Standard Terms and Conditions of Contracts for the Sale of Goods and Services
1. General
1.1 These Standard Terms and Conditions shall apply exclusively to the sale of the products and services of PCI Augsburg GmbH (hereinafter referred to as “PCI”) and the services of PCI shall be performed and the goods of PCI shall be supplied solely on the basis of these Standards Terms and Conditions. Without limitation, these Standard Terms and Conditions shall apply to contracts for the sale and/or delivery of goods, irrespective of whether PCI produces such goods itself or purchases them from suppliers (Sections 433 and 650, German Civil Code). Unless otherwise agreed, these Standard Terms and Conditions shall also apply as a framework contract for all future business transactions of the same type in the version in force as of the date of the Purchaser’s order or the version last communicated to the Purchaser in text form without it being necessary to refer to these Standard Terms and Conditions in each individual case.
1.2 These Standard Terms and Conditions shall only apply as towards entrepreneurs and businesses in accordance with Section 14 of the German Civil Code, public bodies and special funds established under public law.
1.3 Standard terms and conditions of the Purchaser shall not apply even if PCI does not explicitly object to the application of such standard terms and conditions. Conditions of the Purchaser in deviation from, in contradiction of or supplementary to these Standard Terms and Conditions shall not apply unless such conditions have been explicitly accepted by PCI. This shall also apply in the event that PCI performs services for the Purchaser or delivers goods to the Purchaser without expressing reservations, having knowledge of such standard terms and conditions of the Purchaser.
1.4 Individual agreements between PCI and the Purchaser concluded in individual cases (including supplementary agreements, additions to or amendments to these Standard Terms and Conditions) shall take precedence over these Standard Terms and Conditions. Subject to evidence to the contrary, the content of such individual agreements shall be determined by a written contract or the written confirmation of PCI.
1.5 References to the applicability of statutory provisions are made solely for the purpose of clarification. Even without such clarification, the applicable statutory provisions shall apply except where such provisions are directly modified or explicitly excluded by these Standard Terms and Conditions.
1.6 Declarations and notices of the Purchaser in connection with the contract (including without limitation such notices setting deadlines, complaints and notifications of rescission or abatement) shall be made in writing or in text form (for example by letter, email or fax). This provision shall be without prejudice to statutory provisions requiring specific forms for notifications and further evidence, including without limitation cases in which there are doubts concerning the authorization of the person making such declarations or notices.
2. Conclusion of the contract
2.1 The quotations of PCI shall be non-binding and subject to prior sale even in cases in which PCI makes available to the Purchaser catalogues, technical documentation (e.g. drawings, plans, calculations and references to DIN standards), other product descriptions or documents, including such documents made available in electronic form. PCI shall retain title and copyright to all such catalogues, technical documentation, other product descriptions and documents.
2.2 The contract shall be concluded by the order by the purchaser (offer) and the acceptance thereof by PCI. The order submitted by the Purchaser shall be deemed to be a binding offer to conclude a contract. In the event that the acceptance by PCI of any such order deviates from such order, said acceptance shall be deemed to be a new non-binding offer made by PCI. Unless otherwise stated in any order, PCI shall be entitled to accept the order (offer) of the Purchaser within two weeks of the receipt thereof by PCI. The acceptance of any order of the Purchaser may be declared by PCI either in writing (e.g. by the issue of an order confirmation) or by the delivery of the goods covered by said order to the Purchaser.
3. Performance
3.1 The technical data stated in the relevant technical data sheets shall solely represent the 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.
3.2 By virtue of its business relationship with PCI, the Purchaser shall not be deemed to have acquired any title, license, utilization, 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.
4. Prices
4.1 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 2020), not including value added tax, which shall be payable at the applicable rate in addition to said prices.
4.2 Collection of goods ex works is only possible from an order weight of 3 metric tons upwards. In the event that PCI agrees on carriage paid prices in deviation from Section 4.1 hereinabove, PCI shall not grant any discount for carriage costs even if goods are collected by the Purchaser ex works or ex works warehouse.
5. Shipping, storage
5.1 Unless otherwise agreed between PCI and the Purchaser, goods shall be delivered ex works (EXW, Incoterms 2020), and the place of performance for delivery and any subsequent performance shall be the point of ex-works delivery. Goods shall be delivered to the warehouse of the Purchaser or another destination notified by the Purchaser in good time. The Purchaser shall notify PCI promptly of any change in the destination of goods. Any additional cost incurred by PCI as a result of any change in the destination of the goods shall be borne by the Purchaser.
5.2 The cost of carriage ex-works and any customs duties, taxes, fees or other public charges shall be borne by the Purchaser.
5.3 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, carrier or other person or body commissioned to ship said goods. Where it has been agreed in exceptional cases that the Purchaser shall collect the goods supplied under the contract ex-works, the risk of loss or deterioration of said goods shall be transferred to the Purchaser upon the receipt thereof by the Purchaser. The statutory provisions concerning contracts for services shall apply mutatis mutandis. In the event of delay by the Purchaser in taking delivery of any goods, said goods shall be deemed to have been handed over by PCI and received by the Purchaser. The Purchaser shall be responsible for the proper storage of the goods supplied.
5.4 In the event that the Purchaser or any of the Purchaser’s customers, by willful act or omission or gross negligence, infringes its obligation under Section 5.1 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 lump-sum compensation of € 100.00 per metric ton of goods, subject to a minimum of € 1,000.00 per consignment. Said lump-sum compensation shall be set off against any claims of PCI going beyond said lump-sum compensation. 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 lump-sum compensation and PCI shall be entitled to prove that such loss or damage exceeds said lump-sum compensation and to assert its statutory rights.
6. Terms of payment
6.1 All invoices shall be payable within 30 days of date of issue and the delivery of the goods concerned without any deduction or within 14 days with a cash discount of 2%. In the event of justified doubts concerning the solvency of the Purchaser, including without limitation in the event of delay in payment, PCI shall, without prejudice to any further claims, be entitled to require other security from the Purchaser, including without limitation full or partial payment in advance, before delivering the goods. PCI shall state such reservations to the Purchaser no later than the confirmation of the Purchaser’s order.
6.2 Upon the expiry of the payment period stated hereinabove, the Purchaser shall be deemed to be in default. In the event of delay in payment by the Purchaser, PCI shall be entitled to claim interest on the amount outstanding at the statutory rate for delayed payments in force from time to time. As towards merchants, these provisions shall not affect the right of PCI to claim interest from the due date of the amount outstanding (Section 353, German Commercial Code).
6.3 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.
6.4 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 judgment has been granted in respect of such claims. This provision shall not affect the rights of the Purchaser in the event of defects in goods supplied by PCI.
6.5 Should it become apparent, following the conclusion of the contract, (including without limitation through an application for the opening of insolvency proceedings against the Purchaser) that the claim of PCI to the payment of the purchase price is jeopardized by poor creditworthiness of the Purchaser, PCI shall be entitled, in accordance with the applicable statutory provisions, to refuse to perform the contract and to rescind the contract, following a grace period if applicable (Section 321 German Civil Code). In the case of contracts for the production of non-fungible goods (goods produced to order), PCI shall be entitled to rescind the contract promptly. Nothing contained herein shall affect the statutory provisions concerning cases in which a grace period is not required.
7. Delivery and performance time, delay in performance
7.1 Delivery times stated in quotations and orders shall be non-binding except where a fixed delivery date has been explicitly agreed in individual cases. In the event that PCI is unable to meet agreed delivery deadlines for reasons for which PCI is not responsible (non-availability of the goods), PCI shall promptly notify the Purchaser and, at the same time, inform the purchaser of the probable new delivery date. If the goods concerned are not available by said new delivery date, PCI shall be entitled to rescind the contract in whole or in part and any consideration received by PCI from the Purchaser shall be promptly reimbursed. Without limitation, the failure of PCI’s supplier to supply PCI with the goods required for the contract with the Purchaser shall be deemed to constitute the non-availability of said goods in the event that PCI has concluded with its supplier a matching contract for the purchase of said goods and neither PCI nor its supplier is responsible for such failure to supply said goods or PCI is under no obligation to procure said goods in an individual case.
7.2 PCI shall not be liable for the impossibility of delivering goods or delay in delivering goods caused by force majeure and other circumstances unforeseeable at the time when the contract is concluded which are beyond the control of PCI, including without limitation acts of God, war, industrial disputes, shortages of raw materials and energy, disturbances to traffic, fire and explosion damage, acts of authorities, difficulties in obtaining means of transport, other disturbances to business caused by fire, water, acts of authorities, difficulties in obtaining official approvals required, measures taken by authorities or the failure of suppliers to supply the correct goods in good time. In the event that any such circumstances result in delays in the delivery of goods or the performance of services or reduce the availability of goods from the plant from which PCI obtains such goods and PCI is unable for such reason to perform its obligations under the contract, taking into account PCI’s other internal or external delivery obligations on a pro rata basis, PCI shall (i) be released from its obligations under the contract for the duration of such circumstances and to the extent corresponding to the effect of such circumstances and (ii) not be obligated to procure the goods concerned from third parties. Without limitation of the generality of the foregoing, PCI shall be entitled to postpone the delivery of the goods or the performance of the services covered by the contract for the duration of such circumstances, plus an appropriate lead time for the recommencement of deliveries or services. This shall also apply in the event that it becomes permanently not economically viable for PCI to complete the business concerned as a result of such events and circumstances for which PCI is not responsible or such events affect PCI’s suppliers. In the event that such circumstances persist for longer than three months, PCI shall be entitled to rescind the contract.
7.3 Compliance with delivery dates, including non-binding delivery dates, is subject to the proviso that the Purchaser performs its obligations under the contract.
7.4 The occurrence of delay in delivery by PCI shall be determined by the applicable statutory provisions, provided however that delivery shall not be deemed to have been delayed until and unless a reminder has been issued by the Purchaser. In the event of the failure of PCI to comply with agreed delivery dates for reasons for which PCI is responsible, the Purchaser shall first grant PCI in writing a reasonable grace period for delivery which shall normally be at least 15 working days. In the event that PCI fails to deliver the goods concerned within said grace period, the Purchaser shall be entitled to rescind the contract by notification in writing. Delivery by PCI shall not be deemed to be delayed until said grace period has expired. PCI shall be entitled to make partial deliveries and to perform partial services within the agreed deadlines for the delivery of goods and the performance of services in the event that the Purchaser can reasonably be expected to accept such partial delivery or performance.
7.5 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 8 hereinbelow. In any such case, neither of the parties shall be entitled to claim damages from the other party. In the event of delay, the liability of PCI shall be limited in accordance with the provisions of Section 10 hereinbelow.
7.6 These provisions shall not affect the other rights of the Purchaser including without limitation the rights of the Purchaser in the event that PCI is no longer under an obligation to perform the contract or to execute subsequent performance for reasons including, without limitation, the impossibility or unreasonableness of performance or subsequent performance.
8. Obligation of the Purchaser to inspect goods and make complaints in the event of defects; warranty for defects
8.1 Except as otherwise stated hereinbelow, the rights of the Purchaser in the event of defects in goods supplied or defects in the title to goods supplied (including without limitation the delivery of incorrect goods or incorrect quantities, defects in assembly and defects in assembly instructions) shall be governed by the applicable statutory provisions. Nothing contained herein shall affect the special statutory provisions applicable in the event of the delivery of unprocessed goods to a consumer even if the consumer has processed such goods (recourse to the supplier in accordance with Section 478 German Civil Code). Recourse to the supplier shall be excluded in the event that the defective goods have been processed by the Purchaser or another entrepreneur, including without limitation the installation of the goods in another product.
8.2 Claims by the Purchaser in the event of defects in goods supplied by PCI shall also be subject to the proviso that the Purchaser has complied with its statutory inspection and complaint obligations in accordance with Sections 377 and 381 German Civil Code. 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. Construction materials and other goods intended for further processing shall always be inspected immediately prior to such further processing. The goods shall be deemed to have been accepted by the Purchaser unless PCI receives from the Purchaser a written 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. Provided however that written complaints concerning evident defects in goods shall be received within 5 (five) working days of the delivery of said goods and complaints concerning defects not evident upon inspection shall be received within 5 (five) working days of the detection of such defects. Should the Purchaser fail to inspect goods properly or submit complaints about defects properly in accordance with these requirements, the liability of PCI for any defects which are not notified properly or not notified in good time shall be excluded in accordance with the applicable statutory provisions. The Purchaser shall ensure that no defective goods are processed.
8.3 Unless the properties of the goods have been agreed between PCI and the Purchaser or are otherwise provided for in these Standard Terms and Conditions, the decision as to whether any goods are defective shall be taken in accordance with the applicable statutory provisions (Section 434 (1), sentences 2 and 3, German Civil Code). PCI shall not be liable for any public statements by the manufacturer or other third parties (in including without limitation advertising statements) in cases in which the Purchaser has not informed PCI that such statements were a decisive factor in its decision to purchase the goods. Under no circumstances shall PCI be liable for any defects of which the Purchaser was aware upon the conclusion of the contract or of which the Purchaser was unaware by reason of gross negligence upon conclusion of the contract (Section 442 German Civil Code).
8.4 In the event that PCI is liable for defects in goods supplied by PCI, PCI shall only be obligated to repair such defective goods or, at the option of PCI, to supply goods which are free from defects (subsequent performance). Nothing contained herein shall affect the right of PCI to refuse to carry out subsequent performance subject to the applicable statutory conditions. PCI shall be entitled to make subsequent performance for which it is liable subject to the proviso that the Purchaser pays the purchase price which is due, provided however that the Purchaser shall be entitled to retain a portion of said purchase price which is reasonable in view of the defect in the goods.
8.5 The Purchaser shall afford PCI reasonable time and opportunity for subsequent performance for which PCI is liable and shall, without limitation, hand over defective goods for inspection to PCI. In the event of the delivery of replacement goods, the Purchaser shall return the defective goods concerned to PCI in accordance with the applicable statutory provisions. The obligation of PCI to carry out subsequent performance shall not include the dismantling of the defective goods or the reinstallation of repaired defective goods or replacement goods unless PCI is under an obligation to install such goods under the contract.
8.6 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 for other reasons 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.
8.7 In the event that a defect is found in goods subject to a complaint by the Purchaser, the cost incurred in connection with the inspection of such goods and subsequent performance, including without limitation carriage, travelling, labor and material expenses and, if applicable dismantling and installation expenses, shall be borne by PCI in accordance with the applicable statutory provisions. In the event that goods subject to a complaint by the Purchaser are found to be free from defects, PCI shall be entitled to claim reimbursement of costs incurred by PCI in connection with the Purchaser’s unjustified complaint (including without limitation inspection and carriage expenses) except in the event that the Purchaser could not be aware that the goods were free from defects.
8.8 Even in the event of defects in goods supplied by PCI, the liability of PCI to pay compensation to the Purchaser or to reimburse to the Purchaser expenditure incurred in vain by the Purchaser shall be governed by the provisions of Section 10 hereinbelow and shall be otherwise excluded.
9. Return of goods
9.1 In the event that the Purchaser rescinds the contract in accordance with Section 8.6 hereinabove, the place of performance for the rescission of the contract shall be the place where PCI has its registered office. If and to the extent that a plant of PCI is nearer to the Purchaser than the place where PCI has its registered office, the Purchaser may elect to return the goods to said plant by notifying PCI.
9.2 The Purchaser shall not return goods supplied by 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, carriage 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.
10. Other liability of PCI
10.1 As a general principle, the liability of PCI shall be governed by the applicable statutory provisions, except as otherwise provided for in these Standard Terms and Conditions.
10.2 The liability of PCI to pay compensation for loss or damage, on whatsoever legal grounds, shall be limited to loss or damage caused by willful act or omission or gross negligence. In the case of loss or damage caused by ordinary negligence, the liability of PCI shall, subject to applicable statutory limitations of liability (e.g. exercise of due care as in PCI’s own affairs, insignificant breach of obligations) be limited to:
a) claims by reason of death, personal injury or damage to health,
b) claims in connection with the breach of material contractual obligation (an obligation, the performance of which is essential for the proper performance of the contract and compliance with which the contract partner normally relies on and is normally entitled to rely on); provided however that the liability of PCI in any such case shall be limited to such loss or damage as can be foreseen and is typically caused by said breach.
10.3 The limitations of liability provided for hereinabove shall also apply to the liability of PCI as towards third parties and the liability of PCI for servants, agents, employees and other persons for which PCI is liable under the applicable statutory provisions. The limitations of liability provided for in Section 10.2 hereinabove shall not apply in the event that PCI willfully conceals a defect or assumes a guarantee for the properties of goods, or to claims of the Purchaser under the Product Liability Act.
10.4 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.
11. Forfeiture of claims
11.1 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. In the event that the parties have agreed that goods are to be subject to acceptance, the forfeiture period shall commence upon acceptance of the goods. Provided however that the statutory forfeiture periods shall apply instead of said one-year period in the following events:
a) liability by reason of willful act or omission,
b) the willful 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 willful 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 willful 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.
g) Liability of PCI under the Product Liability Act.
11.2 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.
12. Retention of title
12.1 Any goods supplied by PCI shall remain the property of PCI until the purchase price for said goods has been paid in full. 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.
12.2 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 or mixed with or joined to other materials, PCI shall directly acquire a share in the title to the processed, mixed or joined goods corresponding to the ratio of the amount invoiced for the goods supplied by PCI to the amount invoiced for such processed, mixed or joined goods. 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. Except as provided for herein, goods created by processing, mixing or joining with goods supplied by PCI shall be subject to the same conditions as goods to which PCI retains title.
12.3 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 either in full or, in the case of goods to which PCI retains a share in the title, in an amount corresponding to said share in title. PCI hereby accepts such assignment. Upon the conclusion of the contract, the Purchaser shall already assign recognized balances under current accounts to PCI in the amount still outstanding to PCI.
12.4 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.
12.5 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.
12.6 Partial waiver: in the event that the value of securities provided by the Purchaser exceeds amounts payable to PCI by more than 10%, PCI shall waive such securities with respect to such excess amount.
13. 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 judgment has been granted in respect of such claims.
14. Processing instructions
As the working conditions at construction sites and the applications of PCI products are very diverse, the processing instructions of 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.
15. Data protection
15.1 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 hereinabove 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 organizational measures are taken to provide appropriate protection for Personal Data against loss or abuse.
15.2 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.
15.3 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.
16. Place of performance, venue for disputes, applicable law
The place of performance of the contract and the venue for any disputes, including without limitation international disputes, arising between PCI and entrepreneurs in accordance with Section 14 of the German Civil Code, merchants, public bodies or special funds organized under public law shall be Augsburg, provided however that PCI shall also be entitled to bring any proceedings against the Purchaser at the Purchaser’s 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. Nothing contained herein shall affect higher-priority provisions of the applicable law concerning exclusive jurisdiction.
Valid from November 1, 2020
Registered office of the company: Augsburg, Germany; register court: Augsburg Local Court; register number: HRB 6355
1.1 These Standard Terms and Conditions shall apply exclusively to the sale of the products and services of PCI Augsburg GmbH (hereinafter referred to as “PCI”) and the services of PCI shall be performed and the goods of PCI shall be supplied solely on the basis of these Standards Terms and Conditions. Without limitation, these Standard Terms and Conditions shall apply to contracts for the sale and/or delivery of goods, irrespective of whether PCI produces such goods itself or purchases them from suppliers (Sections 433 and 650, German Civil Code). Unless otherwise agreed, these Standard Terms and Conditions shall also apply as a framework contract for all future business transactions of the same type in the version in force as of the date of the Purchaser’s order or the version last communicated to the Purchaser in text form without it being necessary to refer to these Standard Terms and Conditions in each individual case.
1.2 These Standard Terms and Conditions shall only apply as towards entrepreneurs and businesses in accordance with Section 14 of the German Civil Code, public bodies and special funds established under public law.
1.3 Standard terms and conditions of the Purchaser shall not apply even if PCI does not explicitly object to the application of such standard terms and conditions. Conditions of the Purchaser in deviation from, in contradiction of or supplementary to these Standard Terms and Conditions shall not apply unless such conditions have been explicitly accepted by PCI. This shall also apply in the event that PCI performs services for the Purchaser or delivers goods to the Purchaser without expressing reservations, having knowledge of such standard terms and conditions of the Purchaser.
1.4 Individual agreements between PCI and the Purchaser concluded in individual cases (including supplementary agreements, additions to or amendments to these Standard Terms and Conditions) shall take precedence over these Standard Terms and Conditions. Subject to evidence to the contrary, the content of such individual agreements shall be determined by a written contract or the written confirmation of PCI.
1.5 References to the applicability of statutory provisions are made solely for the purpose of clarification. Even without such clarification, the applicable statutory provisions shall apply except where such provisions are directly modified or explicitly excluded by these Standard Terms and Conditions.
1.6 Declarations and notices of the Purchaser in connection with the contract (including without limitation such notices setting deadlines, complaints and notifications of rescission or abatement) shall be made in writing or in text form (for example by letter, email or fax). This provision shall be without prejudice to statutory provisions requiring specific forms for notifications and further evidence, including without limitation cases in which there are doubts concerning the authorization of the person making such declarations or notices.
2. Conclusion of the contract
2.1 The quotations of PCI shall be non-binding and subject to prior sale even in cases in which PCI makes available to the Purchaser catalogues, technical documentation (e.g. drawings, plans, calculations and references to DIN standards), other product descriptions or documents, including such documents made available in electronic form. PCI shall retain title and copyright to all such catalogues, technical documentation, other product descriptions and documents.
2.2 The contract shall be concluded by the order by the purchaser (offer) and the acceptance thereof by PCI. The order submitted by the Purchaser shall be deemed to be a binding offer to conclude a contract. In the event that the acceptance by PCI of any such order deviates from such order, said acceptance shall be deemed to be a new non-binding offer made by PCI. Unless otherwise stated in any order, PCI shall be entitled to accept the order (offer) of the Purchaser within two weeks of the receipt thereof by PCI. The acceptance of any order of the Purchaser may be declared by PCI either in writing (e.g. by the issue of an order confirmation) or by the delivery of the goods covered by said order to the Purchaser.
3. Performance
3.1 The technical data stated in the relevant technical data sheets shall solely represent the 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.
3.2 By virtue of its business relationship with PCI, the Purchaser shall not be deemed to have acquired any title, license, utilization, 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.
4. Prices
4.1 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 2020), not including value added tax, which shall be payable at the applicable rate in addition to said prices.
4.2 Collection of goods ex works is only possible from an order weight of 3 metric tons upwards. In the event that PCI agrees on carriage paid prices in deviation from Section 4.1 hereinabove, PCI shall not grant any discount for carriage costs even if goods are collected by the Purchaser ex works or ex works warehouse.
5. Shipping, storage
5.1 Unless otherwise agreed between PCI and the Purchaser, goods shall be delivered ex works (EXW, Incoterms 2020), and the place of performance for delivery and any subsequent performance shall be the point of ex-works delivery. Goods shall be delivered to the warehouse of the Purchaser or another destination notified by the Purchaser in good time. The Purchaser shall notify PCI promptly of any change in the destination of goods. Any additional cost incurred by PCI as a result of any change in the destination of the goods shall be borne by the Purchaser.
5.2 The cost of carriage ex-works and any customs duties, taxes, fees or other public charges shall be borne by the Purchaser.
5.3 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, carrier or other person or body commissioned to ship said goods. Where it has been agreed in exceptional cases that the Purchaser shall collect the goods supplied under the contract ex-works, the risk of loss or deterioration of said goods shall be transferred to the Purchaser upon the receipt thereof by the Purchaser. The statutory provisions concerning contracts for services shall apply mutatis mutandis. In the event of delay by the Purchaser in taking delivery of any goods, said goods shall be deemed to have been handed over by PCI and received by the Purchaser. The Purchaser shall be responsible for the proper storage of the goods supplied.
5.4 In the event that the Purchaser or any of the Purchaser’s customers, by willful act or omission or gross negligence, infringes its obligation under Section 5.1 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 lump-sum compensation of € 100.00 per metric ton of goods, subject to a minimum of € 1,000.00 per consignment. Said lump-sum compensation shall be set off against any claims of PCI going beyond said lump-sum compensation. 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 lump-sum compensation and PCI shall be entitled to prove that such loss or damage exceeds said lump-sum compensation and to assert its statutory rights.
6. Terms of payment
6.1 All invoices shall be payable within 30 days of date of issue and the delivery of the goods concerned without any deduction or within 14 days with a cash discount of 2%. In the event of justified doubts concerning the solvency of the Purchaser, including without limitation in the event of delay in payment, PCI shall, without prejudice to any further claims, be entitled to require other security from the Purchaser, including without limitation full or partial payment in advance, before delivering the goods. PCI shall state such reservations to the Purchaser no later than the confirmation of the Purchaser’s order.
6.2 Upon the expiry of the payment period stated hereinabove, the Purchaser shall be deemed to be in default. In the event of delay in payment by the Purchaser, PCI shall be entitled to claim interest on the amount outstanding at the statutory rate for delayed payments in force from time to time. As towards merchants, these provisions shall not affect the right of PCI to claim interest from the due date of the amount outstanding (Section 353, German Commercial Code).
6.3 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.
6.4 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 judgment has been granted in respect of such claims. This provision shall not affect the rights of the Purchaser in the event of defects in goods supplied by PCI.
6.5 Should it become apparent, following the conclusion of the contract, (including without limitation through an application for the opening of insolvency proceedings against the Purchaser) that the claim of PCI to the payment of the purchase price is jeopardized by poor creditworthiness of the Purchaser, PCI shall be entitled, in accordance with the applicable statutory provisions, to refuse to perform the contract and to rescind the contract, following a grace period if applicable (Section 321 German Civil Code). In the case of contracts for the production of non-fungible goods (goods produced to order), PCI shall be entitled to rescind the contract promptly. Nothing contained herein shall affect the statutory provisions concerning cases in which a grace period is not required.
7. Delivery and performance time, delay in performance
7.1 Delivery times stated in quotations and orders shall be non-binding except where a fixed delivery date has been explicitly agreed in individual cases. In the event that PCI is unable to meet agreed delivery deadlines for reasons for which PCI is not responsible (non-availability of the goods), PCI shall promptly notify the Purchaser and, at the same time, inform the purchaser of the probable new delivery date. If the goods concerned are not available by said new delivery date, PCI shall be entitled to rescind the contract in whole or in part and any consideration received by PCI from the Purchaser shall be promptly reimbursed. Without limitation, the failure of PCI’s supplier to supply PCI with the goods required for the contract with the Purchaser shall be deemed to constitute the non-availability of said goods in the event that PCI has concluded with its supplier a matching contract for the purchase of said goods and neither PCI nor its supplier is responsible for such failure to supply said goods or PCI is under no obligation to procure said goods in an individual case.
7.2 PCI shall not be liable for the impossibility of delivering goods or delay in delivering goods caused by force majeure and other circumstances unforeseeable at the time when the contract is concluded which are beyond the control of PCI, including without limitation acts of God, war, industrial disputes, shortages of raw materials and energy, disturbances to traffic, fire and explosion damage, acts of authorities, difficulties in obtaining means of transport, other disturbances to business caused by fire, water, acts of authorities, difficulties in obtaining official approvals required, measures taken by authorities or the failure of suppliers to supply the correct goods in good time. In the event that any such circumstances result in delays in the delivery of goods or the performance of services or reduce the availability of goods from the plant from which PCI obtains such goods and PCI is unable for such reason to perform its obligations under the contract, taking into account PCI’s other internal or external delivery obligations on a pro rata basis, PCI shall (i) be released from its obligations under the contract for the duration of such circumstances and to the extent corresponding to the effect of such circumstances and (ii) not be obligated to procure the goods concerned from third parties. Without limitation of the generality of the foregoing, PCI shall be entitled to postpone the delivery of the goods or the performance of the services covered by the contract for the duration of such circumstances, plus an appropriate lead time for the recommencement of deliveries or services. This shall also apply in the event that it becomes permanently not economically viable for PCI to complete the business concerned as a result of such events and circumstances for which PCI is not responsible or such events affect PCI’s suppliers. In the event that such circumstances persist for longer than three months, PCI shall be entitled to rescind the contract.
7.3 Compliance with delivery dates, including non-binding delivery dates, is subject to the proviso that the Purchaser performs its obligations under the contract.
7.4 The occurrence of delay in delivery by PCI shall be determined by the applicable statutory provisions, provided however that delivery shall not be deemed to have been delayed until and unless a reminder has been issued by the Purchaser. In the event of the failure of PCI to comply with agreed delivery dates for reasons for which PCI is responsible, the Purchaser shall first grant PCI in writing a reasonable grace period for delivery which shall normally be at least 15 working days. In the event that PCI fails to deliver the goods concerned within said grace period, the Purchaser shall be entitled to rescind the contract by notification in writing. Delivery by PCI shall not be deemed to be delayed until said grace period has expired. PCI shall be entitled to make partial deliveries and to perform partial services within the agreed deadlines for the delivery of goods and the performance of services in the event that the Purchaser can reasonably be expected to accept such partial delivery or performance.
7.5 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 8 hereinbelow. In any such case, neither of the parties shall be entitled to claim damages from the other party. In the event of delay, the liability of PCI shall be limited in accordance with the provisions of Section 10 hereinbelow.
7.6 These provisions shall not affect the other rights of the Purchaser including without limitation the rights of the Purchaser in the event that PCI is no longer under an obligation to perform the contract or to execute subsequent performance for reasons including, without limitation, the impossibility or unreasonableness of performance or subsequent performance.
8. Obligation of the Purchaser to inspect goods and make complaints in the event of defects; warranty for defects
8.1 Except as otherwise stated hereinbelow, the rights of the Purchaser in the event of defects in goods supplied or defects in the title to goods supplied (including without limitation the delivery of incorrect goods or incorrect quantities, defects in assembly and defects in assembly instructions) shall be governed by the applicable statutory provisions. Nothing contained herein shall affect the special statutory provisions applicable in the event of the delivery of unprocessed goods to a consumer even if the consumer has processed such goods (recourse to the supplier in accordance with Section 478 German Civil Code). Recourse to the supplier shall be excluded in the event that the defective goods have been processed by the Purchaser or another entrepreneur, including without limitation the installation of the goods in another product.
8.2 Claims by the Purchaser in the event of defects in goods supplied by PCI shall also be subject to the proviso that the Purchaser has complied with its statutory inspection and complaint obligations in accordance with Sections 377 and 381 German Civil Code. 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. Construction materials and other goods intended for further processing shall always be inspected immediately prior to such further processing. The goods shall be deemed to have been accepted by the Purchaser unless PCI receives from the Purchaser a written 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. Provided however that written complaints concerning evident defects in goods shall be received within 5 (five) working days of the delivery of said goods and complaints concerning defects not evident upon inspection shall be received within 5 (five) working days of the detection of such defects. Should the Purchaser fail to inspect goods properly or submit complaints about defects properly in accordance with these requirements, the liability of PCI for any defects which are not notified properly or not notified in good time shall be excluded in accordance with the applicable statutory provisions. The Purchaser shall ensure that no defective goods are processed.
8.3 Unless the properties of the goods have been agreed between PCI and the Purchaser or are otherwise provided for in these Standard Terms and Conditions, the decision as to whether any goods are defective shall be taken in accordance with the applicable statutory provisions (Section 434 (1), sentences 2 and 3, German Civil Code). PCI shall not be liable for any public statements by the manufacturer or other third parties (in including without limitation advertising statements) in cases in which the Purchaser has not informed PCI that such statements were a decisive factor in its decision to purchase the goods. Under no circumstances shall PCI be liable for any defects of which the Purchaser was aware upon the conclusion of the contract or of which the Purchaser was unaware by reason of gross negligence upon conclusion of the contract (Section 442 German Civil Code).
8.4 In the event that PCI is liable for defects in goods supplied by PCI, PCI shall only be obligated to repair such defective goods or, at the option of PCI, to supply goods which are free from defects (subsequent performance). Nothing contained herein shall affect the right of PCI to refuse to carry out subsequent performance subject to the applicable statutory conditions. PCI shall be entitled to make subsequent performance for which it is liable subject to the proviso that the Purchaser pays the purchase price which is due, provided however that the Purchaser shall be entitled to retain a portion of said purchase price which is reasonable in view of the defect in the goods.
8.5 The Purchaser shall afford PCI reasonable time and opportunity for subsequent performance for which PCI is liable and shall, without limitation, hand over defective goods for inspection to PCI. In the event of the delivery of replacement goods, the Purchaser shall return the defective goods concerned to PCI in accordance with the applicable statutory provisions. The obligation of PCI to carry out subsequent performance shall not include the dismantling of the defective goods or the reinstallation of repaired defective goods or replacement goods unless PCI is under an obligation to install such goods under the contract.
8.6 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 for other reasons 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.
8.7 In the event that a defect is found in goods subject to a complaint by the Purchaser, the cost incurred in connection with the inspection of such goods and subsequent performance, including without limitation carriage, travelling, labor and material expenses and, if applicable dismantling and installation expenses, shall be borne by PCI in accordance with the applicable statutory provisions. In the event that goods subject to a complaint by the Purchaser are found to be free from defects, PCI shall be entitled to claim reimbursement of costs incurred by PCI in connection with the Purchaser’s unjustified complaint (including without limitation inspection and carriage expenses) except in the event that the Purchaser could not be aware that the goods were free from defects.
8.8 Even in the event of defects in goods supplied by PCI, the liability of PCI to pay compensation to the Purchaser or to reimburse to the Purchaser expenditure incurred in vain by the Purchaser shall be governed by the provisions of Section 10 hereinbelow and shall be otherwise excluded.
9. Return of goods
9.1 In the event that the Purchaser rescinds the contract in accordance with Section 8.6 hereinabove, the place of performance for the rescission of the contract shall be the place where PCI has its registered office. If and to the extent that a plant of PCI is nearer to the Purchaser than the place where PCI has its registered office, the Purchaser may elect to return the goods to said plant by notifying PCI.
9.2 The Purchaser shall not return goods supplied by 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, carriage 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.
10. Other liability of PCI
10.1 As a general principle, the liability of PCI shall be governed by the applicable statutory provisions, except as otherwise provided for in these Standard Terms and Conditions.
10.2 The liability of PCI to pay compensation for loss or damage, on whatsoever legal grounds, shall be limited to loss or damage caused by willful act or omission or gross negligence. In the case of loss or damage caused by ordinary negligence, the liability of PCI shall, subject to applicable statutory limitations of liability (e.g. exercise of due care as in PCI’s own affairs, insignificant breach of obligations) be limited to:
a) claims by reason of death, personal injury or damage to health,
b) claims in connection with the breach of material contractual obligation (an obligation, the performance of which is essential for the proper performance of the contract and compliance with which the contract partner normally relies on and is normally entitled to rely on); provided however that the liability of PCI in any such case shall be limited to such loss or damage as can be foreseen and is typically caused by said breach.
10.3 The limitations of liability provided for hereinabove shall also apply to the liability of PCI as towards third parties and the liability of PCI for servants, agents, employees and other persons for which PCI is liable under the applicable statutory provisions. The limitations of liability provided for in Section 10.2 hereinabove shall not apply in the event that PCI willfully conceals a defect or assumes a guarantee for the properties of goods, or to claims of the Purchaser under the Product Liability Act.
10.4 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.
11. Forfeiture of claims
11.1 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. In the event that the parties have agreed that goods are to be subject to acceptance, the forfeiture period shall commence upon acceptance of the goods. Provided however that the statutory forfeiture periods shall apply instead of said one-year period in the following events:
a) liability by reason of willful act or omission,
b) the willful 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 willful 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 willful 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.
g) Liability of PCI under the Product Liability Act.
11.2 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.
12. Retention of title
12.1 Any goods supplied by PCI shall remain the property of PCI until the purchase price for said goods has been paid in full. 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.
12.2 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 or mixed with or joined to other materials, PCI shall directly acquire a share in the title to the processed, mixed or joined goods corresponding to the ratio of the amount invoiced for the goods supplied by PCI to the amount invoiced for such processed, mixed or joined goods. 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. Except as provided for herein, goods created by processing, mixing or joining with goods supplied by PCI shall be subject to the same conditions as goods to which PCI retains title.
12.3 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 either in full or, in the case of goods to which PCI retains a share in the title, in an amount corresponding to said share in title. PCI hereby accepts such assignment. Upon the conclusion of the contract, the Purchaser shall already assign recognized balances under current accounts to PCI in the amount still outstanding to PCI.
12.4 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.
12.5 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.
12.6 Partial waiver: in the event that the value of securities provided by the Purchaser exceeds amounts payable to PCI by more than 10%, PCI shall waive such securities with respect to such excess amount.
13. 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 judgment has been granted in respect of such claims.
14. Processing instructions
As the working conditions at construction sites and the applications of PCI products are very diverse, the processing instructions of 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.
15. Data protection
15.1 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 hereinabove 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 organizational measures are taken to provide appropriate protection for Personal Data against loss or abuse.
15.2 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.
15.3 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.
16. Place of performance, venue for disputes, applicable law
The place of performance of the contract and the venue for any disputes, including without limitation international disputes, arising between PCI and entrepreneurs in accordance with Section 14 of the German Civil Code, merchants, public bodies or special funds organized under public law shall be Augsburg, provided however that PCI shall also be entitled to bring any proceedings against the Purchaser at the Purchaser’s 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. Nothing contained herein shall affect higher-priority provisions of the applicable law concerning exclusive jurisdiction.
Valid from November 1, 2020
Registered office of the company: Augsburg, Germany; register court: Augsburg Local Court; register number: HRB 6355
