General Terms and Conditions of Delivery and Payment

1A) All our deliveries, including future deliveries, consultancy and other ancillary services, shall be governed exclusively by the following General Terms and Conditions of Delivery and Payment (GTC), provided that the purchaser is an entrepreneur, a legal entity under public law or a special fund under public law. Any conditions of the purchaser are hereby rejected.

1B) Agreements, in particular insofar as they amend these conditions, require our written confirmation in order to be effective. Compliance with this written form requirement can only be waived by a written declaration on our part.

1C) We assume no guarantee and no procurement risk for the deliveries owed by us. All our obligations are subject to correct and timely delivery by our own suppliers. Our offer documents such as illustrations, drawings, weights and dimensions are to be regarded as approximate unless we have expressly designated them as binding in writing.

1D) Subject to Section I.5., all our documents, in particular our brochures, catalogues, price lists, cost estimates, illustrations, drawings and calculations, remain our property. The documents may neither be reproduced nor made accessible to third parties without our written consent. If the purchaser breaches this, we may claim lump-sum damages amounting to 5 % of the possible contract sum. The possibility of claiming further damage remains unaffected. The purchaser is permitted to prove that we have suffered no damage or damage substantially lower than the lump sum.

1E) The purchaser must ensure that our product information (e.g. operating, maintenance and care instructions) reaches the respective addressees (e.g. end customers). We will provide the purchaser with the documents required for this on written request, unless already supplied by us.

1F) Samples produced at the purchaser’s request are invoiced separately. We are not obliged to take them back.

1G) All industrial property rights, in particular patents and copyrights and the associated rights of use, remain with us.

1H) The purchaser may only transfer rights arising from contracts concluded with us if we have given our prior written consent.

2A) Our prices are in EURO ex works including loading at the works, excluding packaging, which is invoiced separately and not taken back. Value added tax at the applicable statutory rate is added.

2B) In the event of significant changes in cost factors, in particular wages, material prices or freight costs, we may adjust agreed prices to a reasonable extent in line with the effect of the changed cost factors. If delivery does not take place on the agreed date or within the agreed period for reasons for which the purchaser is responsible, and more than 4 months have passed since conclusion of the contract, we are entitled to charge our list prices applicable at that time.

2C) Our claims are payable in cash without deduction, free to our paying office, as follows: (i) 1/3 upon receipt of the order confirmation, (ii) 1/3 as soon as the purchaser has been notified that the main parts are ready for dispatch and (iii) the balance within a further month; the value added tax attributable to each instalment is to be paid with it.

2D) In the event of default in payment or if our claims are jeopardised by a deterioration in the purchaser’s creditworthiness, we may call in all our claims irrespective of the term of any bills of exchange and/or demand securities. We are further entitled to carry out outstanding deliveries only against advance payment or the provision of security. If the purchaser refuses advance payments or the provision of security, we may withdraw from the contract and claim damages. In addition, without withdrawing from the contract, we may prohibit the combination, processing, transformation or sale of the goods delivered by us, even if they have already been combined, processed or transformed, revoke the collection authorisation pursuant to Section V.7. and demand the return of the goods at the purchaser’s expense, without the purchaser being entitled to a right of retention or similar right. We will realise goods taken back by private sale and credit the proceeds, less costs incurred, against our claims against the purchaser.

2E) If, in the event of the purchaser’s default in payment, our claims are not settled in full even after expiry of a grace period set by us, we are entitled, in addition to our other rights, to claim 20 % of the order sum as lump-sum damages in lieu of performance. We reserve the right to prove higher damage. The purchaser is permitted to prove that we have suffered no damage or damage substantially lower than the lump sum.

2F) The purchaser is only entitled to a right of retention and to set-off if the counterclaims are undisputed or have been established by a final court decision.

2G) Bills of exchange and cheques are only accepted by us on the basis of a written agreement and only on account of performance. Discount charges and all other costs arising from the acceptance or encashment of the bill of exchange or cheque shall be borne by the purchaser.

3A) An agreed delivery time (delivery dates or delivery periods) is to be regarded as approximate and only applies if all details of the order have been clarified in good time and all obligations of the purchaser have been fulfilled in good time (in particular if agreed down payments have been received in good time). Delivery periods refer to the date on which the order confirmation is sent. Delivery times are deemed to have been met if the delivery item leaves the works within the delivery time or, if the goods cannot be dispatched in time through no fault of ours, we notify the purchaser that they are ready for dispatch.

3B) If we are prevented from fulfilling our obligations in good time for reasons for which we are not responsible, the delivery time is extended by the duration of the hindrance plus a reasonable start-up period. Events for which we are not responsible in this sense include, in addition to cases of force majeure, in particular strikes and lockouts as well as improper delivery by our suppliers through no fault of ours. In these cases we may withdraw from the contract in whole or in part with regard to the part not yet fulfilled. In these cases the purchaser is entitled to withdraw under the statutory conditions after a reasonable grace period set in writing has expired without result, if acceptance of the goods is unreasonable for the purchaser due to the delay.

3C) If we are in default, the purchaser may withdraw from the contract after a reasonable grace period set by the purchaser in writing has expired without result. A grace period set for us is extended by the time during which we are prevented from performing for reasons for which we are not responsible within the meaning of sentence 2 of the preceding Section 2.

3D) If the purchaser is in default of acceptance, we are entitled to charge the costs incurred by storage, but at least 0.5 % of the invoice amount for each month of storage. The purchaser is permitted to prove that we have incurred no storage costs or costs substantially lower than the lump sum. Our further statutory rights (in particular due to default of acceptance) remain unaffected.

4A) We are entitled to make partial deliveries and, to a reasonable extent, production-related excess or short deliveries.

4B) The goods are dispatched at the purchaser’s expense. The shipping route, the forwarding agent and carrier, means of transport and protection and the packaging of the goods are left to our choice. We give no guarantee for the cheapest or fastest mode of dispatch. Insurance against theft, breakage, transport, fire and water damage and other insurable risks is only taken out by us at the express request and at the expense of the purchaser.

4C) The risk passes to the purchaser upon handover of the goods to the forwarding agent or carrier, but at the latest when the goods leave the works. This also applies if partial deliveries are made or if we have assumed other services (e.g. dispatch, transport and/or installation). If dispatch is delayed due to circumstances for which the purchaser is responsible, the risk passes to the purchaser from the day of readiness for dispatch. In this case, however, we will take out the insurance requested by the purchaser at the purchaser’s request and expense.

4D) The Incoterms 2000 apply to the interpretation of trade terms.

5A) The goods delivered remain our property (reserved goods) until all claims, including future claims, have been fulfilled, in particular also the respective balance claims to which we are entitled against the purchaser within the scope of the business relationship, irrespective of the legal grounds. If we enter into obligations towards the purchaser or third parties to finance or refinance the purchase price, or if such obligations arise, for example through acceptance of a bill of exchange, a guarantee or other direct or indirect assumption of liability by us, ownership only passes to the purchaser when we are released from any liability towards the purchaser or third parties in this respect.

5B) Processing or transformation of the reserved goods is carried out for us as manufacturer within the meaning of Section 950 of the German Civil Code (BGB), without obligating us. The processed or transformed goods are deemed reserved goods within the meaning of Section V.1. If the purchaser processes, transforms or combines the reserved goods with other goods, we are entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. If our ownership expires through processing, transformation or combination, the purchaser hereby transfers to us the ownership rights to which the purchaser is entitled in the new stock or the new item to the extent of the invoice value of the reserved goods. Our co-ownership rights are deemed reserved goods within the meaning of Section V.1.

5C) The purchaser must store the reserved goods for us free of charge with the care of a prudent businessman, insure them at its own expense against theft, fire, water, breakage and other damage at invoice value and provide us with proof of this on request. If the purchaser fails to do so, we are entitled to insure the reserved goods at the purchaser’s expense. At our request, which may be made at any time, the purchaser must store the reserved goods separately and mark them. The purchaser is obliged to inform us at any time about the stock of reserved goods still in its possession, the place of storage and, where applicable, their state of processing, transformation or combination. We are entitled to inspect the reserved goods at any time.

5D) The purchaser may only resell the reserved goods in the ordinary course of business, on its normal terms and conditions and as long as it is not in default with its payment or other contractual obligations, provided that it agrees a retention of title with its customer and the claims arising from the resale pass to us in accordance with Sections V.5. and V.6. The purchaser is not entitled to make other dispositions of the reserved goods. The use of the reserved goods to fulfil contracts for work and contracts for work and materials is also deemed resale.

5E) The purchaser’s claims arising from the resale of the goods are hereby assigned to us; if the resale claims are included in a current account, this also applies to the respective balance claims in their amount. The assigned claims serve as security to the same extent as the reserved goods.

5F) If the purchaser sells reserved goods together with other goods, the claims arising from the resale or the respective balance claims are hereby assigned to us in the ratio of the invoice value of the reserved goods to the invoice value of the other goods. In the case of the resale of goods in which we have co-ownership rights pursuant to Section V.2., a part of the claim corresponding to our co-ownership share is assigned to us.

5G) The purchaser is entitled to collect claims arising from the resale or balance claims unless we revoke the collection authorisation in the cases specified in Section II.4. At our request, the purchaser is obliged to inform its customers immediately of the assignment to us and to provide us with the information and documents required for collection.

5H) The purchaser is not entitled to assign the claims in any other way. This also applies to factoring transactions; these are not permitted to the purchaser on the basis of the collection authorisation either. However, we are prepared to consent to factoring transactions in individual cases, provided that the proceeds flow to the purchaser definitively and the satisfaction of our claims is not jeopardised.

5I) In the cases in which we are entitled under Section II.4. to prohibit the processing, transformation, combination or resale of the reserved goods, and in the event of a breach by the purchaser of the obligations under Section V.4., we may also demand the return of the reserved goods at the purchaser’s expense, excluding any right of retention. The purchaser hereby authorises us to enter its premises and to take back the reserved goods. Taking back the goods does not constitute withdrawal from the contract.

5J) The purchaser must inform us immediately of any seizure or other impairment of the reserved goods and of the assigned claims. If we incur judicial or extrajudicial costs in defending against such seizures or other impairments which we cannot recover from third parties because they are economically unable to pay, the purchaser is liable to us for the resulting loss.

5K) If the value of the existing securities exceeds the secured claims in total by more than 10 %, we are obliged, at the purchaser’s request, to release securities of our choice to that extent.

6A) Warranty claims are excluded for the delivery of used goods. Warranty claims resulting from the delivery of defective new goods are governed by Sections VI.2 to VI.8.

6B) The purchaser must inspect the goods immediately after delivery. Recognisable (obvious) defects must be notified in writing immediately thereafter, other defects immediately after they appear. The purchaser has no claims arising from defects that have not been properly notified.

6C) The purchaser must store the goods complained about properly and give us the opportunity to inspect them. Processing, transformation, combination and sale of the goods complained about must be stopped or refrained from immediately. Furthermore, at our request, which is admissible at any time, the purchaser must immediately make the goods complained about or, at our option, samples thereof available to us. Costs arising from unjustified complaints shall be borne by the purchaser. If the purchaser breaches the obligations of this section, all warranty claims lapse.

6D) Warranty claims can only be asserted if and to the extent that the defective goods exceed 5 % of the total quantity delivered. Defects in part of the delivery cannot lead to a complaint about the entire delivery.

6E) Insofar as we are responsible for defective goods, we are entitled, at our option, to remedy the defect (rectification) or to deliver a defect-free item (replacement delivery). Replaced parts become our property. We are only liable for transport costs insofar as these have not increased because the goods were taken to a place other than the place of performance.

6F) After a reasonable grace period set by the purchaser in writing has expired without result, the purchaser may withdraw from the contract with regard to the defective goods or demand a reduction of the purchase price if rectification or replacement delivery fails. The purchaser is also entitled to the same rights without setting a deadline if we seriously and definitively refuse rectification and replacement delivery. Further rights due to defects, in particular contractual or non-contractual claims for damages, are excluded to the extent specified in Section VII.

6G) Warranty claims become time-barred 1 year after delivery of the goods, at the latest 13 months after we have notified readiness for dispatch.

6H) The purchaser is entitled to the statutory warranty rights without restriction if we have fraudulently concealed the defect.

6I) The above warranty conditions also apply accordingly to work performed by us, with the proviso that the limitation period under Section VI.7. begins with acceptance of the work by the purchaser.

7A) Subject to the following provisions, we are only liable for direct damage, loss of profit, lost savings, indirect and/or consequential damage and expenses incurred by the purchaser or third parties in connection with the initiation, performance or termination of a contract if our legal representatives, executive employees or simple vicarious agents have caused the damage or expenses through intentional or grossly negligent misconduct, whereby our liability for gross negligence of simple vicarious agents (unlike for our legal representatives or executive employees) is limited to the amount of the foreseeable (typically occurring) damage or expenses. Our contractual, non-contractual and other liability is excluded irrespective of the legal grounds of the claim for compensation (in particular also for breach of duties arising from a contractual or statutory obligation, in particular due to defects and default, due to impediments to performance existing at the time of conclusion of the contract, and due to tort), insofar as our legal representatives, executive employees or simple vicarious agents cannot be accused of fault or only of simple negligence.

7B) The above limitations of liability do not apply (i) to personal injury, (ii) to any product liability and (iii) in the event of culpable breach of material obligations arising from the obligation, insofar as this jeopardises the achievement of the purpose of the contract; in the case mentioned under (iii), however, our liability is limited to compensation for the foreseeable (typically occurring) damage.

7C) If, contrary to Section I.5., our product information does not reach the respective addressees and damage is caused by our goods which would have been avoided if our product information had been observed, the purchaser shall indemnify us on first demand against all claims asserted against us in connection with such damage, irrespective of the legal grounds, or reimburse compensation payments already made by us. Any further liability of the purchaser remains unaffected.

8A) As an exhibitor at the European Machine Tool Exhibitions (EMO), we are obliged not to show the machines manufactured by us in the exhibition year, either directly or indirectly (through agents or dealers), at other public trade fairs or exhibitions in Belgium, Great Britain, Denmark, the Federal Republic of Germany, France, Italy, the Netherlands, Norway, Austria, Portugal, Sweden, Switzerland and Spain. This obligation also extends to models that are faithful replicas of our machine tools. The only exceptions to this exhibition ban are machines of type 210 and Peddimaster (combined section shears and punching machines), reinforcing steel shears and reinforcing steel benders, but not single-purpose punching machines. The purchaser is therefore prohibited from taking any measures that result in machines manufactured by us being exhibited contrary to our above obligation.

9A) The place of performance is the location of our supplying works. The place of jurisdiction for all legal disputes, including proceedings on bills of exchange, cheques and other documents, is our registered office. However, we may also sue the purchaser at the courts of its general place of jurisdiction.

9B) All legal relationships between us and the purchaser are governed exclusively by the law of the Federal Republic of Germany applicable to legal relationships between domestic parties.

9C) Should individual contractual provisions be invalid, the remaining provisions remain binding. The invalid contractual provision shall be replaced by a provision that comes closest to the economic objective pursued with the invalid provision.

Status: January 2016
Paul Ferdinand Peddinghaus GmbH
Haßlinghauser Straße 156
58285 Gevelsberg/Germany