To the extent that Pruftechnik considers it to be necessary, the respective contracting party is to conclude a suitable quality assurance agreement with Pruftechnik.
8.3. The respective contracting party is to insure himself to a reasonable extent against all risks arising from product liability, including the recall risk, and is to present Pruftechnik with a copy of the insurance policy for inspection if requested to do so.
9. Property Rights
9.1. The respective contracting party ensures that all deliveries are free of third party property rights and, in particular, that the delivery and use of the supplied goods does not infringe any patents, licenses or other property rights of third parties within Germany. Insofar as the respective contracting party is aware that his products are also marketed by Pruftechnik in countries outside Germany, the above section also applies to such countries.
9.2. The respective contracting party is to indemnify Pruftechnik and Pruftechnik's customers from third party claims arising from any infringements of property rights and is to bear all costs incurred by Pruftechnik in this context.
9.3. Pruftechnik is entitled, having regard to the duty of care expected of a proper businessman, to obtain authorization from the right holder to use the relevant delivered goods and services at the expense of the respective contracting party.
9.4. The results of work – all results obtained by Pruftechnik and/or Pruftechnik’s contracting party as part of performance of this contract – belong to Pruftechnik along with the right of arbitrary use and application. This also applies, in particular, to inventions that can be protected under patent law and/or the German Utility Model Act (GbmG), as well as to work results protected by copyright.
9.5. Insofar as work results are embodied in reports, data carriers, raw data, samples and other documents, such work results are to become the unconditional property of Pruftechnik. Pruftechnik’s contracting party is to keep the work results for Pruftechnik until they are handed over to Pruftechnik.
9.6. In any case, the contracting party is to assign and transfer the reports, data carriers, raw data, samples and other documents embodying the work results to Pruftechnik upon termination of the contract.
10. Drawings and Other Documents, Tools
10.1 All design documents, devices, tools, models, etc., which have been entrusted to the respective contracting party, remain our property and are to be carefully stored for the duration of the contract at the expense of the respective contracting party. They must only be used for the contractually agreed purposes and must only be made accessible to third parties to the extent necessary in this regard.
10.2 Tools and other production materials that we have paid for must not be scrapped or made accessible to third parties, particularly for production purposes, without our written consent.
10.3 Moreover, we refer to the other separate conditions we have set out in our tool agreements.
10.4 We reserve all rights to drawings and products that were made according to our specifications as well as to procedures that were developed by us.
11. Terms of Trade
Unless otherwise agreed, the most recent version of INCOTERMS, as defined by the International Chamber of Commerce, are to apply to the interpretation of the terms of trade.
12. Proof of Origin, Export Restrictions
12.1 The proof of origin requested by us is to be provided with all requisite information by the respective contracting party and is to be properly signed and made available to us in a timely manner.
12.2 The respective contracting party is to inform us if a delivery item is wholly or partly subject to export restrictions under German law or any other foreign trade legislation.
13. Applicable Law
13.1 In addition to the provisions of the contract, all legal relations between us and the respective contracting party are to be governed solely by the law of the Federal Republic of Germany, which is decisive for the legal relations of domestic parties. The application of foreign law is excluded. The standard UN Convention on the International Sale of Goods does not apply.
13.2 German is the language of the contract. Insofar as the contracting parties also use a different language, the German text has primacy.
14. Confidentiality Obligation
The contracting parties are obligated to treat all non-public details of a commercial or technical nature, which they become aware of in the course of the business relationship, as trade secrets. A corresponding obligation is to be imposed on subcontractors.