General Terms and Conditions

Preliminary Remark:

If any provision is held to be invalid, the remaining provisions shall remain in full force and effect. If the purchaser is an entrepreneur, a corporate body under public law or a public separate estate, terms and conditions of the purchaser that conflict with, deviate from or supplement our General Terms and Conditions shall only be incorporated in an agreement if and as far as we have expressly consented to such in writing. Our General Terms and Conditions shall apply even if we carry out a delivery in the knowledge of conflicting or differing provisions on the part of the purchaser. Deviations from the provisions of our General Terms and Conditions must be established in writing; this also applies to the abrogation of the requirement for the written form.

2. Shipping 

(1) If shipment is required, the ordered goods shall be shipped from the registered offices of PARI GmbH at the expense and risk of the purchaser. Except where provided otherwise in separate agreements, PARI GmbH shall be at liberty to select the transport company and the means of transport. In this case also, the risk is transferred to the purchaser with delivery of the goods into the keeping of the carrier even if delivery on a carriage paid basis has been agreed.

(2) If shipping is delayed due to circumstances for which the purchaser is responsible, the risk shall be transferred to the purchaser at the time the goods are ready for shipment. The costs arising from the delay (particularly warehousing charges) shall be borne by the purchaser.

(3) PARI GmbH is under no obligation to insure or to have the consignment insured against damage in transit unless PARI GmbH has agreed to assume this obligation in writing.

 

 3. Liability for Defective Products

(1) If the purchaser is not an entrepreneur, a corporate body under public law or a public separate estate, it is obliged to examine the delivered goods for evident defects as soon as they are received, and to inform PARI GmbH of such defects in writing promptly, and at all events within a period of two weeks following receipt. Evident defects that are reported after this period, and therewith in breach of the above obligation, will not be considered by PARI GmbH and are excluded from any warranty.

(2) Non-evident defects which only come to light after a period of time must be reported to PARI GmbH immediately by the purchaser.

(3) If it is necessary to return goods to PARI GmbH as a result of a defect, such return requires the prior consent of PARI GmbH. PARI GmbH shall not be obliged to accept goods that are returned without its prior consent. In this case, the purchaser shall bear the costs of the return shipment.

(4) In the event that a justified complaint of defect entails subsequent performance in the form of a repeat delivery, the provisions regarding the delivery schedule shall apply correspondingly. If the defect is to be corrected by remediation, PARI GmbH must be granted a period of at least three weeks in which to fulfil its obligation.

(5) The existence of a defect entitles the purchaser to the following:

(a) In the event of a defect, the purchaser shall initially be entitled to require subsequent performance on the part of PARI GmbH. The decision whether to replace the goods or to remediate the defect shall be made by PARI GmbH at its sole discretion.

(b) Moreover, if an attempt at subsequent performance should fail, PARI GmbH shall be entitled to make a further attempt at subsequent performance, again at its own discretion with regard to the nature of such, within a reasonable period. The purchaser shall have the right to withdraw from the contract or receive a reduced purchase price only after the second attempt at subsequent performance has failed.

(c) The purchaser shall not be entitled to demand damages or reimbursement for futile expenditure except in the case of grossly negligent or deliberate violation of the duty to deliver. It must provide evidence of its losses with respect to the cause and amount. The same applies for futile expenditure.

(6) In the case of purchasers who are not an entrepreneur, a corporate body under public law or a public separate estate, the warranty shall remain in force for a period of two years for new goods, and one year for used goods, from the date of the passing of risk. After a period of six months, the purchaser must prove that the deficiency already existed at the time of the passing of risk.

 

(7) If the purchaser is an entrepreneur, a corporate body under public law, or a public separate estate, the following shall apply:

(a) The purchaser is obliged to examine the delivered goods immediately upon receipt, and to report any observed defects to PARI GmbH promptly in writing (no later than two business days after the delivery is received). Defects that are reported after this period, and therewith in breach of the above obligation, will not be considered by PARI GmbH and are excluded from any warranty. Notifications of defects will only be recognised as such by PARI GmbH if they have been made in writing. Complaints addressed to field representatives or shipping agents or other third parties will not be deemed to have been made in due and proper order.

(b) The warranty period for new and used goods shall extend for one year from the date of the passing of risk. At all events, it is the responsibility of the purchaser to prove that the deficiency was already present at the passing of ri

 

4. Other Liability for Breach of Duty by PARI GmbH

Without prejudice to the provisions regarding warranty and other special provisions stipulated in these General Terms and Conditions, the following applies in the event of breach of duty on the part of PARI GmbH:

(1) The purchaser must allow PARI GmbH a reasonable cure period of not less than three weeks to correct such breach of duty. The purchaser shall only be entitled to withdraw from the contract and/or request damages after this cure period has elapsed without a satisfactory result.

(2) The purchaser may only claim damages in cases of gross negligence or intentional breach of obligations on the part of PARI GmbH. Under no circumstances shall the amount of damages exceed the amount of the purchase price. This shall not apply in the event of bodily injury or harm to the health, or in the event of violation of major contractual obligations which jeopardises the purpose of the contract. 

 

5. Exclusion of Procurement Risk and Guarantees

(1) PARI GmbH shall accept no procurement risk of any kind for items that have been ordered and cannot be delivered immediately. Implied guarantees shall be excluded unless an explicit, written agreement to this effect is signed with the purchaser.

(2) PARI GmbH expressly reserves the right to deliver items that differ from the items ordered, particularly in terms of materials and construction, within the scope of technical improvement. 

 

6. Payment Terms

(1) Bills of exchange will only be accepted on account of payment if such is agreed in writing beforehand. Discounting fees will be calculated by PARI GmbH starting from the due date of the receivable regardless of the time when the bill is accepted. PARI GmbH shall accept no liability for timely collection or timely protest.

(2) If bills of exchange or cheques are not credited by the payer in due time, all other outstanding receivables by PARI GmbH with respect to the purchaser shall become payable at the same time. All other payment terms shall be superseded. The same shall apply if a payment for a receivable is not received by the due date.

(3) Withholding of payment or offsetting in respect of any existing counterclaims on the part of the purchaser is not permitted except in the case of undisputed or legally awarded claims.

(4) All receivables by PARI GmbH from the customer, regardless from which legal relationship such receivables are resulting, shall become due for payment immediately if circumstances arise that would entitle PARI GmbH to withdraw from the contract according to the provisions of applicable law or contractual provisions.

7. Retention of Title

 (1) All goods delivered by PARI GmbH shall remain the property thereof until full payment of the purchase price has been received and all receivables arising from the business relationship have been discharged in full (overall retention of title). Purchasers that are not entrepreneurs, corporate 

bodies under public law or public separate estates shall not be entitled to dispose of any goods subject to retention of title (for example by sale, pledging, transfer of ownership by assignment, donation, cession).

(2) If the purchaser has disposed of the purchase item contrary to the contract, the purchase price that has been or is to be paid, or other benefits received or to be received from the transferee shall stand in lieu of the goods. The purchaser herewith assigns all claims in respect of any receivables associated with such sale to PARI GmbH. The purchaser is not authorised to collect this payment. Within the terms of this assignment, the purchaser must cooperate in the disclosure of the assignment to the purchaser and cause the purchaser to make payment or provide services to PARI GmbH. In view of the provision for extended retention of title (assignment in advance of the payable purchase price), assignment to third parties, particularly financial institutions is contrary to the contract, and thus not permitted. PARI GmbH shall be entitled to review the purchaser‘s sales documentation at any time and to inform its clients of the assignment.

(3) If the goods in the purchaser‘s possession become the subject of distraint, information thereof must be sent to PARI GmbH immediately together with a copy of (i) the execution report; and (ii) a statutory declaration to the effect that the distrained goods are goods that have been delivered by PARI GmbH and are the subject of retained title.

(4) Assertion of the rights of PARI GmbH in association with its retention of title does not exonerate the purchaser of its contractual obligations. The value of the goods at the time of return will only be balanced with the existing amount due for payment by the customer to PARI GmbH.

(5) If the purchaser is an entrepreneur, a corporate body under public law, or a public separate estate, the following shall also apply:

Any kind of disposal of goods to which PARI GmbH retains title by the purchaser is only permitted within the scope of the purchaser‘s ordinary course of business. However, in no case shall the goods be assigned to third parties as collateral within the scope of the purchaser‘s ordinary course of business.

If the goods are sold within the scope of the purchaser‘s ordinary course of business, the purchase price paid shall stand in lieu of the goods. The purchaser herewith assigns all claims in respect of receivables associated with any sale to PARI GmbH. The purchaser is authorised to collect this payment, provided it continues to discharge its payment obligations towards PARI GmbH. In view of the provision for extended retention of title (assignment in advance of the payable purchase price), assignment to third parties, particularly financial institutions is contrary to the contract, and thus not permitted. PARI GmbH shall be entitled to review the purchaser‘s sales documentation at any time and to inform its clients of the assignment. If the amount receivable by the purchaser from the resale has been deposited in an open account, the purchaser herewith also assigns the receivable deposited to the open account by its client to PARI GmbH. The assignment shall be made in the amount of the sum PARI GmbH had charged the purchaser for the resold goods that are subject to retention of title. If the value of the securities as defined in the preceding paragraphs exceeds the amount of the unpaid receivables secured thereby by more than 20% not only for a short term, the purchaser shall be entitled to require PARI GmbH to release securities in an amount corresponding to the amount of the excess.

 

8. Right of Withdrawal by PARI GmbH

PARI GmbH shall be entitled to withdraw from the contract for any of the following reasons:

(1) If it is revealed that, contrary to assumptions made before the contract was concluded, the purchaser is not creditworthy. Lack of creditworthiness may be assumed immediately if a bill of exchange or cheque is protested, if the purchaser ceases making payments, or if an attempt to levy execution with the purchaser is unsuccessful. It is not necessary for such activities to be associated with the business relations between PARI GmbH and purchaser.

(2) If it is revealed that the purchaser has made false representations regarding its creditworthiness and these misrepresentations have material impact.

(3) If the goods to which PARI GmbH retains title are transferred outside of the purchaser‘s ordinary course of business, particularly by way of security or pledging. 

9. Applicable Law, Place of Performance, Legal Venue 

 

 

PARI GmbH · Moosstrasse 3 · D-82319 Starnberg 
Phone +49 (0) 8151/279-0 · Fax +49 (0) 8151/279-101 · www.pari.de