Pohli Gesamtkatalog Ausgabe 05

Alle Angaben ohne Gewähr. All information without guarantee. 385 General Terms and Conditions 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. 5. If the purchased item has a defect, we will first either repair it or provide replacement delivery at our choice. If we choose to eliminate the defect, we are obligated to bear all expenses necessary for this purpose, including transport, labour, and materials costs. The foregoing does not apply to the case where the ordered Goods were brought to a location different than the place of performance and this increases the costs. Our right to refuse to cure in accordance with statutory prerequisites remains unaffected. 6. The Buyer must give us the time and opportunity necessary to provide the cure owed by us, in particular, to hand over the contested Goods for the purposes of testing. In the case of replacement delivery, the Buyer must return the defective item to us in accordance with statutory provisions. Cure does not cover uninstallation of the defective item or reinstallation, unless we were originally obligated to perform reinstallation. 7. We bear the expenses required for the purposes of testing and cure, in particular, trans- port, road, work, and materials costs, provided that a defect actually exists. Otherwise, we may demand that the Buyer reimburse us for the costs incurred as a result of the unwarran- ted demand to eliminate defects (including testing and transport costs), unless the absence of defectiveness was not evident to the Buyer. 8. Defects in a portion of the delivery do not entitle the Buyer to object to the delivery as a whole. 9. If the cure failed, or if a reasonable deadline set by the Buyer for cure expired without success or can be dispensed with in accordance with statutory provisions, the Buyer may rescind the contract or reduce the purchase price. However, there is no right of rescission for a minor defect. The Buyer’s claims for compensation of damages or reimbursement of futile expenses, including in the case of defects, exist only in accordance with Section VIII and are otherwise precluded. 10. Damage attributable to improper treatment is excluded from the warranty. In particular, we are not liable for changes in the condition of our product due to improper storage or unsuitable operating supplies, as well as climatic or other effects that were not presumed under the contract. The warranty does not cover defects that are based on the choice of unsuitable materials. 11. In departure from section 438 (1) No. 3 BGB, the general prescription period for claims for material and legal defects is one year, beginning with delivery. If an acceptance inspection has been agreed upon, the prescription period begins to run upon acceptance. The aforementioned prescription periods under the law of the sale of goods also apply to the Buyer’s contractual and extra-contractual claims for compensation of damages that are based on a defect in the Goods, unless the application of the regular statutory prescrip- tion period (sections 195 and 199 BGB) would result in a shorter prescription period in a given instance. However, the Buyer’s claims for compensation of damages pursuant to Section VIII (2) sentences 1 and 2(a), as well as those under the German Product Liability Act (Produkthaftungsgesetz), are prescribed exclusively in accordance with the statutory prescription periods. 12. Deliveries are made in accordance with the currently applicable AQL guidelines are the currently applicable FBL. VII. Intellectual property rights, intangible rights 1. Unless expressly agreed otherwise by contract, we are obligated only to deliver the Goods in the country of the place of delivery free of industrial property rights and copy- rights. 2. If our Goods infringe an intellectual property right or a copyright, or if such infringement is asserted, then we are entitled, at our choice, either to acquire a license for the infringing Goods for the Buyer or to modify them to such an extent that they no longer infringe the intellectual property right or copyright or replace them with an equivalent product that no longer infringes the intellectual property right or copyright. For this purpose, the Buyer must make the Goods available to us at our expense when we so request. 3. In the case of custom manufacture, the Buyer confirms by way of order issuance that the Goods specially produced for it in accordance with its design request and its specifications and delivered by us will not infringe any intellectual property rights or copyrights and thus that it will indemnify us against liability claims. We are also not liable if the asserted infrin- gement of the intellectual property right or copyright is attributable to use in combination with another object not originating from us or if the object is used in a manner that we could not foresee 4. The foregoing Sections definitively address the liability for freedom from intellectual property rights and copyrights and apply mutatis mutandis also to our performance. VIII. Liability 1. Unless provided otherwise by these General Terms and Conditions of Sale and Delivery, including the following provisions, we are liable for a breach of contractual and extra- contractual duties in accordance with statutory provisions. 2. We are liable for compensation of damages – irrespective of the legal basis – in con- nection with fault-based liability in the event of wilful misconduct or gross negligence. In the event of simple negligence, we are liable, subject to a lower standard of liability, in accordance with statutory provisions (e.g. for due care in one’s own matters) only for a) damages for injury to life, body, or health, b) damages for breach of a not immaterial contractual duty (obligation whose fulfilment is essential for the proper performance of the contract and upon whose observance the con- tractual partner normally relies and is entitled to rely); in such case, however, our liability is limited to compensation of foreseeable damages that typically arise. 3. The limitations of liability resulting under Subsection 2 also apply in the case of breaches of duty by or in favour of persons whose fault is our responsibility in accordance with statutory provisions. They do not apply if we fraudulently concealed a defect or provided a guarantee for the quality of the Goods or to the Buyer’s claims under the German Product Liability Act. 4. In the event of a breach of duty that does not consist of a defect, the Buyer may rescind or terminate only if we are responsible for the breach of duty. An unrestricted right of the Buyer to terminate (in particular, pursuant to sections 651 and 649 BGB) is precluded. In all other respects, the statutory prerequisites and legal consequence apply. IX. Retention of title 1. We retain title to all delivered Goods until payment in full of all performance under the business relationship. 2. Until such time of payment in full of the secured claims, the goods subject to retention of title many not be pledged to third parties or otherwise assigned for the purposes of security. The Buyer must give up prompt written notice if an application for commencement of insol- vency proceedings has been lodged or if third parties attach the Goods belonging to us (e.g. liens). The Buyer is obligated at all time to treat the delivered Goods with care and to insure them at its own expense against damage due to fire, water, or theft. 3. Retention of title also extends to the full value of products resulting from the processing, co-mingling, or combining of our Goods, whereby we are deemed to be the manufacturer. If following processing, co-mingling, or combining with third party goods, such third party continues to have a right of ownership, then we acquire co-ownership in the ratio of the invoice values of the processed, co-mingled, or combined Goods. 4. Pursuant to the foregoing paragraph, the Buyer hereby assigns to us as security, either in full or in the amount of our possible co-ownership share, its claims against third parties resulting from the resale of the Goods or the product. We hereby accept the assignment. 5. The Buyer is entitled to resell the Goods subject to retention of title in the normal course of business, and it hereby assigns to us also all claims to the extent of the invoice amount (including VAT) that it has from the resale. We hereby accept the assignment. The Buyer is in no event entitled to assign the claims to third parties. When we so request, the Buyer must provide information about the assigned claims that is necessary for the purposes of collection, to provide us with originals of all documents concerning such claims or for review, including specifying the names of the debtors with full address, along with the amount and reason for their debt, and to notify the debtors of the assignment. 6. The foregoing powers granted to the Buyer end if the Buyer fails to meet its obligations to us in a timely manner, suffers financial difficulties, ceases making its payments, or applies for the commencement of insolvency proceedings in respect of its assets. 7. The Buyer must give us prompt written notice of compulsory enforcement measures un- dertaken by third parties. 8. In the event that the Buyer acts in breach of contract, in particular, by failing to pay the purchase price when due, we are entitled in accordance with statutory provisions to rescind the contract and/or to demand surrender of the Goods on the basis of retention of title. The demand for surrender does not simultaneously constitute a declaration of rescission; rather, we are entitled to demand solely the surrender of the Goods and reserve the right of rescission. If the Buyer fails to pay the purchase price when due, we may assert these rights only if we have previously given the Buyer a reasonable deadline to make payment and such deadline went unmet or if the setting of such a deadline may be dispensed with pursuant to statutory provisions. 9. When so requested by the Buyer, we undertake to release the security to which we are entitled in accordance with the foregoing provisions, in our discretion, if the value of the security exceeds the secured claims by 10% or more. X. Place of performance, place of jurisdiction, effectiveness 1. If the Buyer is a merchant within the meaning of the German Commercial Code, a legal person under public law, or a special fund under public law, the sole place of jurisdiction – including internationally – for all disputes arising directly or indirectly out of the con- tractual relationship is our place of business in Wuppertal. The same applies if the Buyer is an entrepreneur within the meaning of section 14 BGB. However, in all cases we are also entitled to file suit at the place of performance for the delivery obligation pursuant to these General Terms and Conditions of Sale and Delivery or an individual understanding that takes precedence or at the Buyer’s general place of jurisdiction. Statutory provisions that take precedence, including those concerning exclusive jurisdiction, remain unaffected. 2. The law of the Federal Republic of Germany is applicable to all legal relationships bet- ween us and the Buyer, under exclusion of international uniform law, including CISG. 3. If individual provisions of these General Terms and Conditions of Sale and Delivery are ineffective, all other provisions remain in full force and effect.