General terms and conditions
PONGS Guidelines for the digital data transfer
General Terms and Conditions of Sale of PONGS GROUP GmbH & Co . KG
§ 1 Scope / General
(1) Deviating, conflicting or supplementary terms and conditions of the Customer are not binding for PONGS, as far as PONGS has not expressly agreed to their validity. This also applies if PONGS does not expressly object to the validity of the Customer’s terms and conditions or carries out the delivery to the Customer without reservation.
(2) Legally relevant declarations and notifications made by the Customer toPONGS after the conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or cancellation) require written or text form to be effective.
(3) The reference to statutory provisions shall only have a clarifying meaning. Insofar as the statutory provisions are not directly amended or expressly excluded in these Terms and Conditions, they shall also apply without such clarification.
§ 2 Subject matter of the contract
The contract language is German. For the conclusion of the contract the German language is exclusively available to the customer. If there is a version of the contract and / or terms and conditions in another language, such as English, the German version always remains leading.
§ 3 Conclusion of Contract
(1) Offers by PONGS are always subject to change. If the customer accepts the offer, PONGS shall, at its option, issue an acceptance declaration in text form or indicate in another way that the contract has come into effect with the content of the offer (e.g. by sending an invoice, shipping information, etc.).
(2) Upon receipt of an order, PONGS shall issue a textual acceptance confirmation and send it to the Customer.
(3) Any description of properties by PONGS, also within the scope of preliminary discussions, shall, unless expressly designated as such, neither constitute a guarantee of quality nor a guarantee of durability.
§ 4 Delivery Periods / Delay in Delivery
(1) Delivery periods or delivery dates are generally non-binding, unless otherwise agreed, in particular no fixed transactions shall be made.
(2) The delivery and service obligation of PONGS is subject to correct and timely self-delivery.
(3) As far as the delivery is delayed due to circumstances of force majeure, in particular in case of measures within the scope of labor disputes, such as strike and lawful lockout, as well as in case of the occurrence of other obstacles which are unforeseeable for PONGS and which are also not attributable to PONGS (non-availability of the service), the delivery period shall be extended appropriately. This also applies as far as such circumstances occur with suppliers of PONGS. Beginning and end of such hindrances will be communicated to the customer immediately.
(4 ) If the service is not available even within the new delivery period, PONGS is entitled to withdraw from the contract in whole or in part. Any consideration already paid by the customer will be refunded to him without delay.
(5) The right of the customer to withdraw from the contract after the expiration of a reasonable period of time set by him and/or to claim damages due to non-fulfillment in accordance withAGB – PONGS GROUP GmbH & Co KGof § 9§ 9 remains unaffected. Also unaffected are the legal rights to assert. Also unaffected remain the legal rights of PONGSPONGS, in particular those in the case of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the performance and/or supplementary performance).
§ 5 Delivery / Transfer of Risk / Acceptance / Default of Acceptance
(1) Unless otherwise agreed, deliveries shall be made FCA PONGS plant 48703 Stadt-lohn INCOTERMS 2020 or FCA (PONGS plant 07919 Pausa Mühltroff I NCOTERMS 20 2 0.This is also the place of performance for the delivery and any subsequent performance. Upon request and at the expense of the customer the goods will be shipped to another destination (sale by delivery to a place other than the place of performance).Unless otherwise stipulated, PONGS is entitled to agree to the type of shipment (in particular transport company, shipping route, packaging).
(2) Partial deliveries byPONGS are permissible under consideration of its interests, unless they are unreasonable for the customer. Unacceptability exists in particular if the Customer incurs considerable additional expenditure or additional costs due to the partial delivery, if the partial delivery is not usable for the Customer within the framework of the contractual purpose, or if the delivery of the remaining ordered goods is not ensured.
(3) If the goods are shipped at the customer’s request in individual cases, this shall be at the customer’s risk. The risk shall pass upon loading onto the transport vehicle. Insofar as the transport is delayed for reasons within the customer’s sphere of influence, the risk shall pass to the customer as soon as the delivery is ready for dispatch and PONGS has notified the customer thereof.
(4) At the request and expense of the customer, the conclusion of transport insurance is possible.
(5) Loss or externally recognizable damage of the goods as well as exceeding of the delivery period have to be notified sufficiently clearly to the carrier upon delivery (§ 438HGB). The customer shall immediately provide PONGS with a copy of the notification.
(6) If, due to the fault of the Purchaser, acceptance does not take place in time, PONGS has the right, at its discretion, after setting a grace period of 10 days, either to continue to fulfill the contract and to charge the Customer for the stand and movement costs or to withdraw from the contract.
§ 6 Prices / Terms of Payment
(1) The prices stated in the offer or the order confirmation of PONGS are decisive.
(2) The purchase price shall become due upon conclusion of the purchase contract, unless the parties have agreed on a deviating provision in the contract (e.g. a clause of INCOTERMS 2020, in particular: “FCA (place of loading)”), in which case the due date shall follow the provision in the contract.
(3) All payments shall be made non-cash to the account specified by PONGS.
(4) The purchase price and other costs (e.g. shipping costs, customs duties, etc.) must be paid within 2 weeks of receipt of the goods and invoice at the latest. Upon expiry of the aforementioned payment period, the customer shall be in default. During the period of default, the purchase price is subject to interest at the respective applicable statutory default interest rate. PONGS reserves the right to claim further damages caused by default. The claim to commercial interest on arrears (§§ 352, 353 HGB) remains unaffected.
(5) Packing materials shall be invoiced at 1% of the value of the goods.
(6) The customer is only entitled to set-off and retention rights insofar as his claim is recognized by PONGS, is undisputed or has been legally established.
§ 7 Retention of title
(1) PONGS reserves the title to the goods (hereinafter referred to as: reserved goods) until the fulfillment of all claims to which PONGS is entitled from the purchase contract and the business relationship with the Customer and which will arise in the future.
(2) The customer is authorized to resell the reserved goods in the ordinary course of business. The pledging or transfer of ownership by way of security is prohibited. All claims to which the customer is entitled from the resale, including all ancillary rights as well as any claims for compensation against a credit insurance, are hereby assigned by the customer to PONGS.PONGS hereby accepts this assignment.
(3) PONGS is obligated to release securities upon the Customer’s request insofar as the realizable value of the securities exceeds the claims to be secured by more than 10 %; PONGS is free to choose the securities to be released.
§ 8 Warranty
(1) The rights of the customer in the event of material defects and defects of title shall be governed by the statutory provisions, unless otherwise stipulated below. In any case, the statutory provisions shall remain unaffected in the case of final delivery of the goods to a consumer (§§ 478, 47 9 BGB).
(2) Claims for defects on the part of the customer presuppose that the customer has duly fulfilled its statutory obligations to inspect and give notice of defects (§ 377 HGB).
(3) The supplementary performance shall be carried out at the discretion of PONGS by removal of the defect or delivery of goods free of defects. The right of PONGS to refuse the supplementary performance under the legal conditions remains unaffected.
(4) Claims for damages and claims for reimbursement of futile expenses shall only exist in the event of defects in accordance with § 9 and shall otherwise be excluded.
§ 9 Liability
(1) PONGS is liable to the Customer according to the statutory provisions for damages and reimbursement of expenses in case of culpable injury to life, body and health as well as in case of intent and gross negligence, in case of fraudulent concealment of a defect or a guarantee assumed by PONGS as well as according to the Product Liability Act.
(2) PONGS is furthermore liable in case of slightly negligent violation of an essential contractual obligation. Material contractual obligations are those whose fulfillment enables the proper execution of the contract in the first place and on whose compliance the customer regularly relies and may rely. In these cases, however, the liability of PONGS is limited to the compensation of the foreseeable, contract-typical damage.
(3) In all other respects, liability for damages and reimbursement of expenses is excluded, regardless of the legal grounds.
§ 10 Statute of Limitations
(1) Claims based on material defects and defects of title shall become statute-barred within one year from delivery of the goods. If acceptance has been agreed in individual cases, the limitation period shall commence upon acceptance.
(2) For claims under the Product Liability Act or in the case of intent or fraudulent intent, gross negligence, in cases of supplier recourse pursuant to §§ 478, 479 BGB, a defect of title pursuant to § 438 para. 1 no. 1 a) BGB or if the goods constitute an item pursuant to § 438 para. 1 no. 2 b) BGB. 1 No. 2 b), which has been used in accordance with its customary use for a building and has caused its defectiveness, or in the event of injury to life, limb or health, the statutory limitation period shall apply.
§ 11 Data protection
We guarantee compliance with the applicable data protection regulations with regard to the personal data of the customer or his vicarious agents collected, processed and used by us within the framework of the contractual relationship. Further information can be found in our data protection declaration.
§ 12 Final provisions
(1) Die Vertragspartner vereinbaren hinsichtlich sämtlicher Rechtsbeziehungen aus und in Zu-sammenhang mit diesem Vertragsverhältnis die Anwendung deutschen Rechts unter Ausschluss des UN-Kaufrechts.
(2) Place of performance is the registered office of PONGS.
(3) If the customer is a merchant in the sense of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of PONGS or, at the discretion of PONGS, Düsseldorf.
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