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Conditions of sale and delivery Putzmeister Mörtelmaschinen GmbH

I. Validity

  1. The following conditions apply to all deliveries and services, regardless of whether the individual case is a purchase or work contract or another contractual relationship. They only apply to entrepreneurs, legal entities under public law or special funds under public law.
  2. The supplier also offers the purchase of various products via an online shop. These sales and delivery conditions apply to all services and products of the webshop and to all contracts concluded via the webshop with entrepreneurs, legal entities under public law or a special fund under public law. The applicability of the MY Putzmeister Terms of Use remains unaffected.
  3. These terms and conditions of sale and delivery apply exclusively; The supplier does not recognize conflicting or deviating conditions of the purchaser unless he has expressly agreed to their validity in writing. These terms and conditions of sale and delivery also apply if the supplier carries out the delivery or service to the purchaser without reservation despite being aware of conflicting or deviating conditions of the purchaser.
  4. These sales and delivery conditions also apply to all future transactions with the customer, even if they are not expressly agreed again. The version of these sales and delivery conditions valid at the time the contract is concluded is decisive.

II. Registration when using the web shop

  1. The customer can only order products via the web shop after prior registration and activation for online purchase. Registration by the customer is free of charge. The customer has no right to be admitted to the supplier’s web shop.
  2. The customer committed to provide the data required for registration completely and truthfully.
  3. Apart from the declaration of agreement to the validity of these terms and conditions of sale and delivery, the purchaser’s registration does not entail any obligations. The customer can have his registration deleted at any time by sending an email to the supplier. Simply by registering for the supplier’s web shop there is no obligation to purchase the products offered by the supplier.
  4. The customer committed to keep his personal information up to date and to update it in the event of changes.

III. Conclusion of contract, changes, assignment

  1. The documents associated with the offer (e.g. illustrations, drawings) as well as information about the scope of delivery, appearance, performance, dimensions, weights, fuel consumption, operating costs, etc. are only approximately authoritative unless they are expressly designated as binding. Due to the current situation on the raw materials market, the delivery dates and prices stated are not binding, but are merely declarations of intent.
  2. The contract is concluded when the supplier confirms acceptance of the order in writing or has begun delivery or service. If the supplier has made an offer for a limited time, the contract is concluded upon the timely written acceptance of the offer by the purchaser.
  3. The following applies to orders via the web shop: The presentation of the products in the web shop does not constitute a legally binding offer, but rather an invitation to order. The customer submits a binding offer as soon as he has provided all the information requested during the ordering process and clicks on the “Submit Order” button (“Offer”). Immediately after sending the order, the customer receives a confirmation of receipt of the order from the supplier, which, however, does not yet constitute acceptance of the customer’s contract offer. The contract is only concluded when the supplier accepts the order through a separate order confirmation by email or by beginning delivery or service. The customer either receives a shipping confirmation by email or can view it via the web shop. Deviating from this, in individual cases it is not possible to order a product directly in the online shop, so the customer can only submit a purchase request. In response to the request, the purchaser receives a non-binding offer from the supplier, which the purchaser can accept. A contract is then concluded through the supplier’s order confirmation. In the event of non-acceptance of the order (e.g. due to exceptional and non-culpable unavailability of the goods), the supplier undertakes to immediately reimburse any payments already made by the purchaser. Errors are possible when presenting the products in the online shop. Information about the scope of delivery, appearance, performance, dimensions, weights, fuel consumption, operating costs, etc. are only approximate unless they are expressly designated as binding. Illustrations in the web shop may only reflect the products inaccurately; They therefore only serve as illustrative material for the customer and may differ from the product. The contract text with information about the ordered products will be sent to the customer by email upon acceptance of the contract offer or with notification thereof. The contractual provisions are not stored by the supplier.
  4. Verbal additional agreements upon conclusion of the contract and changes to the contract require written confirmation by the supplier to be effective.
  5. The customer cannot assign his rights or claims from this contract. However, Section 354a of the German Commercial Code (HGB) remains unaffected.

IV. Prices and shipping costs

  1. Die Preise gelten ab Werk einschließlich Verladung im Werk, jedoch ausschließlich Verpackung, soweit anwendbar zuzüglich gesetzlicher Mehrwertsteuer entsprechend den jeweils maßgeblichen Bestimmungen des Liefer- oder Leistungslandes. Sofern die Vergütung des Lieferers nicht fest vereinbart ist, sind seine am Liefertag gültigen Preise maßgebend.
  2. The prices are ex works including loading in the factory, but excluding packaging, where applicable plus statutory VAT in accordance with the relevant regulations of the country of delivery or service. Unless the supplier’s remuneration has been firmly agreed, the prices valid on the day of delivery are decisive.
  3. Engineering services, assembly and commissioning are charged separately. The calculation can be a flat rate or based on actual effort plus travel costs, food and accommodation costs, overtime, Sunday and public holiday surcharges.
  4. Price changes are permitted if there are more than 6 months between the conclusion of the contract and the agreed delivery date. The supplier is entitled to adjust the price in accordance with the price list valid at the time of delivery, taking into account the agreed percentage price discount. With regard to other deliveries and services not included in a price list, the supplier is entitled to adjust the price appropriately under the circumstances.
  5. If the supplier is willing to exchange the goods at the request of the customer, the supplier is entitled to charge the costs incurred.
  6. When ordering via the webshop, shipping costs and any other costs (e.g. packaging, customs) will be charged in addition to the delivery prices stated on the product pages. The amount of these costs will be calculated separately according to the selected Incoterms and can be found in the order confirmation.

V. Payment, late payment, offsetting, retention

  1. Unless otherwise agreed, deliveries of machines are due for payment within 7 days from the invoice date, but no later than upon delivery, spare parts within 30 days and services within 14 days from the invoice date without deductions. For orders via the web shop, payment is made using the payment method specified during the ordering process.
  2. All claims become due immediately – even in the event of a deferral or other deferral of payment – as soon as the purchaser is in arrears with the fulfillment of even part of his obligations to the supplier for more than 5 working days or circumstances arise that significantly reduce the purchaser’s creditworthiness (e.g. decline in assets, late payments or suspension of payments, over-indebtedness, credit rating downgrades by trade credit insurers, application for the opening of insolvency proceedings or the opening or rejection of the same). In this case, the supplier can refuse all deliveries and services until appropriate security has been provided for his claims.
  3. Payment by bill of exchange requires a special agreement.
  4. The customer is only entitled to offsetting or retention rights to the extent that his claim has been legally established or is undisputed. However, the purchaser’s right to withhold an appropriate portion of the purchase price due to defects in the supplier’s performance remains unaffected.
  5. If the purchaser defaults on payment, the supplier’s claims are subject to interest at 9.0% above the base interest rate.
  6. If the purchaser experiences a deterioration in assets within the meaning of Section IV. 2., the supplier may withdraw from the contract in question after the purchaser has set a reasonable deadline for the provision of appropriate securities. Further legal claims of the supplier – e.g. compensation for damages – remain unaffected. Claims for damages by the customer are excluded.

VI. Delivery, delivery time, partial services, delay in acceptance, withdrawal, reservations and claims for damages from the supplier

  1. Delivery and assembly periods only begin when the supplier and the customer have agreed on all details of the execution and all terms and conditions of the transaction and not before the supplier has confirmed the order. They are suspended as long as the purchaser is in arrears with the fulfillment of his obligations to cooperate under this contract (e.g. provision of documents, supplies, approvals, releases) or with an agreed down payment. The delivery dates are all subject to timely self-delivery.
  2. The delivery time is deemed to have been met if the delivery item has left the factory or readiness for dispatch has been communicated by the time it expires.
  3. The delivery time is extended appropriately in the event of force majeure, strikes, epidemics, pandemics, lockouts and other exceptional circumstances through no fault of our own, as well as in the event of delays by one of the supplier’s sub-suppliers for which the supplier is not responsible, provided that these circumstances can be proven to have an influence on the delivery time. This also applies to delivery delays that are related to an aforementioned result, in particular due to operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, lack of workers, energy or raw materials or official measures. If the delivery or service is made significantly more difficult or impossible for the supplier due to the above events and the hindrance is not only of short duration (max. 6 weeks), the supplier is entitled to withdraw from the contract. In the event of missing, incorrect or late performance by a sub-supplier for which the supplier is not responsible, the supplier may withdraw from the contract if this makes it impossible for the supplier to perform or if he is unable to perform even after a reasonable extension of the delivery time in accordance with the previous sentence. The supplier can also withdraw from the contract if he cannot procure the service from a sub-supplier that he needs for his service (e.g. a part, an assembly, a component or a chassis) or cannot procure it under appropriate conditions for reasons that are within the sphere of the purchaser or the modalities of the supplier’s service to the purchaser (e.g. with regard to the purchaser’s person or the country to which delivery is to be made). In the above cases of withdrawal, claims for damages by the purchaser are excluded.
  4. The supplier is entitled to refuse handover to the transport person if load securing in accordance with the relevant VDI guidelines on load safety cannot be guaranteed due to the condition of the transport vehicle provided by the transport person or if, at the supplier’s discretion, the transport vehicle does not meet the road traffic requirements
  5. If the supplier’s performance is delayed, the purchaser is only entitled to claims for delay if this is based on circumstances that the supplier could have foreseen and prevented with reasonable care and was unable to overcome through reasonable measures.
  6. The supplier is entitled to withhold his performance as long as the purchaser does not fulfill his obligations to him under this or another contract or another legal reason.
  7. Partial services are permitted as long as this is reasonable for the purchaser.
  8. If the terms of payment are not adhered to, the delivery is not accepted on time or acceptance is refused or agreed securities are not provided, the supplier is entitled to withdraw from the contract after setting a reasonable grace period without success. If the purchaser is fundamentally obliged to pay damages to the supplier in such cases, the supplier can demand 25.0% of the order sum as compensation for series products and 75.0% for individual production from the purchaser without proof, unless the purchaser can prove that no or only lesser damage has occurred. The right to claim higher damages upon proof remains reserved.
  9. If shipping is delayed at the request of the purchaser, the supplier can either charge the storage and maintenance costs actually incurred or a flat rate of 0.5% of the invoice amount per month; However, the latter does not apply if the purchaser proves that the supplier incurred no or only minor damage or expense.
  10. If shipping or delivery is delayed at the request of the purchaser or for other reasons for which the purchaser is responsible after notification of readiness for dispatch, the supplier may charge the purchaser a storage fee of 0.5% of the price of the items delivered for each month or part thereof, but a maximum of 5% in total. The contracting parties remain at liberty to prove higher or lower damages due to the delay. If the supplier proves greater damage, the storage fee must be offset against the claim for damages.
  11. The supplier’s fulfillment of the contract is subject to the condition that there are no obstacles to fulfillment due to applicable national or international foreign trade law regulations as well as no embargoes (and/or other sanctions) or other regulations that come into force after the contract has been concluded. In cases of such obstacles, claims for damages from the customer are excluded. If obstacles are only temporary, the supplier has the right to refuse performance.

VII. Assumption of risk, shipping and receipt

  1. The risk is transferred to the purchaser at the latest when the delivery item is dispatched. This also applies to partial performance or if the supplier has borne the costs for shipping or installation, or has carried out the delivery himself.
  2. If the delivery, dispatch or acceptance of the delivery item by the purchaser is delayed through no fault of the supplier, all risks – including the risk of accidental deterioration or loss of the delivery item, as well as all risks emanating from the purchaser himself – pass to the purchaser from notification of readiness for dispatch or notification of completion.
  3. Upon written request, the shipment will be insured at the purchaser’s expense to the extent desired.
  4. Items delivered must be accepted by the purchaser without prejudice to his rights, even if they have defects.

VIII. Notification of defects, warranty, warranty period

  1. The purchaser must inspect the delivery item immediately upon receipt and immediately report any defects in writing. The purchaser must also inspect the delivery item for defects and in particular for safety and usability before each start-up. During use, the delivery item must be constantly monitored for safety and defects. If there are even minor concerns about its usability or the slightest safety concerns, the item may not be used or must be shut down immediately. The supplier must be informed immediately in writing, stating the concerns or the defect. The purchaser must give the supplier an appropriate time and opportunity to carry out any repairs and replacement deliveries that the supplier deems necessary.

  2. If the supplier’s performance is defective at the time of transfer of risk, the supplier shall fulfill the obligation, at his discretion, by remedying the defect or delivering a defect-free item. If an item is delivered that is free of defects, the supplier can demand return of the replaced item. If supplementary performance regarding a defect is not possible, has ultimately failed, is unreasonable for the purchaser, or if the supplier has refused both types of supplementary performance, or if a reasonable grace period given to the supplier for supplementary performance has expired without success, the purchaser can reduce the supplier’s remuneration or, at his discretion, withdraw from the contract. However, if the defect is only insignificant, the purchaser only has the right to reduce the remuneration.

  3. The place of supplementary performance is, at the supplier’s discretion, the supplier’s headquarters, the headquarters of its own service branch or the headquarters of a sales partner.

  4. If the supplier has fraudulently concealed a defect or has given a guarantee for the quality of the item, the statutory regulations apply.

  5. In individual cases, the supplier can specify an expected shelf life of individual product components when concluding the contract.

  6. Any unauthorized repair by the purchaser or by third parties will result in the loss of all claims for defects against the supplier. The costs of repairs by the purchaser or third parties without the prior express consent of the supplier will not be borne by the supplier. This does not apply in urgent – ​​especially urgent – ​​cases of endangering operational safety or to prevent disproportionate damage. In these cases, the supplier must be informed immediately and is only obliged to reimburse the necessary costs.

  7. The supplier assumes no liability and no liability for damages, particularly in the following cases: unsuitable or improper use, incorrect assembly or commissioning by the purchaser or third parties, natural wear and tear, incorrect or negligent treatment, improper maintenance, excessive stress, unsuitable operating resources and replacement materials, defective work, unsuitable subsoil, chemical, electrotechnical/electronic or electrical influences. There is no liability or obligation on the part of the supplier in particular for the following measures and actions by the purchaser or third parties and their consequences: improper repairs, changes to the delivery item without the prior consent of the supplier, attachment and installation of parts, in particular spare parts, that do not come from the supplier or were expressly approved for installation, as well as non-observance of the operating and operating instructions. However, this exclusion does not apply if the damage is paid for by the supplier in accordance with the provisions in IX. are responsible.

  8. The supplier does not provide any warranty for materials supplied by the purchaser or procured based on specifications provided by the purchaser or for constructions specified by the purchaser.

  9. The warranty is excluded for used machines, devices or parts.

  10. The customer’s claims for subsequent performance as well as any claims for damages or reimbursement of expenses due to defects expire in the case of deliveries one year from delivery of the goods or from the occurrence of a delay in acceptance or collection, in the case of assembly one year from acceptance or – if acceptance does not have to take place – from the end of assembly. If the supplier fraudulently concealed the defect or gave a guarantee for the quality of the item, the statutory regulations apply to the statute of limitations for any claims. The statutory regulations also apply to the statute of limitations of any claims for damages by the purchaser due to defects if the supplier is guilty of intent or gross negligence, or if the claim for damages is based on injury to life, body or health.

IX. Claims for damages by the customer, limitation of liability, statute of limitations

1. The supplier’s liability for damages, regardless of the legal reason (in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and unlawful act), is in accordance with this Section IX, insofar as fault is involved. restricted.
2. The supplier’s liability is excluded in the case of simple negligence, unless it is a violation of essential contractual obligations (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on whose compliance the contractual partner regularly relies and may rely).
3. In the event of liability on the part of the supplier based on simple negligence and an essential contractual obligation has been culpably violated, the seller’s obligation to pay compensation for property damage and other financial losses is limited to an amount equal to 15% of the contract value per case of damage.
4. In addition, the supplier’s liability, to the extent that the breach of duty attributable to him is based on simple negligence and an essential contractual obligation has been culpably breached, is limited to the foreseeable damage that typically occurs in comparable cases.
5. The supplier’s liability for an attributable breach of duty based on intent or gross negligence, for injury to life, limb and health as well as for guaranteed characteristics and in accordance with the provisions of the Product Liability Act remains unaffected.
6. The above limitations of liability also apply in the event of breaches of duty by the supplier’s legal representatives or vicarious agents. To the extent that the supplier’s liability is excluded due to the above regulations, this also applies to the personal liability of the supplier’s employees and vicarious agents.

X. Backup

1. The delivery item remains the property of the supplier until the agreed price and all other future claims arising from the business relationship with the customer have been paid in full.
2. The customer hereby assigns the claims arising from the resale of the delivery item to the supplier in the amount of the value of the delivery item (final invoice amount including any sales tax) with all ancillary rights. The customer is authorized to collect the claims. The supplier’s authority to collect the claims himself remains unaffected by this.
3. If the delivery item is combined with other items that do not belong to the supplier in such a way that they become essential components of a uniform item, he acquires co-ownership of the new item in the ratio of the value of the delivery item (market value) to the value of the other connected item at the time of connection. If the delivery item is combined in such a way that the purchaser’s item is to be viewed as the main item, the purchaser and the supplier already agree that the purchaser transfers proportional co-ownership of this item to the supplier in the aforementioned ratio. The supplier accepts this transfer. The purchaser will keep the resulting co-ownership of an item for the supplier.
4. At the purchaser’s request, the supplier undertakes to release securities of his choice if the realizable value of his securities exceeds the sum of his claims from the business relationship by more than 10%.
5. As long as the purchaser fulfills his obligations towards the supplier, he is entitled to dispose of the delivery item in the ordinary course of business and subject to retention of title, provided that the claims in accordance with Section 2 are effectively transferred to the supplier. Extraordinary dispositions such as pledging and assignment as security are not permitted.
6. Access by third parties to the delivery item or to claims assigned to the supplier, in particular seizures, must be reported to the supplier immediately in writing. Furthermore, the purchaser must inform the third party of the supplier’s ownership so that the supplier can secure its rights to the delivery item or the assigned claims in a timely manner. If the supplier’s intervention was successful and the supplier tried in vain by means of compulsory enforcement to claim the judicial or extrajudicial costs incurred in connection with the intervention, the purchaser is liable for this.
7. During the retention of title, the purchaser is generally entitled to possess and use the delivery item as intended. If the purchaser behaves in breach of contract – in particular if the purchaser is in arrears with his payments – as well as in the cases of Section IV. 2, the supplier can withdraw from the contract in accordance with the statutory provisions and revoke the authorization to collect the claims arising from the resale. After the withdrawal of the supplier, the purchaser is obliged to return the delivery item and hand over the benefits drawn. The purchaser bears all costs incurred as a result of returning the delivery item. At the supplier’s request, the purchaser must immediately provide the supplier with a list of the claims assigned to the supplier in accordance with Section 2 as well as all other information and documents required to assert the rights to which the supplier is entitled and notify the debtors of the supplier’s withdrawal. At the supplier’s request, the purchaser must immediately provide the supplier with a list of the claims assigned to the supplier in accordance with Section 2 as well as all other information and documents required to assert the rights to which the supplier is entitled and notify the debtors of the supplier’s withdrawal.
8. The purchaser must keep the delivery item in proper condition during the retention of title and have all maintenance and repair work provided by the supplier carried out immediately – apart from emergencies – by the supplier or by a workshop recognized by the supplier. To the extent that carrying out maintenance and repair work is necessary for the proper care of the delivery item, the purchaser must bear the costs incurred in this connection. Furthermore, the purchaser is obliged to insure the delivery item against theft, fire and water damage under appropriate conditions and to provide proof of this upon request.
9. For truck-mounted concrete pumps, truck mixers or other motor vehicles or trailers, the supplier has the right to possession of the registration certificate Part II or analogous documents for the duration of the retention of title. This does not apply to vehicles provided by the customer.
10. The assertion of retention of title and the seizure of the delivery item by the supplier do not constitute withdrawal from the contract.
11. If the retention of title or assignment is not effective under the law of the country in which the goods are located, the security that comes closest to the retention of title or assignment in that country is deemed to have been agreed. If the purchaser’s cooperation is required, he must carry out all legal actions that are necessary to establish and maintain such rights.

XI. Ownership and copyrights of the supplier

The supplier reserves ownership or copyright to all offers and cost estimates submitted by the supplier as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the purchaser. Without the express consent of the supplier, the purchaser may not make these items, either as such or in terms of content, accessible to third parties, disclose them, use them himself or through third parties, change them or reproduce them. At the supplier’s request, the purchaser must return these items in full and destroy any copies made if they are no longer needed in the normal course of business or if negotiations do not lead to the conclusion of a contract. Excepted from this is the storage of electronically provided data for the purpose of normal data backup.

XII. Export control

1. The purchaser is obliged to inform the supplier in a timely manner of all information that the supplier requests and requires when examining the end-use/end-use. The effectiveness of an offer, the conclusion of a contract and the fulfillment of a contract by the supplier are subject to the condition that there are no obstacles due to applicable national or international provisions of foreign trade or customs law or embargoes (or other sanctions). Tests to be carried out by the supplier or the approval authority may override agreed deadlines and delivery times and extend these by the period of delay. If the contract cannot be fulfilled at the time of delivery (delivery time including the above-mentioned delay) due to an applicable provision mentioned above, the contract with regard to the affected part is deemed not to have been concluded. The purchaser is not entitled to assert claims for damages if fulfillment does not take place or occurs late due to one of the above-mentioned obstacles.
2. The purchaser confirms that the supplier’s goods and services are used exclusively for civil, non-critical end uses. Upon request, the purchaser will issue an end-use declaration for the supplier in good time in advance, stating the end use.
3. If the customer intends to continue to deliver goods (hardware, software, technology and associated documentation, regardless of the type of provision) or services received from the supplier, he is obliged to comply with the export control regulations. The purchaser confirms, among other things, to refrain from any transaction involving persons, organizations or institutions, etc. that are included in a sanctions list or are controlled or controlled – in whole or in part, directly or indirectly – by one or more listed/sanctioned persons.
4. In the event of a breach of legal or contractual obligations, the supplier reserves the right to extraordinary termination of the contract and to take further legal action.

XIII. Compliance

The purchaser undertakes that he and his shareholders, managing directors, supervisory and advisory boards, employees and other representatives will comply with legal regulations and will in particular prevent criminal and reprehensible conduct in the context of his business activities in connection with this contract in any direction.

XIV. Data protection

Data processing is carried out in accordance with the applicable regulations of the Federal Data Protection Act and the European General Data Protection Regulation. The supplier collects, processes and uses the customer’s personal data for this purpose. Further information on data processing and data protection is contained in the supplier’s data protection declaration, which can be viewed at https://www.putzmeister.com/web/european-union/privacy-policy

XV. Software Usage

If software is included in the scope of delivery, the purchaser is granted a non-exclusive right to use the software supplied, including its documentation. It is provided for use on the intended delivery item. Using the software on more than one system is prohibited. The customer may only reproduce, revise, translate the software or convert the object code into the source code to the extent permitted by law. The purchaser undertakes not to remove manufacturer information – in particular copyright notices – nor to change it without the prior express consent of the supplier. All other rights to the software and documentation, including copies, remain with the supplier or the software supplier. The granting of sublicenses is not permitted.

XVI. Choice of law, place of performance, place of jurisdiction, severability clause

  1. 1. The law of the Federal Republic of Germany applies exclusively, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). In case of doubt, the German-language version of all contractual provisions is authoritative.
    2. Place of performance is 72631 Aichtal.
    3. The sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Stuttgart if the customer is a merchant, a legal entity under public law or a special fund under public law. However, the supplier can also appeal to any other court with jurisdiction under the statutory provisions.
    4. If one of the provisions of these sales and delivery conditions is wholly or partially void, this does not affect the validity of the remaining provisions.

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