General Terms and Conditions of PCS GmbH - konferenztechnik.de
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General Rental Conditions of PCS Professional Conference Systems GmbH
Status December 2021
If the following terms and conditions do not differentiate between the genders, this is done exclusively to make these terms and conditions easier to read and precisely not on the basis of a judgmental manner.
§ 1 Validity
1.1 These General Rental Terms and Conditions ("AMB") apply to our rental business relationships with our customers (hereinafter "Tenant" or "Customer"). Our AMB apply to both consumers and entrepreneurs, exceptions arise only if a differentiation is made in the respective clause.
1.2 The AMB shall apply in particular to contracts concerning
(i) the exclusive rental of our event technology and related accessories (hereinafter "Rental object") – here as "Dry-Hire" designated,
(ii) the rental of the Rental Objects together with other (technical) services (hereinafter "Services") within the scope of the rental (in particular, but not conclusively, delivery, assembly of the rental items, supervision of the rental items/event technology during the Lessee's event, dismantling of the rental items after the event and return transport of the rental items to the Lessor – here as "Rental & support for presence event" designated,
(iii) a temporary provision of the use of a virtual meeting room of the Lessor through various third party software providers (hereinafter "Software access") provided by the landlord so that the tenant can use it for its own digital events – here as "Virtual Event" designated and
(iv) the provision of services only by Lessor at Lessee's events when Lessee wishes to use its own event equipment – herein referred to as "Event support" (all together hereinafter referred to as "PCS services").
Unless otherwise agreed, the AMB in the version valid at the time of conclusion of the contract or in any case in the version last notified to him in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
1.3 Our AMB shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the lessee shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the lessee without reservation in the knowledge of the lessee's GTC. Individual agreements made with the lessee in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTCS. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
1.4 Legally relevant declarations and notifications by the Lessee with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall be made in writing or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in case of doubt about the legitimacy of the declarant, remain unaffected.
1.5 References to the applicability of statutory provisions shall only have a clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these AMB.
1.6 Insofar as contracts are concerned in accordance with the various subjects of the contract pursuant to § 1.2 of these AMB, these AMB shall also apply to all future transactions between us and the Lessee.
§ 2 Offer and conclusion of contract
2.1 Our commercial offers with respect to all services pursuant to § 1.2 of these AMB are generally subject to change and non-binding ("invitatio ad offerendum"), unless a firm binding effect has been expressly declared by us here in the individual case. This shall also apply if we have provided catalogs, technical documentation (in particular but not conclusively e.g. drawings, plans, calculations, calculations, references to DIN and/or ISO standards), other product descriptions or documents – also in electronic form –, to
to which we reserve property rights and copyrights. The descriptions of the rental items, the services and the software access in our offers, order confirmations etc. are only approximately authoritative. If it is not possible for the Lessor to procure one or all of the rental items or the software access, the Lessor may fulfill the rental agreement part of the contract or the rental agreement part of the software contract by providing an equivalent rental item (e.g. an equivalent type of equipment from another manufacturer) or an equivalent software access (e.g. from an equivalent software provider from another manufacturer), provided that it has equivalent functions and/or properties and is suitable for the usual purpose of use of the rental item or the software access.
2.2 The acceptance of our commercial offer pursuant to § 2.1 of these AMB by the Lessee shall only then (unless the exception pursuant to § 2.1 sentence 1 of these AMB applies) be deemed a binding offer to conclude the contract ("Vyield offer"). Unless otherwise stated in the contractual offer, we shall be entitled to accept this contractual offer within fourteen (14) days of its receipt by us.
2.3 A legally binding contract shall then only be concluded by our written order confirmation or by our actual performance towards the Lessee ("Contract acceptance").
§ 3 Rental Contractual Components of Dry Hire and Rental & Support at Presence Event Services
3.1 [Rental period] With regard to the rental period it is agreed:
3.1.1 The rental period can be calculated by hours, days and weeks. Commenced hours, days or weeks shall count in full. The exact calculation of the rental period as well as any minimum rental periods shall result from the commercial offer prior to the conclusion of the contract and from the acceptance of the contract or our order confirmation after the conclusion of the contract.
3.1.2 Changes to the order may result in the cancellation of agreed dates. The rental date and thus the start of the rental period shall apply
(i) in the case of Dry Hire with provision for collection by the Hirer or forwarder/transport person as agreed, as well as
(ii) in the case of rental and support at presence events with provision at the event location of the lessee as agreed.
Unforeseeable events shall release us from our obligation to perform for the duration of the disruption and to the extent of its effects. Agreed performance dates shall be extended to a reasonable extent. Otherwise, such events entitle us to withdraw from the contract without the lessee having a right to compensation.
3.1.3 The start of the rental period shall be agreed by us with the Lessee in each individual case. If this has not been expressly agreed, the rental period shall commence in the dry hire case at the latest at the time of collection/delivery from the warehouse in accordance with § 3.2.1.1 of these AMB or in the rental & support case in the case of presence events at the latest at the time of provision of the contractual services at the Lessee's event location. The rental period shall end as agreed between the contracting parties in the individual case.
3.1.4 In the event of a late return by the Lessee, we reserve the right to charge a higher rent for this period. For each day of delay, a full daily rental rate may be charged in addition to the agreed rent.
3.2 [Performance, handover of the rental object, transfer of risk]
3.2.1 [In the Dry Hire Case] With regard to performance, handover of the hired item and transfer of risk, the following shall apply in particular but not conclusively to the Dry Hire Case:
3.2.1.1 In the dry-hire case, delivery shall be made ex our warehouse in accordance with the commercial offer (here "Bearing") rented. In the event of dry hire, the lessee is obliged to collect the rental object from the lessor on the agreed date at the agreed start of the rental period.
3.2.1.2 In the event of dry hire, the Lessor shall fulfill the part of the contract relating to the hire agreement if it makes the hired item available in its warehouse for collection by the Hirer or its logistics provider at the time of the agreed start of hire. The transfer of risk to the Lessee shall take place when the goods are made available by the Lessor in its warehouse and at the time of the contractual commencement of the lease. This shall also apply if the Lessee takes delivery of the leased goods at a later date. This shall also apply if the Lessor transports the rented item or has it transported to another location at the Lessee's request. The transfer of risk to the Lessee shall take place – even if the Lessor delivers the rental object to the Lessee – when the goods are made available by the Lessor in the Lessor's warehouse and at the time of the contractual commencement of the rental period, even if the rental object does not come into the possession of the Lessee until later.
3.2.2 [In the case of rental & support in the case of a presence event] With regard to the fulfillment, handover of the rental object and the transfer of risk, the following shall apply in particular, but not conclusively, in the case of rental & support in the case of a presence event:
3.2.2.1 In the case of rental & support at face-to-face event, ex our warehouse according to the commercial offer (here "Bearing") rented. In the case of rental & support at presence events, the tenant is obliged to accept the services on the agreed date.
3.2.2.2 In the case of rental & support for presence events, the Lessor shall fulfill the rental agreement component of the contract if it offers the rental object for performance in accordance with the contract at the time of the agreed start of rental at the contractually agreed venue.
3.3 [General rental agreement arrangements] The following provisions are agreed in particular (but not conclusively) with regard to both the dry hire case and the case of rental & support for presence events:
3.3.1 If it is not possible for the Lessor to procure the Leased Item or a specific device, the Lessor may fulfill the contractual component of the lease by providing an equivalent Leased Item (e.g. an equivalent device type from another manufacturer), provided that it has equivalent functions and/or properties and is suitable for the usual purpose of use of the Leased Item.
3.3.2 Descriptions or illustrations of the Rental Goods in advertisements, on Internet pages, brochures or other documents of the Lessor or third parties do not constitute warranted characteristics of the Rental Goods.
3.3.3 Upon handover of the Rental Goods, Lessee shall confirm receipt of the Rental Goods to Lessor in writing in a corresponding receipt or delivery bill. The Lessor is obliged to surrender the rental object only against confirmation of receipt.
3.3.4 Subletting of the leased property is not permitted unless otherwise expressly agreed. Such subletting shall in any case require the prior written consent of the Lessor. The consent may be subsequently revoked at any time for good cause. In the event of subletting, the Tenant shall be obliged to impose the same contractual obligations on the subtenant as he is subject to vis-à-vis the Landlord. In the event of subletting, the Tenant shall be liable internally to the Landlord for any damage to the Leased Property and for any other claims of the Landlord.
3.3.5 The Lessee shall notify the Lessor without delay of any destruction, damage, malfunction, seizure, attachment, theft or loss of the Leased Property. If the Lessee fails to comply with this obligation or fails to do so without delay and if this results in deterioration, destruction or loss of the Leased Property, the Lessee shall be obliged to compensate the Lessor for the damage resulting from the failure to notify or the delay in notifying the Lessor.
3.4 [Special Obligations of the Lessee in the Dry Hire Case] The following obligations shall apply in particular (but not conclusively) in the Dry Hire Case:
3.4.1 Our rental object must be checked for completeness and functionality immediately upon handover. Later complaints are excluded. The rental object may only be used at the agreed place of use (event location) and must be set up in such a way that a technical inspection by us is possible at any time. The lessee is obligated to provide the lessor with information about the location of the rental object at any time upon the lessor's request, either in writing or in text form.
3.4.2 The Lessee assumes full sole responsibility with regard to the rental object and its use as well as all traffic safety obligations. It is clarified that the use and deployment of the rental property and the associated risks for the rental property, for persons and property of third parties are the sole responsibility of the Lessee. The lessor is not obliged to supervise the use of the rental object by the lessee or to instruct the lessee in this respect.
3.4.3 In addition, the Lessee is obliged to,
3.4.3.1 to handle the rented items with care and to observe all regulations and technical rules applicable to the use of the rented items,
3.4.3.2 to use the rental object only within the scope of their intended use and to protect it in a suitable manner against damage and loss,
3.4.3.3 to obtain any permits required for the use of the rented items itself and at its own expense,
3.4.3.4 if required or prescribed, to deploy professionally trained personnel for the operation of the rental object at its own expense,
3.4.3.5 to make or have made alterations or modifications to the rental object, in particular additions and installations, or to remove or add markings to the rental object only with prior consent,
3.4.3.6 to take out all necessary insurances for the Leased Objects, but at least the insurances customary in the industry, and to furnish proof of such insurances to the Lessor upon the latter's request, and
3.4.3.7 to take suitable precautions to ensure that the rented items are not damaged, stolen or lost.
3.4.4 Before independent commissioning of our rental items, the enclosed instructions for use are to be read carefully, in case of questions or problems we are to be contacted.
3.4.5 In the event of theft or loss, we shall be entitled to charge the Lessee for the cost of replacing the rented item. In the event of damage, we shall be entitled to charge the Lessee for the cost of repair at a workshop of our choice. The customer is free to prove that we have incurred no or less damage. Further claims for damages remain unaffected. This agreement is limited to the typical damage in the case of a normal damage run.
3.5 [Special obligations of the Lessee in the case of rental & support at presence events] The following obligations apply in particular (but not conclusively) in the case of rental & support at presence events:
3.5.1 Since in the case of rental & support for presence events the Lessor is in particular, but not conclusively, responsible for setting up the rental object (cf. 1.2 of these AMB), the Lessee must ensure the following access for the Lessor. The customer is obligated to provide access for technicians, loading routes as well as reasonable access times to the contractually agreed event location (incl. all event rooms, supply rooms and associated rental object rooms) of the lessee during our business hours in good time (at least 24 hours before the start of the rental and continuously until the start of the event), unless otherwise individually contractually agreed. Access shall be provided in reasonable proportion and scope commensurate with our performance. We reserve the right to claim compensation for damages caused by delay.
3.5.2 Since we have been commissioned to look after the rental item during the event, the Lessee assures us of the undisturbed performance of our duties. It applies by way of clarification that the Lessee is exclusively responsible for the issue and return of portable rental items during the event to the event participants and/or third parties, even if the issue is carried out by the Lessor as part of its service to look after the event for the Lessee. After the event, the renter is solely responsible for ensuring that we can dismantle and remove the rental item without hindrance.
3.5.3 Without the prior consent of the Lessor, the Lessee shall not be entitled to carry out or have carried out any alterations or modifications to the Leased Property, in particular any additions or installations, or to affix or remove any markings on the Leased Property.
3.5.4 When issuing the rental items to event participants and/or third parties, we are entitled, in the event of theft or loss, to charge the Lessee for the costs of acquiring a new rental item. In addition, in this situation, we are also entitled to charge the renter for the repair costs in a workshop of our choice in the event of any damage to the rental items issued. The customer is free to prove that we have incurred no damage or a lesser damage. Further claims for damages remain unaffected. This agreement is limited to the typical damage in the case of a normal damage run.
3.6 [Return of the rental object] In the case of dry hire, the Lessee is obliged to return the rental object (unless otherwise stipulated in the order) to our warehouse by 12:00 noon at the latest on the calendar day following the last day of the rental period in accordance with § 3.2.1.1 of these AMB. If the return time is exceeded by more than one hour, the customer shall be obliged to pay compensation for the period exceeding the rental period in the amount of one day's rent per day if we could have rented the rented item elsewhere. The customer is free to prove that we have suffered no or less damage. We reserve the right to assert claims for compensation and damages going beyond this. At the end of the rental period, the lessee is obliged to hand over the rental object to the lessor in the condition that the rental object was in when it was handed over to the lessee. The condition at the time of handover of the Leased Property to the Lessee shall be deemed to be that which existed at the time of handover to the Lessee. Normal wear and tear and customary wear and tear of the rental object, insofar as these occur through contractual and intended use, shall not be taken into account.
3.7 [General Right of Access] The Lessor shall be entitled at any time to demand access to the Leased Property and to inspect the Leased Property or to have such inspection carried out by a third party. After prior notification of the Lessee, the Lessor shall be entitled at any time and at its own expense to inspect the Leased Property or to have such inspection carried out by a third party if this does not restrict the contractual use of the Leased Property by the Lessee more than insignificantly. The Lessee shall be obliged to cooperate in this respect. If it is necessary to avert an urgent danger, the Lessor may also inspect the Leased Property without prior notice and, insofar as this is absolutely necessary, shut it down immediately.
3.8 [Condition of the leased property] The usability of the leased property for the purpose intended by the Lessee is solely the responsibility and risk of the Lessee. Deviations of the rental object from illustrations or descriptions in the Lessor's brochures shall only lead to warranty claims or claims for damages on the part of the Lessee if this causes a not merely insignificant impairment of the usability. The lessor shall not be liable for the suitability of the leased property for the purpose intended by the lessee and shall not be liable for the lessee being allowed to use the leased property without any permits that may be required. Claims of the Lessee due to obvious defects of the Leased Property are excluded if these are not reported to the Lessor in writing within three (3) days after taking over the Leased Property.
3.9 [Delayed provision] In the event of delayed provision of the rented item or the provision of a defective rented item, the lessor – shall only be liable for the costs of the necessary replacement unless there is intent or gross negligence –. Claims that go beyond this are excluded.
3.10 [Notes and recommendation] We recommend in any case the rental of replacement technology for the rental items, so that in the event of a technical failure of a rental item, the implementation of the customer's event is not jeopardized.
3.11 [Supplementary services of the Lessor in the case of rental & support at presence events] In addition to the rental of the Leased Property, the Lessor shall provide further (technical) services in the case of rental & support at presence events ("Services") within the scope of the rental (in particular, but not conclusively, delivery, assembly of the rental items, supervision of the rental items/event technology during the Lessee's event, dismantling of the rental items after the event and return transport of the rental items to the Lessor). The exact details of these services result from the contract of the parties according to § 2 of these AMB. Additional services in addition to the rental (the transfer of use from the warehouse) are to be provided by the Lessor only if such services have been agreed separately for additional remuneration. If additional services, such as the delivery, assembly or installation of a system or the assembly, assembly or installation of individual devices are ordered by the Lessee and performed by the Lessor, the following provisions shall apply.
3.11.1 If services are provided by the Lessor free of charge, the following provisions shall apply to such work:
3.11.1.1 Insofar as additional services are provided free of charge by the Lessor, these shall be mere favors. In this case, the Lessor shall only be liable for gross negligence or intent.
3.11.1.2 In this case, the liability of the Lessor shall be limited to the amount covered by its business liability insurance.
3.11.2 If paid services are provided by the Lessor – such as delivery, assembly, or installation of the rental object as well as dismantling and return transport – the following provisions shall apply to such work:
3.11.2.1 By providing services such as delivery, installation, assembly, dismantling and/or return transport of rental items, the Lessor is neither responsible as operator, nor as organizer, nor as technical manager of the event.
3.11.2.2 The limitation of liability pursuant to § 8 of these AMB shall apply to liability for damages.
3.11.2.3 The Lessor may use third parties (subcontractors) for the provision of additional services.
3.11.3 For the services according to § 3.11 of these AMB, § 5 of these AMB shall apply accordingly in the case of rental & support at presence events.
§ 4 Provision of software access for Virtual Events
4.1 When providing software access for Virtual Events, Lessor shall provide the use of a virtual meeting room of Lessor via various third-party software providers for a limited period of time. This enables the Lessee to use this digital room of the Lessor for its own digital events for the agreed period. In this context, no access data to the third-party software and/or no license rights to the third-party software shall be provided and/or made available to the Lessee. Rather, the lessor shall set up
§ 4.2 of these AMB the digital space and provides the access to the Lessee for the period of the agreed Virtual Event by sending the web browser link to the Lessee as agreed before the event so that the Lessee can invite its event participants.
4.2 The exact details of these services result from the contract of the parties according to § 2 of these AMB. The rights and obligations arising from this part of the contract shall result from the statutory and judicial provisions, unless these AMB contain an effective deviation.
§ 5 Support of events
5.1 In the case of event support, the Lessor shall exclusively provide services at events of the Lessee if the latter wishes to use its own event technology. In addition, the Lessee undertakes the following.
5.2 The exact details of these services result from the contract of the parties according to § 2 of these AMB. The rights and obligations arising from this part of the contract shall result from the statutory and judicial provisions, unless these AMB (in particular but not conclusively in § 5.3 of these AMB) contain an effective deviation.
5.3 Lessor shall be entitled to change the manner in which the Services are provided to the extent that such change is required for legal, technical or important operational reasons, provided that the change does not result in any adverse deviations from the quality standards of the Services owed under this Agreement within the limits of what is legally and actually possible and economically reasonable. Lessor shall notify Lessee of the change with reasonable advance notice. Lessor may at any time use companies affiliated with it or third parties to provide the contractual services. The use of third parties to provide the Services shall not release the Lessor from its obligations under the respective contractual relationship with the Lessee.
5.4 Lessee shall provide Lessor with all reasonable cooperation and assistance reasonably required for the performance of the respective Services under this Agreement, in particular granting access to employees and premises and providing necessary equipment, software or other resources. If Lessee breaches any of these obligations pursuant to § 5.4 of these AMB, this shall release Lessor from its obligation to provide the service affected thereby for as long as the breach continues and the performance becomes impossible or substantially more difficult as a result. The reasonable additional costs incurred by the Lessor in providing the services as a result of this breach shall be borne by the Lessee.
§ 6 Remuneration and terms of payment
6.1 The remuneration offered (this includes, in addition to any rent, remuneration for services, depending on the service component) shall be binding. The remuneration shall be based on the underlying contract. On the basis of an express agreement, an individual price adjustment may be agreed prior to the conclusion of the contract. In quotations, order confirmations and, where applicable, price lists, we shall only quote net prices to entrepreneurs. The statutory value-added tax shall be shown separately on the invoice at the rate applicable on the date of invoicing and shall be payable in addition at the statutory rate.
6.2 Invoice amounts are always due immediately and are to be paid in full by the Lessee by bank transfer up to fourteen (14) calendar days after receipt of the invoice. The invoice will be sent by us by e-mail or by mail. The crediting of our business account (as shown on the invoice) is decisive for the timeliness of payment. However, we are entitled at any time, even within the framework of an ongoing business relationship, to carry out a delivery or service in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.
6.3 Upon expiry of the aforementioned payment period, the renter – shall be in default without reminder –. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. For consumers this is 5 % p.a., whereby we reserve the right to claim higher default interest. We also reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest (§ 353 HGB) shall remain unaffected.
6.4 The set-off with counterclaims of the Lessee or the retention of payments due to such claims shall only be permissible insofar as the counterclaims are undisputed or have been finally determined by a court of law or result from the same order under which the respective rental has been made.
6.5 Lessor shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, Lessor becomes aware of circumstances which are likely to substantially reduce Lessee's creditworthiness and as a result of which payment of Lessor's outstanding claims by Lessee under the respective contractual relationship (including under other individual orders to which the same framework agreement applies) is jeopardized.
§ 7 Liability of the tenant for damages due to fault
7.1 The Lessee shall be liable, insofar as he is at fault, for all damage to the rental object.
7.2 If the Lessee withdraws from the rental agreement or refuses to accept the Lessor's performance for any other reason or fails to pay the remuneration in advance in due time, the Lessee shall be obliged to pay the Lessor a lump-sum compensation for loss as compensation for the expenses incurred and reduced possibilities of renting the object to another party in accordance with the following provisions.
7.3 Only in the event that the place of performance of the PCS services of the Lessor is within Germany, the Lessee shall be entitled to withdraw from the rental agreement up to thirty (30) days prior to the day of commencement of the performance of the services by the Lessor vis-à-vis the Lessee (this is in the case of the
(i) Dry Hire: Start of Hire,
(ii) Rental and support for face-to-face event: rental start date,
(iii) Software access for Virtual Events: event start date of the Virtual Event and
(iv) Support of events: Service start towards the customer (hereinafter "Day-begin service provision")) possible free of charge.
After that we charge the following cancellation fees:
25 % of remuneration until 14 days before the day-commencement service provision,
50 % of the remuneration until 7 days before the day-commencement service provision,
75 % of the remuneration until 3 days before the day-commencement service provision,
100 % of the remuneration from 3 days before the day-commencement service provision.
§ 8 Warranty, Damages, Liability of the Lessor, Statute of Limitations
8.1 Unless otherwise stipulated in these AMB including the following provisions, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
8.2 We shall be liable – for damages, irrespective of the legal grounds, within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only
8.2.1 for damages resulting from injury to life, body or health,
8.2.2 for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
8.3 The limitations of liability resulting from § 8.2 of these terms and conditions shall also apply to breaches of duty by or in favor of persons for whose fault we are responsible according to statutory provisions. They shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the Lessee under the Product Liability Act.
8.4 Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this shall be done free of charge and as a mere courtesy and therefore to the exclusion of any liability.
8.5 We shall not be liable within the scope of the provision of special services (e.g. work, delivery, fitting, assembly or installation of goods and delivery items) for such work undertaken by our personnel or other vicarious agents, insofar as this work is not directly connected with the special services or was arranged by the Lessee.
8.6 The aforementioned exclusions of liability and
-limitations shall apply to the same extent in favor of our corporate bodies, legal representatives, employees and other vicarious agents.
8.7 The following shall apply to the services under these AMB: If the Lessor does not provide services properly (including delays or quality defects), the Lessor shall remedy the defect within a reasonable period of time after receipt of a written notice. If the Lessor fails to do so within such period, the Lessee shall be entitled to reasonably reduce the remuneration attributable to such service for the relevant period. Other claims of the Lessee due to this breach of duty for services are excluded. The Lessor shall be liable for damages caused during the provision of the Services or otherwise in connection with this Agreement only for the care that the Lessor otherwise applies in its own affairs. In no event shall Lessor be liable for consequential damages (including lost profits or business interruption damages) in connection with the Services. Lessor's liability arising out of or in connection with the Services shall be limited in the aggregate to a total amount equal to the portion of the Fee attributable to the Services. The above limitations of liability shall not apply to intentional conduct of the Lessor or in case of injury to life, body or health.
8.8 With regard to all PCS services the following applies: The Lessor shall not be liable for impossibility of performance or for delays in performance insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (in particular, but not conclusively, operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, pandemics, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver properly or on time) for which the Lessor is not responsible. Insofar as such events make it considerably more difficult or impossible for the Lessor to provide the delivery or service and the hindrance is not only of temporary duration, the Lessor shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the Lessee cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to the Lessor.
§ 9 Final Provisions, Choice of Law and Place of Jurisdiction
9.1 The place of performance shall be our registered office, unless otherwise stipulated in the above provisions or the order confirmation.
9.2 If the Lessee is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Lessor and the Lessee shall be, at the Lessor's option, Berlin or the Lessee's registered office. In such cases, however, Berlin shall be the exclusive place of jurisdiction for actions against the Lessor. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
9.3 The relations between the Lessor and the Lessee shall be governed exclusively by the laws of the Federal Republic of Germany, excluding international uniform law, in particular UN law.
9.4 Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had known about the loophole.
9.5 Should any of these provisions be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a provision that comes as close as legally possible to the intention of the parties.
General Terms and Conditions of Sale of PCS Vertriebs- und Service GmbH
Status December 2021
If the following terms and conditions do not differentiate between the genders, this is done exclusively to make these terms and conditions easier to read and precisely not on the basis of a judgmental manner.
§ 1 Validity
1.1 These General Terms and Conditions of Sale (hereinafter "AVB") apply to all our sales business relationships with our customers (hereinafter "Buyer" or "Customer"). Our AVB apply to entrepreneurs, exceptions exist only if an explicit differentiation is made in the respective clause.
1.2 The GCS apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter "Goods"), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GCS in the version valid at the time of the Buyer's order or in any case in the version last notified to him in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case. If our products include software or literature, you shall be granted a non-exclusive right of use for an unlimited period of time, unless otherwise agreed in individual cases. The special license and other conditions of the manufacturer as well as the copyright regulations apply.
1.3 In addition, it is possible to conclude a separate maintenance contract and an installation contract. This must be requested individually with the offer in accordance with § 2 of these GTC. A separate agreement shall be concluded below. It is also possible to conclude an installation contract. This must be requested individually with the offer in accordance with § 2 of these GCS. A separate contract shall be concluded in this respect below.
1.4 Our 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 we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer's GTC. Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
1.5 Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall be made in writing or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in case of doubt about the legitimacy of the declarant, remain unaffected.
1.6 References to the applicability of statutory provisions shall only be of a clarifying nature. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
§ 2 Offer and conclusion of contract
2.1 Our commercial offers with respect to all services pursuant to § 1.2 of these AMB are generally subject to change and non-binding ("invitatio ad offerendum"), unless a firm binding effect has been expressly declared by us here in the individual case. This shall also apply if we have provided catalogs, technical documentation (in particular but not conclusively e.g. drawings, plans, calculations, calculations, references to DIN and/or ISO standards), other product descriptions or documents – also in electronic form –, to
to which we reserve property rights and copyrights. The descriptions of the rental items, the services and the software access in our offers, order confirmations etc. are only approximately authoritative. If it is not possible for the Lessor to procure one or all of the rental items or the software access, the Lessor may fulfill the rental agreement part of the contract or the rental agreement part of the software contract by providing an equivalent rental item (e.g. an equivalent type of equipment from another manufacturer) or an equivalent software access (e.g. from an equivalent software provider from another manufacturer), provided that it has equivalent functions and/or properties and is suitable for the usual purpose of use of the rental item or the software access.
2.2 The acceptance of our commercial offer pursuant to § 2.1 of these AMB by the Lessee shall only then (unless the exception pursuant to § 2.1 sentence 1 of these AMB applies) be deemed a binding offer to conclude the contract ("Vyield offer"). Unless otherwise stated in the contractual offer, we shall be entitled to accept this contractual offer within fourteen (14) days of its receipt by us.
2.3 A legally binding contract shall then only be concluded by our written order confirmation or by our actual performance towards the Lessee ("Contract acceptance").
§ 3 Delivery time and delay in delivery
3.1 Unless a fixed period or date has been agreed in writing, our deliveries and services shall be made within a period of approximately thirty (30) working days from the conclusion of the contract.
3.2 If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this without delay and at the same time notify the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the Buyer. A case of non-availability of the performance in this sense shall be deemed to be in particular the non-timely self-delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
3.3 The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. Our liability for damages, irrespective of the legal grounds (in particular in case of delay, defects or other breaches of duty), shall be limited to the foreseeable damage typical for the contract.
3.4 The above limitation of liability shall not apply to our liability for intentional conduct or gross negligence, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
3.5 The rights of the Buyer pursuant to § 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
4.1 Delivery shall be made from our warehouse (in accordance with the contractual offer), which is also the place of performance for the delivery and any subsequent performance. At the Buyer's request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
4.2 The shipping costs shall be borne by the Buyer. The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover of the delivery item. However, in the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Buyer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. 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 also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the Buyer is in default of acceptance.
4.3 If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to claim compensation for the resulting damage including additional expenses (e.g. storage costs).
The proof of a higher damage and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be credited against further monetary claims. The purchaser shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the aforementioned lump sum.
4.4 For entrepreneurs as purchasers, the following shall apply: Storage costs after the transfer of risk shall be borne by the Buyer. In case of storage by the Seller, the storage costs shall amount to 0.25 % of the invoice amount of the delivery items to be stored per expired week. The assertion and proof of further or lower storage costs remain reserved.
§ 5 Prices and terms of payment
5.1 Unless otherwise agreed in individual cases, our prices current at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax.
5.2 In the case of sale by delivery to a place other than the place of performance (pursuant to § 4.1) of these GCS, the Buyer shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the Buyer. The costs and the purchase price result from the contract according to § 2 of these GCS. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
5.3 The purchase price is always due immediately and must be paid in full by the Buyer by bank transfer (payment method) within fourteen (14) calendar days of receipt of the invoice. The invoice will be sent by us by e-mail or by post. The crediting of our business account (as shown on the invoice) is decisive for the timeliness of payment. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.
5.4 Upon expiry of the aforementioned payment period, the buyer shall be – in default without a reminder –. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. For consumers this is 5 % p.a., whereby we reserve the right to claim higher default interest. We also reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest (§ 353 HGB) shall remain unaffected.
5.5 The Buyer shall only be entitled to rights of set-off or retention to the extent that its claim has been legally established, acknowledged by us or is undisputed by us. In the event of defects in the delivery, the rights of the Buyer shall remain unaffected, in particular pursuant to § 7.6 sentence 2 of these GTC.
5.6 If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardized by the Buyer's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – shall be entitled to withdraw from the contract, if necessary after setting a deadline (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§ 6 Retention of title
6.1 We shall retain title to the goods sold until full payment of all our current and, in the case of entrepreneurs, future claims arising from the purchase contract and an ongoing business relationship (secured claims).
6.2 The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer shall notify us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties (e.g. seizures) seize the goods belonging to us.
6.3 In the event of a breach of contract by the entrepreneur as purchaser, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand surrender of the goods on the basis of the reservation of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the purchaser does not pay the purchase price due, we may only assert these rights if we have previously set the purchaser a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
6.4 Until revoked in accordance with © below, the Buyer shall be authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
(a) The retention of title shall extend to the products resulting from the processing, mixing or combination of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under reservation of title.
(b) The Buyer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the Buyer set forth in § 6.2 of these Terms and Conditions shall also apply with respect to the assigned claims.
(c) The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to § 6.3. If this is the case, however, we may demand that the Buyer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. In addition, in this case we shall be entitled to revoke the purchaser's authorization to further sell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer's request.
§ 7 Warranty, material defects
7.1 The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse pursuant to §§ 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the purchaser or another entrepreneur, e.g. by incorporation into another product.
7.2 The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions and manufacturer's specifications which are the subject of the individual contract or which were publicly announced by us (in particular in catalogs or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods.
7.3 Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory regulation whether a defect exists or not (§ 434 Para. 1 S. 2 and 3 BGB). However, we shall not assume any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements) to which the entrepreneur as purchaser has not referred to us as being decisive for his purchase.
7.4 As a matter of principle, we shall not be liable for defects of which the Buyer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Furthermore, the Buyer's claims for defects shall require that he has complied with his statutory duties of inspection and notification of defects (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later time, we must be notified of this in writing without delay. In any case, obvious defects shall be notified to us in writing within four (4) working days of delivery and defects not apparent upon inspection shall be notified to us within the same period of time after discovery. If the Buyer fails to duly inspect the goods and/or notify us of defects, our liability for the defect not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions.
7.5 If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
7.6 We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. The Buyer shall, however, be entitled to retain a reasonable part of the purchase price in relation to the defect.
7.7 The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor the re-installation if we were not originally obliged to install the item.
7.8 We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if there is actually a defect. Otherwise, we shall be entitled to demand reimbursement from the Buyer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Buyer.
7.9 In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be informed immediately of such a self-remedy, if possible in advance. The right of self-execution shall not exist if we would be entitled to refuse a corresponding subsequent performance according to the statutory provisions.
7.10 If the supplementary performance has failed or if a reasonable period to be set by the Buyer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
7.11 Claims of the Buyer for damages or reimbursement of futile expenses shall also exist in the event of defects only in accordance with § 8 of these GTC and shall otherwise be excluded.
§ 8 Other liability
8.1 Unless otherwise provided in these GTC including the following provisions, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
8.2 We shall be liable – for damages, irrespective of the legal grounds, within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only
8.2.1 for damages resulting from injury to life, body or health,
8.2.2 for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
8.3 The limitations of liability resulting from § 8.2 of these terms and conditions shall also apply to breaches of duty by or in favor of persons for whose fault we are responsible according to statutory provisions. They shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the Buyer under the Product Liability Act.
8.4 The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the purchaser (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Limitation
9.1 Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
9.2 The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, claims for damages of the Buyer pursuant to § 8.2 sentence 1 and sentence 2 (a) of these Terms and Conditions as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
§ 10 Final Provisions, Choice of Law and Place of Jurisdiction
10.1 These GCS and the contractual relationship between us and the Buyer shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
10.2 If the Buyer is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law, the exclusive – also international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Berlin. The same shall apply if the buyer is an entrepreneur within the meaning of § 14 BGB. However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the general place of jurisdiction of the Buyer. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
10.3 Insofar as the respective contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties would have agreed upon according to the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had known about the loophole.
10.4 Should any of these provisions be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a provision that comes as close as legally possible to the intention of the parties.
