I. General Provisions

These general terms and conditions (GTC) apply to all business relationships between PPT GmbH & Co.KG (hereinafter: supplier) and its customers (hereinafter: buyer). The terms and conditions only apply if the buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.

The GTC apply in particular to contracts for the sale and/or delivery of movable items (hereinafter also: goods), regardless of whether the supplier manufactures the goods himself or buys them from suppliers (§§ 433, 651 BGB). The General Terms and Conditions apply in their current version as a framework agreement for future contracts for the sale and/or delivery of movable items with the same buyer, without the supplier having to refer to them again in each individual case.

These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer only become part of the contract if and to the extent that the supplier has expressly agreed to their validity. This requirement for consent applies in any case, for example even if the supplier carries out the delivery to the buyer without reservation and is aware of the general terms and conditions of the buyer.

 

II. Conclusion of contract

The supplier's offers are subject to change and non-binding. 

The ordering of the goods by the buyer is considered a binding contract offer. Unless otherwise stated in the order, the supplier is entitled to accept this contract offer within four weeks of its receipt.

Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the buyer.

The supplier also reserves the right to make design changes at any time in the case of framework agreements or successive deliveries. In this case, the supplier is not obliged to make such changes to products that have already been delivered. The same applies to software updates and upgrades.

 

III. Prices and terms of payment

The prices are ex works excluding packaging (Incoterm: EXW) and plus the applicable statutory sales tax. The buyer bears the costs of packaging, transport and transport insurance.

Insofar as the supplier is obliged according to § 4 VerpackV to take back the packaging used for transport, the buyer bears the costs for the return transport of the packaging used.

If the supplier has taken on the installation or assembly and nothing else has been agreed, the purchaser shall bear all necessary ancillary costs in addition to the agreed remuneration, in particular travel expenses, costs for transporting the tools and personal luggage of the people employed by the supplier, as well as allowances.

Any customs duties, fees, taxes and other public charges must be borne by the customer. The supplier does not take back any other packaging that does not fall under Art. II No. 2; it becomes the property of the customer.

Unless otherwise stated in the order confirmation and invoice, invoices are to be paid net within 14 days. With the expiry of the above payment period, the customer is in default. During the delay, the purchase price shall be subject to interest at 8 percentage points above the base interest rate, but at least 12 percent pa. The supplier reserves the right to assert further damage caused by the delay. The supplier's claim to the commercial maturity interest (§ 353 HGB) remains unaffected in relation to merchants.

Payments are to be transferred to one of the bank accounts specified by the supplier. The buyer bears the costs of money transactions.

The buyer is only entitled to set-off rights if his claim has been legally established or is undisputed. The same applies to the right of retention, the effective exercise of which also depends on the buyer's counterclaim being based on the same contractual relationship.

 

IV. Deadlines for deliveries; Delay in delivery and acceptance

Compliance with deadlines for deliveries presupposes the timely receipt of all documents to be supplied by the buyer, necessary approvals and releases, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the customer. If these requirements are not met in good time, the supplier is entitled to extend the deadlines appropriately; this does not apply if the supplier is responsible for the delay.

If non-compliance with deadlines is due to force majeure, e.g. mobilization, war, riot, or similar events, e.g. B. strike, lockout, the supplier is entitled to extend the deadlines appropriately.

If the supplier is in default, the customer can – provided that he can prove that he has suffered damage as a result – demand compensation of 0.5% for each full week of delay, but a maximum of 5% of the price for the part of the deliveries , which was not delivered. Both claims for damages by the customer due to delay in delivery and claims for damages in lieu of performance that go beyond the limits specified in the previous sentence are excluded in all cases of delayed delivery, even after the expiry of a delivery deadline set for the supplier. This does not apply in the cases of Art. XI No. 2.

At the request of the supplier, the customer is obliged to declare within a period of two weeks whether he is withdrawing from the contract due to the delay in delivery. If he does not submit the declaration within this period, his right of withdrawal expires.

If, at the request of the customer, shipping or handover is delayed by more than one month after notification of readiness for dispatch, the customer can be charged a storage fee of 1% of the price of the delivery items for each started week after the end of the month, but no more than 100% in total will. The contracting parties are free to provide evidence of higher or lower storage costs; the flat-rate storage fee is to be offset against further monetary claims.

If a contractual right of return has been agreed, the customer must bear the packaging and shipping costs. The risk of deterioration and possible loss lies with the customer until the return delivery is received.

 

V. Delivery, transfer of risk

Delivery is ex works, which is also the place of performance. At the request and expense of the customer, the goods will be sent to another destination (sales by mail). Unless otherwise agreed, the supplier is entitled to determine the type of shipment (in particular transport company, shipping route, packaging) himself.

The risk of accidental loss and accidental deterioration of the goods as well as the risk of delay is transferred to the customer as follows, even in the case of carriage paid delivery: a) In the case of mail-order sales, the risk already passes to the forwarding agent, carrier or other person upon delivery of the goods Execution of the shipment to a specific person or institution. At the request and expense of the customer, deliveries from the supplier will be insured against the usual transport risks; b) In the case of deliveries with installation or assembly, on the day of acceptance in the company's own works or, if agreed, after a flawless trial run. c) If acceptance has been agreed, this is decisive for the transfer of risk. For the rest, the statutory provisions of the law on contracts for work and services apply accordingly to an agreed acceptance; kind

If the dispatch, the handover, the start, the execution of the installation or assembly, the acceptance into the company's own works or the test run is delayed for reasons for which the customer is responsible or the customer is in default of acceptance for other reasons, the risk passes to the customer orderer about.

The customer may not refuse to accept deliveries due to minor defects. Partial deliveries are permitted if they are reasonable for the customer.

 

VI. Acceptance

If the supplier requests acceptance of the delivery, the customer must do so within two weeks of delivery. If this does not happen, acceptance shall be deemed to have taken place unless the purchaser reports precisely defined defects or malfunctions in writing within this period; receipt of the complaint by the supplier is decisive for compliance with the deadline. Acceptance is also deemed to have taken place if the delivery has been put into use – possibly after the end of an agreed test phase.

 

VII. Retention of title

The supplier retains ownership of the goods sold until all current and future claims of the supplier from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.

The goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The customer must inform the supplier immediately in writing if and to the extent that third parties access the goods belonging to the supplier.

The customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply.

a) The retention of title extends to the products created by processing, mixing or combining the supplier's goods at their full value, whereby the supplier is considered the manufacturer.

b) If the property right of a third party remains in the case of processing, mixing or connection with third-party goods, the supplier acquires co-ownership in relation to the invoice value of the processed, mixed or connected goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.

c) The customer hereby assigns the claims against third parties arising from the resale of the goods or the product in total in the case of (a) or in the case of (b) in the amount of the co-ownership share of the supplier to the supplier as security. The supplier accepts the assignment. The obligations of the customer specified in paragraph 2 also apply with regard to the assigned claims.

d) The purchaser remains authorized to collect the claim alongside the supplier. The supplier undertakes not to collect the claim as long as the customer meets his payment obligations to the supplier, does not default in payment, no application for the opening of insolvency proceedings has been filed against the customer's assets and there is no other deficiency in his ability to pay. If this is the case, however, the supplier can demand that the customer informs him of the assigned claims and their debtors and provides all other information required for collection, hands over the associated documents and informs the debtors (third parties) of the assignment.

If the realizable value of the securities exceeds the secured claims of the supplier by more than 20%, the supplier will release securities of the supplier's choice at the request of the customer.

 

VIII. Defects

Deliveries that show a material defect within the limitation period - regardless of the operating time - are to be repaired free of charge, redelivered or provided again at the supplier's option, provided that the cause of the material defect was already present at the time of the transfer of risk. As part of its supplementary performance obligations, the supplier owes - subject to further liability for damages in accordance with Section XI. – Neither the removal of the defective item from another item (not supplied by the supplier) into which the defective item is installed, nor the costs of installing the replacement or repaired item.

Claims for defects of quality shall become statute barred within 12 months. This does not apply if the law stipulates longer periods in accordance with §§ 438 Para. 1 No. 2 (buildings and items for buildings), 479 Para. 1 (right of recourse) and 634a Para. 1 No. 2 (construction defects) BGB, as well as in cases of injury to life, limb or health, in the case of an intentional or grossly negligent breach of duty by the supplier and in the case of fraudulent concealment of a defect. The legal regulations for suspension of expiry, suspension and restart of the periods remain unaffected.

The purchaser must notify the supplier immediately in writing of material defects (including incorrect and short deliveries). In any case, the notification is no longer considered immediate if it is not made within two weeks; the timely dispatch of the notification is sufficient to meet the deadline.

The supplier is entitled to make an owed supplementary performance dependent on the purchaser paying the purchase price due. In this case, however, the customer is entitled to withhold a part of the purchase price that is reasonable in relation to the defect in accordance with Art. III No. 7 Sentence 2. If the notice of defects is unjustified, the supplier is entitled to demand reimbursement of the expenses incurred by the customer.

First, the supplier must be given the opportunity to remedy the defect within a reasonable period of time. If the supplementary performance fails, the customer can withdraw from the contract or reduce the payment.

Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable equipment, defective construction work, unsuitable building ground or due to special external influences that are not a prerequisite under the contract, as well as non-reproducible software errors. If the customer or third parties make improper changes or repair work, there are no claims for defects for these and the resulting consequences.

Claims by the customer for the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded if the expenses increase because the delivery item was subsequently taken to a location other than the customer's branch unless the shipment corresponds to its intended use.

Recourse claims of the customer against the supplier according to § 478 BGB (recourse of the entrepreneur) only exist insofar as the customer has not made any agreements with his customer that go beyond the statutory claims for defects. Art. VIII No. 7 also applies accordingly to the extent of the customer's right of recourse against the supplier in accordance with Section 478 (2) of the German Civil Code.

For the rest, Art. XI (Other claims for damages) applies to claims for damages. Claims of the customer against the supplier and its vicarious agents because of a material defect that go beyond or differ from those regulated in this Art. VIII are excluded.

 

IX. Industrial property rights and copyrights; defects of title

Unless otherwise agreed, the supplier is obliged to make the delivery free of industrial property rights and copyrights of third parties (hereinafter: property rights) only in the country of the place of delivery. If a third party raises legitimate claims against the customer due to the infringement of property rights by deliveries made by the supplier and used in accordance with the contract, the supplier shall be liable to the customer within the period specified in Art. VIII as follows:

a) The supplier will, at its own discretion and at its own expense, either obtain a right of use for the deliveries in question, change them in such a way that the property right is not violated, or exchange them. If this is not possible for the supplier under reasonable conditions, the customer is entitled to the statutory rights of withdrawal or price reduction.

b) The obligation of the supplier to pay damages is based on Art. XI.

c) The above-mentioned obligations of the supplier only exist if the customer informs the supplier immediately in writing about the claims asserted by the third party, does not acknowledge an infringement and all defensive measures and settlement negotiations are reserved for the supplier.

If the customer stops using the delivery to reduce damage or for other important reasons, he is obliged to inform the third party that stopping use does not constitute an acknowledgment of an infringement of property rights.

Claims by the customer are excluded insofar as he is responsible for the infringement of property rights.

Claims by the purchaser are also excluded if the infringement of property rights is caused by special specifications by the purchaser, by an application that the supplier could not foresee, or by the fact that the delivery was modified by the purchaser or used together with products not supplied by the supplier.

The supplier reserves the unrestricted ownership and copyright exploitation rights to cost estimates, drawings, manuals and other documents (hereinafter: documents). The documents may only be made accessible to third parties with the prior consent of the supplier and must be returned to the supplier immediately upon request if the order is not placed with the supplier. Sentences 1 and 2 apply accordingly to the customer's documents; however, these may be made accessible to third parties to whom the supplier has permitted deliveries to be made.

Unless otherwise expressly agreed in writing, the information submitted to the supplier in connection with orders is not considered confidential.

The customer has the non-exclusive right to use the software provided by the supplier with the agreed performance characteristics in an unchanged form on the agreed devices. The customer may make two backup copies without express agreement.

In the event of infringements of industrial property rights, the provisions of Art. VIII shall apply accordingly to the customer's claims regulated in No. 1 a).

If there are other defects of title, the provisions of Art. VIII apply accordingly.

Claims of the customer against the supplier and its vicarious agents because of a defect in title that go beyond or differ from those regulated in this Art. IX are excluded.

 

X. Impossibility to adjust the contract

If delivery is impossible, the customer is entitled to demand compensation, unless the supplier is not responsible for the impossibility. However, the customer's claim for damages is limited to 10% of the value of that part of the delivery that cannot be put into operation due to the impossibility. This limitation does not apply if liability is mandatory in cases of intent, gross negligence or due to injury to life, limb or health; a change in the burden of proof to the detriment of the customer is not associated with this. The customer's right to withdraw from the contract remains unaffected. 

If unforeseeable events within the meaning of Art. IV No. 2 significantly change the economic importance or the content of the delivery or have a significant impact on the supplier's operations, the contract will be adjusted appropriately, taking good faith into account. If the latter is not economically justifiable, the supplier has the right to withdraw from the contract. If he wants to make use of this right of withdrawal, he must inform the customer of this within three weeks after becoming aware of the event. If he does not submit the declaration within this period, his right of withdrawal expires.

 

XI.Other Claims for Damages

The supplier is only liable for damages – for whatever legal reason – in the case of intent and gross negligence. In the event of simple negligence, the supplier shall only be liable for damage resulting from injury to life, limb or health, or for damage resulting from the breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and whose observance the contractual partner regularly trusts and may trust); in this case, however, the liability of the supplier is limited to compensation for the foreseeable, typically occurring damage.

The limitations of liability resulting from paragraph 1 do not apply if the supplier has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods. The manufacturer's guarantee does not represent the assumption of a guarantee by the supplier. The regulation in sentence 1 applies accordingly to claims by the customer under the Product Liability Act.

Insofar as the customer is entitled to claims for damages under this Art. XI, these shall become statute-barred upon expiry of the limitation period applicable to claims for material defects in accordance with Art. VIII.

 

XII. Data Protection

PPT GmbH & Co. KG uses personal data of customers to process and record orders, to deliver goods, to provide services and to process payments. Data is not passed on to third parties outside of this business relationship. In addition, information may also be used with the customer's consent to provide information about products, marketing measures, other services and other recommendations. The customer is free to informally object to such use at any time. The following privacy policy applies: https://www.alluris.com/privacy-policy

 

XIII. Jurisdiction and Applicable Law

If the customer is a merchant, a legal entity under public law or a special fund under public law, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the supplier's registered office. However, the supplier is also entitled to sue at the customer's general place of jurisdiction.

German substantive law applies to the legal relationships in connection with this contract, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). Requirements and effects of the retention of title agreed above are based on the law at the respective storage location of the goods, insofar as the choice of law made in favor of German law should be inadmissible or ineffective according to the respective law.

 

XIV. Severability Clause

Should any provision of these General Terms and Conditions be or become invalid or void, the validity of the remaining provisions shall not be affected. 

 

(as of 01.04.2024)