Terms & conditions (in german)
Version dated 1st of July 2023
The sales contract is concluded with
pb elektro vertriebs-gmbh
Gewerbepark Gräsig 62, 64711 Erbach Germany
Telephone: +49 (0) 6062 91892-0
email: info@pb-fastener.de
General Manager: Jan Buchholz / Silke Buchholz
Trade register: District court Darmstadt HRB 32782
VAT ID No.: DE113576408
Hereinafter referred to as pb.
§ 1 Scope
1. These sales conditions apply exclusively to relations with companies, legal persons under public law and public law funds within the meaning of § 310 paragraph 1 BGB (German Civil Code) and thus for all future business even without explicit reference. The buyer’s silence regarding our terms and conditions shall be deemed as acceptance.
The merchant is a natural or legal person or partnership with legal capacity exercising his/her commercial or independent professional interests by concluding a legal transaction.
2. Deliveries and services from pb shall exclusively be carried out on the basis of valid version of these general terms and conditions in effect at the time of order unless these have been amended in a written agreement between pb and the buyer.
3. In the case of conflict between the regulations, the following ranking order applies:
a) these general terms and conditions
b) deviating conditions, as long as these were explicitly recognised by pb in writing
c) Germany’s legal provisions (HGB [German Commercial Code], BGB)
§ 2 Subject matter of the contract/ Contract conclusion
1. The subject matter of the contract is the sale of goods, in particular mechanical building components in the form of fastening technology, cable and cable routing as well as cable plates and casing accessories which we offer for sale on our internet page. Details and significant characteristics of the products offered are stated in the item description on our internet page.
2. The presentation of our goods does not constitute a legally binding offer, instead it is only a non-binding invitation to the buyer to order the goods. When the buyer orders the desired goods via the online order form, this shall constitute a binding offer on conclusion of a purchase contract /her.
After the order has been entered, the buyer will then receive an automatically generated email to the email stated by him /her which documents, that the order has been received (order confirmation), which however shall not constitute an acceptance of the offer (contract conclusion).
3. In case of offer acceptance, we will send a confirmation to the buyer by email. The legally binding conclusion of the contract is effected by sending the ordered goods to the buyer.
4. Our offers are subject to change. If pb should subsequently recognise that a mistake has crept into an offer with regards to product, price or availability, then pb will promptly inform the buyer. The latter may confirm its order again under the changed conditions. Otherwise pb retains the right to withdraw from the contract.
5. The conclusion of the contract shall be subject to the reservation, in the case of incorrect or improper delivery from our suppliers or of non-delivery or partial delivery not. This shall only apply to cases where pb is not liable for the non-delivery.
6. In the case of non-availability or only partial availability of the goods, the buyer will be promptly informed. Compensation will be returned promptly.
7. The language of the contract is German.
§ 3 Delivery conditions/Delivery time
1. The delivery of the ordered goods shall be effected according to the agreements negotiated with the buyer.
2. The beginning of the delivery time stated by us shall be subject to the timely and proper fulfilment of the buyer’s obligations. We reserve the right to object to unfulfilled contracts.
Generally, the delivery dates stated in the order confirmation shall apply. In case of delay, pb shall grant the buyer to withdraw from the contract if the service is not effected 8 business days after the due date and the buyer’s demand that pb provide a reasonable extension to pb remains unsuccessful.
3. If the buyer delays acceptance or otherwise culpably breaches duties of cooperation, we shall be entitled to demand that the loss we incur to this extent, including any additional expenses, be refunded. We reserve the right to make further claims.
In the event of the aforementioned conditions, the risk of accidental loss or worsening of the sales products shall pass to the buyer with commencement of default of acceptance or payment.
4. If a delay is due to reasons caused by pb, then liability for damages shall be excluded in case of common negligence. If the buyer grants a reasonable extension to the due date, then he/she shall retain the right to withdraw from this contract after expiry of said extension.
The buyer shall only be entitled to claims for damages due to non-fulfilment to the extent of the foreseeable damage if there is intent or gross negligence and if pb is not able to deliver an alternative product which can fulfil an equivalent technical function to the buyer’s product. Further, the liability for damage compensation shall be limited to 50% of the damage incurred.
5. If pb has sufficient information that indicates that the payment claim is at risk, pb shall retain the right to carry out prepayment or cash on delivery. The same shall apply to orders from buyers unknown to us. The buyer shall bear the costs for cash on delivery.
6. If the buyer is in default regarding a payment for a previous delivery or partial delivery, we shall retain the right to withhold deliveries or partial deliveries, or, after unsuccessful provision of an extension to the payment due date, to withdraw from the contract without obligation to replace any arising damages.
7. pb may subsequently make a delivery or partial delivery subject to a reasonable due date for prepayment or deposit, if, after contract conclusion, it becomes apparent that the payment claim is at risk.
8. Partial deliveries shall be permitted. In the case of multiple delivery contracts, the quantities and delivery dates shall be determined upon contract conclusion. If this has not taken place or would violate the corresponding agreement, then pb shall have the right, according to reasonable discretion to determine a deadline for acceptance for the entire or remaining quantity.
If the buyer has not ordered or accepted the entire or remaining quantity by said deadline, then he/she is in default of acceptance. In this case, pb shall retain the right to set an extension of 8 days, with the declaration that pb shall reject delivery after said extension has expired. After the unsuccessful expiry of the extension, pb shall retain the right to withdraw from the contract, and in extraordinary cases to claim damage compensation for non-fulfilment. It shall not be required to set an extension to the due date if the buyer earnestly and with serious intent refuses acceptance or would obviously unable to pay the purchase price even if a grace period were granted.
9. If pb – regardless of the legal basis – demands compensation for effort or damages, then this shall amount to 20% of the purchase price plus applicable VAT. pb shall retain the right to substantiate and claim a higher compensation claim. On the other hand, the buyer shall retain the right to prove to pb that no or significantly lower damages were incurred.
10. Surplus or short deliveries of up to 15% of the order or release order quantity shall be regarded as fulfilment within the scope of this contract.
§ 4 Prices
1. In general, our price list published for information purposes shall apply. In the case of special offers made to buyers, the conditions offered shall apply. We retain the right to make errors and changes.
2. Unless agreed otherwise in writing, our prices are valid ex-factory excluding packaging. These will be invoiced separately. Prices do not include VAT. This will be stated separately in the invoice.
3. Any applicable shipping costs are not included in the sales prices. These are shown during the order process and shall be borne by the buyer unless free shipping has been agreed.
4. If the invoice value of the respective contract is under € 50,00 (Domestic, excluding VAT) or under € 250,00 (foreign countries) we shall retain the right to charge a surcharge of € 25,00 (domestic) respectively € 100,00 (foreign countries). Regarding deliveries to foreign countries we further retain the right to charge an administration fee.
5. Costs for tools and proportional investment costs are calculated separately. These shall be immediately due for payment upon sending the first release pattern or if such are not required by the buyer, then with the first delivery of goods. pb shall retain the right to demand a reasonable partial payment upon placing the order.
Costs for subsequent changes and repairs are calculated are according to expenditure. We are obliged to keep the tools for 3 years from the last delivery for the buyer. This period is extended accordingly if further orders are made during this time.
If proportionate tools or investment costs are calculated, the tools or the investment shall remain property of pb or manufacturers commissioned by pb.
6. Buyers, who export the goods from the EU may reclaim VAT. In order to so, the buyer must supply the original version of the export certificate with the proper customs stamps. Due to the considerable effort involved, we charge an administrative fee of €30.0, which is deducted from the VAT to be repaid. In case of reimbursement to be paid to an international bank account, the buyer, must also bear the transfer costs.
§ 5 Payment conditions, right of retention and late payments
1. Unless agreed otherwise, payment of the purchase price shall be due within 15 days of receipt of the goods or receipt of the invoice after receipt of the consideration (delivery). The place of performance for the payment of the purchase price shall be the offices of pb.
2. Exchange and cheques are not accepted.
3. International means of payment, unless we invoice in foreign currency, are calculated according to the noted currency exchange rate on the day of payment in Frankfurt (Main) in EUR (€).
4. The buyer shall only be entitled to withhold payment in the case of grossly negligent breach of contract on our part and in the case of defective delivery up to the amount of the respective part of the purchase price which corresponds to the reduction of the value. Furthermore, the buyer shall only retain the right to retention in so far that his/her counterclaim rests on the same contractual relationship. The buyer may only charge against legally determined, undisputed claims, or claims recognised by us.
5. In case of surpassing credit targets, we shall be entitled to demand payment of all outstanding invoices, even if not yet due, and to withdraw from credit targets. Furthermore, we shall retain the right to require prepayment and deposits for services not yet rendered.
6. Upon expiry of the payment period stated in point 1., the buyer shall be in default. During the default period, interest becomes shall become due on the purchase price at the at the respectively applicable default interest rate; currently 9 percent points over the respective base interest rates. Furthermore, a default damage claim fee of 40 Euros shall be due. pb shall retain the right to the assertion of further default damages while taking the default damage claim fee into account.
§ 6 Delivery, transfer of risk, receipt, default of acceptance
1. Delivery shall be effected ex warehouse which is also the place of fulfilment. The customer may request to have the goods sent to another address at their own cost. Unless otherwise agreed, pb shall retain the right to determine the shipping method, in particular the transport company, transport route and packaging.
2. pb shall be entitled to undertake partial deliveries to a reasonable extent.
3. The risk of accidental loss and accidental worsening of the condition of the goods shall be transferred at the latest upon delivery to the buyer. With sales shipments, the risk of accidental loss and accidental worsening of the condition of the goods, as well as risk of delay shall be transferred upon delivering the goods to the shipping company, freight carrier or other delivery service. If acceptance is agreed, then this shall be the decisive point in time. Otherwise, for an agreed acceptance, the legal provisions for company contracts shall apply accordingly. The transfer or acceptance shall be deemed to be equivalent if the buyer is in default of acceptance.
4. If the buyer is in default of acceptance, fails to cooperate or delays the delivery, then pb shall retain the right to demand compensation for the resulting damages including additional efforts (e.g. warehouse costs). Furthermore, pb shall remain entitled to further statutory claims.
§ 7 Revocation and returns
1. For legal transactions between pb and the buyer the regulations regarding right of revocation in accordance with § 312et seq. BGB (German Civil Code) shall not apply.
2. In special circumstances, returns of the service provided, stating the grounds, shall be permitted subject to written acknowledgement from pb. The buyer shall bear the costs for returning the delivery, inspection of goods and returning to storage.
3. If the buyer cannot guarantee the return of the services received, either in part or entirety or only in a worse condition, then the buyer must compensate the value of the loss.
This shall not apply if the worsening of the condition of the goods, is solely due to the inspection thereof – as would be possible in a physical shop for example. Furthermore, the buyer may avoid the obligation to compensate by not using the
the goods like an owner and avoiding everything that could reduce its value.
4. The right of return shall not apply to goods that were made according to buyer specifications or were clearly customised to personal requirements or if these are not suitable for return due to their nature, or could spoil quickly or which have surpassed their expiry date.
§ 8 Guarantee
1. The buyer’s guarantee claims require that he/she has observed his/her statutory obligations to examine the goods and to give notice of defects (§ 377 HGB [German Commercial Code).
If the service or the delivered object is deficient, then the claims of the buyer shall be limited according to the choice of the merchant to removing the defect or delivery of a fault-free item.
2. Liability for material defects which do not, or do not significantly impact the value or function or damage occurring after the transfer of risk due to defective or negligent handling, (e. g. incorrect installation or operation by contractual partners, excessive use, deficient construction work as well as external influences which are not preconditions of this contract) shall be excluded.
3. Insignificant, reasonable deviations in measurements and construction shall not entitle to guarantee claims, unless the absolute compliance was explicitly agreed. Technical improvements as well as necessary technical amendments therefore shall be deemed as being in accordance with the contract as long as these are reasonable do not constitute a deterioration in fitness for use.
4. Obvious deficiencies may only be claimed after acceptance if the merchant is notified immediately. For all other matters, § 640 para. 2 BGB (German Civil Code) shall apply.
Immediately refers to notification which takes place within 8 days, where the timely sending of the notification is sufficient. Irrespective of this obligation for inspection and reporting of complaints
the Buyer must report obvious defects within 8 days from delivery in writing; here too the timely sending of the notification shall be sufficient to comply with this deadline.
Should the buyer fail to conduct proper inspection and/or report defects, then pb shall not be liable for any defect not reported.
5. In case of significant modifications or changes to the goods, the assertion of claims based on defects shall be excluded, if the buyer explicitly or implicitly waived the examination of the goods.
6. A guarantee can not be assumed for defects which arise due to incorrect storage of goods, surpassing the expiry dates, defects due to normal wear and tear, external influences, maintenance errors or occur due to incorrect handling by the buyer, or changes without the merchant’s agreement, unless the buyer is able to prove that this did not have any impact on said damage/defect.
7. The regulations regarding consumer goods purchases § 474et. seq. BGB (German Civil Code) shall not apply.
8. pb shall retain the right to have the defects with regards to nature, function or other characteristics evaluated by the manufacturer. This shall also include the risk evaluation.
9. Incorrect quantities shall, under consideration of the state of affairs by pb, be replaced or credited at their discretion. In this case, the contractual partner may not demand damage compensation. With other defects, we have the choice to remove the defects or take the delivery back and either credit or exchange it. Should two attempts at repair or a replacement delivery fail, then the buyer may demand conversion or a reduction at his/her discretion.
10. Should the defect prove to be unjustified and defect rectification measures were carried out on behalf of the buyer, then the buyer shall pay compensation for expenses. Besides the material and work expenses, this shall include further (reasonable) expenses.
§ 9 Other liability limitations
1. Further reaching liability, regardless of the legal grounds, in particular for damages which did not occur on delivered products, shall be excluded. This shall not apply in so far that the grounds for the damage rest on intent or gross negligence, however in such cases, our obligation to provide compensation shall be limited to foreseeable damage.
In case of simple negligence, pb shall only liable for damages to life, body or health and for damages resulting from the violation of significant contractual duties. Significant refers to an obligation, whose fulfilment allows the contract to be properly implemented in the first place and the fulfilment on which the contractual partner regularly relies and may rely upon. In this case, liability shall be limited to foreseeable, typically occurring damage.
Otherwise the relevant legal provisions shall apply. In the same way, the legal liability with regards to product liability law shall remain unaffected.
2. The liability limitations resulting from paragraph 1 shall not apply if pb fraudulently concealed a defect or has accepted a guarantee for the nature of the goods. This shall also apply to the buyer’s claims in accordance with the product liability law.
§ 10 Retention of title
1. Up until the full payment of all current and future receivables resulting from the sales contract and the ongoing business relationship, pb shall retain the title to all purchased and delivered goods.
2. The buyer shall not be entitled to pledge or assign as security goods subject to retention of title to third parties.
However, he/she shall be entitled to sell on the goods to which we retain title in the normal course of business. He/she herewith shall assign the claims arising therefrom against his/her business partners to pb. pb shall accept the assignment.
3. In the event of breach of contract by the buyer, in particular in case of non-payment of the purchase price due, pb shall be entitled, according to legal provisions, to withdraw from the contract and to demand the retrieval thereof. If the buyer does not pay the purchase price, then pb may only assert these rights if the buyer was set a reasonable grace period to pay or where the setting of any such grace period is not required by law
4. The retention of title shall extend to any and all products resulting from the processing, intermingling or joining of our goods at their full value.
Where our goods are processed, intermingled or joined with the goods of third parties and any such third parties have retained title, we shall acquire co-ownership in proportion to the invoice values of the processed, intermingled or joined goods. In any event, the resulting product shall be subject to the same provisions as the goods delivered subject to the retention of title.
5. Where the realisable value of the security exceeds our claims by more than 20%, pb shall, upon customer’s request, release any security selected by pb’s discretion.
§ 11 Statute of limitation
1. Claims arising from a defect shall expire in 12 months following the delivery of goods delivered by us to the buyer. The period of limitation shall begin with the preparation of the goods or transfer of the goods to the shipping company or specified persons to handle the shipment. Any guarantee provided by the manufacturer shall not extend the limitation period.
2. The legal statute of limitation shall apply to damage compensation claims with intent and gross negligence as well as damage to life, body and health which rest on an intentional or negligent dereliction of duty by the user.
§ 12 Data protection and data administration
1. The personal data supplied by the buyer within in the context of the conclusion and administration of this contract (name, address, date of birth, email address, telephone and fax number, bank details, credit card number) shall be collected, administered and saved solely in accordance with the provisions of German data protection law.
2. These personal data (inventory and usage data) shall exclusively be used for the administration of the sales contract between the buyers and us, for example to deliver goods or administer payment arrangements.
Any further reaching usage of buyer data for the purposes of advertising, market research or usage oriented presentation of our offers requires the explicit permission of the buyer.
3. Without the buyer’s permission, we will only collect, administer and save the buyer’s usage data insofar as these are necessary for the administration of the contractual relationship and the utilisation and invoicing of teleservices.
§ 13 Supplementary agreements
There are no supplementary agreements. All amendments and supplements to these general terms and conditions must be made in writing. Any deviation from this requirement of the written form shall only effective in writing.
§ 14 Other
1. All amendments and supplements to these general terms and conditions must be made in writing. This shall also apply to the repeal of the requirement of the written form.
2. This contract and all the legal relationships of the parties therein shall be subject to the law of the Federal Republic of under exclusion of the UN Sales Convention (CISG).
3. Place of fulfilment and sole court of jurisdiction for all disputes arising from this contract shall be our place of business.
4. Should separate provisions of this contract become ineffective or subsequently declared ineffective the validity or practicability of the remaining provisions of this agreement or these conditions shall not be affected thereby.
In such a case, the parties shall be obliged to replace the invalid or unenforceable provision with a valid, enforceable provision that most closely matches the intent of parties. This shall also apply if the contract contains a loophole that was not foreseen by the parties.