1.1. The following Terms and Conditions of sale apply to all deliveries and services of PeCon GmbH unless other agreements have been expressly made. With the order the Customer accepts these Terms and Conditions. The Customer’s conditions of purchase are not binding for PeCon GmbH, even if they are not expressly excluded.
1.2. Any claims held against PeCon GmbH may not be assigned to third parties. Section 354a of the German Commercial Code (HGB) shall remain unaffected.
1.3. The sale, resale and the disposal of goods and services including any associated technology or documentation may be governed by German, EU, US export control regulations as well as by the export control regulations of further countries. Any resale of goods to embargoed countries or to denied persons or persons that use or may use the goods for military purposes, ABC weapons or nuclear technology is subject to an official license. Customer declares with his order the conformity with such statutes and regulations and that the goods will not directly or indirectly delivered into countries that prohibit or restrict the import of such goods. Customer declares to have obtained all licenses required for export and import.
2. Conclusion of Contract
Offers of PeCon GmbH are always delivered without engagement. Orders only become binding by our written order confirmation. Upon export, agreements made will be reported in writing by PeCon GmbH.
3. Placing of Order
Offers and orders that are made verbally, by remote data transmission or by e-mail are only legally binding if they are confirmed by PeCon GmbH in writing or the goods have been sent with an invoice to the Customer. Offers may change unless otherwise agreed.
4.1. All prices are net in EUR.
4.2. The prices quoted in the order confirmation of PeCon GmbH shall solely apply. Additional services will be invoiced separately.
4.3. Unless otherwise expressly agreed, the prices are quoted ex works of PeCon GmbH. The Customer shall bear all additional freight costs, packing costs in excess of standard packing, public fees (including withholding taxes) and duties.
4.4. In the case of a significant increase in the prices before delivery of the order, these can be added after notification to the Customer at the agreed price. The Customer is entitled to cancel the order within 7 days after notification of the price increase.
5.1. Unless otherwise expressly agreed, PeCon GmbH shall deliver ex works (EXW INCOTERMS 2010).
5.2. Delivery periods shall only be binding if expressly agreed in writing. Delivery periods shall begin on the date of the order confirmation by PeCon GmbH, however, in no case prior to settlement of all details relating to an order including the furnishing of any required official certificates. Delivery periods shall be deemed to be met on timely notification of readiness to ship if the goods cannot be dispatched in time through no fault of PeCon GmbH (e.g. due to force majeure, strike, machine malfunction, lack of material).
5.3. With respect to delivery periods and dates, which are not expressly defined as fixed in the order confirmation, the Customer may - two weeks after expiry of such a delivery period or date - set an adequate grace period for delivery. PeCon GmbH may only be deemed to be in default after expiry of such a grace period.
5.4. If the circumstances specified in 5.2 occur, the delivery time is extended appropriately or PeCon GmbH is authorized in whole or in part to withdraw from the contract and to revoke the delivery. PeCon GmbH undertakes to inform the purchaser immediately in this case about the unavailability and is authorized to make use of a reasonable period of grace.
5.5. Without prejudicing PeCon GmbH’s rights from Customer’s default, delivery periods and dates shall be deemed to be extended by the period of time during which the Customer fails to comply with his obligations towards PeCon GmbH. In case PeCon GmbH does not comply with its obligations PeCon GmbH shall only be liable for all types of damages in accordance with section 11 of these Terms and Conditions.
5.6. PeCon GmbH reserves the right to carry out a delivery using its own delivery organisation.
5.7. PeCon GmbH may perform partial deliveries and render partial services if such action would not unreasonably affect the Customer.
5.8. The Customer may rescind the contract after two unsuccessful grace periods unless the hindrance is merely temporary in nature and a delay would not unreasonably affect the Customer.
5.9. Any contractual or statutory right of a Customer to rescind the contract, which the Customer fails to exercise within a reasonable period of time set by PeCon GmbH, shall be forfeited.
6. Shipment, Passing of Risk
6.1. The goods are shipped in the packaging of PeCon GmbH and are selected according to the respective requirements. The use of customized packaging is only possible by prior arrangement.
6.2. Unless otherwise expressly agreed, shipment shall always be carried out at the Customer’s risk. The risk shall pass to the Customer as soon as the goods have been handed over to the person executing the shipment.
6.3. Unless otherwise expressly agreed, the choice of means of transport lies with PeCon GmbH. Basically, an excess or short delivery within the commercial scope is possible.
6.4. If a shipment is delayed for reasons to be attributed to the Customer, the risk of accidental deterioration, loss and destruction shall pass to the Customer on notification of PeCon GmbH’s readiness to ship. Required storage costs after passing of risk shall be borne by the Customer. This shall not affect any other claims.
6.5. If the Customer defaults in accepting, PeCon GmbH shall be entitled to claim refund of any expenditure associated therewith and the risk of accidental deterioration, loss and destruction shall pass to the Customer.
7.1. Unless otherwise agreed, payments for the delivery of goods must be made within 14 days of the date of invoice without deduction. The timeliness of payment is determined by the receipt of the money. When paying by bank transfer, the payment obligation is only fulfilled if the invoice amount is finally credited to the bank account of PeCon GmbH.
7.2. PeCon GmbH reserves the right to deliver in advance.
7.3. For overdue amounts, PeCon GmbH is entitled to charge interest in the amount of its bank interest, but at least to the amount of the statutory default interest rate, without prejudice to the possibility of asserting higher, actual damage.
7.4. Customers may only withhold or offset due payments against their own counter-claims if these are uncontested or have been found to be legally binding.
7.5. Any of PeCon GmbH’s receivables shall be immediately payable in the event of a default in payment or suspension of the Customer’s payments. In any of these aforementioned cases, PeCon GmbH shall also be able to perform remaining deliveries only against advance payment or provision of security, and, if no such advance payment is made or security provided within a two-week time period, to cancel the contract without fixing another extension term. This shall not affect any further claims.
8. Retention of Title
8.1. Delivered goods shall fully remain property of PeCon GmbH (goods sold subject to retention of title) until all receivables, on whatever legal grounds, have been fully paid up. The Customer must notify PeCon GmbH immediately of any limitation of his rights to the goods in his possession, in particular hypothecation. If the Customer does not fulfill his obligations in full, he has to hand over the goods to PeCon GmbH on request, even if PeCon GmbH does not terminate the contract.
8.2. If PeCon GmbH claims retention of title, this shall only be understood as rescind of the contract if expressly stated so by PeCon GmbH in writing. The Customer’s right to possess goods under retention of title shall be null and void if he fails to meet his contractual obligations.
8.3. In case of processing, combining or mixing of goods subject to retention of title with goods of the Customer, PeCon GmbH shall be entitled to co-ownership of the new property inasmuch as the invoiced value of goods sold with retention of title relates to the value of the other involved goods. Where PeCon GmbH co-ownership becomes null and void due to processing, combining or mixing with other goods, the Customer immediately assigns to PeCon GmbH those of his rights of ownership in the new property or compound matter which correspond to the amount of the value of goods subject to retention of title by PeCon GmbH. Customer shall also be responsible for holding such rights in safe custody on the behalf of PeCon GmbH and at Customer’s own expense. Any rights to co-ownership created as a result of such processing, combining or mixing shall be subject to section 8.1 of these Terms and Conditions.
8.4. The Customer may resell, process, combine or mix with other property, or otherwise integrate goods under retention of title in normal business operations, as long as the Customer is not defaulting. The Customer shall be prohibited from taking any other disposition regarding goods for which PeCon GmbH retains title. All intervention costs will be charged to the Customer if and to the extent that they cannot be collected from such third party. If the Customer grants his buyer additional time for payment of the sales price, Customer shall reserve title in goods resold with retention of PeCon GmbH’s title under the same terms which PeCon GmbH has applied when delivering such goods with retention of title. The Customer shall be prohibited from any other kind of resale.
8.5. The Customer shall immediately assign to PeCon GmbH any receivables resulting from a resale of goods initially sold with retention of PeCon GmbH’s title. These will be used to substitute the goods under retention of title as collateral of the equivalent amount. The Customer shall only be entitled and authorised to resell such goods if his receivables therefrom accrue to PeCon GmbH.
8.6. If the Customer resells goods under retention of our title together with goods from other suppliers at a certain total price, Customer shall assign to PeCon GmbH his receivables from such resale in the same amount as stated in the invoice for goods initially sold with retention of title by PeCon GmbH.
8.7. If an assigned receivable is included into a current account, the Customer immediately assigns to PeCon Gmbh that part of the balance which is equivalent to the amount of such receivable, including the final balance from current account operations.
8.8. Until PeCon GmbH gives notice of revocation, the Customer shall be authorised to collect receivables assigned to PeCon GmbH. PeCon GmbH shall be entitled to such revocation if the Customer fails to meet his payment obligations under the business relationship with PeCon GmbH in due course. If the preconditions for exercising a revocation right are fulfilled, the Customer shall promptly notify PeCon GmbH of any assigned receivables with respective debtors, furnish all data required for collection of such receivables, hand over all related documentation and advise the debtors of such assignment. PeCon GmbH reserves the right to personally advise the debtors of such assignment.
8.9. If the value of the collateral deposited for the benefit of PeCon GmbH exceeds the amount of secured claims by a total of more than fifty (50) per cent, the Customer shall be entitled to demand that PeCon GmbH insofar release securities of the choice of PeCon GmbH.
9. Software Rights
9.1. Software programs will fully remain the property of PeCon GmbH. No program, documentation or subsequent upgrade thereof may be disclosed to any third party, without the prior written consent by PeCon GmbH, nor may they be copied or otherwise duplicated, even for the Customer’s internal needs apart from a single back-up copy for safety purposes.
9.2. The Customer is granted a non-exclusive, non-assignable right to use the software, including any related documentation and updates, for no other purpose than that of operating the product, for which such software is intended. For programs and documentation created and delivered at the Customer’s request, PeCon GmbH shall grant that Customer single end user licences for non-exclusive non-assignable exploitation.
9.3. Typically, no source programs are provided. This shall require a special written agreement in each particular case.
10. Complaints, Warranty
10.1. The Customer must check immediately after receipt of the goods, if the type and quantity correspond to the contractual agreement. Defects that can be identified by proper inspection of the goods and delivery of goods and other than the ordered quantities must be asserted and communicated in writing within eight days after receipt of the goods. Hidden defects must be reported immediately to PeCon GmbH after discovery.
10.2. Notify defects must be made in writing.
10.3. The general limitation period for claims for defects shall be 12 months. This shall not apply to Customer’s claims for damages based on damages of body or health caused by a defect for which PeCon GmbH is responsible or claims for damages based on intentional or grossly negligent conduct by PeCon GmbH.
10.4. The goods claimed to be defective shall be returned to PeCon GmbH for examination in their original or equivalent packaging. PeCon GmbH shall remedy defects if the warranty claim is valid and within the warranty period. It is at PeCon GmbH discretion whether PeCon GmbH remedies the defect by repair or replacement. PeCon GmbH shall only bear the costs necessary to remedy the defect.
10.5. PeCon GmbH shall be entitled to refuse to remedy defects in accordance with PeCon GmbH’s statutory rights. PeCon GmbH may refuse to remedy defects if the Customer has not complied with PeCon GmbH’s request to return the goods claimed to be defective.
10.6. The Customer shall be entitled to rescind the contract or reduce the contract price in accordance with his statutory rights, however, the Customer shall not be entitled to rescind the contract or to reduce the contract price, unless the Customer has previously given PeCon GmbH twice a reasonable period to remedy the defect which PeCon GmbH has failed to observe, unless setting of such a period to remedy defects is dispensable. In the event of rescission, Customer shall be liable for any intentional or negligent actions that cause destruction or loss of the goods as well as for failure to derive benefits from the goods.
10.7. If PeCon GmbH maliciously withholds disclosure of a defect or gives a quality warranty in accordance with section 444 of the German Civil Code (a representation by PeCon GmbH that the goods will have certain qualities at the time the risk passes and acceptance by PeCon GmbH of strict liability in the event that they do not), the Customer’s rights shall be governed exclusively by the statutory provisions.
10.8. Any rights of the Customer to receive damages or compensation shall be governed by the provisions in section 11 of these Terms and Conditions.
10.9. Specifications of PeCon GmbH’s goods, especially pictures, drawings, data about weight, measure and capacity contained in offers and brochures are to be considered as average data. Such specifications and data shall in no way constitute a quality warranty but merely a description or labelling of the goods.
10.10. Unless limits for variations have expressly been agreed in the order confirmation, such variations shall be admissible that are customary within the trade.
10.11. PeCon GmbH shall not accept any liability for defects in the goods supplied if they are caused by normal wear and tear. The Customer shall have no rights against PeCon GmbH in respect of defects in goods sold as lower-class or used goods.
10.12. Any warranty shall be void if operating or maintenance instructions are not observed, if changes are made to deliveries or services, if parts are replaced or materials used that are not in accordance with the original product specifications by PeCon GmbH, unless the Customer can show that the defect in question resulted from another cause.
11. Limited Liability
11.1. In case of a breach of contractual obligations, defective deliveries or tortuous acts, PeCon GmbH shall only be obliged to compensate damages or expenses – subject to any other contractual or statutory conditions for liability – if PeCon GmbH has acted intentionally or with gross negligence or in cases of minor negligence, if such negligence results in the breach of an essential contractual duty (a duty the breach of which puts the fulfilment of the purpose of the contract at risk). However, in case of minor negligence, PeCon GmbH’s liability shall be limited to typical damages which are foreseeable at the time of the conclusion of the contract
11.2. The liability of PeCon GmbH for losses caused by late delivery due to minor negligence shall be limited to 5% of the agreed purchase price.
11.3. The exclusions and limitations of liability in sections 11.1 - 11.2 shall not apply in cases of a quality warranty in accordance with section 444 of the German Civil Code (see section 10.7), in cases where PeCon GmbH has maliciously failed to disclose a defect, in case of damages resulting from death, injury to health or physical injury or where the laws on product liability impose overriding liabilities which cannot be excluded.
11.4. The limitation period for claims against PeCon GmbH – based on whatever legal ground – shall be 12 months from the date of delivery to the Customer and in case of tortious claims, 12 months from the date the Customer becomes aware or could have become aware of the grounds giving rise to a claim and the liable person, had the Customer not been grossly negligent. The provisions in this clause shall neither apply in cases of intentional or gross negligent breaches of duty nor shall they apply in cases referred to in section 11.3 of these Terms and Conditions.
11.5. If the Customer is an intermediary seller of the goods obtained from PeCon GmbH and the final purchaser of the goods is a consumer, the limitation period for any action of recourse against PeCon GmbH by the Customer shall be the period specified by statute.
11.6. The liability of PeCon GmbH for software supplied by PeCon GmbH shall be limited to liability for losses or alteration of data caused by the program; however, PeCon GmbH shall not be liable for any losses or alteration of data which could have been avoided by the Customer’s compliance with its duty to secure such data at appropriate intervals and at least once per day.
11.7. PeCon GmbH assumes no liability for the quality and validity of the data resulting from the use of PeCon GmbH products. This also applies to all products distributed by PeCon GmbH.
11.8. If the Customer passes on data to third parties that were generated with products supplied by PeCon GmbH, the Customer exempts PeCon GmbH from all claims that third parties claim against PeCon GmbH on the basis of quality or indirect (e.g. by way of recourse).
11.9. Incidentally, the liability of PeCon GmbH is limited to the amount invoiced by PeCon GmbH for the delivered or processed goods.
11.10. For damage caused by delay the PeCon GmbH is liable for slight negligence only up to 5% of the agreed purchase price.
12. Cancellation of Orders / Product Returns
12.1. If an order is cancelled by the Customer before delivery of the goods, PeCon GmbH is entitled to charge the Customer all costs incurred by the cancellation. This applies in particular to cancellation fees, which PeCon GmbH charges from its suppliers. The return of faultless goods takes place only with the express consent of PeCon GmbH free domicile.
13.1. Customer is obliged to closely observe the documents accompanying the goods and to ensure the correct disposal of the goods in accordance with the applicable law.
13.2. In case Customer is a merchant, Customer shall be obliged to dispose the goods at its own costs. Customer shall be obliged to transfer this obligation on the purchaser of the goods or parts thereof in case of a resale of the goods. In case the Customer is a consumer the statutory provisions regarding disposal of waste shall apply.
14. Data Protection, Confidentiality
14.1. Unless otherwise expressly stipulated in writing, no information provided to PeCon GmbH in connection with orders shall be regarded as confidential, unless their confidential nature is obvious.
14.2. PeCon GmbH is entitled to use all relevant Customer data according to the provisions of the Federal Data Protection Act for its own purposes.
15. Industrial Property Rights, Copyrights of third Parties
15.1. In the event of claims against the Customer because of breach of an industrial property right or a copyright in using deliveries or services supplied by PeCon GmbH in accordance with the contractually defined manner, PeCon GmbH shall be responsible to obtain the right for the Customer to continue using such deliveries or services, provided that the Customer gives immediate written notice of such third-party claims and PeCon GmbH’s rights to take all appropriate defensive and out-of-court actions are reserved. If, despite such actions, it proves impossible to continue using the deliveries or services supplied by PeCon GmbH under reasonable economic conditions, it shall be understood as agreed that PeCon GmbH may, at the discretion of PeCon GmbH, modify or replace the particular delivery or service for removal of a legal deficiency, or take back such delivery or service with refunding of the sales price previously paid to PeCon GmbH less a certain deduction to account for the age of the delivery or service in question.
15.2. The Customer shall have no further claims alleging infringement of industrial property or copyrights provided PeCon GmbH has neither violated essential contractual duties nor intentionally or grossly negligently breached contractual duties. PeCon GmbH shall have no obligations in accordance with section 15.1 in case breaches of rights are caused by exploiting the deliveries or services supplied by PeCon GmbH in any other manner than contractually defined or by operating these together with any other than PeCon GmbH deliveries or services.
16. Information, Consultancy without Obligation
Information and consultancy in relation to PeCon GmbH’s goods and services is provided as deemed appropriate from existing experience. Any values quoted as part thereof, especially performance data, represent average values which have been determined through experiments under standard laboratory conditions. PeCon GmbH cannot assume any commitment for its products to precisely meet the quoted values and areas of application. Section 11 of these Terms and Conditions governs any issues of liability.
17. Applicable Law
The contract is subject to the laws of the Federal Republic of Germany. The provisions of the United Nations Convention and the referral provisions of German international private law do not apply.
18. Place of Performance
The place of performance for the obligations of PeCon GmbH is Ulm. Place of performance for the obligations of the Customer is also Ulm.
19. Place of Jurisdiction
The exclusive place of jurisdiction for all disputes arising from the contractual relationship is, as far as legally permissible, Ulm.
20. Validity of Single Regulations
The invalidity or inefficacy of single regulations of this contract does not affect the validity of the remaining regulations.
21. Third Party Terms and Conditions of Business
The order placement includes the agreement of the Customer with the above conditions. They shall also be deemed to have been agreed if the terms and conditions of the Customer include a different regulation. General terms and conditions of the purchaser are not binding for PeCon GmbH, even if they are taken as the basis for the order and PeCon GmbH has not expressly objected to their content; they only become effective if they are confirmed by PeCon GmbH in writing.