General Terms and Conditions
General Terms and Conditions of Sale and Delivery
I. Scope of Application, General Terms
1. The following General Terms and Conditions of Sale and Delivery (GTC) apply exclusively to all deliveries and services of PYREG GmbH (PYREG) with its clients.
2. Deviating or conflicting General Terms and Conditions of the client only become part of the contract if and to the extent that PYREG has approved their application expressly and in writing.
3. These General Terms and Conditions, as well as the requirement of express consent mentioned above, also apply to all future business transactions between PYREG and the client, as well as in cases where PYREG without reservation performs a delivery or service to the client in the knowledge of deviating or conflicting general terms and conditions.
4. Individual agreements made with a client on a case-by-case basis (including subsidiary agreements, addendums, and amendments) take precedence over these GTC. Subject to evidence to the contrary, the content of such agreements is governed either by a contract or confirmation from PYREG in text form.
5. Material declarations and notifications, addressed to PYREG by the client to PYREG after conclusion of the contract (e.g., deadlines, notification of defects, declaration of revocation of contract or reduction of price) must always be made in writing in order to become legally valid.
6. References to the validity of statutory provisions are provided only for clarification. Generally, statutory provisions apply even in the absence of such clarification, unless they have been directly amended or expressly excluded by provisions of these GTC.
7. If PYREG is to provide further services, such as repair or maintenance, to the client, the corresponding general terms and conditions for these further services apply in addition and supersede these GTC.
II. Conclusion of Contract and Scope of Delivery and Service
1. All offers made by PYREG are non-binding and subject to change without notice unless they are expressly deemed binding or contain a fixed period of time for acceptance.
2. PYREG may accept orders or engagements within fourteen days of receipt, unless the respective offer explicitly provides otherwise.
3. Unless otherwise agreed, a contract is concluded either upon written confirmation of the order by PYREG or upon performance / execution of the order by PYREG. The scope of delivery and services are determined by the information provided by PYREG in the order confirmation.
4. Information provided by PYREG on the goods and performance (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as representations thereof (e.g. drawings and illustrations) are primarily for illustrative purposes only. Ordinary or insignificant deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts shall not constitute a material defect insofar as they do not impair the usability for the contractually intended purpose.
III. Prices and Terms of Payment
1. The prices for the scope of delivery and/or services specified in the order confirmations are, unless explicitly agreed otherwise, „ex works“ (EXW), Dörth, Germany, according to INCOTERMS 2020, including loading at the factory and standard packaging, but excluding transport, unloading, assembly and commissioning. Additional or special services will be charged separately.
2. The statutory value added tax (VAT) is not included in the prices; it will be added in the respective statutory amount on the day of billing and shown separately on the invoice.
3. Unless otherwise agreed, the invoice amount is to be paid within fourteen days after receipt of the corresponding invoice. The date of PYREG‘s receipt is decisive for the date of payment. The contract price is to be paid without deductions or charges to PYREG‘s bank account indicated in the invoice, or to the paying agent designated
4. Checks are only considered as payment after they have been tendered and the respective amount has been unconditionally credited to PYREG’s bank account.
5. In the event of delay in payment of the client, PYREG is entitled to charge the legal rate of interest on overdue payments. Further claims for damages remain unaffected. 6. The client is only entitled to offset payments in the case of counterclaims that are legally confirmed, undisputed, or recognized by PYREG.
7. The client can only exercise retention rights if the counterclaim is based on the same contractual relationship.
8. In the event of payment delays regarding any instalment of the client, PYREG reserves the right to interrupt work on the contractual services until the outstanding claims have been entirely settled.
9. PYREG is entitled to perform or render outstanding deliveries and/or services against advance payment or provision of security only if, after conclusion of the contract, it becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the client, and which may endanger payment of PYREG’s outstanding claims under the respective contractual relationship.
IV. Delivery Date, Delay in Delivery
1. Unless otherwise agreed, the delivery period results from the parties‘ contractual agreement as specified in the order confirmation.
2. PYREG’s compliance with the delivery obligation presupposes that all commercial and technical questions have been resolved, and that the client has fulfilled all of its obligations, such as providing the necessary official certificates or permits and/or punctual settlement of the agreed payments. If this is not the case, the delivery time shall be extended accordingly. Due to production-related processes and capacity planning, any delay of the client may result in a longer adjournment of the delivery date than the mere delay period.
3. No. 2 of this section does not apply if PYREG is responsible for the delay. PYREG shall inform its clients as soon as possible of any delays that become apparent.
4. Any agreed delivery date shall have been complied with, if the goods have been dispatched by its expiry, or if their readiness for dispatch has been communicated.
5. PYREG is not liable for impossibility of delivery, or for delays in delivery caused by force majeure or other events not foreseeable at the time of conclusion of the contract for which PYREG is not responsible (e.g., disruptions of operations of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, flooding, fire, epidemics, difficulties in procuring necessary official permits, official interventions, or the failure of suppliers to deliver correctly or on time).
6. If such events mentioned in No. 5 of this Section make it substantially more difficult or impossible for PYREG to deliver and/or perform, and if the impediment is not only temporary, PYREG may revoke the contract.
7. In the event of temporary impediments, the delivery or performance periods shall be extended or postponed by the period of the hindrance plus a reasonable run-up period. This also applies to impediments affecting subcontractors.
8. PYREG shall inform the client as soon as possible of the beginning and end of such impediments.
9. Insofar as the client, as a result of the delay, cannot reasonably be expected to accept the delivery or service, it may revoke the contract by immediate written declaration to PYREG. Upon PYREG’s request, the client is, within a reasonable period of time, obliged to declare whether it intends to revoke the contract due to the delay in delivery or whether intends to adhere to the agreed delivery.
10. Any event of default of PYREG shall be determined in accordance with the statutory provisions. In any case, any default requires a prior written reminder by the client. 11. In the event of default of acceptance or other culpable breaches of cooperation duties on the part of the client, PYREG is entitled to compensation for the resulting damage, including any additional expenditures. PYREG reserves the right to assert further claims.
12. If the dispatch or handover of the contractual goods is delayed for reasons for which the client is responsible, the client will be charged for the costs incurred as a result of the delay, starting one month after notification that the items are ready for dispatch/handover.
a. In particular, the client is obligated to pay a compensation fee for the storage and preservation of the contractual items as reimbursement of expenses.
b. The compensation fee amounts to 0.5% of the net invoice amount per commenced month, however, not more than 5% in total, unless the client can prove that PYREG has incurred no or substantially lower storage costs.
13. The client may revoke the contract without fixation of a period of time if, prior to the passing of risk, the entire performance becomes finally and definitively impossible for PYREG.
14. The client may also revoke the contract if the performance of an order becomes partially impossible and the client has a justified interest in refusing a partial delivery. 15. If this is not the case, the client is obligated to pay the contract price corresponding to the partial delivery.
16. The provisions of No. 14 to 16 of this Section apply accordingly in the event of PYREG’s inability to perform.
17. Section VIII. applies in all other respects.
18. If the impossibility or inability to perform occurs during the client’s default of acceptance, or if the client is solely or predominantly responsible for these circumstances, the client remains obliged to perform its duties.
V. Passing of Risk and Acceptance
1. The passing of risk shall occur in accordance with the agreed clause of the INCOTERMS 2020. Unless a deviating clause has been explicitly agreed upon, “ex works” (EXW), Dörth, Germany, applies in accordance with Section III. No. 1.
2. The risk of accidental loss or accidental deterioration of the contractual goods also passes to the client at the time of the default of acceptance or of the other breach of cooperation duties. If shipment is delayed or stopped due to circumstances for which PYREG is not responsible, the risk shall pass to the client on the day he is notified that the shipment is ready.
3. If the client requests in writing, PYREG will take out a transport insurance; the client carries the related incurred costs in such case.
4. In the event of a non-substantial defect, the client may not refuse acceptance of the contractual goods or services.
5. PYREG is entitled to make partial deliveries, if
a. the partial delivery is usable for the client for its contractually intended purpose,
b. it has ensured the delivery of the remaining contractual items and
c. the client does not incur significant additional expenses or costs as a result thereof, unless PYREG agrees to carry such costs.
VI. Reservation of Title
1. PYREG reserves title to the contractual items (hereinafter referred to as “Reserved Goods” in Section VI.) until full receipt of all payments under the concluded contract and the ongoing business relationship with the client (secured claims).
2. PYREG is entitled to insure the Reserved Goods against theft, breakage, fire, water, and other damage, at the client’s expense, unless the client can prove that it has insured the goods itself.
3. Before full payment of the secured claims, the client may not transfer property of, pledge as security or assign the Reserved Goods to third parties.
4. The client is obliged to notify PYREG without delay if and to the extent that third parties seize the Reserved Goods or the Reserved Goods are otherwise endangered from a legal or physical perspective.
5. In the event of a breach of contract by the client, in particular in the event of payment defaults, PYREG shall be entitled to take back the goods and additionally decide whether to avoid the contract after fruitless expiry of a reasonable time limit; the statutory provisions on the dispensability of setting a time limit shall remain unaffected. The client shall be obliged to surrender the goods.
6. The taking back or assertion of the reservation of title or the seizure of the reserved goods by PYREG shall not constitute an avoidance of the contract, unless PYREG has expressly declared this.
7. After taking back the Reserved Goods, PYREG shall be entitled to sell them on the open market, taking due account of the client’ interests. The proceeds of such sale shall be credited against the client’s liabilities; PYREG is entitled to deduct reasonable costs of sale.
8. Unless PYREG unilaterally revokes such right, the client is entitled to resell the Reserved Goods in the ordinary course of business. In this case, however, the client hereby assigns PYREG all claims resulting from the resale, irrespective of whether the resale takes place before or after any processing, mixing, or combining of the Reserved Goods. Notwithstanding PYREG’s authority to collect the claim itself and unless PYREG unilaterally revokes such right, the client remains authorized to collect the claim after assignment. PYREG will not collect the claim as long and insofar no event described in No. 9 below has occurred.
9. In the event of good cause, in particular payment default, cessation of payment, opening of insolvency proceedings, protest of a bill of exchange or reasonable indications of over-indebtedness or imminent insolvency of the client, PYREG shall be entitled to revoke the client’s authorization to collect any claims resulting from the resale of the Reserved Goods. In addition, PYREG may, after prior warning and observance of a reasonable period of time, disclose the assignment, realize the assigned claims as well as demand disclosure of the assignment by the client to its customers.
10. To the extent that the realizable value of above-mentioned securities exceeds the secured claims by more than 10%, PYREG is obligated to release the exceeding securities, at its discretion, upon the client’s request.
Excluding all further claims (except for the rights described in Section VIII.) PYREG is liable for defects of quality and title as follows:
1. Material defects
1.1 Upon delivery, the client shall inspect the delivered contractual goods immediately.
1.2. Obvious defects or other defects which would have been apparent upon immediate, careful inspection, shall be deemed accepted by the client if PYREG does not receive a written notice of defect within seven working days after delivery.
1.3 Regarding all other defects, the contractual goods shall be deemed accepted by the client if the notice of defect is not received by PYREG within seven working days after the defect became apparent or would have become apparent during normal use of the goods.
1.4 PYREG shall repair or replace all parts of the contractual goods, which prove to be defective prior to the passing of risk, at its own expense.
1.5 Replaced parts become property of PYREG upon their removal.
1.6 At the request of PYREG, the client is obliged to send back the defective parts of the contractual goods.
1.7 Unless caused by culpable conduct of PYREG, PYREG is not liable for defects resulting from, inter alia, the following circumstances:
a) unsuitable or improper use of the contractual goods;
b) non-intended use of the contractual goods outside of PYREG’s technical specifications;
c) incorrect installation or incorrect commissioning by the client;
d) none or improper regular maintenance and cleaning in accordance with PYREG’s specifications;
e) installation of other than original spare parts;
f) usual wear and tear;
g) incorrect or negligent handling;
h) use of unsuitable fuels, lubricants, operating materials;
i) use with incorrect electrical voltage;
j) contaminated pipes;
k) consequences of incorrect calculations or information by the client.
1.8 If the client or a third party carries out improper repairs, PYREG is not liable for the resulting consequences. The same applies to changes made to the contractual goods without PYREG’s prior consent.
1.9 Furthermore, PYREG is not liable for the assembly of individual parts which were delivered separately, unless PYREG’s the client has explicitly engaged PYREG’s personnel for such services and the personnel has culpably damaged the contractual items in the process.
1.10 After prior consultation with PYREG, the client shall grant PYREG the time and opportunity it requests as necessary to carry out all repairs and replacements.
1.11 The client is only entitled to remedy the defect itself or have the defect remedied by third parties in urgent cases, where safety or operability are at risk, or where there is a risk of substantial damage. The client is then entitled to compensation from PYREG for the necessary expenses; PYREG shall be informed of such cases in writing and without delay.
1.12 Regarding the direct costs for subsequent performance (repair or subsequent delivery), PYREG shall bear the costs of the replacement parts and shipping if the claim proves to be justified.
1.13 PYREG shall also bear the costs of replacement and installation, as well as the costs necessary to employ technicians or auxiliary personnel, including their travel expenses, unless this causes unreasonable difficulties or expenses for PYREG.
1.14 The client’s claims for expenses incurred due to subsequent performance, in particular transport, travel, labor and material costs, are excluded to the extent that expenses increase because the delivered goods have subsequently been brought to another location than the client‘s place of business, unless doing so complies with their intended use.
1.15 The client has the right to avoid the contract under the prerequisites and to the extent stipulated by the statutory provisions, if the client fixes a reasonable period of time for repair or replacement due to a material defect, and PYREG allows this period to expire fruitlessly.
1.16 In cases of insignificant defects, the client is entitled to a reduction of the contract price only. The right to reduce the contract price is otherwise excluded.
1.17 In the event that defects arise in components of other manufacturers, which PYREG cannot remedy due to licensing or practical reasons, PYREG may assign its warranty claims against such manufacturers and suppliers to the client. In the event of such defects, warranty claims against PYREG exist only under the further conditions and in accordance with these GTC and only if the judicial enforcement of these claims against the manufacturer and supplier has been unsuccessful or is improbable, for example due to insolvency. In this regard, PYREG’s liability is only secondary. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the client against PYREG is suspended.
1.18 The client’s right of recourse against PYREG pursuant to Section 478 of the German Civil Code (Recourse of the entrepreneur) exists only to the extent that the client has not entered any agreements with its own customer which exceed the statutory claims for defects.
1.19 All further claims are subject to the provisions of Section VIII. of these GTC.
1.20 PYREG is entitled to claim reimbursement of the incurred costs and expenses from the client, if the defect alleged by the client proves to be non-existent or PYREG is not responsible for such defect.
2. Legal Defects
2.1 In the event that the contractual goods infringe an industrial property right and/or a copyright of a third party, PYREG shall, at its option and at its expense, modify or replace the contractual items in such a way that rights of third parties are no longer infringed and the contractual items continue to fulfil the contractually agreed functions, or, by way of license agreement, grant the client a license to use. If PYREG fails to do so under economically reasonable conditions or within a reasonable period of time, the client is entitled to avoid the contract or to reasonably reduce the purchase price if this amounts to a material non-conformity of the goods. Any claims for damages of the client are subject to the limitations of Section VIII.
2.2 Furthermore, PYREG shall release the client from undisputed or legally established claims of the owners of industrial property rights and/or copyrights in cases described in No. 2.1 above.
2.3 Subject to Section VIII. 2, in the event of infringement of industrial property rights and/or copyrights, PYREG’s obligations set forth in Section VII. 2. are conclusive.
2.4 The obligations referred to in Section VII. 2. only exist if
– the client informs PYREG of alleged infringements of industrial property rights without delay;
– the client supports PYREG in defending the asserted claims to a reasonable extent and/or enables PYREG to carry out the modification measures pursuant to Section VII. 2.1;
– the client has provided PYREG with copies of any communications, notices or other actions taken in connection with the alleged infringement;
– the legal defect did not result from any instructions and/or design specifications of the client;
– the legal infringement was not caused by the client’s unauthorized modification or use of the contractual items in a manner not in accordance with the contract.
1. If the contractual goods cannot be used by the client in accordance with the contract as a result of culpably omitted or improper advice by PYREG before or after conclusion of the contract, or as a result of culpable violation of other contractual collateral obligations – in particular operation and maintainance instructions for the delivered goods – the provisions of Sections VII. and VIII. 2. apply. Further claims of the client are excluded.
2. Claims for damages by the client – whether due to a material defect or other circumstances, irrespective of the legal grounds – only exist in the following cases:
a. for an intentional breach of duty by PYREG;
b. for gross negligence on the part of the owner / the executives or officers of PYREG;
c. for culpable injury to life, body, and health;
d. for defects which PYREG has fraudulently withheld;
e. if a guarantee for the quality or the successful performance or a procurement risk has been assumed by PYREG;
f. according to the Product Liability Act and according to other mandatory legal provisions.
3. In the event of a culpable and not insignificant breach of material contractual obligations (so-called cardinal obligations), PYREG is also liable for the gross negligence of its non-executive employees. In the event of slight negligence in the latter case, PYREG’s liability is limited to reasonably foreseeable damages that are typical for the contract. Contractual obligations are material if their fulfilment is essential to the proper performance of the contract and on if the client may regularly rely on their observance.
4. Further claims are excluded.
IX. Limitation Period for Claims
1. Subject to the following provision, the limitation period for all claims of the client – on whatever legal grounds – shall be 12 months after the passing of risk.
2. However, claims for damages pursuant to Section VIII. 2 a-d and f are subject to the statutory limitation periods. They also apply to defects in a building or to contractual items which have been used for a building in accordance with their customary use and have caused its defectiveness.
X. Intellectual Property
1. The client is entitled to use all documents or other information, which contain industrial property rights and/or copyrights and have been transmitted by PYREG, solely for the purpose of operation or maintenance of the contractual goods.
2. The client is not entitled to disclose such documents or information to third parties and may not use them for any other purpose, such as for reproduction of the contractual goods (or parts thereof), or reconstruction and/or manufacture of components, equipment, or parts.
3. PYREG reserves the title and copyright to illustrations, drawings, calculations, and other documents; they may not be made accessible to third parties. This applies in particular to written documents which are deemed confidential; the client is required to obtain the express written consent of PYREG prior to their disclosure to third parties. If the parties do not enter into a contract, all documents must be returned to PYREG without delay and upon PYREG‘s request.
4. PYREG shall not make any documents provided by the client available to third parties without the client‘s express written consent, where such documents have been designated as confidential.
5. The client’s confidentiality obligations remain in effect after the end of the contract.
6. Final customers of the contractual goods, legal or tax advisors and persons who use the goods in accordance with the contract are expressly not considered third parties in the sense of No. 2 of this Section.
1. If software is included in the delivery, the client is granted a non-exclusive, temporally unrestricted right to use the delivered software, including its documentation, upon full payment for the contractual items.
2. The software is provided to be used with the contractual goods that were intended for this purpose. Use of the software on more than one system is prohibited.
3. The client may copy, revise, translate or convert the software from the object code into the source code only to the extent permitted by law (currently according to Sections 69a ff. German Copyright Act). The client shall refrain from removing the manufacturer’s details, copyright notices, serial numbers or other features which allow program identification or to modify them without the prior express consent of PYREG.
4. All other rights to the software and the documentation, including copies, remain with PYREG or the software supplier. Under no circumstances does the client have the right to lease or otherwise sublicense the software, to publicly reproduce or make it available by wired or wireless means, or to make it available to third parties – except for end clients or persons using the contractual goods in accordance with the provisions of the contract – whether in exchange for payment or free of charge.
XII. Final Provisions
1. The place of performance is Dörth, Germany, unless the relevant manufacturing plant is expressly stated as the place of performance in the order confirmation.
2. These GTC and all legal relations between PYREG and the client are governed by the laws of the Federal Republic of Germany; application of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods, is excluded.
3. Should any provision of these GTC be completely or partially invalid or unenforceable or subsequently become invalid or enforceable, the validity of the remaining provisions of these GTC remains unaffected.
4. The exclusive court of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, is PYREG’s place of business in Dörth, Germany. PYREG is, however, entitled to bring an action at the general court of jurisdiction of the client.
Dörth, Sep. 29, 2021