Art. 1 General
(1) Our offers are addressed exclusively at entrepreneurs within the meaning of
Art. 14 BGB (Civil Code), i.e. any natural or legal person or business partnership which acts in pursuance of its professional activities as a trader or self-employed person when concluding a legal transaction. They alone are clients within the meaning of these General Terms and Conditions of Business.
(2) These conditions shall apply exclusively to all offers, deliveries and services provided by Pilodist GmbH, Eichelnkampstr. 2, 53340 Meckenheim (hereinafter referred to as “PILODIST” or “we”). They shall apply insofar as the client is a merchant within the meaning of the HGB (German Commercial Code), including all future business relationships even if they are not expressly agreed again. The type and scope of the respective performance that is due shall be agreed by a separate contract.
(3) Any conditions stipulated by the client deviating from the aforementioned shall only become effective upon our written confirmation. The employees of PILODIST are not authorised to enter into verbal ancillary agreements or to give verbal assurances that go beyond the content of the respective contract, including these General Terms and Conditions.
Art. 2 Subject of the agreement
(1) PILODIST renders all performances exclusively on the basis of the provisions of this agreement and the respective individual contract concluded in respect of the relevant performance.
(2) Except where explicitly stated otherwise, offers made by PILODIST shall be non-binding. The client’s purchase orders constitute a binding offer to PILODIST for the conclusion of a contract. Orders shall only become binding with regard to the scope and content in accordance with our written confirmation. The contract shall only come into effect when we accept the client’s binding purchase order by providing the service, or if we confirm acceptance to the client in text form or by a separate communication. We shall be entitled to accept the contractual offer within 14 days of receipt.
(3) We reserve the right to make minor technical changes to the ordered goods as well as changes in form, size and/or weight within the framework of what is reasonable for the client. Descriptions in brochures, catalogues and price lists shall not constitute binding information regarding performance unless explicit reference is made to the same in the order confirmation.
(4) We reserve the proprietary rights and copyright to all images, drawings, calculations and other documents, even if said documents were passed to the client on whatever grounds; these must be returned upon request and may not be made accessible to any third party without our written consent. No copies or reproductions may be made.
Art. 3 Prices
(1) The prices stated are ex-works from Meckenheim (EXW Meckenheim – Incoterms 2010) for deliveries and do not include packaging and freight costs. Unless otherwise indicated, all prices are in euros plus value-added tax at the statutory rate valid at the time of delivery.
In the event that a delivery is due to be made more than four months after conclusion of the contract, we may withdraw from the contract in the case of unforeseen price increases in the material or delivery price of the goods to be used if no agreement is reached concerning an appropriate increase in remuneration. Compensation claims due to non-fulfilment may not be asserted by the client unless we have operated in a way that is intentional or which amounts to gross negligence.
Art. 4 Terms of payment
(1) Unless otherwise agreed in writing, our invoices are payable in cash without deduction within 30 days after the date of the invoice, irrespective of receipt of the goods. Individual payment agreements shall principally apply in the event of deliveries abroad. In principle, the client shall bear the cost of any agreed letter of credit.
(2) The client shall have no right of retention insofar as it is not based on the same contractual relationship. Bills of exchange, checks and other payment instruction documents shall only be accepted for the purpose of performance and without liability for protest and only on condition of discountability.
(3) If we become aware of facts that suggest a low credit standing on the part of the client, we shall have the right, even after conclusion of the contract, and beyond Art. 321 BGB, to demand immediate, adequate collateral or payment of the claims. If the client is in arrears with a part of its obligations, we shall be entitled to declare that all our claims are due immediately and, for the sake of security, to demand the transfer of goods delivered by us with reservation of ownership. Subject to the assertion of further rights, in the case of delay we shall be entitled to charge penalty interest at 9% above the prevailing base rate.
(4) At any event, all our claims shall be payable immediately, including in the case of deferral, if the client defaults on any other obligations due to us. The same shall apply in the event that the client suspends its payments, is heavily indebted, insolvency proceeding are filed against it or the filing of such insolvency proceedings is refused due to lack of sufficient assets or circumstances become known which justify reasonable doubts about the creditworthiness of the client.
(5) In the case of any default on the part of client, we shall be entitled to demand advance payments or the provision of security in return for further deliveries or services, to demand compensation for non-fulfilment or to withdraw from the contract, this at our own discretion. Moreover, we may return accepted bills of exchange before maturity and demand immediate cash payment.
Art. 5 Delivery
(1) The delivery deadlines and the delivery periods confirmed by us are determined on the basis of the prevailing supply situation and to the best of our knowledge. Delivery deadlines and delivery periods shall, however, be binding only if they have been confirmed by us in writing and are expressly referred to as a binding delivery period. A delivery period agreed as binding commences on the day when we are in possession of a written agreement regarding the purchase order between ourselves and the client. It is complied with if readiness for dispatch is notified punctually. It shall be extended, notwithstanding our rights resulting from a delay on the part of the client, by the period during which the client has defaulted on its obligations from this contractual relationship.
(2) Insofar as a binding delivery time has been stated or agreed and it cannot be adhered to by us contrary to expectations, we shall notify the client of the delay in delivery immediately. Insofar as we are aware of it, this information provided to the client shall include the new delivery date. If the delay in delivery is due to circumstances for which we are responsible, the client shall be free to wait for the goods or to cancel the purchase order. In the case of cancellation any consideration already rendered shall be reimbursed immediately. Force majeure, strikes and impediments beyond our control on our side or such circumstances on the part of one of our upstream suppliers as well as adverse weather conditions shall not constitute a circumstance for which we are responsible as defined above and shall extend the agreed delivery period by the duration of the hindrance.
(3) Insofar as we do not effect delivery of goods or fail to do so in compliance with the contract, the client shall be required to specify a reasonable additional period for us to effect the performance. A period shall be deemed to be reasonable if it is at least three weeks unless a shorter period would be adequate on account of the circumstances relating to the object to be delivered. If the client does not specify an additional period, it shall not be entitled to withdraw from the contract.
(4) When the goods are dispatched the risk shall be transferred to the recipient even if freight-free delivery is agreed and even if the dispatch is not effected from the place of performance in accordance with the provisions. Transport insurance shall be taken out only at the express request and cost of the client. If the goods are ready for dispatch and there is a delay in acceptance or dispatch for reasons for which we are not responsible, the risk shall be transferred to the client when the latter receives the notification of readiness for dispatch. Deliveries made ready must be accepted at the latest within 8 days after the date when readiness for dispatch is notified. If the client does not accept the goods when this period has expired, even within an additional period specified by us, or if the client seriously and definitively refuses acceptance, we may demand compensation for additional expenses incurred or for storage costs or to fully or partially withdraw from the contract.
(5) We reserve the right to make partial deliveries unless this proves unreasonable for the client.
Art. 6 Warranty
(1) Insofar as the delivered goods are defective, we shall be entitled, within the framework of the statutory provisions, depending on our choice, to avoid the client’s claim for improvement by subsequent fulfilment in the form of rectification of the defect or delivery of a defect-free object. If the attempt at subsequent fulfilment fails, the client shall be entitled to reduce the purchase price or to withdraw from the contract.
(2) A further requirement for any warranty rights is that the client correctly fulfils all duties of examination and notification in accordance with Art. 377 HGB (German Commercial Code) insofar as it is a merchant. Complaints may only be lodged in writing in the case of identifiable defects immediately, and at the latest within 3 days after receipt; in the case of defects that are not immediately identifiable complaints may only be lodged immediately after they become identifiable. After expiry of the period, the goods shall be deemed to be approved.
(3) The assertion of a complaint about defects shall likewise be excluded if the condition of the goods has changed after risk is transferred and this is due to an action by the client or a third party, the goods have been handled improperly by the client or by third parties or have not been installed correctly or the place of installation or – if required – external additional parts are defective.
(4) If a claim is asserted for a defect within the warranty period, the client must prove that the defect was already present when the goods were transferred to it. Assertion of a complaint about a defect shall not give rise to entitlement to withhold the purchase price or the agreed remuneration.
(5) The limitation period for warranty claims for the supplied goods shall be 12 months from receipt of the goods, apart from the case of compensation claims. Any claims due to losses arising from injury to life, body or health which are based on an intentional or negligent breach of duty on our part or by our legal representatives or vicarious agents as well as any claims due to any other losses based on an intentional or grossly negligent breach of duty on our part or by our legal representatives or vicarious agents shall not be affected by the limitation period.
(6) The client’s warranty claims shall be limited to subsequent fulfilment of the defective performance as such and shall not include compensation for loss or damage resulting from defects, dismantling and assembly costs or costs in connection with the installation or commissioning of items supplied by way of subsequent fulfilment unless there is intentional or grossly negligent action on our part.
(7) Both wetted sensors and glass components shall be excluded from the warranty.
Art. 7 Reservation of ownership
(1) Our deliveries shall be made exclusively with reservation of ownership. Ownership of supplied goods shall be transferred to the client only when all claims from the business relationship have been discharged even if payment is made for specific, designated goods.
(2) If a running account is operated, the reservation of ownership serves as collateral for the outstanding balance. Treatment or processing of goods supplied by us always takes place on our behalf without giving rise to any liabilities for us. If goods supplied by us are mixed or combined with other objects, the client shall transfer its right of ownership and co-ownership to us now, and undertakes to store the new objects for us with due diligence. The client shall be entitled to sell on the reserved goods by way of normal business practice if it is ensured that the claim from the further sale is transferred to us and the client conveys the reservation to its purchaser in writing to the effect that ownership is transferred the same only when full payment for these reserved goods is made to us. The transfer of ownership to the purchaser is not dependent in this way on full settlement of all claims from the business relationship.
(3) The client must inform us immediately of any seizure of the goods or any other legal or effective intervention by third parties.
(4) If the client sells the goods, irrespective of the condition, it hereby assigns to us, from now until full settlement of all our claims, the claims arising for it against the purchaser from the alteration or sale up to a maximum amount of 110% of our claim. The assignment shall not include claims due to third parties within the framework of retention of title that is customary in the business sector. Insofar as the sum of the client’s receivables exceeds the maximum amount included in the assignment, the assignment shall cover the receivables in the chronological sequence in which they arise. The client is entitled to collect the assigned receivables until revocation of this entitlement at any time. The client is required to keep the collected amounts separately for us and to transfer them to us immediately. If and insofar as the receivables assigned to us amount to less than 110% of our claims against the client, the client hereby assigns to us, in order to reach this level, the current and future claims due to it – irrespective of the legal grounds – up to the level of the above-mentioned maximum amount and authorises us to collect and then offset them as long and insofar as claims against the client exist on our side.
Art. 8 Software usage rights
(1) Insofar as we assign software usage rights, said software shall remain our property. The usage of the software within the client’s system environment shall always take place at the client’s own risk, unless a guarantee as regards said usage in the client’s environment is in place or we have installed the software on the client’s premises personally.
Art. 9 Documentation
Any operating instructions associated with the goods shall be made available in German or English. In addition, we reserve the right to translate operating instructions into the client’s respective native language. However, this shall not be mandatory on our part.
Art. 10 Liability
(1) We shall have unlimited liability in accordance with the statutory provisions for damage to life, body and health due to a negligent or intentional breach of duty by us, our legal representatives and vicarious agents and for loss or damage covered by liability under the Produkthaftungsgesetz (Product Liability Act). We shall be liable in accordance with the statutory provisions for loss or damage not covered by sentence 1 and which is due to intentional or grossly negligent breaches of contract as well as dishonesty by us, our legal representatives or vicarious agents. For loss or damage due to absence of a warranted quality which does not arise directly from the goods we shall only be liable if the risk of such loss or damage is evident from the warranty for the quality.
(2) We shall also be liable for loss or damage caused by ordinary negligence insofar as the loss or damage arising in this way is due to a breach of rights that are to be granted to the client in accordance with the content and purpose of the relevant contract and/or insofar as the loss or damage arising in this way is due to a breach of duty the fulfilment of which makes proper implementation of the contract possible at all and upon compliance with which the client relies and may rely as a matter of course (cardinal duties). Liability for such claims is limited to the loss that typically occurs and is foreseeable in the respective case, but may not exceed the five-fold amount of the goods’ purchase price.
(3) Any further liability shall be excluded irrespective of the legal nature of the claim asserted.
Art. 11 Data protection
(1) We comply with the regulations of data protection laws and take protection of personal data seriously in the interest of the client. Personal data is used by us exclusively to process the client’s purchase order. All client data is stored and processed by us in compliance with the relevant regulations of the Bundesdatenschutzgesetz (Federal Data Protection Law) (BDSG), the General Data Protection Regulation, other data protection laws that apply in Member States of the European Union and other provisions associated with data protection.
(2) As a matter of principle we collect and use personal data of our clients and business partners only insofar as necessary for fulfilment of the contract. Collection and use of personal data takes place regularly only after consent from the relevant person. An exception is made in cases where it is not possible to obtain consent in advance for objective reasons and the processing of the data is permitted by statutory regulations.
(3) Insofar as we obtain consent from the data subject for processing operations for personal data, Art. 6 (1) a EU General Data Protection Regulation (GDPR) is the legal basis for processing personal data.
Where it is necessary to process personal data for fulfilment of a contract for which the contracting party is the data subject, Art. 6 (1) b GDPR is the legal basis. This also applies for processing operations required to carry out pre-contractual measures.
Insofar as processing of personal data is required to fulfil a legal obligation to which our company is subject, Art. 6 (1) c GDPR is the legal basis.
(4) We shall not forward the personal data of our clients and business partners, including the name, address and e-mail address, to third parties without express consent from the data subject which may be revoked at any time. An exception to this is forwarding of data to service partners which require conveyance of client data to process purchase orders. This relates only to name, address data and, where specifically demanded, the telephone number of the respective recipient of a delivery. Forwarding of data ensues exclusively to the appointed shipping/forwarding company. In any case, the scope of conveying data is restricted to the necessary minimum.
In the event that we are required to do so by law, we will also pass the client’s data to the responsible authorities. In this case, the extent of said transfer shall be limited to the information required in order to fulfil the legal obligations or export regulations.
(5) Personal data of the data subject is deleted or blocked in our company as soon as the purpose of storage no longer applies. Storage beyond this may take place if this is provided for by the European or national legislator in EU regulations, laws or other rules. Blocking or deletion of data is also carried out if a storage period prescribed by the above-mentioned standards expires, unless further storage of the data is necessary for conclusion of a contract or fulfilment of a contract.
(6) As the person affected by collection or storage of personal data, you have the right at any time to information free of charge concerning data stored that relates to you personally, its origin and recipient, the right to correction, blocking or deletion as well as restriction of data processing, the right to data portability, the right to object, the right to revoke consent already granted as well as the right to lodge a complaint with a regulatory authority.
Art. 12 Place of performance/place of jurisdiction/severability clause
(1) The place of performance is Meckenheim.
(2) In the case of agreements with merchants, i.e. clients who engage in trading activities or are classified as merchants in terms of the German Commercial Code for any other reason, as well as with legal persons governed by public law, Bonn shall be the exclusive place of jurisdiction for any disputes arising directly or indirectly from the contractual relationship. This shall also apply in the event that the client relocates its place of residence or place of habitual abode from a domestic address in the Federal Republic of Germany, or if its place of residence is not known at the time at which a complaint is filed.
Furthermore, we may also file suit at the client’s domicile.
(3) The law of the Federal Republic of Germany shall apply exclusively with exclusion of UN sales law.
(4) If individual provisions of this agreement are or become ineffective, the validity of all other provisions shall remain unaffected. Instead, an ineffective or missing provision shall be replaced by an effective provision agreed by the parties as a result of the ineffective or missing original.