AGB B2B engl.
PUKY GmbH & Co. KG General Terms and Conditions B2B 1.3. of 01/08/2016
A: General Terms of Business and Delivery for businesses.
B: Information required for electronic business transactions (order process, etc.)
A: General Terms of Business and Delivery of PUKY GmbH & Co. KG for use exclusively with businesses.
Version of 08/2016
§ 1 Scope of validity
(1) These terms and conditions of PUKY GmbH & Co. KG, Fortunastraße 11, 42489 Wülfrath (hereinafter: "Seller") apply, with the exception of paragraph (2), to all deliveries and services provided by the Seller to businesses as governed by § 14 of the German Civil Code, accordingly to any natural person or corporate entity or incorporated partnership which, at the time a legal transaction is concluded, is exercising its commercial or independent professional activity.
(2) For sales, deliveries and services to private and commercial consumers, a different set of General Terms and Conditions shall apply, of which the aforementioned clientèle shall be informed separately.
(3) The terms and conditions of the customer are hereby excluded, unless the parties have expressly agreed to the contrary.
§ 2 - Conclusion of contract and right to withhold delivery
(1) The Seller's offers are non-binding. They are merely an invitation to the customer to place a binding order with the Seller. Such an order can be submitted by the customer in writing (e.g. by fax or email), by phone or through the Dealer Online Shop, which requires registration. The Seller shall accept the contract within 14 days with an explicit statement of acceptance or by dispatching the goods.
(2) This is conditional upon the Seller receiving correct and timely delivery based on a congruent hedging transaction. The Seller shall notify the customer of the non-availability of the goods supplied under this contract and immediately reimburse the payment provided in case of a cancellation of contract.
(3) The Seller reserves the right to make design changes, as well as other changes to technical data and performance characteristics, provided that they represent a technological improvement and are acceptable to the customer.
§ 3 - Prices / price modifications
(1) Unless agreed otherwise in writing, all prices are given as "ex works" and are subject to the legally applicable Value Added Tax. If the goods are shipped upon the customer's request, unless agreed otherwise in writing, the prices are subject to shipping fees, based on the Seller's price list applicable at the time the contract is concluded.
(2) The Seller reserves the right to modify the agreed selling price after the Purchase Contract has been concluded in case of unforeseeable changes in production costs which occurred at a later point, e.g. changes in the cost of labour or materials or changes in market-based purchase prices and/or transport costs,as well as in case of changes in or the new addition of taxes, fees, contributions, special levies, as appropriate in accordance with cost development. The Seller shall only retain this right as long as more than 2 months remain between the time the contract is concluded and the agreed delivery date. The customer must be notified in good time of any such change in price.
(3) In case of a price increase as per paragraph (2), the customer is only entitled to cancel the contract if the price increase is in excess of 5 percent of the purchase price stipulated in the order.
§ 4 - Terms of payment
Unless agreed otherwise in writing, the purchase price must be paid within 8 days of invoicing with a 2 percent discount or within 30 days from the invoice date, net (without discount). Payment delays are subject to statutory provisions.
§ 5 - Delivery
(1) Delivery dates given are non-binding, unless, in the case of an exception, a delivery date has been indicated as binding.
(2) Unless agreed otherwise in writing, delivery is "ex works". If shipping is agreed, it shall be implemented at the expense and risk of the customer.
(3) If the Seller is unable to keep the agreed delivery date, they must inform the customer accordingly in good time. Disruptions of the Seller's business operations or suppliers which are outside of the Seller's control, particularly strikes and legitimate lockouts, as well as cases of force majeure, shall extend the delivery period in proportion to the duration of the disruption. In such cases, the customer is only entitled to cancel the contract if they send a reminder of the agreed services after the delivery date has passed and set an additional deadline as appropriate, and if this new deadline also expires with no result. If the delivery time is determined by calendar date, the appropriate new delivery time to be set by the customer begins after this date. This does not affect the legal right to damages instead of the services.
(4) Partial shipments are allowed, provided they are acceptable to the client.
§ 6 - Cancellation of orders
(1) If, based on a reason for which the Seller is not responsible, the parties agree to cancel an existing purchase contract or parts thereof and reverse any services already rendered, the Seller reserves the right to retain or request 30 percent of the contractual net purchase price of the affected work or goods as compensation.
(2) The customer reserves the right to prove that the Seller has incurred little or no damage.
(3) This does not affect the right of the Seller to claim greater damages.
§ 7 - Offsetting / reticence
(1) The customer may only make claims which are undisputed or established with legal effect.
(2) The customer is only permitted to invoke a right of retention if their counter-claim is based on the same contractual relationship.
§ 8 - Retention of title
(1) The item of delivery, including any free extras ("rebates in kind"), shall remain the property of the Seller until the customer has fulfilled of all of their obligations in conjunction with the business relationship. Should the customer act in violation of the contract, the Seller is entitled to recall the goods subject to retention of title. The recall shall not constitute a cancellation of contract, unless this is explicitly stated by the Seller.
(2) The customer is entitled to resell the goods subject to retention of title in the normal course of business. In the event that the goods are sold, the customer thereby also transfers to the Seller as security their claim against the purchaser arising from the resale, including all ancillary rights, without any further special declarations being necessary. The transfer includes any claims for the balance. However, the transfer only applies in the amount of the sum that corresponds to the price of the goods invoiced by the Seller. The customer shall retain the right to collect the receivables even after the transfer. This does not affect the Seller's right to collect the receivables themselves. The Seller shall to refrain, however, from making collection as long as the customer applies the proceeds from the sale to meet their payment obligations, is not in arrears and has not suspended payment.
(3) The treatment and processing of the goods is always undertaken by the customer in the name of and on behalf of the Seller. In this case, the customer's expectant right to the processed goods shall also apply to the treated or processed goods subject to retention of title. Insofar as the goods subject to retention of title are not processed together with other goods not belonging to the Seller, the Seller shall acquire co-ownership of the new item based on the ratio of the final invoice amount for the goods subject to retention of title to the other processed items at the time of processing. The same applies in the case of amalgamation. As long as the amalgamation takes place in such a way that the customer's item is considered the main item, it is agreed that the customer shall regularly transfer co-ownership to the Seller and shall reserve resulting sole ownership or co-ownership for the Seller.
(4) As long as the property has not yet been transferred, the customer is obligated to immediately inform the Seller in writing should the supplied goods be seized or subjected to other interventions by third parties. The customer is obligated to provide the Seller with all information and documents necessary for a third-party motion to vacate in accordance with § 771 ZPO (German code of civil procedure).
(5) The Seller undertakes to release the collateral to which they are entitled at the request of the customer, insofar as its value exceeds the claims to be secured by more than 20 percent.
§ 9 - Liability (for defects) / obligation to give notice of defects
(1) The warranty period for defects in new goods is one year from the time of delivery. The limitation period does not start over if a spare was supplied under liability for defects. The statutory period of limitation for the right of recourse in accordance with § 478 of the German Civil Code shall remain unaffected by this. The same applies to any intentional breach of duties and fraudulent concealment of a defect. Additionally, in accordance with paragraph (4) below, these limits of liability shall not cover claims for damages or compensation of expenses which the customer is entitled to make due to a defect as defined in paragraph (4).
(2) The customer is obligated to inspect the goods received for quality and quantity deviations without delay and with adequate care and to immediately notify the Seller of any apparent defects. In case the goods are shipped, the customer must immediately make a complaint to the Seller on the delivery note of any external damage to the packaging or quantity deviations (number of boxes). If the aforementioned obligation to inspect and notify of defects is not kept, the goods shall be considered approved with regard to apparent defects. This does not affect the commercial obligations to inspect and notify of defects as defined in § 377 of the German Commercial Code.
(3) Provided that claims for defects are made on time, the Seller shall either rectify the defects or replace the defective goods, at their option. If the rectification should fail twice, the customer can withdraw from the contract or reduce the remuneration amount.
(4) In case of a loss of life, bodily injury or damage to health, the Seller has unlimited liability for culpable breach of duties. Limits on the Seller's liability for defects also shall not apply in case of fraud and in case a guarantee has been made relating to quality or if the liability is based on compulsory legal requirements such as the product liability law.
(5) Claims for damages on the part of the customer in case of a purely negligent breach of duties by the Seller or one of their vicarious agents is limited to the damages typically foreseeable at the time of conclusion of the contract, except in such cases as are defined in paragraph (4).
(6) These provisions shall not lead to a change in the burden of proof to the customer's disadvantage.
(7) The relevant legal provisions shall also apply.
§ 10 - Final clauses
(1) This document shall be construed under the laws of the Federal Republic of Germany.
(2) In case of doubt, the German version of the General Terms of Business and Delivery shall prevail.
(3) If the customer is a dealer, legal person under public law or public separate estate, the exclusive place of arbitration for all disputes arising from this contract shall be the Seller's registered office. The same shall apply if the customer has no general place of arbitration in Germany or the EU or if their registered office or usual domicile is unknown at the time the suit is filed.
(4) The provisions of the CISG shall not apply.
B: Required information in electronic business transactions
1. Order process
The Seller's B2B online shop can only be accessed after a customer has been registered and cleared by the Seller. Existing customers are registered using the registration form provided by the Seller.
After the customer has logged on in the "shop area" by entering their username and password, the customer can start their order. This is done by clicking the "shopping cart" icon. For spare parts orders, the icon is clicked after inputting the spare part number and the quantity. For other products, after inputting the quantity for the desired product. The customer can access their personal shopping cart at any time using the menu item "To the shopping cart" in the upper menu bar.
Once the customer has added the products they wish to order to their personal shopping cart, they are then able to modify the order quantity for each product by indicating the desired quantity and confirming with the "update" button. They are also able to delete a product from the shopping cart by clicking the "recycle bin" behind the product.
The customer can continue with their order by clicking "continue". The customer's billing address which is then displayed is assigned during registration and can only be modified by the Seller.
The customer can make corrections to the delivery address using the "modify" button in the input form which follows. Only delivery addresses which have been stored and verified by the Seller can be selected. The customer provides a binding order confirmation for the products in the shopping cart by clicking the "Buy" button.
2. Contract languages
The languages of contract are German, English, French, Dutch, Polish and Danish.
3. Contract storage
The contract text will not be stored by the Seller after conclusion of contract. It is therefore up to the Purchaser to permanently safeguard the offer (e.g. using screenshots).