PETER electronic GmbH & Co. KG - Shop terms
- Designation of the parties / Scope of application of the Shop Terms
1.1 Hereinafter, the PETER electronic GmbH & Co. KG is referred to as
„PETER electronic“. The contracting party which, on the basis of the below
conditions, makes use of our services, is hereinafter referred to as the
„Orderer“.
1.2 These Shop Terms shall apply to all contractual relations between PETER
electronic and merchants, legal entities and special funds under public law,
in particular, however, to purchase contracts and contracts for work and
materials.
1.3 The Shop Terms of PETER electronic shall apply exclusively. Any terms
and conditions of the Orderer to the contrary of or deviating from these
Shop Terms shall be rejected unless otherwise expressly agreed in writing. - Conclusion of contract / Rights of utilization
2.1 The range of goods displayed on the page www.peter-electronic.com
merely constitutes an invitation to make an offer. A contract shall not come
into effect until PETER electronic has acknowledged an order of the
Orderer within a period of 7 calendar days at least in text form.
2.2 If descriptions, plans, drawings and/or software, which are protected by
industrial property rights or copyright law (UrhG), are provided to the
Orderer, all exploitation rights, in particular those of reproduction and
distribution, shall remain the property of PETER electronic. The Orderer
shall not be entitled to modify, alter or revise the aforementioned documents
and software.
2.3 If the order consists in the delivery of goods on which software, and in
particular, control software has already been implemented, the Orderer
shall be granted a non-exclusive licence unlimited in time for using the
software provided on the delivered goods in its own company for its own
purposes.
2.4 Re-translation of the program code (recompiling) or conversion into other
code forms as well as other methods of reverse development of the various
software production stages (reverse engineering) shall be prohibited to the
Orderer. - Prices
3.1 Prices are quoted in euros (EUR), plus value-added tax, if applicable.
3.2 All prices are valid ex works (ex works as per Incoterms 2010), plus
packaging, freight, customs duties, insurance, delivery fees. Unless
otherwise especially agreed, PETER electronic shall not be obliged to pay
these charges on behalf of the Orderer.
3.3 If, after conclusion of the contract, there is an increase in cost factors such
as material procurement costs, in particular raw materials such as copper,
aluminium, etc., as well as electronic components, as a result of which the
unit cost of the goods to be delivered from time to time increase by more
than 10%, PETER electronic shall be entitled to adapt the sales prices by
the portion exceeding 10%, provided that there is a period of at least four
months between the time of conclusion of the contract and the date of
delivery. - Payment
4.1 Cheques and bills of exchange will only be considered as payment when
honoured.
4.2 Claims for payment become due 30 days after dispatch of the invoice at the
latest.
4.3 Should the Orderer, in spite of the fact that the payment claim is due, fail to
effect payment within 7 calendar days from the due date, it shall be
deemed to be in default of payment without the necessity of a default
notice.
4.4 The Orderer may only offset against claims that are not contested or have
been recognized by declaratory judgment.
4.5 Unless otherwise agreed in writing, PETER electronic shall be entitled to
demand 100% advance payment from the Orderer. - Delivery
5.1 PETER electronic shall provide its services or effect performance, if the
following preconditions have been complied with:
a) Receipt of the payment amount agreed upon or adherence to the terms of
payment agreed upon.
b) Receipt of all documents, required authorizations, and approvals to be
provided by the Orderer.
c) There are no obstacles due to German, US-American, European or
national Laws on Foreign Trade and Payments, due to trade embargoes
or other sanctions under international law.
5.2 If these preconditions are not complied with, PETER electronic shall be
entitled to grant a reasonable grace period to the Orderer with the threat of
terminating the contract, and may terminate the contract in accordance with
§§ 643, 645, sub-paragraph 1, p. 2., of the German Civil Code (BGB) once
this grace period expires without results. - Delivery periods / Due dates
6.1 Delivery periods and dates shall be binding only if they have been
confirmed by PETER electronic at least in text form. The delivery period
shall not commence to run until the preconditions according to section 5.1
have been fulfilled. In the event that the contract is modified or amended,
or if the Orderer is in delay in fulfilling its obligations to co-operate, the
delivery period will be accordingly extended.
6.2 PETER electronic shall be entitled to deliver the goods to the Orderer
even before the delivery is due.
6.3 External events that are brought about from the outside by elemental
forces of nature or by actions of third parties, and which, even with the
best human judgment and experience, are unforeseeable, shall
hereinafter be deemed to be events of force majeure.
6.4 If, as a result of an event considered to be an event of force majeure, it is
impossible for PETER electronic to effect performance, or PETER
electronic is delayed or considerably hindered in effecting performance, or
if one of the preconditions for delivery according to section 5.1 is missing,
these consequences shall not be considered to be a violation of the
contract and they do neither entitle the customer to terminate or rescind
the contract nor to assert any claims occasioned by delay. - Passing of risk
Unless otherwise agreed in writing, the risk of accidental loss of, or
accidental damage to the delivery item shall pass to the Orderer as soon
as the delivery item is made available at the works of PETER electronic
(Passing of risk: ex works as per Incoterms 2010). - Liability for defects / Notices of defects
8.1 The Orderer shall be obliged to inspect the delivered goods for
completeness and freedom from defects immediately upon receipt. The
Orderer must notify PETER electronic in writing of any visible defects
without delay, at the latest, however, within 5 work days. The requirement
of the written form shall also be deemed to be fulfilled, if the notice of
defect was transmitted by telefax. In the case of a hidden defect, the
Orderer shall also be obliged to make a complaint in respect of the
discovered defect without delay, i.e., within a period of 5 work days after
discovery of the defect. If the Orderer fails to give notice of the defect, or if
the notice is given too late, the defect shall be considered to have been
approved.
8.2 If the delivered goods, as can be proven, have a material defect, the
defective work or item(s) or parts thereof shall, at PETER electronic’s
option, either be replaced or rectified free of charge.
8.3 In so far as a defect of the delivered goods consists exclusively in the
implemented software, PETER electronic shall be entitled to render
subsequent fulfilment first of all by showing the Orderer reasonable
possibilities as to how the effects of the defect can be avoided, or by
remedying the software defect through the transmission of a software
patch.
8.4 If delivery or performance is effected in a place other than the business
establishment of the Orderer, the Orderer shall bear the (additional)
expenses incurred thereby and required for subsequent fulfilment.
8.5 If PETER electronic incurs expenses due to an unfounded assertion of
claims based on liability for defects, PETER electronic shall be entitled to
demand compensation for them from the Orderer.
8.6 If the attempt of subsequent fulfilment finally fails or if the Orderer, after
setting reasonable time limits for subsequent fulfilment, has given PETER
electronic at least two times the opportunity to remedy the defect
complained of, the Orderer shall be entitled either to reduce the
remuneration or to claim damages or compensation for futile expenses
according to section 9. The Orderer shall be entitled to withdraw from the
contract only in case of a substantial defect. A defect is considered to be
substantial, if it impairs the usability of the goods to an extent that is not
only inconsiderable.
8.7 PETER electronic shall be liable to reimburse disassembly and installation
costs only if PETER electronic is at fault according to section 9.
8.8 The Orderer shall have rights of recourse against PETER electronic under
§ 478 German Civil Code (BGB) only in so far as the Orderer has not
made any agreements with its customers that extend, prolong or simplify
their statutory claims for defects.
8.9 Warranty claims of the Orderer to replacement and to rectify the defect
and claims arising from defects of title prescribe in 12 months beginning at
the time of passing the risk to the Orderer, unless PETER electronic is
culpable of gross negligence. - Liability for damages
9.1 The liability of PETER electronic for simple negligence shall be excluded,
irrespective of the legal ground. This exclusion shall include both claims
seeking compensation for damages and claims relating to the enforcement
of expenses. This exclusion shall not apply to damages:
● for which liability is mandatory, e.g., acc. to the Product Liability Law
(ProdHaftG),
● due to an injury of the body or health of a person,
● due to fraudulent concealment of a defect, or
● if a duty is neglected, the very performance of which is deemed to be
necessary for due and proper completion of the contract and may with
reason be permanently relied on by the party to the contract (material
contractual obligation).
9.2 If PETER electronic is liable according to section 9.1, liability for damages
shall be limited in amount to the foreseeable damage typical of this type of
contract.
9.3 If PETER electronic is liable on the merits for a damage caused as a result
of simple negligence according to section 9.1 and/or 9.2, PETER
electronic‘s liability for property and pecuniary damage shall, unless a
material contractual obligation has been breached, be limited to five times
the amount of the respective (net) contract value per case of damage.
Liability for personal injury shall not be limited. - Retention of title / Assignment of future claims
10.1 PETER electronic shall retain title to the goods delivered until all claims
arising from the business relation with the Orderer have been paid in full
(„goods subject to retention of title“).
10.2 During the period of retention of title, the Orderer shall keep the goods
subject to retention of title in safe custody on behalf of PETER electronic.
The Orderer shall adequately insure the goods subject to retention of title,
in particular against the risk of theft and fire. Any claims against the
insurance company resulting from a case of damage relating to the goods
subject to retention of title shall already now be assigned to PETER
electronic, who hereby accepts this statement of assignment.
10.3 For as long as the retention of title exists, the Orderer may neither pledge
nor assign the goods subject to retention of title as security for a debt. The
Orderer shall be entitled to sell the goods subject to retention of title in the
ordinary course of business.
10.4 Should the Orderer sell goods subject to retention of title, it hereby already
now assigns to PETER electronic as security all its future claims arising
from the resale of the goods subject to retention of title to a third party.
10.5 The Orderer shall be authorised, subject to revocation, to collect the claim
assigned to PETER electronic. Where good cause exists to do so, PETER
electronic shall be entitled to revoke the Orderer’s power of collection.
Good causes shall be deemed in particular the following: delay in payment
of at least 30 calendar days, commencement of insolvency proceedings,
the Orderer’s application for institution of insolvency proceedings, and
justified indications for the Orderer’s imminent inability to pay its debts. On
request, the Orderer shall be obliged to give PETER electronic the
information and documentation required to collect the claim assigned and
to inform its customers immediately about the assignment.
10.6 If the Orderer includes any claims resulting from the resale of the goods -
delivered or to be delivered and subject to retention of title - into a current
account existing with its customers, it hereby assigns already now to
PETER electronic a positive balance to an amount equal to the total
amount of the claims placed in the current account relationship from the
resale of the goods subject to retention of title.
10.7 The Orderer shall be entitled to process or transform the goods subject to
retention of title, or to mix or combine them with other items. Processing or
transformation of the goods subject to retention of title by the Orderer shall
always be carried out on behalf of PETER electronic. The newly created
object shall be deemed to be goods subject to retention of title. If goods
subject to retention of title are combined or mixed with other items of the
customer, PETER electronic shall acquire co-ownership in the newly
created object at a ratio of the invoice value of the goods subject to
retention of title to the invoice value of the other items.
10.8 If the value of the existing securities exceeds PETER electronic’s current
claims by more than 20%, PETER electronic shall, on request of the
Orderer, be obliged to release or retransfer them on a pro rata basis. - Right of free termination by the Orderer in the case of contracts for
work and materials
If a contract for the supply of an object to be individually manufactured
(contract for work and materials) is freely terminated by the customer,
PETER electronic shall be entitled to invoice the performance already
rendered and to demand a lump-sum remuneration to the amount of 20%
for the performance not yet rendered at the time of the termination.
PETER electronic, however, shall not be entitled to such lump-sum
remuneration, if the Orderer can prove that PETER electronic is not
entitled to receive any remuneration at all or is only entitled to receive
significantly less remuneration. PETER electronic, for its part, shall
reserve the right to furnish proof that the profit share is higher than the
lump sum amount. - Applicable law / Jurisdiction
12.1 German law shall apply to the exclusion of the UN-Convention on
Contracts for the International Sale of Goods.
12.2 Exclusive place of jurisdiction shall be Nuremberg, Federal Republic of
Germany. - Severability clause
If one of the aforementioned provisions is ineffective, the validity of the
remaining provisions shall not be affected by this.
As per August 2014
