General Terms and Conditions of Peter Martin GmbH & Co. KG

1. General

The following General Terms and Conditions (hereinafter referred to as “GTC”) apply to all our deliveries – including future deliveries – to and installations for entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) as well as legal entities under public law or special funds under public law (hereinafter referred to as “Customer”).
They apply in particular to the sale and/or delivery of movable goods (“goods”) regardless of whether we manufacture the goods ourselves or purchase them from suppliers.
Our GTC shall apply exclusively.
Deviating, conflicting or supplementary terms and conditions of the customer shall only become part of the contract if and insofar as we agree to their validity in text form.
Individual agreements (e.g. framework supply agreements) and details in our order confirmation shall take precedence over these GTC.
All declarations relating to the contract must be made at least in text form.

2. Offers and conclusion of contract

2.1 Unless otherwise stated, our offers are subject to change and non-binding. Drawings, illustrations, dimensions, weights and other data are only binding if this is expressly agreed. 2.2 Orders received by us or accepted by our representatives shall be deemed to be a binding contractual offer.
When placing an order, the customer must adhere to our non-binding offer and point out any deviations separately.
The contract is only concluded with our order confirmation in text form.

3. Prices

3.1 Unless otherwise stated, we shall be bound by the prices quoted by us for 30 days from the date of the offer. 3.2 Our agreed prices apply to the scope of services and delivery listed in the order confirmation.
Additional services shall be invoiced separately. Prices are quoted in EUR ex warehouse, excluding packaging and plus the statutory taxes, fees, customs duties and other public charges applicable at the time of delivery.
The prices are quoted in EUR ex warehouse, excluding packaging and plus the statutory taxes, fees, customs duties and other public charges applicable at the time of delivery.
3.3 The prices quoted by us correspond to the current cost situation and calculation.
As we are dependent on raw material prices in the supply chain, such as metal and crude oil prices.
As we are dependent on raw material prices, such as metal and crude oil prices, in the supply chain and these are subject to strong fluctuations, the prices quoted by us apply on the condition that the orders can be executed without hindrance and that our wage and material costs also remain the same.
Should there be any cost changes between the conclusion of the contract and the delivery of the goods, we shall be entitled, but not obliged, to invoice the prices applicable at the time of delivery.
If any associated price increase significantly exceeds the general cost of living, the customer may withdraw from the contract.
If no merchant is involved in the transaction, this shall only apply if the delivery is made more than four months after the conclusion of the contract.

4. Terms of payment

4.1 Our invoices are payable within 14 days of receipt of an invoice, delivery of the goods and, if necessary, acceptance of the goods, unless otherwise stipulated in these GTC (§ 7 para. 10).
Discount deduction requires prior agreement.
We are entitled at any time, even in the context of an ongoing business relationship, to make a delivery in whole or in part only against advance payment.
We shall declare a corresponding reservation at the latest with the order confirmation. 4.2 Cheques or bills of exchange will not be accepted. 4.3 The customer shall be in default upon expiry of the above payment period.
If the receipt of our invoice or the time of receipt cannot be proven, the customer shall be in default no later than 30 days after the due date and receipt of our contractual performance.
During the period of default, interest shall be charged on our claim at the applicable statutory default interest rate.
We reserve the right to claim further damages caused by default.
Our claim against merchants for commercial maturity interest (§ 353 HGB) remains unaffected.
4.4 Offsetting against counterclaims of the customer or the exercise of a right of retention due to such claims is only permissible if the counterclaims are undisputed or have been legally established.
In the event of defects in the delivery, the customer’s counterclaims shall remain unaffected.
4.5 If it becomes apparent after conclusion of the contract (e.g. through the opening of insolvency proceedings) that our claim to the purchase price is jeopardized by the customer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and, if necessary, to withdraw from the contract after setting a deadline (§ 321 BGB).
In the case of contracts for the manufacture of non-fungible goods (custom-made products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

5 Delivery, delivery time and delay in delivery

5.1 Unless otherwise agreed, delivery shall be ex warehouse, which is also the place of performance for the delivery and any subsequent performance.
This does not apply to assembly.
5.2 The agreement of binding delivery periods or dates requires text form.
Compliance with such deadlines or dates is subject to all commercial and technical issues having been clarified and the customer having fulfilled its obligations.
If these requirements are not met in good time, the delivery periods shall be extended accordingly.
A delivery date shall be extended appropriately.
This shall not apply if we are solely responsible for the delay.
5.3 Compliance with the delivery time is subject to correct and timely delivery to us.
5.4 We shall not be liable for the impossibility of delivery or performance or for delays in delivery if these are caused by force majeure or other events that were unforeseeable and unavoidable at the time the contract was concluded (e.g. war, riots, epidemics). war, riots, epidemics, pandemics, terrorist attacks, natural disasters, extreme natural events, strikes, lawful lockouts, embargoes, official measures, prolonged failure of means of transportation, telecommunications or energy, trade restrictions, shortages of raw materials, global supply bottlenecks or non-delivery, incorrect or untimely delivery by suppliers despite a congruent hedging transaction) for which we are not responsible.
If such events make delivery or performance significantly more difficult or impossible for us and the hindrance is not only of a temporary nature, we shall be entitled to withdraw from the contract; we shall immediately reimburse any consideration already provided by the customer.
In the event of hindrances of a temporary duration, the delivery or performance dates shall be extended by the period of the hindrance plus a reasonable start-up period.
If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate declaration.
5.5 If we are in default, the customer may claim damages or a delivery or service may only be provided in accordance with Clause 5. 9 of these terms and conditions. In all other respects, the statutory provisions shall remain unaffected.
5.6 Unless otherwise agreed, we are entitled to make partial deliveries to a reasonable extent.
This is the case, for example, if the partial delivery can be used by the customer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the customer does not incur any significant additional work or additional costs as a result (unless we agree to bear the costs).

6. Transfer of risk

The risk of accidental loss and accidental deterioration of the goods shall pass to the customer
a) at the time of the customer’s default of acceptance,
b) when the goods are handed over to the customer, even in cases where we also owe the assembly of the goods, and
c) in cases of shipment, unless we have assumed responsibility for transportation, upon delivery of the goods to the customer.
The earlier point in time shall be decisive.

7. assembly

7.1 We shall determine the number and composition of the assembly personnel at our own discretion. We provide our personnel with the hand tools and vulcanizing equipment required for assembly. 7.2 The customer is obliged to provide technical assistance at his own expense if necessary.
This includes in particular
a) the provision of electrical energy, lighting, water, operating power, heating, including the necessary connections;
b) the provision of the necessary suitable auxiliary personnel in the required number and for the required time;
c) the provision of a liaison person;
d) the provision of the necessary equipment and heavy tools, as well as the requisites and materials, including the disposal of problematic materials, e.g. used oil, used grease;
e) the transportation of the assembly parts at the assembly site, the protection of the assembly site and materials against harmful influences of any kind and the cleaning of the assembly site;
f) the provision of necessary, dry and lockable rooms for the storage of the assembly personnel’s tools;
g) the provision of suitable recreation rooms (with heating, lighting, washing facilities, sanitary facilities) and first aid for the assembly personnel;
h) the provision of materials and the performance of other actions necessary for the adjustment of the object to be assembled and for the performance of any contractually agreed testing.
7.3 The Customer shall be responsible for the auxiliary personnel.
7.4 The Customer’s technical assistance must ensure that the assembly can be started immediately after the arrival of the assembly personnel and can be carried out without delay until acceptance by the Customer.
7.5 The customer undertakes to take the necessary special measures to protect persons and property at the installation site.
He shall also inform the assembly manager of any special safety regulations in force, insofar as these are of significance for the assembly personnel.
7.6 If the customer does not fulfill his obligations in due time, we shall be entitled, but not obliged, after setting a deadline, to carry out the actions incumbent on the customer in his place and at his expense.
Otherwise, our statutory rights and claims shall remain unaffected.
7.7 During assembly, we use raw materials and materials supplied by us, which are invoiced at the applicable prices. If the customer provides material, we shall not be liable for its suitability and quality. 7.8 Unless otherwise agreed, information on the duration of assembly work is non-binding; if necessary, the customer must ensure that our personnel can also work at his premises beyond the regular working hours.
7.9 Each installation must be accepted by the customer or his representative after completion. A corresponding acceptance confirmation shall be issued to our representative. The Purchaser may only refuse acceptance if the installation has not yet been completed or if it has significant defects. 7.10 Assembly costs shall generally be invoiced according to time spent and the material costs incurred, unless a lump sum price has been expressly agreed.
Invoicing according to time spent shall also include the costs for assembly preparation/set-up time as well as travel and accommodation costs for the assembly personnel. Our work reports with the hours worked are to be signed off daily by the customer or his representative. Invoices for installation services are payable within 14 days without deduction. We are entitled to issue weekly partial invoices.

8. Defects, warranty

8.1 The statutory provisions shall apply to the rights of the customer in the event of material defects and defects of title, unless otherwise stipulated in these GTC.
8.2 The basis of our liability for defects is the agreement reached on the quality of the goods.
In this respect, the objective requirements for the purchased item shall not apply.
If the quality has not been agreed, the statutory regulations shall be used to assess whether a defect exists or not.
Public statements made by the manufacturer or on its behalf, in particular
in advertising or on the label of the goods shall take precedence over statements made by other third parties.
8.3 In the case of goods with digital elements or other digital content, we shall only be obliged to provide and, if applicable, update the digital content if this is expressly stated in a quality agreement in accordance with para.
Para.
2.
8.4 If our contractual performance is defective, the customer may demand subsequent performance within a reasonable period of time. At our discretion, subsequent performance may be effected by repair or replacement delivery. 8.5 The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes.
8.6 If the subsequent performance has failed, the Buyer shall be entitled to withdraw from the contract or to reduce the price.
8.7 The Buyer may only claim damages or compensation for futile expenses under the conditions set out in Clause 8. 9 of these terms and conditions. 8.8 We shall not be liable for defects of which the customer is aware at the time of conclusion of the contract or of which he is unaware due to gross negligence.
8.9 The inspection and complaint obligations pursuant to § 377 HGB shall apply.
In the case of goods intended for installation or other further processing, an inspection must also be carried out before processing.
If a defect is discovered during delivery, inspection or at any later point in time, we must be notified of this immediately in text form.
In any case, obvious defects must be reported within 14 working days from delivery and defects not recognizable during the inspection must be reported within the same period from discovery.
8.10 Section 640 BGB shall apply to work performances.
The service shall also be deemed to have been accepted if
a) the delivery and, if the customer also owes the assembly, the assembly has been completed,
b) we have informed the customer of this with reference to the fiction of acceptance and have requested him to accept and
c) 10 working days have passed since the delivery or assembly or the customer has started to use the goods.
8.11 If the goods delivered by us have already been delivered to an end user, the customer shall only be entitled to assert those claims for defects against us that his customer has asserted against him. Furthermore, the customer shall not be entitled to withdraw from the contract if he had to take back the goods delivered by us because he had not properly fulfilled his obligation of subsequent performance, in particular because he had allowed a deadline set for him for subsequent performance to expire fruitlessly. 8.12 Each contracting party shall notify the other contracting party immediately if claims are asserted against it due to the infringement of industrial property rights or copyrights of third parties.
8.13 In the event that the goods infringe an industrial property right or copyright of a third party, we shall, at our discretion and at our expense, modify or replace the goods in such a way that the rights of third parties are no longer infringed, but the goods continue to fulfill the contractually agreed functions, or procure the right of use for the customer by concluding a license agreement with the third party.
8.14 If this fails within a reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately.
Any claims for damages on the part of the customer shall be subject to the limitations set out in clause 9 of these GTC.

9 Other liability

9.1 Unless otherwise stated in these GTC including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
9.2 We shall be liable for damages, irrespective of the legal grounds, within the scope of fault-based liability in the event of intent and gross negligence.
In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty), only
a) for damages resulting from injury to life, body or health,
b) for damages arising from the breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
9.3 The limitations of liability resulting from 9.2 shall also apply to third parties and in the event of breaches of duty by persons (including in their favor) whose fault we are responsible for in accordance with statutory provisions.
They shall not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the customer under the Product Liability Act.
9.4 The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty.
A free right of termination of the customer (in particular according to §§ 650, 648 BGB) is excluded.
In all other respects, the statutory requirements and legal consequences shall apply.

10. Statute of limitations

10.1 Claims of the customer due to material defects and defects of title shall become time-barred 12 months after delivery.
If acceptance is required, the limitation period shall commence upon acceptance.
§ Section 445b, Section 438 I No. 2 and Section 634a I No. 2 BGB remain unaffected.
10.2 The above limitation periods shall also apply to contractual and non-contractual claims for damages by the customer which are based on a defect in the goods, unless the application of the regular limitation period would lead to a shorter limitation period in individual cases.
Claims for damages of the customer acc.
Clause 9.2, sentence 1 and sentence 2 (a) as well as under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

11. Reservation of title

11.1 We reserve title to the goods sold until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
11.2 The goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full.
The customer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties have access to the goods belonging to us (e.g. seizures).
11.3 If the customer acts in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions after having set a reasonable deadline for performance and to demand the return of the goods on the basis of the retention of title.
The transportation costs incurred for taking back the goods shall be borne by the customer.
It shall also constitute a withdrawal from the contract if we seize the goods subject to retention of title.
We may utilize goods subject to retention of title taken back by us.
The proceeds of the realization shall be set off against the amounts owed to us by the customer after we have deducted a reasonable amount for the costs of the realization.
11.4 The customer must treat the reserved goods with care.
He must insure them adequately at his own expense against fire, water and theft at replacement value.
If maintenance and inspection work becomes necessary, the customer must carry it out in good time at his own expense.
11.5 Until further notice, the customer shall be liable in accordance with
below
(c) below to resell and/or process the goods subject to retention of title in the ordinary course of business.
In this case, the following provisions shall apply in addition.
a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer.
If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods.
In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
b) The customer hereby assigns to us as security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph.
above paragraph to us as security.
We accept the assignment.
The obligations of the customer stated in para.
2 shall also apply with regard to the assigned claims.
c) The customer shall remain authorized to collect the claim in addition to us.
We undertake not to collect the claim as long as the customer fulfills his payment obligations to us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to para.
Para.
3. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
In this case, we shall also be entitled to revoke the customer’s authorization to resell and process the goods subject to retention of title.
d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer’s request.

12. Ownership of information, confidentiality, data protection

12.1 We reserve the right of ownership and copyright to samples, offers, drawings, other technical data and documentation and similar information – including in electronic form; they may not be used or made accessible to third parties without our consent.
They must be returned to us in full at our request.
12.2 All business or technical information made accessible by us (including features that can be taken from any objects, documents or software handed over and other knowledge or experience) that is marked as confidential or is to be regarded as confidential due to the circumstances, in particular information about operational processes, business relationships and know-how (hereinafter: “confidential information”), must be kept secret from third parties as long as and insofar as it is not demonstrably public knowledge or has been designated by us for disclosure by the customer, even after termination of the contract.
They may only be made available in the customer’s own company to those persons who must necessarily be involved for their use and who are also obliged to maintain confidentiality; they shall remain our exclusive property.
Such information may not be reproduced or used commercially without our prior written consent.
12.3 We comply with the statutory provisions on the protection of personal data.
Further information can be found in our attached privacy policy.

13. Force majeure

13.1 “Force Majeure” means the occurrence of an event or circumstance which prevents a party from performing one or more of its obligations under the Contract if and to the extent that the party affected by the impediment proves that:
(a) that impediment is beyond its reasonable control; and
(b) it was not reasonably foreseeable at the time of the conclusion of the contract; and
(c) the effects of the impediment could not reasonably have been avoided or overcome by the affected party.
13.2 In the absence of proof to the contrary, the following events affecting a party shall be presumed to fulfill the conditions under paragraph 1 lit.
(a) and lit.
(b) under paragraph 1 of this clause:
(i) War (declared or undeclared), hostilities, attack, acts of foreign enemies, large-scale military mobilization;
(ii) civil war, riot, rebellion and revolution, military or other seizure of power, insurrection, acts of terrorism, sabotage or piracy;
(iii) currency and trade restrictions, embargo, sanctions;
(iv) lawful or unlawful official acts, compliance with laws or government orders, expropriation, confiscation of works, requisition, nationalization;
(v) plague, epidemic, natural disaster or extreme natural event;
(vi) explosion, fire, destruction of equipment, prolonged breakdown of means of transportation, telecommunications, information systems or energy;
(vii) general labor unrest such as boycotts, strikes and lockouts, slowdowns, occupation of factories and buildings.
13.3 A party who successfully invokes this clause shall be released from its obligation to perform its obligations under the Contract and from any liability for damages or any other contractual remedy for breach of contract from the time when the impediment prevents it from performing, provided that notice is given without delay.
If notice is not given immediately, the release shall take effect from the time the notice reaches the other party.
If the effect of the alleged impediment or event is temporary, the consequences set out above shall apply only for as long as the alleged impediment prevents the party concerned from performing the contract.
If the duration of the alleged impediment has the effect of substantially depriving the parties of what they could reasonably expect under the contract, either party shall have the right to terminate the contract by giving notice to the other party within a reasonable time.
Unless otherwise agreed, the parties expressly agree that the contract may be terminated by either party if the duration of the impediment exceeds 120 days.

14 Applicable law, place of jurisdiction, partial invalidity

14.1 The law of the Federal Republic of Germany shall apply exclusively to all our legal relationships with the Customer, to the exclusion of the conflict of laws.
The application of international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG), is excluded.
14.2 If the Customer is a merchant, a legal entity under public law or a special fund under public law, Heilbronn is agreed as the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected.
14.3 Should any provision of these GTC be or become invalid, this shall not affect the validity of the remaining provisions.
In the event of an ineffective provision, the contracting parties are obliged to negotiate an effective and reasonable replacement provision that comes as close as possible to the economic purpose pursued by the ineffective provision.

Status: September 2023