I. Scope

These General Terms and Conditions of Sale (GTCS) apply to all our business relationships with our customers (“Buyer”). The General Terms and Conditions of Sale apply only if the Buyer is an entrepreneur (Section 14 BGB, German Civil Code), a legal entity under public law or a special fund under public law within the meaning of Section 310 (1) BGB.
Our General Terms and Conditions of Sale apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall become part of the contract only if and to the extent that we have expressly consented to their application. This consent requirement applies even if the Buyer refers to its own terms and conditions when placing the order and we have not expressly objected to them.
These General Terms and Conditions of Sale apply to contracts for the sale and delivery of machines, systems, assemblies, spare parts and other movable goods, as well as associated assembly, commissioning, manufacturing and work services (“Goods and Services”). It is irrelevant whether we manufacture them ourselves or purchase them from suppliers (in particular Sections 433 and 650 BGB). Unless otherwise agreed, the version valid at the time of the Buyer’s order or last communicated to the Buyer in text form also applies as a framework agreement to future contracts of the same kind.
Individual agreements made with the Buyer in a particular case (including collateral agreements, supplements and amendments) and details in our order confirmation take precedence over these General Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
Legally relevant declarations and notifications by the Buyer regarding the contract (e.g. notices of defects, setting of deadlines, withdrawal or reduction) must be made in writing, i.e. in written and text form (e.g. letter, e-mail, fax). Further statutory formal requirements and further evidence (where applicable, in the event of doubt as to the legitimacy of the declaring party) remain unaffected.
Where reference is made to the applicability of statutory provisions, it should be noted that these references are merely clarifications. The statutory provisions apply — even where no corresponding clarification has been made — within the limits in which they are not amended or excluded by the General Terms and Conditions of Sale.

II. Offer and conclusion of contract

Our offers are subject to change and non-binding. This also applies if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards) and other product descriptions or documents (including in electronic form). We reserve title and copyright to all documents provided to the Buyer in connection with the placing of the order. These documents may not be made accessible to third parties unless we grant the orderer our express written consent to do so.
The Buyer’s order for the Goods constitutes a non-binding offer to contract pursuant to Section 145 BGB. Unless otherwise stated in the order, we are entitled to accept this offer to contract within two weeks of its receipt by us.
Acceptance of the Buyer’s offer to contract may be declared either in writing (e.g. by an order confirmation) or by delivery of the Goods to the Buyer. If we as the Seller do not accept the Buyer’s offer within the period stated in Section II.2., documents transmitted to the Buyer must be returned to us without delay.

III. Prices and payment terms

Unless otherwise agreed in writing in an individual case, our prices current at the time of conclusion of the contract apply ex warehouse, plus statutory value added tax. Packaging costs are invoiced separately. Unless a fixed-price agreement has been made, we reserve the right to make reasonable price adjustments on account of changed wage, material and distribution costs for deliveries made 3 months or more after conclusion of the contract.
In the case of a sale involving carriage, the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Transport costs are charged as agreed in the individual contract or order confirmation. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
Payment of the purchase price must be made exclusively to the account stated overleaf. Deduction of a cash discount is permitted only by special written agreement.
Unless otherwise agreed, the purchase price falls due and is payable within fourteen days of invoicing and delivery or acceptance of the Goods. However, we are entitled at any time, including within an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment. We shall declare any such reservation at the latest with the order confirmation.
The Buyer is in default when the above payment period expires. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate pursuant to Section 288 (2) BGB of nine percentage points above the relevant base rate. We reserve the right to assert further damages caused by default. Our claim to commercial interest on maturity pursuant to Section 353 HGB (German Commercial Code) against merchants remains unaffected.
If, after conclusion of the contract, it becomes apparent that our claim to payment of the purchase price is jeopardised by the Buyer’s lack of ability to perform (e.g. by an application to open insolvency proceedings), we are entitled under the statutory provisions to refuse performance and, where applicable after setting a deadline, to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made items), we may declare withdrawal immediately. The statutory provisions on the dispensability of setting a deadline remain unaffected in this respect.

IV. Rights of retention

The Buyer is entitled to rights of set-off or retention only if its claim has been established with final legal effect or is undisputed and its counterclaim is based on the same contractual relationship. If defects occur in connection with the delivery, the Buyer’s counter-rights, in particular pursuant to Section IX paragraph 6 sentence 2 of these General Terms and Conditions of Sale, remain unaffected.

V. Delivery period and delay in delivery

The delivery period is agreed individually or stated by us upon acceptance of the order. Where this is not the case, the delivery period is approximately 4 weeks from conclusion of the contract.
If we are unable to meet contractually agreed delivery periods for reasons for which we are not responsible, we shall inform the Buyer of this circumstance without delay and at the same time notify the expected or new delivery period. If a delayed delivery cannot be made even within the newly announced delivery period because the service is unavailable, we are entitled to withdraw from the contract in whole or in part; we shall reimburse without delay any consideration already provided by the Buyer (in the form of payment of the purchase price). The service is unavailable, for example, if our supplier has failed to deliver to us in good time, if we have concluded a congruent hedging transaction, if there are other disruptions in the supply chain (for example due to force majeure) or if we are not obliged to procure in the individual case.
Whether we as the Seller are in delay with delivery is determined by the statutory provisions. However, a reminder from the Buyer is a prerequisite for our delay in delivery as the Seller. If a delay in delivery occurs, the Buyer may claim flat-rate compensation for the damage caused by the delay. The flat-rate damages amount to 0.5 % of the net price (delivery value) for each completed calendar week of delay, but in total no more than 5 % of the delivery value of the Goods delivered late. We reserve the right to provide evidence that the Buyer has suffered no damage or only damage lower than the above flat rate.
The Buyer’s rights pursuant to Section X. of these General Terms and Conditions of Sale and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

VI. Delivery, transfer of risk, acceptance, default of acceptance

Delivery is made ex warehouse. The warehouse is also the place of performance for the delivery and the place for any subsequent performance. If the Buyer wishes the Goods to be dispatched to another destination (sale involving carriage), it shall bear the costs of dispatch. If nothing has been agreed contractually, we may determine the type of dispatch (packaging, shipping route, carrier) ourselves.
Upon handover of the Goods to the Buyer, the risk of accidental loss and accidental deterioration passes to the Buyer. In the case of a sale involving carriage, the risk of accidental loss of the Goods, of accidental deterioration of the Goods and the risk of delay pass upon delivery of the Goods to the forwarder or carrier. If acceptance of the Goods has been agreed contractually, this is decisive for the transfer of risk. Further statutory provisions of the law on contracts for work and services remain unaffected. If the Buyer is in default of acceptance, this is equivalent to handover or acceptance of the Goods.
If the Buyer is in default of acceptance or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to compensation for the proven damage and necessary additional expenses, in particular transport, personnel and storage costs. Our statutory rights remain unaffected.

VII. Retention of title

We retain title to the delivered Goods until all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
Before the secured claims have been paid in full, the Goods subject to retention of title may neither be pledged to third parties nor transferred by way of security. The Buyer shall notify us in writing without delay if an application to open insolvency proceedings is filed or insofar as third parties access the Goods belonging to us (e.g. seizures). Insofar as the third party is unable to reimburse us for the judicial and extrajudicial costs of an action pursuant to Section 771 ZPO (German Code of Civil Procedure), the orderer is liable for the shortfall incurred by us.
In the event of conduct by the Buyer in breach of contract, in particular non-payment of the purchase price due, we are entitled to withdraw from the contract under the statutory provisions and/or to demand the return of the Goods on the basis of the retention of title. The demand for return does not simultaneously constitute a declaration of withdrawal; rather, we are entitled merely to demand the return of the Goods and to reserve the right of withdrawal. If the Buyer fails to pay the purchase price due, we must have set the Buyer a reasonable deadline for payment without success before asserting these rights. This applies only insofar as such a deadline is not dispensable under the statutory provisions.
Until revocation pursuant to VII. 4. lit. c, the Buyer is entitled to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case the following provisions apply in addition:
- a) Products created by combination, mixing or processing of our Goods are subject to the retention of title at their full value, with us being deemed the manufacturer. If, in the case of combination, mixing or processing with goods of third parties, their ownership right remains in place, we acquire co-ownership in proportion to the invoice values of the combined, mixed or processed goods. In all other respects, the same applies to the resulting product as to the Goods delivered subject to retention of title. The Buyer also assigns to us, for security purposes, such claims against a third party as accrue to it through the combination of the reserved Goods with a plot of land. We accept this assignment.
- b) The Buyer hereby assigns to us, for security purposes, in full or in the amount of our possible co-ownership share pursuant to VII. 4. lit. a, the claims against third parties arising from the resale of the Goods or of the product in the amount of the final invoice amount agreed with us (including VAT). We accept the assignment. The Buyer’s obligations listed in VII. 2. also apply with regard to the assigned claims.
- c) The Buyer remains authorised, alongside us, to collect the claim. As long as the Buyer meets its payment obligations towards us, there is no lack of ability to perform on the part of the Buyer and we do not assert the retention of title by exercising a right pursuant to VII. 3., we undertake not to collect the claim. If we assert the exercise of a right pursuant to VII. 3., we may require the Buyer to disclose the assigned claims and their debtors, to provide all information necessary for collection, to hand over the associated documents and to notify the debtors (third parties) of the assignment. In addition, we are entitled to revoke the Buyer’s authority to resell and its authority to process the Goods subject to retention of title.
- d) If the realisable value of the securities exceeds our claims by more than 10 %, we shall release securities of our choice at the Buyer’s request.
As long as title has not yet passed to it, the orderer is obliged to treat the purchased item with care and, in the case of high-value goods, to insure it adequately at its own expense against theft, fire and water damage at replacement value. Necessary maintenance and inspection work must be carried out in good time at the orderer’s own expense.

IX. Buyer’s claims for defects

The statutory provisions apply to the Buyer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise stipulated below. This does not affect the statutory provisions on the sale of consumer goods (Sections 474 et seq. BGB) or the Buyer’s rights arising from separately issued guarantees, in particular from the manufacturer.
Agreements we have made with Buyers regarding the quality and the intended use of the Goods (including accessories and instructions) regularly form the basis of our liability for defects under the warranty. An agreement on quality covers all product descriptions and manufacturer’s specifications that are the subject of the individual contract or that were publicly announced by us (in particular in catalogues or on our website) at the time of conclusion of the contract. If no quality has been agreed, whether a defect exists is to be assessed in accordance with Section 434 (3) BGB. Against this background, it should be noted that public statements by the manufacturer in advertising or on the label of the Goods take precedence over statements by other third parties.
For Goods with digital elements or other digital content, it should be noted that we are only obliged to provide and update the digital content insofar as this expressly follows from an agreement on quality pursuant to IX.2. We accept no liability for public statements by the manufacturer or other third parties.
We are not liable for defects of which the Buyer is aware, or of which it is unaware due to gross negligence, at the time of conclusion of the contract pursuant to Section 442 BGB.
The Buyer’s claims for defects exist only insofar as the Buyer has complied with its statutory obligations to examine the Goods and give notice of defects (Sections 377, 381 HGB). The Goods must be examined after delivery to the extent feasible in the ordinary course of business; goods intended for installation or further processing must be examined in good time before processing. Any defect discovered on delivery, during examination or later must be reported to us without undue delay in text form. If the Buyer fails to examine or notify properly and in good time, the statutory consequences apply.
If the delivered Goods are defective, we as the Seller have the right to choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering an item free of defects (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the Buyer in the individual case, the Buyer may refuse it. However, we reserve the right to refuse subsequent performance under the statutory conditions. In addition, we are entitled to make the subsequent performance owed by us conditional upon the Buyer paying the purchase price due. The Buyer is, however, entitled to retain a portion of the purchase price that is reasonable in relation to the defect.
The Buyer shall give us the time and opportunity necessary for the subsequent performance owed. In particular, the Buyer shall hand over to us the item in respect of which it has asserted a defect for inspection purposes. If we carry out a replacement delivery of an item free of defects, the Buyer shall return the defective item to us in accordance with the statutory provisions. The Buyer is, however, not entitled to a claim for return.
Unless we have contractually undertaken to do so, subsequent performance includes neither the removal, extraction or de-installation of the defective item nor the installation, attachment or fitting of an item free of defects. This does not affect the Buyer’s claims to reimbursement of “removal and installation costs”.
We shall reimburse the expenses necessary for inspection purposes and subsequent performance (transport, labour and material costs and, where applicable, removal and installation costs) in accordance with the statutory provisions and these General Terms and Conditions of Sale if a defect exists. However, we may demand reimbursement from the Buyer of costs incurred as a result of an unjustified request to remedy a defect if the Buyer knew or could have recognised that in fact no defect existed.
The Buyer has the right to remedy the defect itself and to demand reimbursement of the expenses objectively necessary for this if there is an urgent case (e.g. where operational safety is at risk or to avert disproportionate damage). The Buyer must inform us without delay in the event of self-remedy. If we would be entitled to refuse subsequent performance under the statutory provisions, the Buyer has no right of self-remedy.
The Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions if a deadline set by the Buyer for subsequent performance has expired without result or is dispensable under the statutory provisions. In the case of an insignificant defect, however, the Buyer has no right of withdrawal.
Claims by the Buyer for reimbursement of expenses pursuant to Section 445a (1) BGB are excluded unless the last contract in the supply chain is a sale of consumer goods (Sections 478, 474 BGB) or a consumer contract for the provision of digital products (Sections 445c sentence 2, 327 (5), 327u BGB).
Claims for damages or claims for reimbursement of futile expenses by the Buyer (Section 284 BGB) exist, even where a defect is present, only in accordance with X. and XI.

X. Limitation

Notwithstanding Section 438 (1) no. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed contractually, the limitation period begins upon acceptance.
Pursuant to the statutory provision, the limitation period is 5 years from delivery (Section 438 (1) no. 2 BGB) if the Goods are a building or an item that has been used for a building in accordance with its customary use and has caused the building’s defectiveness (building material). This applies subject to the further statutory special provisions on limitation (in particular Section 438 (1) no. 1, (3), Sections 444, 445b BGB).
The above limitation periods under sales law also apply to contractual and non-contractual claims for damages by the Buyer that are based on a defect in the Goods, unless the application of the standard statutory limitation period pursuant to Sections 195, 199 BGB would result in a shorter limitation period in the individual case. Claims for damages by the Buyer pursuant to XI.1 and XI.2 lit. a) as well as claims under the German Product Liability Act become time-barred exclusively in accordance with the statutory limitation periods.

XI. Other liability

Unless otherwise stated in these General Terms and Conditions of Sale, including the following provisions, we as the Seller are liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.
Within the scope of fault-based liability, we are liable for damages, on whatever legal grounds, only in the event of intent and gross negligence. In the event of simple negligence we are liable, subject to statutory limitations of liability (e.g. care in one’s own affairs; insignificant breach of duty), only:
- a) for damage resulting from injury to life, body or health;
- b) for damage resulting from the breach of a material contractual obligation (obligations whose fulfilment is essential to the proper performance of the contract and on whose observance the contracting party relies and may rely). In this case, however, our liability is limited to compensation for the foreseeable damage typically occurring.
The limitations of liability arising under XI.2 also apply vis-à-vis third parties and in the case of breaches of duty by persons whose fault we are responsible for under the statutory provisions. Insofar as a defect has been fraudulently concealed and a guarantee for the quality of the Goods has been assumed, the limitations of liability do not apply. The same applies to claims by the Buyer under the German Product Liability Act.
The Buyer may withdraw or terminate on account of a breach of duty that does not result from a defect only if we as the Seller are responsible for the breach of duty.
A right of termination on the part of the Buyer (in particular pursuant to Sections 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences apply.

XII. Choice of law and place of jurisdiction

The law of the Federal Republic of Germany applies to these General Terms and Conditions of Sale and to the contractual relationship between us as the Seller and the Buyer, to the exclusion of uniform international law, in particular the UN Convention on Contracts for the International Sale of Goods.
If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the registered office of PAVEL Gerätebau GmbH is the exclusive, including international, place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the Buyer has no general place of jurisdiction in Germany or its residence or habitual abode is unknown when proceedings are commenced.
We are additionally entitled to bring an action at the place of performance of the delivery obligation under these General Terms and Conditions of Sale or under a prevailing individual agreement, or at the Buyer’s general place of jurisdiction. Prevailing statutory provisions (exclusive places of jurisdiction) remain unaffected.