1. Scope of Application
Sales and deliveries by Regnerbau Calw GmbH ("Perrot") shall be made exclusively in accordance with the following General Terms and Conditions of Sale and Delivery ("Terms of Delivery"), which shall be accepted by Customer by the placing of an order or the receipt of delivery. They shall also apply to all future transactions with Customer. The application of Customer's conflicting or supplementary terms and conditions shall be excluded, even if Perrot does not expressly object to such terms and conditions.
2. Conclusion of Contract
2.1 Offers by Perrot shall be non-binding. A contract shall only become effective once it has been confirmed by Perrot in a written confirmation of order and shall be governed exclusively by the contents of the confirmation of order and these Terms of Delivery. Verbal agreements or promises shall only be valid if an authorized employee of Perrot has confirmed them in writing.
2.2 The field staff of Perrot is not authorized to represent Perrot. In particular, the field staff cannot conclude contracts and make binding promises concerning the goods to be delivered (Liefergegenstand) ("Goods") or other conditions.
2.3 Perrot retains all rights in the sales documentation (in particular pictures, drawings, data on weight and size) and samples. These items must not be made available to third parties and must be returned to Perrot without undue delay on demand.
3. Delivery Periods and Delivery Dates
3.1 Delivery dates and delivery periods are only binding if they have been agreed in the contract as binding and Customer has provided Perrot in a timely manner with all of the information or documentation required for the performance of such delivery and Customer has made any advance payments in the manner and amount as agreed upon by the parties. Delivery periods agreed upon by the parties shall begin on the date of the confirmation of order. In the event of additional or supplementary contracts entered into at a later date, the delivery periods and delivery dates shall be extended or rescheduled accordingly, as applicable.
3.2 Events that are unforeseeable, unavoidable and outside the control and sphere of influence of Perrot and for which Perrot does not bear responsibility, such as acts of God, war, natural disasters or labor disputes, shall release Perrot for the duration of such event from its obligation to make timely delivery or to perform timely. Delivery and performance periods and dates, as the case may be, shall be extended or rescheduled, as applicable, by the length of such disturbance, and Customer shall be informed of the occurrence of such disturbance in a reasonable manner. If the end of such disturbance is not foreseeable, or should it continue for more than two months, each party is entitled to rescind the contract.
3.3 With regard to Goods that Perrot does not produce itself, the obligation to deliver shall be subject to Perrot's correct and timely receipt of such Goods from its suppliers.
3.4 If deliveries by Perrot are delayed, Customer shall only be entitled to rescind the contract if (i) Perrot is responsible for the delay and (ii) a reasonable grace period set by Customer has expired. If Customer is in default of acceptance of delivery, Customer is not entitled to rescind the contract.
3.5 Should Customer be in default of the acceptance of delivery or should he be in breach of any other obligations to cooperate with Perrot, Perrot shall be entitled, without prejudice to its other rights, (i) to reasonably store the Goods at Customer's risk and expense or (ii) to rescind the contract in accordance with the statutory provisions.
3.6 Perrot may make partial deliveries for good reason if and to the extent this is reasonable for Customer.
4. Shipment, Passage of Risk, Transport Insurance
4.1 In the absence of any other instruction by Customer, shipment shall be made using a reasonable method of shipment in the usual manner of packaging.
4.2 The risk shall pass to Customer (i) upon delivery of the Goods to the carrier commissioned by Perrot, (ii) upon handover to Customer if Customer collects the Goods himself, or (iii) upon handover to a third party if a third party authorized by Customer collects the Goods. Should Customer be in default of acceptance, risk shall pass to Customer upon default. If, in case the Goods shall be collected by Customer or a third party authorized by Customer, and delivery is delayed on grounds for which Customer is responsible, risk shall pass to Customer on the date Customer is notified of the readiness of the Goods for shipment.
4.3 A transport insurance shall be taken out only upon request and at the expense of Customer.
5. Prices, Terms of Payment
5.1 Unless the parties have agreed upon a certain price, the price shall be determined by the price list of Perrot as applicable at the date of the conclusion of the contract.
5.2 If the agreed delivery date is more than four months later than the conclusion of the contract and if, after conclusion of the contract, Perrot has incurred unforeseeable cost increases with regard to the Goods for which it does not bear responsibility, Perrot shall be entitled, at its reasonable discretion, to pass on such higher costs by increasing the agreed price on a pro rata basis.
5.3 With regard to long term contracts concluded with Customer, i.e. especially long term supply contracts, Perrot is entitled to reasonably increase the price at any time. The increased price shall be effective as of the communication of the increased price to Customer or any later date indicated by Perrot.
5.4 Unless otherwise agreed, all prices of Perrot are ex works (Incoterms 2020) of the respective plant of Perrot exclusive of statutory VAT in the respective applicable amount and do not include any shipment and packaging costs, which will be charged separately. Customer shall bear any public charges such as possible customs duties that may arise in connection with the import of the Goods.
5.5 Perrot is entitled to issue partial invoices for partial deliveries as defined in section 3.6 hereof.
5.6 Unless otherwise agreed, each invoice of Perrot shall be due for payment without any deductions within 14 days from the date of invoice; if this period for payment lapses unsuccessfully, Customer shall be in default. Payments by Customer shall not be deemed to have been made until Perrot has received such payment.
5.7 In the event that Customer is in default, Perrot shall be entitled to demand default interest in the applicable statutory amount. Any claims for further damages due to the default shall remain unaffected.
5.8 Bills of exchange and checks shall only be taken on account of performance upon special arrangement and without any bank charges or other costs for Perrot.
5.9 Customer is only entitled to a set-off if his counterclaim is uncontested, ready for decision or has been finally adjudicated.
5.10 Customer is only entitled to assert a right of retention to the extent that his counterclaim is based on the same contract and is uncontested, ready for decision or has been finally adjudicated.
5.11 If Perrot becomes aware of the risk of Customer's impossibility to perform (mangelnde Leistungsfähigkeit) after conclusion of the contract, Perrot shall be entitled to make outstanding deliveries only against prepayment or the provision of security. If such prepayments or security have not been rendered even after the expiry of a reasonable grace period, Perrot may partially or totally rescind individual or all of the affected contracts. Perrot shall remain entitled to assert further rights.
6. Retention of Title
6.1 The Goods shall remain the property of Perrot until any and all claims of Perrot arising from its business relationship with Customer have been paid in full.
6.2 In the case of current accounts, this retention of title shall serve as security for the claim for the balance to which Perrot is entitled.
6.3 Customer shall only be allowed to sell the Goods subject to retention of title ("Products subject to Retention of Title") within normal and proper business transactions. Customer is not entitled to pledge the Products subject to Retention of Title, grant chattel mortgages on them or make other dispositions endangering Perrot's title to such products. Customer hereby assigns its receivables arising from the resale of the products to Perrot, and Perrot hereby accepts such assignment. Should Customer sell the Products subject to Retention of Title after processing or transformation or joining of such products with other goods or together with other goods, this assignment of receivables shall only be agreed to for an amount equivalent to the price agreed to between Perrot and Customer plus a safety margin of 10 % of this price. Customer is granted the revocable authorization to collect in trust the claims assigned to Perrot in his own name. Perrot may revoke such authorization and the right to resell the products if Customer is in default of the performance of material obligations such as making payment to Perrot.
6.4 Any processing or transformation of the Products subject to Retention of Title by Customer shall always be performed for Perrot. If Products subject to Retention of Title are processed with other goods, Perrot shall acquire joint ownership of the new goods in the ratio of the value of the Products subject to Retention of Title to the other processed goods at the time of processing. The new goods created by way of processing shall be subject to the same provisions as applicable to the Products subject to Retention of Title.
6.5 Should the Products subject to Retention of Title be joined with other goods, Perrot shall acquire joint ownership of the new goods in the ratio of the value of the Products subject to Retention of Title to the other goods at the date of joining. Should the joining of the goods occur in such manner that Customer's goods are to be viewed as the main goods, it shall be deemed to be agreed that Customer assigns proportionate joint ownership to Perrot. Customer shall hold the joint ownership created in such manne in custody for Perrot.
6.6 Customer shall provide Perrot at all times with all desired information concerning the Products subject to Retention of Title or receivables assigned to Perrot under this contract. Customer shall immediately notify Perrot of any attachments of or claims to the Products subject to Retention of Title by third parties and shall provide the necessary documents in this regard. Customer shall at the same time advise the third party of Perrot's retention of title. The costs of a defense against attachments and claims shall be borne by Customer.
6.7 Customer is obliged to treat the Products subject to Retention of Title with care for the duration of the retention of title.
6.8 Should the realizable value of the securities exceed all of Perrot's claims that are to be secured by more than 10 %, Customer shall be entitled to demand a release to such extent.
6.9 Should Customer be in default of material obligations such as payment to Perrot, and should Perrot rescind the contract, Perrot may, notwithstanding any other rights, request surrender of the Products subject to Retention of Title and may make use of them otherwise for the purpose of satisfying its matured claims against Customer. In such case, Customer shall grant Perrot or Perrot's agents immediate access to the Products subject to Retention of Title and surrender the same.
6.10 In the case of deliveries to other jurisdictions in which the foregoing provisions governing the retention of title do not have the same effect as in Germany; Customer shall do everything to create equivalent security rights for Perrot without undue delay. Customer shall cooperate in all measures such as registration, publication, etc. that are necessary and beneficial to the validity and enforceability of such security rights.
6.11 On Perrot’s demand, Customer is obliged to appropriately insure the Products subject to Retention of Title, provide Perrot with the respective proof of such insurance and assign the claims arising under such insurance to Perrot.
7. Intellectual Property Rights and Advertising
Customer shall not perform and may not authorize a third party to perform any act that may endanger the trademarks or other intellectual property rights owned by Perrot or an affiliated entity. In particular, Customer may not obscure, alter or remove in any manner the trademarks and/or other distinctive features, whether imprinted or attached, that are part of Perrot's Goods and may not include or attach any other features.
8.1 Customer shall keep the trade secrets of Perrot confidential during the parties' business relationship and thereafter; this shall not apply to information that is part of the public domain. Trade secrets mean in particular all information that in this sense is not generally known such as price lists, drawings, process instructions, formulas and inventions. This duty of confidentiality shall not apply to information that had already been known to Customer prior to receipt, Customer has lawfully received or will receive from a third party without a confidentiality obligation or that are subject to mandatory disclosure pursuant to applicable law or a governmental or court order (e.g. disclosures to authorities, courts or advisors bound to professional secrecy).
8.2 The information, data, documents and other records provided to Customer by Perrot may exclusively be used for the purposes of the business relationship with Perrot. If in the framework of the business relationship Customer is lawfully provided with trade secrets from Perrot or he obtains knowledge hereof, Customer shall treat the trade secrets confidential and shall carry out reasonable measures in order to guarantee the maintenance of the confidentiality.
8.3 In its dealings with third parties, Customer shall not make any reference to the business relationship with Perrot without Perrot's express written consent.
9. Quality, Customer's Rights in case of Defects, Duty to Inspect the Goods, Guarantee
9.1 Upon passing of the risk the Goods shall be of the agreed quality; the quality will exclusively be determined by the specific written agreements concerning the characteristics, features and specifications of the Goods.
9.2 Information provided in sales catalogues, price lists and any other informative literature provided by Perrot or any other descriptions of the Goods shall under no circumstances constitute a guarantee for any specific quality of the Goods; such specific quality or durability guarantees of Perrot towards Customer must expressly be made in writing.
9.3 Perrot reserves the right to change the Goods slightly with regard to their construction, material and/or finish to the extent their agreed characteristics are not changed hereby.
9.4 Customer's rights in case of defects of the Goods shall require that he inspects the Goods upon delivery without undue delay and notifies Perrot of any defects in writing and without undue delay, but no later than two weeks following delivery; hidden defects must be notified to Perrot in writing without undue delay upon their discovery.
9.5 In the event of a notification of a defect, Perrot shall have the right to inspect and test the Goods to which objection was made. Customer will grant Perrot the required period of time and opportunity to exercise such right. Perrot may also demand from Customer that he returns to Perrot at its expense the Goods to which objection was made. Should Customer's notification of the defect prove to be unjustified and provided Customer has realized this prior to the notification of the defect or has not realized it in a negligent manner, Customer shall be obliged to reimburse Perrot for all costs incurred in this respect, e.g. travel expenses or shipping costs.
9.6 Perrot shall be entitled to remove the defect at its option by remedying the defect or, alternatively, by delivering a replacement, both free of charge to Customer (together "Subsequent Performance").
9.7 Customer shall give Perrot the necessary reasonable time and opportunity for the Subsequent Performance.
9.8 Goods that have been replaced by Perrot shall, upon its demand, be returned to Perrot.
9.9 Customer's rights in case of defects shall be excluded in the following events: (i) natural wear and tear, (ii) defects of the Goods due to reasons for which Customer bears responsibility, such as inappropriate or improper use, the non-observance of the operational instructions, incorrect start-up of operation or faulty treatment (e.g. excessive wear), (iii) incorrect assembly and/or installation by Customer or a third party commissioned by Customer, (iv) the use of unsuitable accessories or unsuitable spare parts or the performance of inappropriate repair works by Customer or a third party commissioned by Customer and (v) in case the defect is based on the fact that the Goods have been stored too long by Customer.
9.10 Should the Subsequent Performance fail, should such remedy be unreasonable for Customer or has Perrot refused such remedy pursuant to Section 439 (4) German Civil Code (Bürgerliches Gesetzbuch; "BGB"), Customer has the rights under statutory law unless provided otherwise in these Terms of Delivery.
9.11 The limitation period for Customer's claims for defects shall be twelve months beginning with the handover of the Goods to Customer. The provisions on the statute of limitations of Section 445b BGB shall remain unaffected. The statutory limitation period shall apply:
to Customer’s rights with respect to defects concealed in bad faith or caused intentionally;
if and to the extent Perrot has assumed a guarantee;
to Customer’s damage claims due to culpably caused personal injuries;
to Customer’s damage claims for damages caused by Perrot intentionally or by gross negligence;
to Customer’s damage claims due to other reasons than defects of the Goods; as well as
to claims under the German Product Liability Act or any other mandatory statutory liability.
9.12 If used Goods are sold, all rights of Customer due to defects shall be excluded, save for Customer's mandatory claims.
9.13 To the extent Perrot grants end-customer a guarantee for the specific quality of Goods the following shall apply if Customer is a reseller: Customer is obligated to inform the end-customer of the guarantee. In case end-customer asserts a claim against Perrot under the guarantee, Customer shall assist end-customer in handling the guarantee claim. If Customer is responsible for the defect, e.g. because the Goods have been stored too long or in an appropriate manner by Customer, Perrot is entitled to take recourse against Customer.
10. Limitation of Liability and Damage Compensation
10.1 Perrot's obligation to pay damages shall be limited as follows:
For damages caused by a breach of a material contractual obligation, Perrot shall only be liable up to the amount of the typically foreseeable damage at the time of entering into the contract; Perrot shall not be liable for damages caused by a breach of a non-material contractual obligation.
The limitation of liability as set out above shall not apply to damages caused intentionally or by gross negligence, culpably caused personal injuries nor to any liability under the German Product Liability Act and in case of any further mandatory liability. Furthermore, it shall not apply if and to the extent Perrot has assumed a guaranty.
10.2 Customer shall take all reasonable measures necessary to avert and reduce damages.
If Customer sells the Goods, whether unchanged or changed, whether after processing, transformation, joining, blending or mixing with other goods, Customer shall indemnify Perrot in their internal relationship against any product liability claims of third parties if and to the extent Customer was liable for the defect leading to the liability towards third parties.
12. General Provisions
12.1 Customer may assign the rights arising from the parties' contractual relationship to third parties only with Perrot's written consent. Section 354a German Commercial Code (Handelsgesetzbuch; "HGB") shall remain unaffected hereby.
12.2 Amendments and supplements to the contract and/or these Terms of Delivery and any side agreements must be made in writing. The same shall apply to the amendment of this written form requirement.
12.3 If a provision of the contract and/or these Terms of Delivery is invalid, in whole or in part, the validity of the remaining provisions shall remain unaffected hereby.
12.4 If a provision of the contract and/or these Terms of Delivery is invalid, in whole or in part, the validity of the remaining provisions shall remain unaffected hereby.
12.5 The laws of the Federal Republic of Germany shall apply to these Terms of Delivery and the parties' contractual relationship to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).