General Terms and Conditions of Sale

General Terms and Conditions of Sale (GTCS)

 

These GTCS govern the contractual relationship between PICO International GmbH and its customers in accordance with the laws of the Federal Republic of Germany.

1. Scope of application, general

1.1         These General Terms and Conditions (GTCS) apply to all deliveries by PICO International GmbH (hereinafter referred to as "PICO") when selling to entrepreneurs. Contracts under these GTCS are concluded exclusively with entrepreneurs (hereinafter referred to as "Buyer"). An entrepreneur within the meaning of Section 14 of the German Civil Code (BGB) of the Federal Republic of Germany is a natural or legal person or a partnership with legal capacity that acts in the exercise of its commercial or independent professional activity when concluding a legal transaction.

 

1.2         The GTCS apply to the business relationship with Buyers, including for information and advice, in particular for contracts for the sale and/or delivery of movable goods ("Goods"), regardless of whether PICO manufactures the Goods itself or purchases them from suppliers. Unless otherwise agreed, the GTCS in the version valid at the time of the Buyer's order or in any case in the version last communicated to the Buyer in text form shall also apply as a framework agreement for similar future contracts without PICO having to refer to them again in each individual case.

1.3         These GTCS shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that PICO has expressly consented to their application. This requirement of consent shall apply in any case, for example if PICO carries out the delivery to the Buyer without reservation in the knowledge of the Buyer's GTCS or remains silent with regard to the Buyer's GTCS, even in the case of future contracts. These GTCS shall apply in place of any GTCS or terms and conditions of purchase of the Buyer even if the Buyer's GTCS provide for the unconditional acceptance of the GTCS or terms and conditions of purchase, unless PICO has expressly waived the application of these GTCS. The exclusion of the Buyer's GTCS shall also apply if PICO's GTCS do not contain a separate provision on individual points. By accepting our order confirmation, the Buyer expressly recognises that it waives its legal objection derived from the GTCS or the Terms and Conditions of Purchase.

 

1.4         Individual agreements made with Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTCS. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or PICO's written confirmation.

 

1.5         Legally relevant declarations and notifications to be made by the Buyer to PICO after conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of cancellation or reduction) must be made in writing to be effective.

 

1.6         If this contract refers to the written form, it is clarified that fax and e-mail are sufficient, but not instant messaging services, short messages or chats.

 

1.7         References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTCS.

 

 

2. Conclusion of contract

 

2.1         PICO's offers are subject to change and non-binding unless they are expressly labelled as binding or expressly contain binding commitments. They are invitations to place orders. This also applies if PICO has provided Buyer with catalogues, advertisements, technical documentation (e.g. content specifications, drawings, plans, calculations, calculations, references to standards), other product descriptions or documents - also in electronic form - to which PICO reserves ownership rights and copyrights. Buyer may not make these items accessible to third parties, disclose them, use or reproduce them itself or through third parties without PICO's express consent. Upon PICO's request, Buyer shall return them to PICO in their entirety and destroy any copies made if they are no longer needed in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. This does not apply to the storage of electronically provided data for the purpose of standard data backup.

 

2.2         The legal relationship between PICO and the Buyer shall be governed solely by the written purchase agreement, including these GTCS. This contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Oral promises made by PICO prior to the conclusion of this contract are not legally binding. Section 1.4 shall apply in all other respects.

 

2.3         Supplements and amendments to the agreements made, including these GTCS, must be made in writing to be effective. With the exception of managing directors or authorised signatories, PICO employees are not entitled to make verbal agreements that deviate from the written agreement.

 

2.4         Information provided by PICO on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) are only approximate. They are not guaranteed characteristics, but descriptions or characterisations of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible. Unless expressly agreed otherwise, PICO does not warrant that deliveries and/or services are suitable for the purpose intended by the Buyer.

 

2.5         Information and explanations regarding the deliveries and services of PICO by PICO or its sales partners are provided solely on the basis of our previous experience. They do not represent any properties or guarantees with regard to PICO's deliveries and services. The values stated here are to be regarded as average values of the deliveries and services. PICO only assumes a consulting obligation expressly by virtue of a separate written consulting agreement. PICO shall only be deemed to have assumed a guarantee if PICO has designated a property and/or performance outcome as "legally guaranteed" in writing.

 

2.6         By placing an order, the Buyer submits a declaration of intent in the form of a binding offer. Unless otherwise stated in the order, PICO is entitled to accept this contractual offer within a period of up to 4 weeks after its receipt by PICO. Acceptance may be declared either in text form (e.g. by order confirmation) or by delivery of the goods to the Buyer. Acceptance is only valid on the condition that any outstanding payment arrears of the Buyer have been settled and that PICO's credit check of the Buyer does not reveal any negative information.

 

 

3. Delivery period, delay in delivery

 

3.1         The delivery period is binding if it is individually agreed or specified by us upon acceptance of the order. A delivery period specified by PICO shall only commence after all issues relevant to the processing of the order have been fully clarified - in particular after receipt of all documents to be provided by Buyer, receipt of all necessary approvals and releases (including any import regulations) and after fulfilment of all other obligations of Buyer, such as agreed down payments, securities and necessary cooperation. If Buyer has requested changes, a new reasonable delivery period shall commence upon PICO's written confirmation of the change. In the case of non-binding or approximate (approx., about, etc.) delivery dates, PICO shall endeavour to meet them to the best of its ability.

 

3.2         Failure to meet a delivery deadline shall only entitle the Buyer to withdraw from the contract without setting a deadline if the Buyer has expressly pointed out, at the latest upon conclusion of the contract, that performance thereafter no longer makes sense for the Buyer and the performance thereafter no longer constitutes fulfilment of the contract (absolute fixed-date transaction).

 

3.3         PICO may - without prejudice to its rights arising from Buyer's default - demand from Buyer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which Buyer does not fulfil its contractual obligations towards PICO, in particular if documents to be provided by Buyer are not available.  In particular, the Buyer is obliged to provide all necessary technical parameters and information required for the delivery and to clarify all technical details and questions. For this purpose, PICO will provide Buyer with a detailed list of the required information.

 

3.4         If, for reasons for which PICO is not responsible, PICO does not receive, does not receive correctly or does not receive in due time the deliveries or services owed by its supplier for the performance of its contractual obligations despite proper and sufficient coverage prior to the conclusion of the contract with the Seller in accordance with the quantity and quality of this delivery or service agreement with the Buyer (congruent coverage), or if force majeure events of not insignificant duration (i.e. with a duration of more than 3 months) occur, PICO shall inform the Buyer in writing in due time. In this case, PICO is entitled to postpone the delivery for the duration of the hindrance or to withdraw from the contract in whole or in part due to the unfulfilled part of the contract. Force majeure includes strikes, lockouts, official interventions, bans on fulfilment, energy and raw material shortages - e.g. due to fire, water and machine damage - and all other hindrances which, from an objective point of view, are not caused by PICO.

 

3.5         If a delivery date or a delivery period has been bindingly agreed and the agreed delivery date or the agreed delivery period is exceeded due to events according to clause 3.4, the Buyer shall be entitled to withdraw from the contract due to the part not yet fulfilled after a reasonable grace period has expired without result. Further claims of the purchaser, in particular claims for damages, are excluded in this case.

 

3.6         The above provision pursuant to clause 3.5 shall apply accordingly if, for the reasons stated in clause 3.4, it is objectively unreasonable for the Buyer to continue to adhere to the contract even without a contractually agreed fixed delivery date.

 

3.7         In the event of hindrances of a temporary nature, the delivery periods shall be extended or postponed by the period of the hindrance plus a reasonable start-up period. If the Buyer cannot reasonably be expected to accept the delivery as a result of the delay, the Buyer may withdraw from the contract by immediate written declaration to PICO.

 

3.8         If PICO is culpably in default of delivery, PICO's liability for damages shall be limited to the foreseeable and typically occurring damage at the time of the conclusion of the contract, however, to a maximum of 20% of the net order amount. Any further compensation for the Buyer's damage caused by delay is excluded. This does not apply in the event of intentional, grossly negligent or fraudulent behaviour on the part of PICO, in the event of claims for injury to life, limb or health, in the event of default, and in the event of an agreed fixed delivery date in the legal sense and the assumption of a performance guarantee or a procurement risk in accordance with Section 276 BGB and in the event of mandatory statutory liability.

 

3.9         The provisions set out in Section 3 shall apply accordingly to performance deadlines.

 

 

4. Delivery, transfer of risk, acceptance, default of acceptance

 

4.1         Unless otherwise agreed with PICO, deliveries shall be EXW (Incoterms 2020). The place of fulfilment for the delivery and any subsequent performance shall be PICO's works. Unless otherwise agreed, PICO is entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself. PICO shall endeavour to take into account the Purchaser's wishes regarding the type and route of shipment, but the Purchaser shall have no claim to this. Any additional costs incurred as a result - even if carriage paid delivery has been agreed - shall be borne by the Buyer, as is the case with transport and insurance costs. If dispatch is delayed compared to the agreed time at the request or through the fault of the Buyer, PICO shall store the goods at the Buyer's expense and risk. In the event of storage, the Buyer shall pay a storage fee of 1% of the net remuneration per week for the stored goods. Both parties reserve the right to provide evidence of lower or higher costs, the purchaser also reserves the right to provide evidence of a complete lack of costs. In this case, notification of readiness for dispatch shall be deemed equivalent to dispatch.

 

4.2         Unless otherwise agreed in writing, PICO will not install the delivery items. For the installation, PICO refers to the respective manuals in which the installation and the respective operating environment, which must be available at the Buyer's premises, are described.

 

4.3         The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of sale by despatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the despatch. The buyer undertakes to take out insurance to cover the risks until the final transfer of ownership upon the transfer of risk. The above shall also apply if an agreed part delivery is made.

 

4.4         If delivery is delayed due to circumstances for which the Buyer is responsible, the risk of accidental loss shall pass to the Buyer from the day on which the goods are ready for dispatch.

4.5         If the Buyer does not accept the goods at the agreed time, or if acceptance is not possible at the agreed time due to the fault of the Buyer, the Buyer shall be in default of acceptance. Buyer shall bear the costs of any additional expenses incurred as a result. PICO reserves the right to set a reasonable grace period for acceptance. Should the second acceptance also fail, PICO shall be entitled to withdraw from the contract. In case of storage, the Buyer shall pay a storage fee of 1% of the net remuneration per week for the stored goods. Both parties reserve the right to provide evidence of lower or higher expenses, and the Buyer also reserves the right to provide evidence of a complete lack of expenses.

 

4.6         If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services ( ) shall apply accordingly to an agreed acceptance. If the Buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.

 

 

5             Prices, shipping costs, terms of payment

 

5.1         The prices quoted are net prices ex works and, unless otherwise agreed, do not include the costs of dispatch, packaging and insurance. Reductions for postage, bank transfer or similar charges shall not be recognised, plus any country-specific charges for deliveries to countries other than the Federal Republic of Germany, plus customs duties and other fees and public charges for the delivery/service. The costs of packaging shall be invoiced separately. This shall also apply to dispatch and transport costs, if dispatch has been agreed by way of exception.

 

5.2         The buyer is obliged to pay VAT, if applicable, in accordance with the national regulations of the country of destination, insofar as taxable transactions are involved. The Buyer is solely responsible for the taxation of the goods upon importation into the country of destination.

 

5.3         Any increases in the price or other price components occurring between the conclusion of the contract and delivery that are beyond PICO's control, such as currency compensation, levies, customs duties, etc., may be charged to Buyer accordingly.

 

5.4         Unless otherwise agreed in writing, invoices are payable without deduction within thirty (30) days of the invoice date; payment shall be made by bank transfer in favour of PICO in Euro. Payment shall not be deemed to have been made until PICO has actually received payment.  Upon expiry of the payment period, Buyer shall be in default.

 

5.5         Invoices shall be issued immediately after dispatch of the goods.

 

5.6         If the Buyer is in default of payment or in the event of imminent insolvency or other significant deterioration of the Buyer's financial circumstances, PICO may withdraw from the contract after setting a reasonable grace period for outstanding deliveries and services from current contractual relationships, with the payment term being cancelled.

 

5.7         In the event of late payment, PICO reserves the right to claim liquidated damages in the amount of 10% of the net purchase price. The Buyer shall be entitled to prove that no or only minor damage has been incurred.

 

5.8         If the Buyer is in default of payment, PICO shall be entitled to a lump sum for default pursuant to Section 288 (5) BGB in the amount of 40.00 euros.

 

5.9         Upon the occurrence of default, default interest shall be charged at a rate of 9 percentage points above the base rate of the European Central Bank at the time the payment claim falls due . The right to claim further damages remains reserved.

 

5.10       If PICO becomes aware of circumstances before or after conclusion of the contract which are likely to significantly reduce the creditworthiness of the Buyer, in particular if PICO becomes aware of a payment problem, if the result of the financial investigation of the Buyer is unfavourable or if a factoring company refuses to process the Buyer's invoices, PICO shall be entitled to demand advance payments or security deposits.

 

5.11       PICO reserves the right to adjust prices accordingly, even after conclusion of the contract, if the circumstances relevant for the determination of the price, in particular costs for delivery, material, wages or due to currency fluctuations or other unforeseen events, change. In the event of price increases or price decreases, PICO shall prove the reasons for these to Buyer upon request. In the event of a price increase of more than 10% after conclusion of the contract, the Buyer may object to the price increase in writing within 14 days of notification of the price change. If the buyer does not exercise his right of objection within this period, the price increase shall come into force. In the event of an objection by the buyer, both parties may withdraw from the contract within one month of the objection if no agreement is reached.

 

5.12       The Buyer shall only have a right of retention or set-off with regard to counterclaims that are not disputed or have been recognised by declaratory judgement.

 

5.13       A right of retention can only be exercised by the buyer to the extent that his counterclaim is based on the same contractual relationship.

 

5.14       Incoming payments are first used to repay the costs, then the interest and finally the principal receivables according to their age.

 

 

6. Retention of title

 

6.1         PICO retains title to all goods delivered by it (hereinafter referred to as "Reserved Goods") until all claims arising from the business relationship with the Purchaser, including future claims arising from contracts concluded at a later date, have been settled. This also applies to a balance in PICO's favour if individual or all of PICO's claims are included in a current account (current account) and the balance is drawn.

 

6.2         The Buyer shall insure the goods subject to retention of title adequately, in particular against fire and theft. Claims against the insurance company arising from damage to the goods subject to retention of title are hereby assigned to PICO in the amount of the value of the goods subject to retention of title.

 

6.3         The buyer is authorised to resell the delivered products in the ordinary course of business. Other dispositions, in particular pledging or granting of ownership by way of security, are not permitted. If the goods subject to retention of title are not paid for immediately by the third party purchaser in the event of resale, the purchaser is obliged to resell only subject to retention of title. The authorisation to resell the goods subject to retention of title lapses immediately if the Buyer suspends payment or defaults on payment to PICO.

 

6.4         The Purchaser hereby assigns to PICO all claims, including securities and ancillary rights, which accrue to it from or in connection with the resale of goods subject to retention of title against the end customer or against third parties. Buyer may not enter into any agreement with its customers that excludes or impairs PICO's rights in any way or nullifies the advance assignment of the claim. In the event that goods subject to retention of title are sold together with other items, the claim against the third-party purchaser shall be deemed assigned in the amount of the delivery price agreed between PICO and the purchaser, unless the amounts attributable to the individual goods can be determined from the invoice.

 

6.5         Buyer shall remain authorised to collect the claim assigned to PICO until PICO revokes such authorisation at any time. However, PICO undertakes to revoke the direct debit authorisation only in the event of a legitimate interest. Such a legitimate interest exists, for example, if the Buyer does not properly fulfil its payment obligations or is in default of payment. At PICO's request, the Purchaser is obliged to provide PICO with all information and documents necessary for the collection of assigned claims and, if PICO does not do so itself, to inform its customers immediately of the assignment to PICO.

 

6.6         If the Buyer includes claims from the resale of goods subject to retention of title in a current account relationship with its customers, the Buyer hereby assigns to PICO any recognised closing balance in its favour in the amount corresponding to the total amount of the claim from the resale of PICO's goods subject to retention of title included in the current account relationship.

 

6.7         If Buyer has already assigned claims from the resale of the products delivered or to be delivered by PICO to third parties, in particular due to real or unreal factoring, or made other agreements on the basis of which PICO's current or future security interests pursuant to Section 6 may be impaired, Buyer shall notify PICO thereof without undue delay. In the event of non-genuine factoring, PICO is entitled to withdraw from the contract and demand the return of products already delivered. The same applies in the case of genuine factoring if the Buyer cannot freely dispose of the purchase price of the claim under the contract with the factor.

 

 

6.8         In the event of a breach of contract for which the customer is responsible, in particular in the event of default in payment, PICO shall be entitled to take back all goods subject to retention of title after cancellation of the contract. In this case, the Buyer shall be obliged to surrender the goods without further ado and shall bear the transport costs required for the repossession. PICO's repossession of the Reserved Goods constitutes a cancellation of the contract. PICO is entitled to realise the reserved goods in the event of withdrawal. The proceeds from the realisation, less reasonable costs of realisation, shall be offset against the receivables owed to PICO by the Buyer from the business relationship. PICO may enter the Buyer's business premises at any time during normal business hours to determine the inventory of the goods delivered by PICO. Buyer shall notify PICO immediately in writing of any access by third parties to goods subject to retention of title or assigned claims.

 

6.9         If the value of the securities existing for PICO in accordance with the above provisions exceeds the secured claims by more than 10% in total, PICO shall be obliged to release securities of our choice at the Buyer's request.

 

6.10       Processing and treatment of the goods subject to retention of title shall be carried out for PICO as manufacturer, but without obligating PICO. If the goods subject to retention of title are processed or inseparably combined with other items not belonging to PICO, PICO shall acquire co-ownership of the new item in the ratio of the net invoice amount of the goods to the net invoice amounts of the other processed or combined items. If the goods are combined with other movable items to form a single item that is to be regarded as the main item, the Buyer hereby assigns to PICO co-ownership of the new item in the same proportion. The Buyer shall store the property or co-property for PICO free of charge. The resulting co-ownership rights shall be deemed reserved goods. At our request, the customer is obliged to provide us at any time with the information required to pursue our ownership or co-ownership rights.

 

6.11       In the event of seizures or other interventions by third parties, Buyer shall notify PICO immediately in writing so that PICO can file an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse PICO for the judicial and extrajudicial costs of an action pursuant to Section 771 ZPO, the Buyer shall be liable for the loss incurred by us.

 

 

7. Notice of defects, breach of duty due to material defects, warranty

 

7.1         Obvious material defects must be reported to PICO by the Buyer immediately, but no later than 12 days after collection in the case of delivery ex works or storage location, otherwise after delivery, hidden material defects immediately after discovery, the latter no later than within the warranty limitation period according to Section 7.2. Failure to give notice of defects in due time shall exclude any claim of the Buyer for breach of duty due to material defects. This shall not apply in the event of intentional, grossly negligent or fraudulent behaviour on our part, in the event of injury to life, limb or health or the assumption of a guarantee of freedom from defects, or a procurement risk pursuant to Section 276 BGB or other mandatory statutory liability circumstances. The special statutory provisions for final delivery of the goods to a consumer (supplier recourse, §§ 478, 479 BGB) remain unaffected.

 

7.2         Unless expressly agreed otherwise in writing, PICO shall provide a warranty for material defects for a period of 12 months, calculated from the date of transfer of risk or, in the event of the customer's refusal to accept or take delivery, from the date of notification of readiness to accept the goods. This shall not apply to claims for damages arising from a guarantee, the assumption of a procurement risk within the meaning of § 276 BGB, claims due to injury to life, limb or health, fraudulent, intentional or grossly negligent action on our part, or if in the cases of §§ 478, 479 BGB (recourse in the supply chain), § 438 para. 1 No. 2 BGB (construction of buildings and delivery of items for buildings) and § 634a Para. 1 No. 2 BGB (construction defects) or if a longer limitation period is otherwise stipulated by law. § Section 305b BGB (the precedence of individual agreements in verbal, textual or written form) remains unaffected. A reversal of the burden of proof is not associated with the above provision.

 

7.3         PICO's warranty (claims arising from breach of duty due to defective performance in the case of material defects) and the resulting liability shall be excluded if defects and associated damage are not demonstrably due to defective material, defective design or defective workmanship, or defective manufacturing materials or, if owed, defective instructions for use. In particular, the warranty and the resulting liability due to breach of duty due to poor performance is excluded for the consequences of incorrect use, unsuitable storage conditions, and for the consequences of chemical, electromagnetic, mechanical or electrolytic influences that do not correspond to the average standard influences provided for in the product description or a differently agreed product specification or the respective product-specific data sheet on our part or on the part of the manufacturer. The above shall not apply in the event of fraudulent, grossly negligent or intentional behaviour on the part of PICO, or injury to life, limb or health, the assumption of a guarantee, a procurement risk in accordance with Section 276 of the German Civil Code (BGB) and liability in accordance with a mandatory statutory basis for liability.

 

7.4         If the Purchaser demands subsequent fulfilment, PICO may choose whether to remedy the defect or to deliver or recreate a defect-free contractual item. The Buyer shall give PICO the time and opportunity required for the subsequent fulfilment owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Purchaser shall return the defective item to PICO in accordance with the statutory provisions.

 

7.5         The acknowledgement of breaches of duty in the form of material defects must always be made in writing.

 

7.6         It does not constitute a defect in PICO's services if Buyer does not achieve any economic success or does not achieve the expected economic success with the services provided by PICO in accordance with the contract.

 

 

8. Exclusion/limitation of liability

 

8.1         Subject to the following exceptions, PICO shall not be liable, in particular not for claims of the Buyer for damages or reimbursement of expenses - for whatever legal reason - in the event of a breach of obligations arising from the contractual relationship.

 

8.2         The above exclusion of liability pursuant to Section 8.1 shall not apply insofar as liability is mandatory by law, as well as:

- for wilful or grossly negligent breach of duty and wilful or grossly negligent breach of duty by legal representatives or vicarious agents;

 - for the breach of material contractual obligations; "material contractual obligations" are obligations which protect the legal positions of the buyer which are material to the contract and which the contract must grant him according to its content and purpose; material contractual obligations are also those contractual obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the buyer regularly relies and may rely;

- in the event of injury to life, limb and health, including by legal representatives or vicarious agents; - in the event of default, insofar as a fixed delivery and/or fixed performance date was agreed;

- insofar as PICO has assumed a guarantee for the quality of its goods or the existence of a performance result, or a procurement risk within the meaning of § 276 BGB;

- in the event of liability under the Product Liability Act or other mandatory statutory liability.

 

8.3         In the event that PICO or its vicarious agents are only guilty of slight negligence and there is no case of the above Section 8.2, 4th, 5th and 6th indents, PICO shall only be liable for the foreseeable damage typical for the contract, even in the event of a breach of material contractual obligations.

 

8.4         PICO's liability is limited to a maximum liability amount of 10% of the net purchase price for each individual case of damage. This does not apply if PICO is guilty of malice, intent or gross negligence, for claims due to injury to life, limb or health, or in the case of a claim based on a tortious act or an expressly assumed guarantee or the assumption of a procurement risk pursuant to Section 276 BGB or in cases of higher liability amounts that are mandatory by law. Any further liability is excluded.

 

8.5         The exclusions or limitations of liability pursuant to the above Sections 8.1 to 8.4 and Section 8.6 shall apply to the same extent in favour of PICO's executive bodies, executive and non-executive employees and other vicarious agents as well as subcontractors.

 

8.6         Claims of the buyer for damages arising from this contractual relationship can only be asserted within a preclusion period of one year from the start of the statutory limitation period. This shall not apply if we are guilty of intent or gross negligence, for claims due to injury to life, limb or health, or in the case of a claim based on a tortious act or an expressly assumed guarantee or the assumption of a procurement risk in accordance with § 276 BGB, or in the event that a longer limitation period is mandatory by law.

 

 

9. Exemption

 

9.1     The Buyer   undertakes to indemnify            PICO with regard to

- Third party claims

- Measures by authorities and courts of any kind, in particular sales, delivery, import and export bans or restrictions, including temporary ones, as well as comparable official measures imposed and/or threatened against PICO,

- penalties, administrative sanctions, fines or comparable measures are imposed and/or imposed and/or threatened by authorities and courts of any kind against PICO

– from all costs and damages incurred or to be incurred in the future, whether known or unknown, insofar as the Buyer is responsible for them. This also includes claims and measures asserted against employees, subcontractors and vicarious agents. The indemnification also includes the costs of reasonable legal defence as well as all judicial and extrajudicial costs incurred by PICO or its respective employees and subcontractors arising from or in connection with the actual or threatened claim or the measures taken.

 

9.2         Further legal claims remain unaffected.

 

 

9             Confidentiality, documents

 

9.1         The parties undertake to maintain confidentiality with regard to all confidential information that comes to their knowledge from and about the other contractual partner during the initiation of the contract or during the term of the contract. Confidential information is all information of a technical, scientific, economic and financial nature, such as persons involved, customer information, potential financial partners, analyses, information about products, manufacturing processes, strategies and cooperations, as well as all other information that one contractual partner has communicated to the other, either verbally or in writing, as confidential. Confidential information also includes the content of this agreement.

 

9.2         The documents handed over to the other contracting party may only be used for the purposes and implementation of the concluded contract and may not be made accessible to third parties unless they are intended to be made accessible to third parties or are already known to the third party.

 

9.3         Upon termination of this agreement, the customer shall destroy all documents, processing and utilisation results and data pertaining to the contractual relationship that have come into its possession in accordance with data protection regulations, insofar as

- deviations are not agreed;

- they are not documents that serve as proof of proper data processing or must otherwise be retained for legal reasons.

 

9.4         The confidentiality obligation also applies to and vis-à-vis any subcontractors and affiliated companies.

 

9.5         The aforementioned confidentiality obligations shall also apply beyond the termination of the contractual relationship.

 

 

10. Place of fulfilment, place of jurisdiction, applicable law

 

10.1       The place of fulfilment for all contractual obligations is PICO's registered office, except in the case of the assumption of a debt to be discharged at the creditor's domicile or other agreements.

 

10.2       The contracts concluded are subject to the law of the Federal Republic of Germany.

10.3       The provisions of the UN Convention on Contracts for the International Sale of Goods and private international law shall not apply.

 

10.4       If the Buyer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be Hamburg, provided that the Buyer has its registered office within the European Union.

 

10.5       If the Buyer is domiciled outside the European Union, the following shall apply:

- All disputes arising out of or in connection with this contract or its validity shall be settled in accordance with the Arbitration Rules of the German Institution of Arbitration (DIS) without recourse to the ordinary courts of law.

- The place of arbitration shall be Hamburg. The number of arbitrators shall be one. The applicable substantive law is German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods and private international law.

- The language of the proceedings is English.

 

 

11          Incoterms, written form, severability clause, miscellaneous

 

11.1       Insofar as trade terms are agreed in accordance with the International Commercial Terms (INCOTERMS), the INCOTERMS 2020 shall apply.

 

11.2       All agreements, collateral agreements, assurances and amendments to the contract must be made in writing. This also applies to the waiver of the written form requirement itself. The precedence of individual agreements in written, textual or verbal form, § 305b BGB, remains unaffected.

11.3       In case of discrepancies between the German and English language, the German version shall prevail.

 

11.4       Should any provision of this contract be or become invalid/void or unenforceable in whole or in part for reasons relating to the law of general terms and conditions in accordance with Sections 305 to 310 BGB, the statutory provisions shall apply. Should a present or future provision of the contract be or become invalid/void or unenforceable in whole or in part for reasons other than the provisions relating to the law of the General Terms and Conditions in accordance with Sections 305 to 310 BGB, this shall not affect the validity of the remaining provisions of this contract, unless the performance of the contract - also taking into account the following provisions - would constitute an unreasonable hardship for one of the parties. The same shall apply if a loophole requiring supplementation arises after conclusion of the contract. Contrary to any principle according to which a severability preservation clause should in principle merely reverse the burden of proof, the validity of the remaining contractual provisions shall be maintained under all circumstances and thus Section 139 BGB shall be waived in its entirety. The parties shall replace the provision that is invalid/void/unenforceable for reasons other than the provisions relating to the law of general terms and conditions in accordance with Sections 305 to 310 BGB or the gap that needs to be filled with a valid provision that corresponds in its legal and economic content to the invalid/void/unenforceable provision and the overall purpose of the contract. § Section 139 BGB is expressly excluded. If the invalidity of a provision is based on a measure of performance or time (deadline or date) specified therein, the provision shall be replaced with a legally permissible measure that comes closest to the original measure.