Terms and Conditions of PGH Ingenieure GmbH

§ 1 General information

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 referred to as ‘PGH’) and contractors, as well as legal entities governed by public law or special funds under public law (hereinafter referred to as the ‘Customer’). Business relationships include 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. Unless otherwise agreed, a contract is concluded upon receipt of PGH’s written order confirmation. Verbal agreements are only binding on PGH if they are confirmed in writing.
3. PGH reserves all ownership and copyright rights to samples, quotations, drawings and similar information, whether tangible or intangible – including in electronic form. Such information must not be made available to third parties.
4. PGH reserves the right to amend any product descriptions with regard to specifications to the extent necessary to comply with legal requirements, provided that such amendments do not result in any deterioration in the quality or suitability of the order. PGH also expressly reserves the right to make changes designed to improve the technical performance of the products. Minor changes, particularly in the event of rectification or replacement (e.g. tolerances, deviations in colour and quality), are permitted.

§ 2 Price and payment

1. PGH reserves the right, following timely notification to the customer and prior to delivery of the plant or goods, to adjust the price as required due to general price trends beyond its control (e.g. exchange rate fluctuations, currency regulations, changes in customs duties, significant increases in material or manufacturing costs) or due to changes on the part of suppliers.
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 (EX WORKS – 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 delivery and installation of the equipment shall be made to PGH without any deductions as follows: 30% deposit upon receipt of the order confirmation, 30% upon delivery, 30% upon completion of installation and 10% upon final acceptance. Payment for any spare parts is to be made upon delivery, and payment for maintenance etc. upon completion of the work.
4. The customer may withhold payment or set off such payment against counterclaims only if their counterclaims are undisputed or have been established by a final and binding court decision.
5. All claims arising from the entire business relationship shall become due immediately if the customer defaults on payment, in whole or in part.
6. If the customer 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 customer’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.

§ 3 Delivery time, delivery delay

1. The delivery time is determined by the agreements between the contracting parties. PGH’s compliance with the delivery time is subject to all commercial and technical matters between the contracting parties having been clarified and the customer having fulfilled all obligations incumbent upon them (e.g. submission of the necessary official certificates and approvals, payment of the deposit). 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 our own suppliers. PGH shall notify the customer of any impending delays as soon as possible.
3.  The delivery period shall be deemed to have been met if PGH has notified the customer that the goods are ready for dispatch by the end of the period. Where acceptance is required, the date of acceptance shall be decisive – unless acceptance is justifiably refused – or, alternatively, the notification that the goods are ready for acceptance.
4. If dispatch or acceptance of the plant is delayed for reasons for which the customer is responsible, the costs incurred as a result of the delay shall be charged to the customer, 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 of at least three weeks in writing if PGH is in default. Upon the fruitless expiry of this period, the customer may withdraw from the contract in respect of the plant not reported 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 damage as a result of the delay, they shall be entitled, to the exclusion of further claims, to claim compensation for the delay. This shall amount to 1% for each full week of delay, but in total not exceeding 5% of the value of that part of the total delivery which, as a result of the delay, cannot be used in time or in accordance with the contract.
6. Any 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 insofar as liability is mandatory due to intent, gross negligence or injury to life, limb or health. Nor shall this apply if PGH has breached a material contractual obligation.
7. The Customer may not reject partial deliveries unless acceptance of such partial deliveries is unreasonable.
8. Events of force majeure entitle PGH to postpone the commencement of performance for 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 unfulfilled part. 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 upstream supplier or one of its subcontractors. The customer may demand that PGH declare whether it is withdrawing from the contract or will perform within a reasonable period. If PGH fails to make such a declaration, the customer may withdraw from the contract.

§ 4 Transfer of risk, acceptance

1. Risk shall pass to the customer once the plant has been brought into the customer’s premises, even where partial deliveries are made or PGH has assumed other obligations, such as shipping costs or delivery and installation. Where acceptance is required, this shall determine the point at which risk passes. It must take place without delay on the acceptance date, or alternatively following notification by PGH that the system is ready for acceptance. The customer may not refuse acceptance in the event of a non-material defect.
2.  Upon request, self-contained parts of the service must be accepted separately. This includes, amongst other things, the delivery or partial delivery of the system, completion of installation and commissioning.
3. If the installation of the plant in the area of risk or the acceptance is delayed or fails to take place due to circumstances for which PGH is not responsible, the risk shall pass to the customer from the date of notification of readiness for acceptance. PGH undertakes to take out, at the customer’s expense, the insurance policies required by the customer.
4. Upon acceptance, PGH’s liability for apparent defects shall lapse, unless the customer has reserved the right to claim for a specific defect.
5. Partial deliveries are permissible provided they are reasonable for the customer.

§ 5 Retention of title

1. Ownership of the equipment remains reserved until all claims against the purchaser arising from the business relationship have been paid in full, regardless of the legal basis. This applies in particular even where payments are made in respect of specifically identified claims.
2. The customer is entitled to resell, treat and process the equipment in the ordinary course of business on its normal terms and conditions, provided it is not in default. Pledging or transfer by way of security is not permitted. The customer may only resell the equipment if the claim arising from the resale is assigned to PGH to the extent specified below. The customer hereby assigns in full, by way of security, all claims arising from the resale in advance; PGH accepts the assignment. The customer is not authorised to make any other dispositions.
3. The customer is entitled to collect the claims assigned to PGH until such time as this is revoked or, provided the customer is not in default towards PGH. PGH shall be entitled, where there is good cause, in particular if claims against the Customer become due, to revoke the authorisation to collect and the authorisation to sell the plant. Furthermore, PGH shall be entitled to demand the return of the plant without the Customer 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 this regard, the Customer must provide PGH with the relevant documents and supply the necessary information.
4. PGH is entitled to insure the plant 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.

§ 6 Warranty – Material defects and defects of title

1. Any parts of the plant or services that prove to be defective within the limitation period – irrespective of the duration of operation – 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. Claims for material defects shall become time-barred after twelve months. Claims for defects of title shall also become time-barred after twelve months. This shall not apply where the law prescribes longer periods, nor in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty by PGH, or in the event of fraudulent concealment of a defect. The statutory provisions regarding the suspension, interruption and recommencement of limitation periods shall remain unaffected.
3. The Customer must notify PGH of defects in writing without delay; apparent defects must be reported no later than seven days after the defect is discovered. The Customer bears the full burden of proof for all prerequisites of the claim, in particular for the defect itself, for the time at which the defect was discovered and for the timely notification.
4. The Customer shall give PGH the opportunity to examine the reported defect and to satisfy itself of its existence. To this end, the Customer shall also provide PGH with the necessary working and spatial facilities. The Customer must grant PGH the opportunity to remedy the defect within a reasonable period. If the Customer fails to fulfil these obligations, all claims for defects shall lapse.
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 7, reduce the remuneration or withdraw from the contract in accordance with the statutory provisions.
6. PGH shall 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 system has been moved to a location other than the place of performance.
7. Claims for defects shall not arise in the event of only insignificant deviations or impairments from the agreed quality or fitness for purpose, in the event of natural wear and tear, or in the event of damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, unsuitable building ground or which arise due to special external influences not provided for in the contract. In the event of improper modifications or repair work carried out by the customer or third parties, claims for defects in respect of such work and the resulting consequences shall also be excluded.
8. If defects are identified during a joint handover in the context of the development of a new plant, such defects shall be rectified immediately, provided 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 contractual amendment and extension. If PGH refuses to rectify the defects, the customer remains obliged to accept and pay for the part originally ordered in accordance with the contract.
9. If the use of the plant results in an infringement of industrial property rights or copyright in Germany, PGH shall endeavour, at its own expense, 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 § 7, 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
    a) the customer notifies PGH without delay of any asserted infringements of industrial property rights or copyright,
    b) the customer supports PGH to a reasonable extent in defending against the asserted claims or enables PGH to implement the modification measures in accordance with paragraph 9,
    c) PGH reserves the right to take all defensive measures, including out-of-court settlements,
    d) the infringement is not attributable to instructions from the Customer, and
    e) the infringement was not caused by the Customer having modified the plant without authorisation or having used it in a manner not in accordance with the contract.

§ 7 Liability, withdrawal

1. PGH’s liability is governed exclusively by these terms and conditions. Any claims not expressly granted herein, including claims for damages and reimbursement of expenses by the customer, regardless of the legal basis, are excluded in the event of breaches
2. of non-essential obligations, provided that PGH, its legal representatives or vicarious agents are guilty of simple negligence. In the event of a breach of material contractual obligations, PGH shall also be liable for simple negligence.
3. PGH shall only be liable for gross negligence on the part of its senior executives or vicarious agents if material obligations have been breached.
4. Insofar as PGH, its legal representatives or senior executives are not accused of intent or gross negligence, PGH’s liability is limited to compensation for damage that was foreseeable at the time of conclusion of the contract or the breach of duty and which was beyond the customer’s control. These limitations of liability also apply in the event of gross negligence on the part of ordinary vicarious agents.
5. Insofar as PGH, its legal representatives or executive officers are not accused of intentional or grossly negligent conduct, claims for damages by the customer shall become time-barred within one year of their arising, subject to the provision in paragraph 5.
6. The above limitations of liability pursuant to paragraphs 1 to 4 shall not apply in the event of damage to life, limb or health. Furthermore, they shall not apply insofar as PGH has warranted or guaranteed the quality of the goods or has fraudulently concealed a defect. PGH’s liability under the Product Liability Act shall also remain unaffected.
7. With the exception of withdrawal due to a defect pursuant to Section 6(5), the customer is only entitled to withdraw from the contract in accordance with the statutory provisions in the event of a breach of duty for which PGH is responsible.

§ 8 Place of performance, jurisdiction, applicable law

1. The exclusive place of performance for the contracting parties is Bayreuth.
2. This contract is governed exclusively by the law of the Federal Republic of Germany. All other international regulations are excluded.
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 agreed that the place of jurisdiction for all legal disputes arising from the contractual relationship shall be Bayreuth. PGH is also entitled to bring legal proceedings against the customer at the customer’s general place of jurisdiction.
4. Any assignment of rights under this contract by the purchaser shall require the prior written consent of PGH to be valid.
5. 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 terms and conditions be or become invalid in whole or in part, the remaining provisions shall remain valid. The invalid provisions shall be replaced by provisions which most closely approximate the economic purpose of the contract whilst adequately safeguarding the interests of both parties.