General Terms and Conditions of Sale and Delivery
1.1 These Standard Terms and Conditions shall apply exclusively to all present and future business relationships. These Standard Terms and Conditions shall only be applicable as towards merchants and businesses in accordance with Section 14 of the German Civil Code. The quotations of PCI Augsburg GmbH (hereinafter referred to as “PCI”) shall not be binding but shall be deemed to be a request for the purchaser to make a purchase offer towards PCI. The contract shall be concluded by the order by the purchaser (offer) and the acceptance by PCI. In the event of any deviation between the order issued by the purchaser and the
acceptance issued by PCI, said acceptance shall be deemed to be a new non-binding offer made by PCI.
1.2 By virtue of its business relationship with PCI, the purchaser shall not be deemed to have acquired any title, licence, utilisation, trademark or other rights to the company names and trademarks of PCI. The purchaser shall not use any sign or trademark of PCI without the written permission of PCI. Following the granting of such permission, PCI shall be entitled at any time to revoke the right of the purchaser to use such signs or trademarks without being obligated to pay any compensation to the purchaser.
1.3 The purchaser shall not be entitled to set off or retain any amount from amounts due to PCI except where the claims by the purchaser have been accepted by PCI or an enforceable judgement has been granted in respect of such claims.
1.4 Deviations from these Standard Terms and Conditions shall not apply unless expressly accepted in writing by PCI.
The technical data stated in the relevant technical data sheets shall represent the sole properties of the goods to be supplied by PCI agreed between PCI and the purchaser. PCI shall not be deemed to have given any guarantees except as otherwise agreed in individual contracts. In the event of a sale by sample, the sample shall only be deemed to constitute a fair representation of the goods sold and shall not give rise to any guarantee as to the properties or durability of such goods. Any identified use of the goods supplied under the European Regulation on Chemicals, REACH, shall not represent any agreement concerning the properties of the goods or a presupposed use of the goods under the contract.
Except as may otherwise be agreed, prices quoted by or agreed with PCI shall be deemed to be prices for ex-works delivery including packaging (EXW, Incoterms 2010) to the warehouse of the customer, not including value added tax, which shall be payable at the applicable rate. If, in special cases, carriage paid prices are agreed, no reduction shall be granted to the purchaser in the event that the goods are collected by the purchaser ex works or ex warehouse. Collection of goods ex works is only possible from an order weight of 3 tonnes upwards. Without limitation, the prices quoted by PCI apply to business purchasers.
4. Shipping, storage
4.1 Unless otherwise agreed between PCI and the purchaser in writing, goods shall be delivered ex works (EXW, Incoterms 2010) to the warehouse of the purchaser. In this case, the risk of the loss or deterioration of the goods supplied under the contract shall be transferred to the purchaser when such goods are made available for collection ex-works and the purchaser receives notification that said goods are ready for collection. In any other case, the risk of the loss or deterioration of the goods supplied under the contract shall be transferred to the purchaser upon the handing over of such goods to the forwarder. The purchaser shall be responsible for the proper storage of the goods supplied.
4.2 In the event that the purchaser or any of the purchaser’s customers, by wilful act or omission or gross negligence, infringes its obligation under Section 4.1 hereinabove to state the destination of the goods correctly or to notify PCI promptly of any change in such destination and PCI makes an unsuccessful attempt to deliver goods as a result of such infringement, PCI shall be entitled to require the purchaser to pay compensation of € 100.00 per tonne of goods, subject to a minimum of € 1,000.00 per consignment. In any such case, the purchaser shall be entitled to prove that the loss or damage suffered by PCI as a result of such infringement is lower than said amount and PCI shall be entitled to prove that said loss or damage is higher than said amount.
5. Terms of payment
5.1 All invoices shall be payable within 30 days of date of issue without any deduction or within 14 days with a cash discount of 2%.
5.2 In the event of justified doubts concerning the creditworthiness of the purchaser, including without limitation in the event of delay in payment, PCI shall, without prejudice to any further claims, be entitled to revoke terms of payment granted to the purchaser and to require other security from the purchaser before making any further deliveries to the purchaser.
5.3 The non-payment of the purchase price by the purchaser by the due date shall be deemed to be a material breach of the purchaser’s obligations under the contract. In the event of delay in payment by the purchaser, PCI shall be entitled to claim interest on the amount outstanding at a rate of nine percentage points above the base rate of Deutsche Bundesbank in force on the date when delay occurs in the case of invoices issued in euros and at a rate of nine percentage points above the discount rate in force on the date when delay occurs of the central bank of the country in whose currency the invoice is issued in the case of invoices issued in currencies other than the euro.
6. Delivery and performance time, delay in performance
6.1 In the event that agreed delivery times are exceeded for reasons for which PCI is responsible, and PCI fails to deliver the goods concerned within a reasonable grace period set by the purchaser, the purchaser shall be entitled to rescind the contract by notice given in writing. PCI shall not be deemed to be in default until said grace period has expired.
6.2 In the event of force majeure and other unforeseeable circumstances beyond the reasonable control of PCI, such as business disruptions caused by fire, water, delivery failures of PCI‘s suppliers, shortages of energy or raw materials, strike, lockout, traffic disturbances or acts of authorities, PCI shall be entitled, in the event of delays in delivery or performance, to postpone the delivery of the goods or the performance of the services concerned for the duration of such circumstances, plus an appropriate lead time for the recommencement of deliveries or services.
6.3 If the agreed delivery time is exceeded by more than one month, both of the parties shall be entitled to rescind the contract by notice given in writing, subject to the conditions stated in Section 7 hereinbelow. In any such case, neither of the parties shall be entitled to claim damages from the other party.
7. Obligation of the purchaser to inspect goods and make complaints in the event of defects; warranty for defects
7.1 Promptly upon the delivery of goods to their destination, the purchaser shall ensure that the marking of the goods is in accordance with the relevant order and that the goods are carefully inspected for any defects. The goods shall be deemed to have been accepted by the purchaser unless PCI receives from the purchaser a complaint concerning defects in the goods. In the case of defects which are evident or could be detected by immediate careful inspection of goods, such complaints shall be received promptly after the delivery of the goods. In the case of any other defects, such complaints shall be received by PCI promptly upon the detection thereof. The purchaser shall ensure that no defective goods are processed.
7.2 In the event of defects in goods supplied by PCI, PCI shall only be obligated to repair such defective goods or to supply goods which are free from defects, at the option of the purchaser (subsequent performance). In the event that PCI is not prepared or in a position to effect subsequent performance, the purchaser shall, at the purchaser‘s option, be entitled to rescind the contract or to require a reduction in the purchase price under the contract.
7.3 In the event that PCI does not carry out subsequent performance (repair or replacement) within a reasonable period set by the purchaser for subsequent performance, subsequent performance fails or no period for subsequent performance is required to be set under the applicable statutory provisions, the purchaser shall be entitled, at the option of the purchaser, to rescind the contract or to reduce the price payable under the contract. In the case of defects in goods supplied by PCI which are not material, the purchaser shall not have a right of rescission. Following the second unsuccessful attempt at subsequent performance, subsequent performance shall be deemed to be have failed except where otherwise required in accordance with the type of goods supplied, the defect concerned or the other circumstances of the case. Within its warranty obligations, PCI shall be entitled, at its own option, to remedy a defect (repair) or to supply goods which are free from defects (replacement). As a general principle, the liability of PCI for loss or damage shall be governed by the applicable statutory
provisions, provided however that the liability of PCI in the event of a breach of material obligations under the contract by ordinary negligence shall be limited to compensation for such typical loss or damage as could reasonably have been foreseen under the contract. In the event of the breach of non-material obligations under the contract by ordinary negligence, any liability of PCI shall be excluded. The limitations of liability provided for hereinabove shall not apply to claims in respect of death, personal injury or damage to health.
7.4 PCI shall not be liable for impossibility of or delay in the performance of delivery obligations if such impossibility or delay is the result of proper compliance, caused by the purchaser, with public obligations in connection with the European Regulation on Chemicals, REACH.
8. Rights and obligations of PCI
PCI shall not be held liable for loss or damage or expenses incurred in vain except where such loss, damage or expenses are caused by PCI or a vicarious agent of PCI either (a) by negligent breach of a material provision of the contract or (b) by grossly negligent or wilful breach of obligations. In the case of negligent breach by PCI under alternative (a) above of a material provision of the contract, PCI shall be liable only for such loss or damage as is typically caused by said breach and shall not be liable for loss of profit or for indirect or consequential loss or damage except where such loss or damage is caused by wilful act or gross negligence. The limitation of liability provided for herein shall not apply where otherwise required by mandatory provisions of the Product Liability Act or in the event of claims in connection with death, personal injury or damage to health.
9. Forfeiture of claims
9.1 Any claims of the purchaser in connection with defects in goods supplied by PCI shall be forfeited unless made within one year from the delivery of the goods concerned, provided however that the statutory forfeiture periods shall apply instead of said one-year period in the following events:
a) liability by reason of wilful act or omission,
b) the wilful concealment of a defect,
c) claims against PCI by reason of defects in goods in the event that such goods have been used on a building in the normal manner for such goods and have caused defects in such building,
d) claims by reason of death, personal injury or damage to health as a result of a negligent breach by PCI of its obligations or a wilful or negligent breach of the obligations of PCI by a statutory representative, servant agent or employee of PCI
e) claims for any other loss or damage based on a grossly negligent breach of its obligations by PCI or a wilful or grossly negligent breach of the obligations of PCI by a statutory representative, servant, agent or employee of PCI
f) recourse by the purchaser in accordance with the statutory provisions concerning the purchase of consumer goods.
9.2 In the event that PCI performs a service or provides information for which separate remuneration has not been agreed other than in accordance with its contractual obligations and such service or information is not connected with the supply of goods, and such advice or information provided by PCI other than in accordance with the contractual obligations of PCI does not constitute a defect in accordance with section 434 of the German Civil Code, any claims made by the purchaser against PCI in connection with such advice or information shall be forfeited unless made within one year from the commencement of the statutory forfeiture period. These provisions shall also apply in the event that consultancy contracts are concluded
between PCI and the purchaser other than in connection with the supply of goods. These Standard Terms and conditions shall apply mutatis mutandis to all such contracts. PCI shall provide advice and information concerning its goods and services and other advice to the best of its knowledge but any advice and information concerning the fitness for purpose or use of its goods and services shall be non-binding and shall not relieve the purchaser from its obligation to perform its own tests. The purchaser shall be solely responsible for compliance with statutory and authority requirements in the use of goods supplied and the application of the services performed by PCI.
10. Retention of title
10.1 Ordinary retention of title: any goods supplied by PCI shall remain the property of PCI until the purchase price for said goods has been paid in full.
10.2 More extensive retention of title: in the event that the purchaser has paid the purchase price for the goods supplied by PCI but other amounts payable by the purchaser to PCI under its business relationship with PCI have not yet been paid in full, said goods shall remain the property of PCI until all such amounts have been paid in full.
10.3 Processing: in the event that goods supplied by PCI to the purchaser are processed by the purchaser, PCI shall be deemed to be the manufacturer of the goods created by such processing and shall acquire direct title to such goods. In the event that goods supplied by PCI are processed together with other materials, PCI shall directly acquire a share in the title to the newly created goods corresponding to the ratio of the amount invoiced for the goods supplied by PCI to the amount invoiced for such other materials.
10.4 Joining or mixing: in the event that goods supplied by PCI are joined to or mixed with goods of the purchaser in such manner that such goods of the purchaser are to be considered the main product, PCI and the purchaser shall be deemed to have agreed that the purchaser shall transfer to PCI a share in the title to such main product corresponding to the share of the amount invoiced for the goods supplied by PCI in the total amount invoiced for the main product (or if such main product has not been invoiced, to the market value of such main product). The purchaser shall store any such goods to which PCI retains title or share in
the title free of charge to PCI.
10.5 Extended retention of title: the purchaser shall be entitled to dispose of goods to which PCI retains title in the ordinary course of its business always provided that it meets its obligations under its business relationship with PCI in good time. Any amounts outstanding to the purchaser in respect of the sale of goods to which PCI retains title shall be deemed to have been assigned to PCI as of the conclusion of the contract for the purchase of said goods with PCI. In the event that PCI has acquired a share in the title to goods resulting from the joining, mixing or processing of goods to which PCI retains title, a share in the amount payable to the purchaser for said resulting goods corresponding to the ratio of the value of the goods to
which PCI retains title to the value of goods to which third parties retain title used for the production of said resulting goods shall be assigned to PCI. Upon the conclusion of the contract, the purchaser shall already assign recognised balances under current accounts to PCI in the amount still outstanding to PCI.
10.6 Right to information/disclosure: upon request by PCI, the purchaser shall provide PCI with any information which PCI may require concerning inventories of goods to which PCI retains title and claims to payment which have been assigned to PCI. Upon request by PCI, the purchaser shall also mark goods to which PCI retains title as such and notify its customers of such assignment.
10.7 Delay in payment: in the event of delay in payment by the purchaser, PCI shall be entitled to request the purchaser, at the expense of the purchaser, to temporarily hand over the goods to which PCI retains title, without it being necessary for PCI to have rescinded the contract or to have granted the purchaser a grace period for payment.
10.8 Partial waiver: in the event that the value of securities provided by the purchaser exceeds amounts payable to PCI by more than 15%, PCI shall waive such securities with respect to such excess amount.
11. Affiliated company set-off provisions
PCI shall be entitled to set off amounts payable by the purchaser to PCI against amounts payable to the purchaser by affiliated companies of PCI. PCI shall also be entitled to set off amounts payable by an affiliated company of the purchaser to PCI or an affiliated company of PCI directly against amounts payable to the purchaser. For the purpose of this provision, “affiliated company” shall mean any company that, either directly or via one or more other companies, controls or is controlled by a party or is under the same control as one of the parties. The purchaser shall not be entitled to set off or retain any amount from amounts due to PCI except where the claims by the purchaser have been accepted by PCI or an enforceable judgement has been granted in respect of such claims.
12. Return of goods
12.1 In the event that the purchaser rescinds the contract in accordance with Section 7.3 hereinabove, the place of performance of such rescission shall be the place where PCI has its registered office.
12.2 The purchaser shall not return to PCI any products purchased from PCI without the prior permission of PCI. The purchaser shall not be entitled to set the value of products returned to PCI off from amounts owed to PCI. When issuing credit notes for goods returned to PCI, PCI shall be entitled to deduct any expenses incurred for laboratory tests, repackaging and inward carriage. In addition, PCI shall be entitled to charge a handling fee of €50 for each consignment of goods returned by the purchaser.
13. Processing instructions
As the working conditions at construction sites and the applications of PCI products are very diverse, PCI can only provide general guidelines for processing. In the event of special requirements outside the application areas and working conditions covered by the processing instructions of PCI, the purchaser shall obtain the advice of PCI prior to using PCI products. The consumption figures stated in the processing instructions of PCI are average values based on experience. The purchaser shall not be entitled to make any claims against PCI in respect of actual consumption above or below the consumption figures stated in the processing instructions of PCI.
14. Data protection
14.1 In the event that PCI makes personal data of its employees (hereinafter referred to as “Personal Data”) available to the purchaser in connection with the performance of the contract or the purchaser gains knowledge of such Personal Data by other means, the following provisions shall apply: Personal Data disclosed in the manner stated herein above which are not processed on behalf of PCI shall be used by the purchaser solely for the performance of the contract and not, except as otherwise permitted by law, be otherwise processed or, without limitation, disclosed to third parties or used for the purchaser’s own purposes or for the formation of profiles. The purchaser shall be entitled to process the Personal Data and, without limitation, to make Personal Data available to its group companies for the performance of the contract to the extent that such processing and disclosure is permitted by law. The purchaser shall ensure that Personal Data shall only be made available to such employees of the purchaser as are assigned to work on the performance of the contract concerned and only to the extent that such employees require such data for the performance of said contract (need-to-know principle). The purchaser shall arrange its internal organization in such manner that it meets the requirements of applicable data protection legislation and without limitation that technical and organisational measures are taken to provide appropriate protection for Personal Data against loss or abuse. The purchaser shall not acquire any rights to the Personal Data and shall be obligated to delete, correct and/or restrict the use of Personal Data at any time when the legal requirements for such correction, deletion and/or restriction are met. The purchaser shall not have any right to retain Personal Data. In addition to its statutory obligations, the purchaser shall notify PCI promptly and no later than within 24 hours of any infringement of the protection of Personal Data, including without limitation the loss of Personal Data. Upon the termination or expiry of the contract concerned, the purchaser shall delete any Personal Data, including any copies made thereof, in accordance with the applicable statutory requirements.
15. Force majeure
In the event that the availability of goods at the plant from which PCI procures goods is reduced by circumstances or events beyond the reasonable control of PCI (including without limitation natural catastrophes, war, industrial disputes, shortages of raw materials and energy, disruptions to traffic and business, fire and explosion damage, acts of authorities), such that PCI is unable to perform its obligations under the contract (giving due consideration to other internal or external delivery obligations of PCI), PCI shall be released from its contractual obligations for the duration of such circumstances and their consequences and shall not be obligated to purchase the goods required from third parties. This shall also apply in the event of such circumstances or events affecting the suppliers of PCI and in the event that it becomes permanently not commercially viable to perform the contract as a result of such circumstances and events. Should such circumstances continue for longer than three months, PCI shall be entitled to rescind the contract.
16. Place of performance, venue for disputes, applicable law
The place of performance of the contract and the venue for any disputes arising between PCI and merchants or public bodies shall be Augsburg, provided however that PCI shall also be entitled to bring any proceedings against the purchaser at its statutory venue for disputes. The legal relationship between PCI and the purchaser shall be governed by and construed and interpreted in accordance with the law of Germany with the exception
of the provisions on the international sale of goods (CISG – “UN Sales Law”) and the German provisions on conflict of laws. PCI does not take part in the dispute settlement procedure under the German Consumer Dispute Settlement Act.
Valid from January 1, 2019
Registered office of the company: Augsburg, Germany; Register Court: Local Court of Augsburg
Commercial Register number: HRB 6355