General Terms and Conditions of Business and Payment for the provision of
services by PQR Service GmbH.
1. General Provisions
These General Terms and Conditions, dated 1 January 2019, hereinafter referred to as the GTC, shall apply to all business matters and services, including all future transactions and continuing contractual relationships. These terms and conditions form the basis of all orders. Any conflicting terms and conditions are hereby rejected. The following terms and conditions shall remain effective even if PQR Service GmbH carries out work whilst aware of terms and conditions that conflict with or deviate from its own.
2. Conclusion of Contract
The client of PQR Service GmbH is bound by the order either by placing it verbally or by signing the order form. By sending an order confirmation or by
commencing work, PQR Service GmbH may accept this offer immediately upon the placing of the order. If the client does not object to an order confirmation without delay, it shall be deemed to have been accepted by the client. We accept no liability for errors arising from documents submitted by the client (samples, drawings or the like).
3. Remuneration / Counterclaims
The agreed remuneration shall apply in each individual case. In the absence of such an agreement, the terms and conditions most recently applied between the Client and PQR Service GmbH shall apply. The Client’s right to set-off is limited to claims that have been legally established, are undisputed, or have been recognised by PQR Service GmbH. Furthermore, the Client is authorised to exercise a right of retention to the extent that its counter-claim is based on the same contractual relationship.
4. Hindrances / Interruptions / Acceptance
PQR Service GmbH shall always endeavour to meet the agreed deadlines on time. Should PQR Service GmbH be prevented from performing its services due to force majeure, measures taken by public authorities, events or other fortuitous events such as strikes and lockouts, as well as by events for which PQR Service GmbH is not responsible, or if it is demonstrably unable to receive supplies from a supplier through no fault of its own, PQR Service GmbH shall be entitled to withdraw from the contract.
The Client is obliged to accept the service within the agreed timeframe. Should
the Client breach this obligation, PQR Service GmbH may hold the Client liable for any consequential loss incurred by PQR Service GmbH.
5. Warranty
Obvious defects must be reported to PQR Service GmbH in writing by the Client immediately, but no later than within 2 weeks of acceptance. Defects which, even after careful inspection, cannot be detected within this period must be reported to PQR Service GmbH in writing immediately upon
discovery. As soon as a defect for which PQR Service GmbH is responsible is identified, PQR Service GmbH shall, at its own discretion, be entitled to remedy the defect or to endeavour to provide a replacement.
Should the rectification of the defect fail, or should PQR Service GmbH be unwilling or unable to rectify the defect – particularly in the event of a delay beyond a reasonable period for reasons for which PQR Service GmbH is responsible – the Client shall be entitled to withdraw from the contract or to demand a corresponding reduction in the remuneration for the work. Any further claims by the client, such as claims for damages, including loss of profit or other financial losses, are, regardless of the legal basis, excluded.
Where the cause of the damage is due to wilful misconduct or gross negligence, the above exclusion of liability shall not apply. Nor shall it apply if the client asserts claims for damages on the grounds of the absence of a warranted characteristic. Should a material contractual obligation be breached through negligence, the liability of PQR Service GmbH shall be limited to the foreseeable damage.
Insofar as the liability of PQR Service GmbH is excluded or limited, this applies equally to the personal liability of its employees, staff, representatives and vicarious agents. The warranty period, or the period for asserting claims for consequential damages arising from defects, is 6 months from the transfer of risk, provided that no claims arising from tort are asserted.
6. Liability
Unless otherwise provided for in these General Terms and Conditions, PQR Service GmbH, its directors, legal representatives and vicarious agents shall only be liable in cases of wilful misconduct and gross negligence.
PQR Service GmbH shall only be liable for gross negligence on the part of non-executive employees if they breach a material contractual obligation. This also applies in the event of damage caused by slight negligence on the part of PQR Service GmbH or other persons named herein. The liability of PQR Service GmbH is, in the aforementioned cases, limited to the foreseeable damage. PQR Service GmbH maintains liability insurance to cover any liability claims arising from its own work.
7. Terms of Payment
The invoice amount is payable and due, without deduction, within 30 days of the invoice date. Should counter-claims or any complaints be raised, or should the service not be delivered on time for reasons for which the client is responsible, payments must nevertheless be made. Offsetting is not permitted. Any unauthorised deductions will be charged back at the Client’s expense.
Late payments shall incur late payment charges (e.g. reminder fees of €9.00 per reminder) as well as interest on arrears at a rate of 1 per cent per month from the due date. In addition to the aforementioned interest on arrears and late payment charges, the client also undertakes to bear the
actual debt collection costs incurred after the invoice becomes due (at least 9 per cent of the invoice amount, plus further expenses in accordance with the tariff), including debt enforcement and legal costs. The supplier is also entitled to assign the rights arising from any invoice claim to a third party. A notice of such assignment will then also be shown on the relevant invoice.
8. Jurisdiction, place of performance, choice of law
If the client is a registered trader, the place of jurisdiction shall be Chemnitz; however, PQR Service GmbH is also entitled to bring proceedings against the client at the client’s place of residence or registered office. This jurisdiction includes, in particular, It also excludes any other jurisdiction provided for by law on the basis of a personal or factual connection.
Furthermore, in this case, the client is not entitled to bring a counterclaim, set-off or retention against PQR Service GmbH before any court other than the court with exclusive jurisdiction. Unless otherwise stated in the order confirmation, the registered office of PQR Service GmbH shall be the place of performance. This contract is governed by the law of the Federal Republic of Germany. All legal disputes arising out of or in connection with this contract shall be settled in accordance with the law of the Federal Republic of Germany.
9. Final Provisions
Should any provision of these General Terms and Conditions of Sale and Delivery be invalid, this shall not affect the validity and legal enforceability of the remaining provisions. Any agreements which amend or repeal these General Terms and Conditions of Sale and Delivery at the time of conclusion of the contract must be made in writing. This also applies to any waiver of the requirement for the written form.
David Kunz
Managing Director