General Terms and Conditions of Sale of Porzellanfabrik Hermsdorf GmbH
(valid from Febr. 2019)
These terms and conditions of sale shall govern all expressions of intent and all legal declarations that refer to entering or executing any kind of sales or service agreement between Porzellanfabrik Hermsdorf GmbH (“PFH”) and its purchasers.
These terms and conditions of sale will be incorporated (i) by an explicit agreement or, (ii) if such an explicit agreement is, due to the nature of sales or service agreement, difficult to enter in and the purchasers accepts these terms and conditions, by entering into the sales or service agreement. If the purchaser is an entrepreneur under sec. 14 German Civil Code (BGB) these terms and conditions of sale shall also govern all future transactions between the parties without any further incorporation agreement.
These terms and conditions apply on all deliveries which have been ordered on the validity of these terms and conditions.
2. Conclusion of Contracts
All public or published offers of PFH do not legally bind PFH. Offers made to individual purchasers will bind PFH for a 30-days-period.
The legal binding provisions of contract are defined in PFH’s purchase order confirmation unless purchaser contradicts immediately.
Purchaser undertakes to fulfil all legal requirements for product’s application.
PFH is entitled to cancel the contract by withdrawal in the event that (i) purchaser has stated in lieu of an oath under sec. 807 German Code of Civil Procedure (ZPO), or (ii) an insolvency procedure regarding purchaser has been applied for.
All agreed prices are fix prices. Prices are ex works, exclusive of the respective statutory VAT and exclusive of costs for packaging, except as otherwise expressly agreed upon.
Additional service which is not included in the sales price (e.g. amendments of drawings caused by purchaser) will be charged separately. Such an additional charge will be due and payable upon finishing the additional service.
PFH is entitled to charge the purchaser with cost increases arising in the meantime if the period between order and proper delivery exceeds four months. If such a cost increase charged to the purchasers exceeds 5 per cent of the agreed original price the purchaser is entitled to cancel his purchase order within one week from receiving the message about the surcharge.
Unless otherwise agreed upon the agreed purchase price becomes due and payable within 30 days from issue of the invoice without any further note by PFH. The purchase price has to be paid by bank account transfer. The payment is duly executed when the remittance account is received by PFH’s bank. Any bank fees arising from the transfer have to be paid by purchaser.
Unless otherwise expressly defined by the purchasers all payments of the purchaser will be regarded as made to the elder claims of PFH at first. Sec. 367 of German Civil Code (BGB) shall, however, prevail.
In case of delay by purchaser’s payments PFH is entitled to collect due date interest in the amount of 5 per cent (if the purchaser is an entrepreneur: 8 per cent) above the respective base interest rate p. a. PFH reserves all rights to claim further damages for delay.
The purchaser shall be entitled to offset only insofar as the purchaser’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgement. The purchaser is entitled to claim retainer rights only to the extent such rights are based on the same transaction.
4. Reservation of Right of Modification
PFH is entitled to make its own choice between several products equal to the sold product until the product will be delivered at the purchaser.
PFH is entitled to deliver another product than the ordered product if (i) the delivered product is of similar quality and value and (ii) the purchaser will not be unreasonably interfered with such a switch.
5. Delivery/Default of Delivery
Part-deliveries by PFH are hereby agreed upon. As far as such part-deliveries concern a separate position of purchaser’s order the part-deliveries shall be deemed separate delivery.
In the event that does not meet the agreed date of delivery the purchaser has to grant a reasonable extension. If PFH does not deliver within such an extension the purchaser may cancel the sale’s contract and may collect all his pre-payments. Any further claims against PFH shall be excluded unless intent or gross negligence have governed the delay.
PFH shall be released from its delivery obligations if (i) a supplier of PFH is not able to supply PFH or (ii) PFH can not be supplied due to any kind of force majeure unless these circumstances have been entered prior to entering into the sale’s contract. If such circumstances occur PFH will inform the purchaser immediately and will repay any pre-payments to the purchaser; all further claims of the purchaser shall be excluded.
In the event that PFH undertakes to organize the shipping of the goods PFH may select at its sole discretion the shipping contractor.
6. Passing of Risk
The risk of loss or damage to the goods passes to the purchaser upon dispatch unless a consumer business under sec. 474 German Civil Code (BGB) can be assumed.
In case of default in acceptance or other breach of duties to cooperate by the purchaser the risk of loss or damage to the goods passes to the purchaser when entering the default.
7. Default in Acceptance
In case of default in acceptance or other breach of duties to cooperate by the purchaser PFH is entitled to claim any resulting damage.
As a damage compensation PFH is entitled to claim a lump-sum compensation of 20 per cent of the agreed purchase price unless the purchaser gives evidence that the damage of PFH is lower. Further damages are reserved in the event that PFH can state a damage exceeding the 20 per cent of the purchase price.
7.3In case of default in acceptance for a period longer than 30 days PFH may claim 0.5 per cent per month up to a maximum of 15 per cent of the purchase price as a storage charge, at minimum however 40.00 EURO, unless the purchaser gives evidence that the damage of PFH is lower.
Principle of Warranty
The warranty of PFH shall be governed by the following terms exclusively.
Preconditions for Warranty
Precondition for any warranty claim of the purchaser is the purchaser’s full compliance with all requirements regarding inspection and objection established by sec. 377 German Commercial Code (HGB).
Unless expressively otherwise agreed the German Standards (i.e. DIN standards) shall apply and prevail the next ranking standards on the International Electrotechnical Commission (IEC).
Reports about sizes and weights shall not be legally binding.
Common Terms for warranty
In case of non-conformity of the product the purchaser is entitled, but also limited, to alternative performance in the form of remedy of the defect unless a consumer business under sec. 474 German Civil Code (BGB) can be assumed. In this case PFH may, at its sole discretion, select between repair or delivery of conforming goods. Both have to be completed within two weeks after receipt of purchaser’s written claim. If such alternative performance has failed, the purchaser is entitled to reduce the purchase price or to withdraw from the contract. If PFH spend spare parts or complete goods PFH becomes owner of the replaced parts and goods. Furthermore, the purchaser has to pay PFH reasonably for the period of use.
In case of remedy a defect the purchaser is obliged to keep the product ready to let the product be re-delivered to PFH.
Warranty claims arise upon purchaser’s receipt of the goods and shall be time-barred after (i) two years (aa) in the event that a consumer business under sec. 474 German Civil Code (BGB) can be assumed, or (bb) for all deliveries of products and spare parts if delivered inside the European Union, or (ii) one year for all other deliveries.
Deviant from clause no. 8.3.3 above the limitation period for used products shall be (i) one year from delivery in the event that a consumer business under sec. 474 German Civil Code (BGB) can be assumed, or (ii) six months from delivery for all other deliveries of used products.
Purchaser’s duties to cooperate
In case of perceptible damages the purchaser shall stop all kind of resale and/or processing immediately.
The purchaser has to inform PFH about perceptible damages immediately after receipt of the goods. In case of neglect such duty all kind of claims shall be excluded. Unless agreed upon purchaser has to give evidence, about the damage and about his duly information to PFH under this clause no. 8.4.2.
Perceptible damages of the packaging have to be mentioned on the shipment documents and to be announced within 48 hours to PFH by the purchaser. If the purchaser fails with these obligations his warranty claims will be forfeited.
The warranty of PFH does not cover those defects which occur after delivery by influences of weather or unreasonable treatment. Inteferences into the product by the purchaser himself or by other unauthorized persons shall be deemed unreasonable treatment under this clause. Furthermore, the warranty of PFH does not cover defects caused by use of unauthorized accessories unless PFH has released these accessories. Finally, PFH does not guarantee for compatibility with products of other suppliers.
9. Retention of Title
PFH retains title to the goods until receipt of all payments owed by the purchaser to PFH in full. Any kind of resale, pledge or encumbrances shall be legally unvalid unless PFH has given its prior consent by written note.
The purchaser may, however, resell goods subject to the above retention of title only in the course of his regular business without the consent of PFH. For this case, the purchaser hereby assigns and transfers all claims arising out of such resale to PFH.
In case of levy of execution purchaser has to inform PFH immediately to enable PFH to intervene against the such a levy of execution. The cost of such intervention have to be born by the purchaser.
The purchaser shall handle the goods with due care and on his own cost as long as PFH retains title to the goods.
PFH is entitled to assign its retention of title and its claim from sales and services (including the pre-assigned claims according to clause no. 9.2) to third parties.
The purchaser shall maintain suitable insurance for the goods covering damages by theft, by fire and by water on his own cost. In case of an event insured purchaser hereby assigns his claims against the insurance to PFH.
All kind of damage claims of the purchaser, regardless of the legal construction, shall be excluded unless
the damages arise from injuries of life, body or health if such damages have been caused by intent or negligence of PFH or by agents or assistants in performance of PFH, or
the damages have been caused by intent or gross negligence of PFH or by agents or assistants in performance of PFH, or
the damages have been caused by intent or gross negligence of PFH or by agents or assistants in performance of PFH regarding the breach of a main obligation of PFH out of the contract.
If PFH is liable under these terms the liability shall be limited to those damages that typically occur. As far as the liability of PFH is excluded under these terms the exclusion shall also be valid on behalf of directors, employees, agents and assistants in performance of PFH. In the event that purchaser does not claim for his damages, but for the expenses he made by trust in the sale’s and service performance of PFH, such expenses will be reimbursed in a reasonable volume.
11. Place of Performance/Applicable Law/Jurisdiction
Place of performance shall be Hermsdorf/Germany. All legal regulations about the risk of loss or damage to the goods passes to the purchaser in the event that a consumer business under sec. 474 German Civil Code (BGB) can be assumed shall prevail.
Independent of purchaser’s nationality and residence this contract shall be governed by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods) unless consumer protection regulations under domestic law of purchaser are in favour of purchaser under Article 6 EU-VO 593/2008
If purchaser is a salesman (Kaufmann) under German Commercial Law (HGB) exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Hermsdorf/Germany.
12. Data Protection
The purchaser guarantees towards PFH that he is entitled to use all files and drawings handled over to PFH to execute the order. In the event that a third party will arise any claims versus PFH for (alleged) violation of any Intellectual Property the purchaser shall hold PFH harmless.
14. Tools/Provisions of material
Tools and forms which PFH is using to execute purchaser’s order will become automatically PFH’s legal property, regardless on whose costs they have been produced. The purchaser is not entitled to ask PFH for return.
The parties hereby agree that PFH has to store tools and forms under clause no. 14.1 for a period of three years after which PFH may dispose at its sole discretion.
The purchaser shall bear all cost for repair and maintenance of all material provided by himself.
15. Amendments/Written Note
Additional terms and conditions, supplementing or amending these terms and conditions have to be agreed by written note. This request of written note can only be amended by written note.
16. Collision Clauses
Differing or contrary terms of purchaser shall not apply except if expressly agreed by PFH upon in writing.
In the event that differing terms cause the application of optional legal rules sec. 9.1 shall remain valid in each case.
The German version of these terms and conditions shall prevail all other versions in case of collision.