General Conditions of Sale
Peram Handelsgesellschaft mbh
§ 1 Scope (1) These General Conditions of Sale, hereinafter referred to as AVB (their German abbreviation), apply only to business dealings with companies and with public law legal entities or public law special assets. They then apply to any delivery by Peram Handelsgesellschaft mbh (hereinafter referred to as Peram). In the event of contradictions between the AVB and the confirmation of sale (overleaf), the latter shall enjoy priority. (2) Purchasers’ conditions that run counter to or differ from this AVB are hereby excluded. They shall only become valid if they are expressly acknowledged in writing by Peram. (3) This AVB shall also apply to all future business with the purchaser insofar as it involves legal transactions of a similar kind.
§ 2 Placing of Order (1) Offers that Peram makes are subject to change unless expressly stated as being binding. (2) The contract shall only become effective once Peram has confirmed the order in writing or the purchaser has taken receipt of the delivery. The individual contract with the purchaser is the sole and definitive specification of the services that Peram is to provide. The goods that Peram is to supply must have solely the characteristics agreed in the individual contract. Oral side agreements or subsequent amendments and agreements and undertakings of any kind, including statements by Peram employees, are only binding if explicitly confirmed in writing by Peram. (3) If by way of exception the purchaser has placed an order by word of mouth and Peram commences performance before receiving the order confirmation the contract terms must be laid down in writing forthwith.
§ 3 Dates, Time Limits, Delays (1) Dates or time limits must be agreed upon in writing. They will only count as binding if this is explicitly agreed with the purchaser. (2) Agreed time limits start on the date of order confirmation, but not before the fulfilment of any obligations undertaken by the purchaser. (3) Peram will be in default of its performance obligations only on receipt of a written reminder from the purchaser. In the event of unforeseen obstacles such as instances of force majeure, mobilisation, war, strike, lockout, riot or other circumstances for which Peram is not responsible no default shall occur. In that case Peram can demand an appropriate postponement of deadlines. If the cause of the delay in delivery lies within the purchaser’s area of responsibility and if as a consequence Peram incurs additional expense Peram can demand reimbursement of that additional expense.
§ 4 Delivery (1) Peram will dispatch the contracted goods either themselves or through a transport company at the purchaser’s risk and cost to the address mentioned in the contract. Delivery to a different address will only be effected on the basis of a separate agreement in writing. Goods which are not called off will be stored at the purchaser’s cost and risk. (2) Peram shall have the right to determine the mode and route of dispatch. If the purchaser desires a specific mode of dispatch and/or a specific dispatch route, in particular dispatch by air or express freight, Peram shall only be bound to comply after prior agreement in writing on condition that the purchaser undertakes to pay the additional costs incurred as compared with the mode/route of dispatch route determined by Peram. (3) The purchaser undertakes to examine the goods supplied without delay for any damage in shipping or other external defects and to secure appropriate evidence. The purchaser shall relinquish any claims for compensation on releasing the delivery documents to Peram. (4) If goods are dispatched via a haulage company the price risk is transferred to the purchaser as soon as the consignment has been handed over to the person undertaking the shipment, otherwise on delivery to the purchaser. (5) Peram has the right to deliver by instalments. (6) Deliveries of up to 10% less or more than the agreed quantity shall be deemed -in accordance with the contract- subject to the proviso that the purchase price shall be calculated on the basis of the quantity actually delivered and that in the event of short delivery Peram shall undertake to reimburse any overpayment by the purchaser and in the event of overdelivery the purchaser shall undertake to pay the purchase price on the basis of the quantity actually delivered. In the event of short delivery Peram shall not be obliged to deliver the difference between the contractually agreed quantity and the quantity actually delivered at a later date.
§ 5 Prices and Payment (1) Provided that nothing contrary is explicitly agreed upon in writing, it is agreed that delivery shall be ex works. The purchase price is net plus all taxes payable, in particular statutory sales tax, dues, customs duties and costs of payment transactions. (2) Provided that nothing to the contrary is agreed explicitly in writing the period allowed for payment shall start on the date of the Peram invoice. If goods are delivered before the invoice is issued the period allowed for payment shall start on the date of delivery. The purchaser will be in default with payment on receipt of a reminder from Peram, or without a reminder at the latest 30 days after receiving the invoice provided that no longer period for payment has been agreed. In that case the purchaser will be in default on expiry of the period allowed for payment. If the purchaser defaults on payment, all claims receivable by Peram for other deliveries and services to the purchaser shall be payable immediately irrespective of any payment deadlines agreed for them. In the case of long-term supply contracts, if the purchaser defaults on payment Peram will have the right to supply further deliveries only against advance payment. Otherwise, in the event of default Peram shall have the right to charge default interest on the amounts due at a rate of eight percentage points above the base rate. The right to file further legal claims is reserved. (3) The purchaser will only be entitled to set-off rights if his counter-claims have been legally established, have not been contested or have been recognised by Peram. A right of retention pursuant to Section 273 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) or Section 369 of the German Commercial Code (Handelsgesetzbuch, HGB) can only be asserted in the event of inadequate performance and only up to the difference between the value of the performance to be rendered by Peram and the objective value of the performance rendered by Peram. (4) If after concluding a contract Peram discerns deterioration in the purchaser’s asset position as a result of which amounts receivable by Peram are at risk, all amounts receivable shall be payable forthwith irrespective of any payment deadlines agreed. Only then will Peram undertake to supply any outstanding deliveries and services in return for advance payment or provision of a security. If the purchaser fails to meet this obligation, Peram can stipulate an appropriate extension of time for the advance payment or provision of a security and, if the extension expires without result, withdraw from the contract and/or demand compensation instead of payment or reimbursement of expenses. (5) If no fixed price was agreed, prices for deliveries made three months or more after concluding the contract are subject to appropriate amendment on account of changes in wage, material and distribution costs.
§ 6 Retention of Title (1) Peram shall retain title of goods delivered until all amounts receivable from the purchaser as a result of the business relationship, including future amounts receivable on the basis of contracts concluded simultaneously or subsequently, have been paid. If payment is made by cheque or bill of exchange, title shall be retained until this has been honoured. The same applies if individual, or all, amounts receivable by Peram have been included in a current account and the balance has been calculated and acknowledged. (2) The purchaser shall have the right to dispose of the goods in the regular way of business as long as he fulfils his obligations under the business relationship with Peram punctually and completely. Pledges and assignments of security are impermissible. The purchaser hereby relinquishes to Peram all amounts receivable from his buyer or third parties including all balance claims from a current account that accrue to him from resale to the amount of the invoice sum (including VAT) agreed with Peram. Notwithstanding this relinquishment the purchaser shall be authorised to collect the amounts receivable from the resale of the goods subject to retention. As long as the purchaser fulfils his obligations arising from the business relationship Peram will not collect the amounts receivable. If this authorisation to collect is revoked, the purchaser undertakes to notify Peram on demand of the names and addresses of the buyers of the goods. (3) Any treatment and processing or transformation by the purchaser of the goods delivered shall always be done in the name and on behalf of Peram. Peram will then acquire co-ownership of the new thing in the same ratio as that of the objective value of the goods subject to retention to the other objects used. If Peram’s ownership ceases due to processing, combination or mixing, the purchaser already now transfers title to the new stock or thing to which he is entitled to the extent of the objective value of the goods subject to retention, and shall hold them free of charge for Peram. The resulting co-ownership rights count as goods in the sense of Paragraph 1 above. (4) The purchaser shall notify Peram forthwith in writing of any pledges or other third-party interventions in the goods delivered by Peram or in an account receivable assigned to Peram. He shall also notify Peram of all circumstances of significance to the protection of Peram’s rights. The purchaser shall bear any costs of intervention to protect the rights of Peram. (5) Peram undertakes at the purchaser’s request to release the securities to which it is entitled insofar as the realisable value of its securities exceeds the receivable one to be secured by more than 20%. Peram shall be responsible for choosing the securities to be released. (6) Peram has the right to demand from the purchaser at any time information about the whereabouts of purchased goods that are subject to retention of title. (7) If the purchaser defaults on his payment obligations any assertion of title by Peram shall not count as withdrawal from the contract unless Peram explicitly notifies the purchaser thereof.
§ 7 Rights of the Purchaser in the Event of Defects (1) In accordance with the paragraphs below Peram will warrant that the contracted goods do not have faults such as to nullify or diminish the value or fitness for the assumed use agreed in the contract. Deficiencies that only slightly diminish the value or fitness of the goods shall be disregarded. (2) Peram does not guarantee within the meaning of Sec. 443 BGB that the goods have particular performance features or properties. Any guarantee within the meaning of Sec. 443 BGB will be issued solely by drawing up a separate written guarantee. (3) Any assertion of rights by the purchaser on account of defects presupposes that the purchaser has properly fulfilled his inspection and notification obligations. The purchaser must inspect the goods without delay and by no later than eight days after delivery to the purchaser notify Peram of any complaints in writing, enclosing all necessary documents, and give Peram the opportunity to examine the justification for complaint. If the purchaser fails to notify Peram he will be deemed to have accepted the goods unconditionally. Any guarantee for hidden defects that, despite careful examination, were not identifiable within the eight-day period, is ruled out unless the purchaser notifies Peram in writing immediately after they are discovered. (4) Any damage-limitation measures taken by Peram shall not count as acknowledgement of a defect. Negotiations about a complaint shall in no case count as forgoing the objection that notification of the defect was not punctual or objective or was unjustified or otherwise inadequate. (5) If notification of defects is served punctually and properly Peram can choose to remedy them or to deliver a replacement within an appropriate period of time (supplementary performance). Peram will bear all the necessary costs of supplementary performance unless the purchaser has taken the goods to a different location from that agreed for delivery and supplementary performance is therefore only possible for Peram at disproportionate cost. The purchaser can only assert legal rights to withdraw, reduce payment, to damages and/or reimbursement of costs after allowing Peram an appropriate period of time for supplementary performance, declaring that on expiry of that period they will decline supplementary performance, and if the fault has not been eliminated within the set time limit. Furthermore, a claim for damages or reimbursement of costs can only be lodged if in addition the prerequisites of Section 8 (Liability) have been fulfilled. (6) Peram can demand reimbursement of its costs if it has acted on a defect notification without the goods having been defective or the purchaser having properly proven the existence of a defect. (7) The period of limitation for rights relating to defects is one year from delivery of the goods to the purchaser.
§ 8 Liability (1) The purchaser can only claim damages in place of performance pursuant to Section 281 BGB or reimbursement of costs pursuant to Section 284 BGB after first giving Peram an appropriate period of time for performance or supplementary performance, declaring that after expiry of that period they will decline performance or supplementary performance, and if performance or supplementary performance has not been rendered within the set time limit. (2) Subject to (1) above, this AVB does not limit legal liability for losses concerning a guaranteed property of goods. Otherwise Peram shall be liable exclusively in accordance with Paragraphs 3 to 9 below. (3) Subject to Paragraph 6 below Peram shall accept unlimited liability only for wilful intent and gross negligence by its legal representatives and senior executives (Leitende Angestellte) and for their culpable neglect of duty leading to injury to life, body or health. Peram shall be liable for the fault of other vicarious agents, including in the aforementioned circumstances, only to the extent of foreseeable losses typical of the type of contract. (4) Peram shall only be liable for minor negligence insofar as a neglect of duty leads to an injury to life, body or health. In these cases the provision of Paragraph 3 shall apply, even if a duty is breached the fulfilment of which is of material significance to achieving the contract purpose (a cardinal duty). This also applies to the action of vicarious agents in breaching a cardinal duty. If a cardinal duty is breached, liability shall be limited to the extent of foreseeable losses typical of this type of contract. (5) Provided that nothing contrary has been agreed upon the value of the relevant order shall count as the foreseeable loss typical of the type of contract and in situations of long-term culpability the annual order value. (6) Except in instances of wilful intent Peram‘s liability for loss of profit or pure financial loss is ruled out. (7) Exclusions or limitations of liability pursuant to Paragraphs 2 to 6 above also apply to non-contractual liability. (8) The foregoing provisions do not affect liability under the German Product Liability Act (Produkthaftungsgesetz). (9) In the relationship between the purchaser and Peram it is the purchaser’s duty alone to monitor products delivered by Peram after they have been placed on the market (Produktbeobachtungspflicht) and to react to any dangers and hazards. The purchaser undertakes to inform Peram forthwith of all faults and problems and/or dangers in connection with products supplied by Peram. The purchaser shall be solely liable for any losses or injuries caused by a breach of the duty to monitor products.
§ 9 Concluding Provisions (1) This AVB and all legal relations between Peram and the purchaser shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Where the validity of Incoterms or other comparable terms of another kind has been contractually agreed, this AVB takes priority. The same applies to any agreement concerning the place of jurisdiction and the applicable law. (2) The place of jurisdiction for all disputes arising from or in connection with agreements for the delivery of goods by Peram is the registered office of Peram. However, Peram shall have the right to sue the purchaser at the place of jurisdiction for the purchaser‘s registered office.
§ 9 Concluding Provisions (1) This AVB and all legal relations between Peram and the purchaser shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Where the validity of Incoterms or other comparable terms of another kind has been contractually agreed, this AVB takes priority. The same applies to any agreement concerning the place of jurisdiction and the applicable law.
(2) The place of jurisdiction for all disputes arising from or in connection with agreements for the delivery of goods by Peram is the registered office of Peram. However, Peram shall have the right to sue the purchaser at the place of jurisdiction for the purchaser‘s registered office.