Alle Angaben ohne Gewähr.
All information without guarantee.
362
General Terms and Conditions
I. General matters and scope of validity
1. These General Terms and Conditions of Sale and Delivery apply to all of our business
relationships with the cus-tomer (the “Buyer”). They apply only if the Buyer is an entrepreneur
within the meaning of section 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB),
a legal person under public law, or a special fund under public law.
2. These General Terms and Conditions of Sale and Delivery apply in particular to contracts
for the sale and/or deliv-ery of moveable items (the “Goods”), irrespective of whether we
manufacture the Goods ourselves or purchase same from suppliers (sections 433 and 651
BGB). Unless agreed otherwise, these General Terms and Conditions of Sale and Delivery
apply as a master agreement in the version in effect at the time the order was placed or
that was most re-cently notified to the Buyer in writing, including for similar future contracts,
without our having to make reference to them again in each individual case.
3. Our General Terms and Conditions of Sale and Delivery apply exclusively. General terms
and conditions of the Buyer that deviate from, stand in opposition to, or supplement our
General Terms and Conditions of Sale and Delivery become part of the contract with the
Buyer only and insofar as we have given our express consent to their applicabil-ity. This
requirement of consent applies in every instance, including where, despite our awareness
of the Buyer’s gen-eral terms and conditions, we make deliveries to it without reservation.
4. Individual arrangements made with the Buyer in specific cases (including side agree-
ments, supplementations, and amendments) always have priority over these General Terms
and Conditions of Sale and Delivery. A written contract or our written confirmation is con-
trolling with respect to the content of such arrangements, subject to proof to the contrary.
5. Legally relevant declarations and notifications by the Buyer with respect to the contract
(e.g. setting of deadlines, notification of defects, rescission of contract, reduction of the
purchase price) must be submitted in writing (e.g. letter, email, fax). The foregoing does not
affect statutory form requirements and other forms of proof, including in the event of doubt
as to the identity of the party making the declaration.
6. If reference is made to the applicability of statutory provisions, this has merely clarifying
significance. For this rea-son, even absent such clarification, statutory provisions are appli-
cable unless directly modified or expressly precluded by these General Terms and Condi-
tions of Sale and Delivery.
II. Offer, conclusion of contract
1.Our offers are non-binding and subject to change. The foregoing also applies where
we have previously provided the Buyer with catalogues, technical documentation (e.g.
drawings, plans, calculations, references to DIN standards), other product descriptions, or
documents, including in electronic form.
2. Documents provided by us, such as drawings, drafts, technical documentation, and other
templates and documents, irrespective of whether these are originals or reproductions, are
made available on a loan basis only and remain our property. They may not be used for
other purposes or reproduced, nor may third parties be made aware of them.
3. For the determination of our contractual duties and/or of features of our deliveries and
performance, solely controlling are the information and declarations that have expressly
and in writing become a part of the contractual relationship.
4. The order for the Goods constitutes a binding offer of contract. Unless specified otherwise
in the order, we are entitled to accept this offer of contract within three weeks of its receipt
by us. Acceptance can be declared either in writing (e.g. through order confirmation) or
through delivery of the Goods to the Buyer.
5. Contracts, orders, and performance requests, as well as their amendments and supple-
mentations, and all other agreements relating to a contract or its execution must be made in
writing. We are entitled to use electronic form or written form. In such case, the Buyer is also
entitled to submit declarations in this way. Verbal agreements are effective only if they are
promptly confirmed in writing by a party. An order issued to us verbally does not become
binding until we have confirmed it in writing.
6. Our information regarding the subject of the delivery or performance (e.g. weights,
measurements, use values, load-bearing capacity, tolerances, and technical data), as well
as our depictions of same (e.g. drawings and images), are approximate only, unless utility
for the contractually intended purpose requires precise conformity. These do not constitu-
te guaranteed attributes as to quality but are merely descriptions or identifications of the
delivery or performance. Deviations that are customary in the trade and deviations that
are occasioned by legal requirements or constitute technical improvements, as well as the
replacement of components with parts of equal value, are permissible as long as they do
not interfere with the utility of the contractually intended purpose.
III. Prices, payment, due date
1. Unless agreed otherwise in a particular case, the applicable prices are our prices in effect
at the time of conclusion of contract, ex works and net of value-added tax. If the agreed
prices are based on our list prices, and if delivery is not to be made until at least four months
following conclusion of contract, the applicable prices are our list prices in effect upon deli-
very (in each case, less any agreed percentage or fixed rebate).
2. In the case of a sales shipment, the Buyer bears the transport costs ex works. Any customs
duties, fees, taxes, and other public charges are for the account of the Buyer.
3. If packaging material, such as EURO pallets, is provided on a loan basis and not returned
on time, we are entitled to invoice the Buyer for the full replacement value.
4. Deduction for early payment requires a special written agreement and is otherwise not
permitted.
5. Unless agreed otherwise in writing, we will submit our invoice at the time of delivery. The
purchase price is due and payable within 30 days of invoicing and delivery or acceptance
of the Goods. However, we are at all times entitled, including in connection with an ongoing
business relationship, to carry out delivery in full or in part only against advance payment.
We will declare a corresponding condition not later than with order confirmation.
6. Upon expiry of the aforementioned payment deadline, the Buyer is in default. During the
period of default, the purchase price bears interest at the applicable statutory default interest
rate. We reserve the right to assert more extensive damages from default. If the Buyer is a
merchant, our claim to commercial interest accruing as of the due date remains unaffected
(section 353 of the German Commercial Code (Handelsgesetzbuch, HGB)).
7. The Buyer is entitled to rights of set-off or retention only to the extent that its claim is
uncontested or has been reduced to an enforceable judgment. In the event of defects in the
delivery, the Buyer’s corresponding rights in particular remain unaffected.
8. If following conclusion of the contract it becomes apparent (e.g. through application for
commencement of insolvency proceedings) that our claim to the purchase price is jeopar-
dised by the inability of the Buyer to perform, then in accordance with statutory provisions,
we are entitled to refuse to perform and – following the setting of a potential grace period –
to rescind the contract (section 321 BGB). In the case of contracts for the manufacture of non-
fungible items (custom manufacture), we may declare rescission immediately. The statutory
arrangements concerning the dispensability of the setting of a deadline remain unaffected.
IV. Delivery, performance
1. The delivery deadline is either agreed upon on a case-by-case basis or specified by
us with acceptance of the order. It begins to run when the order confirmation is sent to
the Buyer. However, the start of the delivery period specified by us in every case requires
clarification of all technical questions and the details of execution, along with fulfilment of
the Buyer’s duty of cooperation.
2. If, for reasons for which are not responsible, we are unable to meet binding delivery
deadlines (non-availability of performance), we will give the Buyer prompt notice thereof
and concurrently advise the prospective new delivery deadline. If performance continues to
be unavailable by the new delivery deadline, we are entitled to rescind the contract in whole
or in part. We will promptly refund any consideration paid by the Buyer. Non-availability
of performance in this sense means, in particular, untimely delivery to us by our suppliers,
provided that we have concluded a congruent covering transaction, neither we nor our
suppliers are at fault, or we are not obligated to procure in a given case.
3. Whether we are in default in delivery is determined by statutory provisions. In any case,
however, the Buyer must give notice of default. The Buyer’s rights under Section VIII of these
General Terms and Conditions of Sale and Delivery and our statutory rights, including in
the event of exclusion of the duty to perform (e.g. due to impossibility or unreasonableness
of performance and/or cure), remain unaffected.
4. We will comply to the best of our ability with the piece numbers indicated in the order
confirmation. Reasonable partial deliveries are permissible if
• the partial delivery is utilisable by the Buyer in connection with the intended
contractual purpose,
• the delivery of the balance of the ordered Goods is assured, and
• the Buyer does not incur any substantial added effort or expense as a result (unless we
declare our willingness to assume these costs).
5. For follow-up orders (contracts), we undertake to manufacture the ordered quantity in
its entirety or in the necessary parts and to keep it in stock for the Buyer during the con-
tract period. The ordered quantity must be delivered on or before the agreed date of final
acceptance. The date of final acceptance is specified in the order confirmation. Continual
acceptance of partial amounts during the contract term is deemed agreed upon.
6. If it becomes apparent at the half-way point of the contract term that the contract will not
be fulfilled by the date of final acceptance, we are entitled at this time to invoice the quantity
that would have been delivered in the case of continual acceptance. In addition, starting at
this time, we are entitled to invoice each month an amount that would have been charged
in the case of continual acceptance.
V. Transfer of risk, shipment, duties to inspect and object
1. Unless provided otherwise in the order confirmation, delivery is agreed to be “ex works”
(EXW – D-42279 Wupper-tal − INCOTERMS 2010), which is also the place of performance
for the delivery and any cure. At the Buyer’s request and expense, the Goods will be sent to
a different place of destination (sales shipment). Unless agreed otherwise, we are entitled to
determine in our discretion how shipment is accomplished (in particular, transport company,
method of shipment, packaging).
2. The risk of accidental loss and accidental deterioration of the Goods passes to the Buyer,
at the latest, with hand-over or, in the case of a sales shipment, with the transfer of the item
to the shipping company, the freight forwarder, or other person designated with carrying
out the shipment. If an acceptance inspection has been agreed upon, this is controlling with
respect to transfer of risk. In addition, in all other respects, the statutory provisions of the law
on con-tracts to produce a work apply mutatis mutandis to an agreed acceptance inspection.
It is equivalent to hand-over or acceptance inspection if the Buyer is in default in acceptance.
3. If the Buyer so desires, we will cover the delivery with transport insurance. The costs for
this are for the account of the Buyer.
4. Other than pallets, we do not take back transport packaging or any other packaging.
5. If hand-over or shipment is delayed due to circumstances for which we are not responsib-
le, risk passes to the Buyer on the date that readiness for hand-over or shipment is notified.
VI. Defects, warranty, prescription
1. Unless specified otherwise below, statutory provisions are applicable to the Buyer’s rights
in the event of material or legal defects (including incorrect delivery or under-delivery, as
well as improper assembly or defective assembly instructions). In all cases, the special sta-
tutory provisions concerning final delivery of the Goods to a consumer remain unaffected
(supplier recourse pursuant to sections 478 and 479 BGB).
2. The basis for our liability for defects is, above all, the agreement as to the quality of
the Goods. An agreement as to the quality of the Goods is considered to be all product
descriptions that form part of the specific contract.
3. If quality was not agreed upon, the determination of whether a defect exists is made in
accordance with statutory provisions (section 434 (1) sentences 2 and 3 BGB). However, we
assume no liability for public statements made by the manufacturer or other third parties
(e.g. advertised claims).
4. The Buyer’s claims for defects presuppose that it has met its statutory duties to inspect
and object (sections 377 and 381 HGB). The foregoing also applies where delivery is made
not to the Buyer but instead to a third party designated by it. If the Buyer becomes aware
of defects during use, e.g. filling, it must immediately discontinue use. If a defect becomes
apparent during delivery, during inspection, or at a later point, we must be given prompt
written notice thereof. In any case, written notice of obvious defects must be given within 72
hours of delivery or, for defects not ascertainable during inspection, within the same period
following discovery. If the Buyer fails to undertake proper inspection and/or give notice of
defects, our liability for defects that were not notified, not notified in a timely manner, or not
properly notified is precluded in accordance with statutory provisions.
Sale and delivery of August Pohli GmbH & Co. KG • Hölker Feld 10—12 • D-42279 Wuppertal
status: march 2017
*Wir unterstehen der jährlichen Zertifizierung durch die Creditreform.
*We are subject to the annual certification by Creditreform.
*
