§ 1 General Provisions
(1) These terms and conditions apply to all business relationships (e.g. principal and ancillary services, delivery, installation, maintenance and repair services) between PGH Ingenieure GmbH (hereinafter ‘PGH’) and contractors, as well as in relation to legal entities governed by public law or a special fund under public law (hereinafter ‘the Customer’). Business relationships comprise all deliveries and services as well as any separate contractual agreements. Any deviating terms and conditions of purchase of the Customer shall not form part of the contract, even if the order is accepted.
(2) Individual agreements shall take precedence over these General Terms and Conditions. Any special terms expressly agreed for the relevant order, in particular regarding prices, delivery terms, payment and liability for defects, shall take precedence over any conflicting provisions in these General Terms and Conditions.
(3) Unless otherwise agreed, a contract is concluded upon written confirmation of the order by PGH. Verbal agreements shall be confirmed in writing for evidential purposes. The precedence of individual agreements remains unaffected.
(4) PGH reserves all rights of ownership and copyright in samples, quotations, drawings and similar information, whether tangible or intangible – including in electronic form. They must not be made available to third parties.
(5) PGH reserves the right to amend any product descriptions with regard to specifications to the extent necessary to comply with statutory requirements, provided that such amendments do not result in any deterioration in the quality or usability of the order. PGH also expressly reserves the right to make changes designed to improve the technical characteristics of the products. Minor changes, particularly in the event of rectification or replacement delivery (e.g. tolerances, deviations in colour and quality), are permitted.
§ 2 Withdrawal by the Customer / Cancellation
(1) Withdrawal or cancellation by the Customer after receipt of the order confirmation is only permitted with the express written consent of PGH. The Customer’s statutory rights of withdrawal and termination remain unaffected.
(2) If the customer withdraws from the contract or cancels the order for reasons for which PGH is not responsible, PGH shall be entitled, at its discretion,
(1) to claim lump-sum compensation amounting to 15 per cent of the net order value, or
(2) instead of the lump sum, to claim the higher actual loss incurred, including loss of profit.
(3) The customer reserves the right to prove that no loss has been incurred at all or that it is substantially lower than the lump sum claimed under paragraph 2(a).
(4) Any advance payment already made by the customer shall be set off against the amounts due under paragraph 2.
§ 3 Price and Payment
(1) Price changes following the conclusion of the contract require a separate agreement. An indexation clause shall only apply if its conditions and calculation basis for the respective order have been expressly agreed. Agreed fixed prices shall remain binding for the agreed scope of services and period. Adjustments to remuneration for additionally agreed or amended services shall remain unaffected.
(2) Unless otherwise stated in the quotation or price lists, or unless otherwise agreed in writing between PGH and the customer, all prices quoted by PGH are on an EXW Bayreuth (Incoterms 2020) basis. Where PGH is prepared to deliver the plant or goods to other locations, the customer shall bear the costs of transport, packaging and insurance. Prices are generally exclusive of VAT, which the customer must pay to PGH in addition.
(3) Unless otherwise agreed, payment for the supply and installation of the plant shall be made to PGH without any deduction as follows: 30% deposit upon receipt of the order confirmation, 30% upon delivery, 30% upon installation and 10% upon final acceptance. Payment for any spare parts is due upon delivery, whilst payment for maintenance etc. is due upon completion of the service.
(4) The customer may set off undisputed or legally established claims. The right to set off against counter-claims arising from the same contractual relationship, as well as statutory rights to refuse performance and rights of retention, remain unaffected.
(5) If the purchaser fails to comply with the terms of payment, or if, after the conclusion of the contract, circumstances come to light which are likely to impair the purchaser’s creditworthiness and jeopardise PGH’s claim to consideration, or if PGH only becomes aware of such a deterioration after delivery, all claims shall become due immediately. PGH shall then be entitled to perform any outstanding services only against advance payment or the provision of security and, if the latter is not provided, to withdraw from the contract after the expiry of a reasonable grace period or to claim damages for non-performance.
§ 4 Interest on late payments and recovery costs
(1) In the event of late payment, the statutory interest on arrears shall apply. For claims for payment against businesses, the interest rate on arrears shall be nine percentage points above the base rate. PGH may claim the statutory flat-rate charge of EUR 40, provided the relevant conditions are met. Any statutory set-off against legal costs remains unaffected. PGH reserves the right to claim further damages arising from default.
§ 5 Delivery Time, Delay in Delivery
(1) The delivery time shall commence once the customer has made the advance payment. Otherwise, the delivery time shall be extended accordingly, provided that PGH is not responsible for the delay.
(2) Compliance with the delivery deadline is subject to correct and timely supply from PGH’s own suppliers. PGH shall notify the customer of any impending delays as soon as possible.
(3) The date relevant for compliance with the delivery period shall be determined in accordance with the agreed delivery terms. In the case of EXW, the decisive factor is the contractual provision of the goods at the designated location and notification thereof to the customer. For other delivery terms, the delivery date agreed in accordance therewith shall apply. A separately agreed acceptance date remains unaffected.
(4) If dispatch or acceptance of the plant is delayed for reasons for which the purchaser is responsible, the purchaser shall be charged for the costs incurred as a result of the delay, commencing one month after notification that the goods are ready for dispatch or acceptance.
(5) If PGH has guaranteed a specific delivery period or a specific delivery date, the customer must set PGH a reasonable grace period in writing if PGH is in default. Upon the fruitless expiry of this grace period, the customer may withdraw from the contract in respect of the plant which has not been notified as ready for dispatch by the expiry of the grace period. The customer may only withdraw from the entire contract if the partial performance already provided is of no interest to them. If the customer can credibly demonstrate that they have suffered loss as a result of the delay, they shall be entitled, to the exclusion of any further claims, to claim compensation for the delay. This shall amount to 1 per cent for each full week of delay, but in total not more than 5 per cent of the value of that part of the total delivery which, as a result of the delay, cannot be used in good time or in accordance with the contract. PGH shall be entitled to prove that no damage has been incurred at all or that it is substantially less. Any further claims by the customer shall be governed by paragraph 6. Statutory exceptions to the requirement for a grace period remain unaffected.
(6) Claims for damages by the customer arising from a delay in delivery, as well as claims for damages in lieu of performance, which go beyond the scope of paragraph (5), are excluded in all cases of delayed performance, even after the expiry of any deadline for performance set by PGH. This shall not apply where liability is mandatory on account of wilful misconduct, gross negligence or injury to life, limb or health. Nor shall this apply where PGH has breached a material contractual obligation.
(7) The customer may not reject partial deliveries unless acceptance of such deliveries cannot reasonably be expected of them.
(8) Events of force majeure entitle PGH to postpone the commencement of performance by the duration of the hindrance and a reasonable start-up period, or to withdraw from the contract in whole or in part in respect of the part not yet fulfilled. Strikes, lockouts, mobilisation, war, blockades, export and import bans, shortages of raw materials and fuel, fire, pandemics, traffic disruptions, operational or transport disruptions, and other circumstances for which PGH is not responsible shall be deemed to constitute force majeure, irrespective of whether they have occurred at PGH, the supplier or one of its subcontractors. The customer may require PGH to state whether it intends to withdraw from the contract or to fulfil its obligations within a reasonable period. If PGH fails to make such a statement, the customer may withdraw from the contract.
§ 6 Transfer of Risk, Acceptance
(1) In the case of deliveries, the transfer of risk shall be governed by the agreed terms of delivery; in all other respects, it shall be governed by the statutory provisions. Where acceptance is required for a contract for work and services, the transfer of risk for such work shall be governed by the statutory rules on acceptance. Agreed acceptance dates shall remain applicable. Acceptance may not be refused on account of minor defects.
(2) Partial acceptance shall take place where agreed for self-contained parts of the work that are ready for acceptance. The mere acceptance of goods or the confirmation of a delivery or installation status does not, in itself, constitute acceptance of the entire system.
(3) If the customer is in default of acceptance, the transfer of risk and PGH’s claims for compensation shall be governed by the statutory provisions. At the customer’s request, PGH shall take out available transport or storage insurance at the customer’s expense; the scope and costs must be agreed upon prior to taking out the insurance.
(4) If the customer accepts a defective work performance whilst being aware of the defect, the consequences of failing to reserve their rights in respect of defects shall be governed by Section 640(3) of the German Civil Code (BGB).
(5) Partial deliveries are permitted, provided they are reasonable for the customer.
§ 7 Transport, Packaging, Default of Acceptance
(1) The Purchaser must immediately report any obvious transport damage to the carrier and notify PGH.
(2) Packaging shall be charged separately, unless it is already included in the agreed price. Statutory obligations to take back goods remain unaffected.
(3) In the event of a delay in acceptance by the Purchaser, PGH may store the goods. Reimbursement of any necessary additional costs and the transfer of risk shall be governed by the statutory provisions.
§ 8 Retention of Title
(1) Title to the plant shall be retained until full payment of all claims against the purchaser arising from the business relationship, irrespective of the legal basis. This shall apply in particular even where payments are made in respect of specifically designated claims.
(2) The purchaser is entitled to resell, treat or process the plant in the ordinary course of business on its normal terms and conditions, provided that it is not in default. Pledging or transfer by way of security is not permitted. The purchaser may only resell the plant if the claim arising from the resale is assigned to PGH to the extent specified below. The purchaser hereby assigns in advance, by way of security, all claims arising from the resale in full; PGH accepts the assignment. The purchaser is not authorised to dispose of the equipment in any other way.
(3) The purchaser is entitled to collect the claims assigned to PGH until such time as this authorisation is revoked or, provided the purchaser is not in default towards PGH. PGH is entitled, where there is good cause – in particular where claims against the purchaser become due – to revoke the authorisation to collect the receivables and the authorisation to sell the plant. Furthermore, PGH is authorised to demand the return of the plant without the purchaser being entitled to a right of retention and without PGH thereby withdrawing from the contract. PGH may also notify the third-party debtor of the assignment; in doing so, the customer must provide PGH with the relevant documents and supply the necessary information.
(4) PGH is entitled to insure the equipment against theft, breakage, fire, water damage and other damage at the customer’s expense, unless the customer can provide evidence that they have taken out the insurance themselves.
§ 9 Assignment of Insurance Proceeds
(1) The customer assigns to PGH his claims against insurers arising from the loss, damage or destruction of the plant subject to retention of title, to the extent of the outstanding claims. PGH accepts the assignment.
§ 10 Warranty – Material and Legal Defects
(1) Any parts of the plant or services which, within the limitation period – irrespective of the duration of use – prove to be defective, provided that the cause of the defect already existed at the time of the transfer of risk, shall, at PGH’s discretion, be repaired, replaced or re-performed free of charge.
(2) Unless otherwise agreed, claims arising from material defects and defects of title shall become time-barred twelve months after the statutory commencement of the limitation period. This reduction in the limitation period shall not apply to claims under Section 438(1)(1) and (2) and Section 634a(1)(2) of the German Civil Code (BGB), to mandatory statutory rights of recourse, or to other mandatory longer limitation periods. Furthermore, it shall not apply in cases of wilful misconduct or gross negligence, in the event of injury to life, limb or health, in the event of fraudulent concealment of a defect, or in the case of claims arising from a guarantee given. In such cases, the statutory provisions or the terms of the guarantee shall apply. The statutory provisions regarding the suspension of the limitation period, its interruption and the recommencement of the limitation period remain unaffected.
(3) If the customer is a trader, the obligations to inspect and give notice of defects set out in Section 377 of the German Commercial Code (HGB) shall apply. In all other respects, the customer must notify PGH of any defects in writing immediately upon their discovery. The customer bears the burden of proof regarding the existence of a defect and the time at which the defect was notified; in all other respects, the statutory rules on the burden of proof remain unaffected.
(4) The purchaser must provide PGH with the facilities necessary for inspection and subsequent performance. If the purchaser culpably fails to fulfil these obligations to cooperate, PGH may refuse to carry out subsequent performance until such cooperation has been provided, and may demand compensation for the additional costs incurred as a result.
(5) If the rectification fails, is unreasonable, is refused by PGH, or if a case under Sections 281(2) or 323(2) of the German Civil Code (BGB) applies, the customer may, without prejudice to any claims for damages under Section 11, reduce the remuneration or withdraw from the contract in accordance with the statutory provisions.
(6) PGH shall be obliged to bear the costs necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, provided that these are not increased by the fact that the installed plant, following delivery in accordance with the contract, was moved to a location other than the agreed installation or operating site and such movement does not correspond to the contractual use.
(7) Claims for defects shall not arise in the case of natural wear and tear or damage occurring after the transfer of risk as a result of faulty or negligent handling, excessive strain, unsuitable operating materials, unsuitable ground conditions, or damage arising from particular external influences not provided for in the contract. In the event of improper modifications or repair work carried out by the customer or by third parties, claims for defects shall be excluded only to the extent that the defect is attributable to such modifications or repair work.
(8) If faults are identified during a joint handover in the context of the development of a new plant, such faults shall be rectified immediately, insofar as they are attributable to faulty planning or design on the part of PGH. If it transpires that the defects are due to incorrect specifications provided by the customer, or if the technical and actual circumstances in the customer’s operations have changed, or if these circumstances were not apparent at the time the contract was concluded, PGH shall be free to carry out rectification or to make a corresponding amendment and extension to the contract. If PGH justifiably refuses to rectify the defects, the principal contractual obligations shall remain unaffected. In all other respects, the customer’s rights shall be governed by the statutory provisions.
(9) If the use of the plant results in an infringement of industrial property rights or copyright in the country of use agreed in the contract, PGH shall endeavour, at its own expense, in principle to secure for the customer the right to continue using the plant or to modify the plant in a manner reasonable for the customer so that the infringement of property rights no longer exists. If this is not possible on economically reasonable terms or within a reasonable period, the Customer may withdraw from the contract. Under the aforementioned conditions, PGH shall also be entitled to withdraw from the contract. Furthermore, PGH shall indemnify the Customer against any undisputed or legally established claims by the relevant intellectual property rights holders.
(10) Subject to Section 11, the obligations of PGH set out in paragraph 9 are exhaustive in the event of an infringement of industrial property rights or copyright. They shall apply only if
(1) the Customer notifies PGH without delay of any alleged infringements of industrial property rights or copyright,
(2) the Customer assists PGH to a reasonable extent in defending against the asserted claims or enables PGH to implement the modification measures in accordance with paragraph 9,
(3) PGH reserves the right to take all defensive measures, including out-of-court settlements,
(4) the legal defect is not attributable to instructions from the Customer, and
(5) the infringement was not caused by the Customer having modified the equipment without authorisation or having used it in a manner not in accordance with the contract.
§ 11 Liability, Withdrawal
(1) PGH shall be liable in cases of wilful misconduct and gross negligence in accordance with the statutory provisions. This also applies to the conduct of its legal representatives and vicarious agents.
(2) In cases of simple negligence, PGH shall be liable for the breach of material contractual obligations. Material contractual obligations are those the fulfilment of which is essential for the proper performance of the contract and on the observance of which the purchaser may reasonably rely.
(3) Liability under paragraph 2 shall be limited to the damage typical of the contract and foreseeable at the time the contract was concluded.
(4) In all other respects, liability for simple negligence is excluded, unless otherwise provided for in paragraph 6.
(5) The statutory provisions apply to the limitation period for claims for damages. In the case of claims arising from defects, Section 10(2), including its exceptions, must be observed.
(6) The limitations of liability set out in this paragraph shall not apply in the event of injury to life, limb or health, in the event of fraudulent concealment of a defect, or to the extent of any guarantee given. Mandatory liability under the Product Liability Act and other mandatory statutory provisions remains unaffected.
(7) The purchaser’s statutory rights of withdrawal and termination remain unaffected. Section 10(5) applies in addition to rights arising from defects.
§ 12 Sector-Specific Limitations of Liability
(1) PGH shall be liable for damage to stored goods resulting from power cuts, voltage fluctuations, use not in accordance with the contract, defective maintenance or interference by third parties in accordance with § 11, insofar as PGH is responsible for a breach of duty that caused such damage.
(2) PGH’s liability for damage in connection with on-site installations shall be governed by Section 11. PGH’s own contractual obligations regarding inspection, planning and provision of information remain unaffected.
(3) The exceptions to the limitations of liability under Section 11(6) shall also apply to this section.
Section 13 Place of Performance, Jurisdiction, Applicable Law
(1) Unless otherwise specified in the agreement or arising from the nature of the service to be provided, the place of performance shall be Bayreuth. Agreed places of delivery, assembly and use remain unaffected.
(2) The contract shall be governed by the law of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Mandatory statutory provisions remain unaffected.
(3) In the case of merchants and contractual partners who do not have a general place of jurisdiction in the Federal Republic of Germany, it is hereby agreed that the place of jurisdiction for all legal disputes arising from the contractual relationship shall be Bayreuth. PGH is also entitled to bring proceedings against the purchaser at the purchaser’s general place of jurisdiction.
(4) Any assignment by the purchaser of rights arising from this contract shall require the prior written consent of PGH to be valid.
(5) The export of the plant supplied by PGH, in particular beyond the borders of the country into which PGH has delivered the plant, is only permitted with the prior written consent of PGH.
(6) Should any individual provisions of these General Terms and Conditions be or become invalid in whole or in part, the remainder of the contract shall remain valid in accordance with Section 306 of the German Civil Code (BGB). The invalid provisions shall be replaced by the relevant statutory provisions.
