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These general Terms and Conditions apply exclusively to international commercial transactions between Pilz GmbH & Co. KG and customers outside Germany. The respective local conditions apply in countries in which Pilz is represented by its own subsidiaries.

 
§ 1
GENERAL / SCOPE

(1)
Pilz General Terms and Conditions shall apply exclusively.

(2)
These General Terms and Conditions shall apply for all current and future business relations.

(3)
Where the purchaser has his own different, conflicting or additional terms and conditions, these shall not form part of the contract, even when Pilz has full knowledge of them, unless their validity is expressly agreed in writing.

(4)
The general terms and conditions of Pilz shall still apply when Pilz supplies goods to the purchaser without reservation, in full knowledge of the purchaser’s terms and conditions which conflict with or differ from the present terms.

§ 2
QUOTATION / QUOTATION DOCUMENTS

(1)
Quotations are non-binding.

(2)
By the time the order is completed, if significant increases in the price of raw materials, wages, taxes, social security contributions and / or difficulties due to laws and / or other forms of statutory regulations have arisen, and these can be shown to affect considerably the calculation on which the quotation from Pilz is based, Pilz shall be entitled to add an appropriate surcharge.

(3)
We reserve the right to change specifications and make reasonable changes to form, colour and / or weight.

Compliance with technical data or other information / details from catalogues, printed materials, parts lists and / or drawings / sketches etc. shall only be confirmed in so far as specific data, measurements or details are expressly listed in the technical description included with the quotation. A general reference to documents or drawings shall be deemed only to confirm the function.

(4)
If the order qualifies as a quotation in accordance with § 145 of the German Civil Code (BGB), Pilz shall accept this within a period of 4 weeks.

Acceptance shall either be declared in writing or through provision of the service and notification thereof to the purchaser or through the supply of goods to the purchaser.

(5)
In the case of obvious errors in the quotation or written order confirmation, Pilz reserves the right to withdraw from the contract without prejudice to other rights.

(6)
Completion of the contract is subject to timely delivery to Pilz from its suppliers, in keeping with the terms of the contract. This shall apply only in cases where non-delivery is not attributable to Pilz, in particular where a congruent hedging transaction is made with Pilz’s supplier.

Should Pilz still be unable to provide the service, the purchaser shall be immediately informed that the service is unavailable. Any outlay on the part of the purchaser shall be reimbursed immediately.

(7)
Pilz reserves property rights and copyright on all illustrations, drawings, drafts, models, samples, calculations, estimates and other documents; they shall not be made available to third parties. This shall apply in particular to written documents which are marked "confidential". Such data shall not be disclosed to third parties without express written agreement from Pilz. These documents shall be returned to us unrequested free of charge when they are no longer required. The purchaser shall be liable for any loss or damage. These items shall be returned to us at any time upon request. The purchaser shall have no right of retention to these items. The items shall be stored securely and may not be copied without prior written agreement from Pilz.

The above-named items and their intellectual contents shall be held by the purchaser in strict confidence, unless they are already in the public domain or enter the public domain through no fault of the purchaser.

In the case of items on which we have trademark rights and/or which are protected for us as commercial/company secrets, the purchaser shall only be permitted to use the item in accordance with Pilz’s express conditions, unless specific usage methods are permitted to a third party.

§ 3
SCOPE OF SUPPLY

(1)
In his order the purchaser shall be obliged to state the individual specification of the respective supply item in accordance with the specific intended application, in consideration of all the relevant technical factors.

If this information from the purchaser is missing or incomplete, Pilz general product information shall additionally apply where necessary.

(2)
The written order confirmation from Pilz shall be definitive for the scope of supply. Should the contract be concluded by accepting a time-limited quotation from Pilz, the contents of the quotation from Pilz shall be definitive for the contents of that contract.

Supplementary agreements and changes shall require written confirmation from Pilz.

(3)
Pilz shall not accept the return of packaging used in shipment or any other packaging in accordance with the German packaging regulation, with the exception of pallets. The purchaser shall dispose of the packaging at his own cost.

(4)
During the delivery period we reserve the right to amend the design or form based on technical improvements and / or legal requirements, provided these do not significantly change the supply item or agreed delivery and the amendments are acceptable to the purchaser.

§ 4
PRICES / PAYMENT TERMS

(1)
In the absence of any specific agreement, prices shall apply "ex works" Incoterms 2000, including loading inside the factory, but excluding packaging, transport and transport insurance, plus the statutory rate of VAT.

(2)
Unless agreed otherwise, prices for all supplied goods shall be the list prices valid at Pilz on the day the invoice is generated (invoice date).

(3)
Discount shall only be offered by specific written agreement.

(4)
Unless stated otherwise in the order confirmation / quotation, the net sales price (before deductions) shall be due for payment within 30 days of the date of invoice. If the purchaser defaults on payment, Pilz shall be entitled to charge interest on the money owed at a rate of 8 percentage points above the annual base interest rate of the European Central Bank. Pilz reserves the right to provide evidence of and claim for greater losses resulting from default. For his part the purchaser shall have the right to prove a lower level of loss.

(5)
Pilz may issue part invoices for part shipments. Payment terms shall run separately for each part invoice.

(6)
The purchaser shall only be entitled to offsetting rights or rights of retention if his counterclaims are declared legally valid, are undisputed or are recognised by Pilz. The purchaser shall only be entitled to exercise a right of retention if his counterclaim applies to the same contractual relationship. Pilz shall be entitled to set payments off against the oldest outstanding debt, notwithstanding the purchaser’s settlement terms.

(7)
If there is a significant deterioration in the purchaser's financial situation after the contract is concluded, or should Pilz become aware of an earlier deterioration of the financial situation after the contract is concluded, and this gives rise to serious doubts concerning the purchaser's credit worthiness, Pilz shall be entitled to demand either payment in advance or a payment bond, at its own choosing.
Pilz shall be entitled to withdraw from the contract if the purchaser fails to comply with this demand.

(8)
Prices shall apply exclusively to delivery and performance within the Federal Republic of Germany.

§ 5
CALL-OFF ORDERS

Call-off orders shall be taken within the agreed time scales and/or on the agreed dates.

§ 6
DELIVERY PERIOD / DELAYED DELIVERY

(1)
At the start of the delivery period specified by Pilz it shall be assumed that all technical queries have been clarified and the purchaser’s obligations have been met in timely and proper manner.
In particular this includes any documents to be obtained or produced by the purchaser, such as drawings, descriptions, any permits or approvals to be submitted by the purchaser and any agreed prepayments credited to Pilz’s account.

Should any of these prerequisites be missing or should there be any outstanding queries that the purchaser has not yet clarified, the delivery period stated by Pilz shall be delayed until the purchaser has resolved the outstanding situation.

(2)
The delivery period shall be deemed to have been met when the supply item has left the factory by the agreed delivery date, or the delivery date stated by Pilz, or at the latest by the calendar week following this date, or the purchaser has been notified that the item is ready to ship by the calendar week stated in the order confirmation.

(3)
The delivery period shall be extended appropriately in the event of any unforeseen events beyond Pilz’s control, in so far as such circumstances can be shown to affect the completion or delivery of the item under contract. This shall also apply where such events occur at one of Pilz’s subcontractors.

This shall apply in particular in the event of circumstances arising from labour disputes, particularly strikes and lockouts.

Delivery delays resulting from the aforementioned circumstances shall not be attributable to Pilz even if they arise during an existing delay. Pilz shall notify the purchaser as soon as possible regarding the start and end of such situations.

(4)
Pilz shall not be deemed to have defaulted on delivery until the purchaser has set an extension time of 2 weeks in writing, and Pilz fails to delivery within this extension time.

(5)
Should Pilz suffer delivery delays, all compensation claims on the grounds of delayed performance shall be excluded, notwithstanding the purchaser’s other rights in the event of slight negligence.

§ 7
CANCELLATION COSTS

Should the purchaser cancel an order without justification, where the purchaser has been set an appropriate fulfilment period, Pilz shall be entitled to claim 10 % of the selling price for the costs incurred in processing the order and for loss of profit, without prejudice to any subsequent claim for greater loss.
The purchaser shall reserve the right to prove a lower level of loss.

§ 8
DEFAULT / DELAY IN ACCEPTANCE

(1)
If the purchaser should default in acceptance or breach any other co-operation obligation, Pilz shall be entitled to claim for any loss incurred, including any additional expenses. In this case, the risk of a random decline or deterioration of the item under contract shall pass to the purchaser at the point at which acceptance was delayed.

(2)
If delivery of the item is delayed at the request of the purchaser, the latter shall be charged for the resulting storage costs from the beginning of the month in which the item was notified as ready for dispatch/delivery, at a minimum rate of 0.5 % of the invoice amount, for each month that is started.
The purchaser shall reserve the right to prove a lower level of loss, and Pilz the right to prove a greater loss.

(3)
Additionally, after an appropriate period has passed, of which the purchaser has been notified, Pilz shall be entitled to withdraw from the contract or deliver the supply item elsewhere, and also to deliver to the purchaser in keeping with the contract, after an appropriate, extended period.

§ 9
PLACE OF FULFILMENT

Pilz expressly states that for each delivery for which "ex works” Incoterms 2000 is agreed, the place of fulfilment for the contractual relationship shall be Ostfildern, regardless of which Pilz subsidiary makes the delivery.

§ 10
TRANSFER OF RISK

(1)
Unless stated otherwise in the contract documents, delivery shall be "ex works” Incoterms 2000.

(2)
This shall still apply if the purchaser is in delay of acceptance.

(3)
The above paragraphs shall also apply where part-shipments are agreed.

(4)
In so far as Pilz has contractually agreed to assume the shipping costs, delivery or assembly of the item under contract, this shall not affect the above paragraphs regarding transfer of risk.

(5)
If shipment of the item under contract is delayed as a result of circumstances attributable to the purchaser, the risk shall be transferred from the day on which the item became ready to ship; however, Pilz shall be obliged to arrange insurance at the purchaser’s request and cost.

(6)
Purchasers shall accept delivery of items, including those that show slight defects, without affecting their rights under § 11, Warranty.

(7)
Part shipments shall be permitted.

§ 11
WARRANTY

(1)
The warranty period shall be 12 months and shall start with the transfer of risk.

(2)
In other respects the warranty and liability of Pilz shall be limited to fulfilment of contract, through remedy or replacement, at Pilz’s discretion. Where a defect is to be rectified, Pilz shall bear the necessary costs, insofar as these do not increase because the item under contract is located somewhere other than the place of fulfilment. Where additional remedial work is necessary on the end product for legal and commercial reasons and this is made within the scope of fulfilment when combining, mixing or processing, or through any other type of damage repair, Pilz shall not compensate the cost of this additional work in the proportion which the value of the supplied product bears to the selling price of the end product. This shall also apply where fulfilment is made on end products on which no mixing, combining or processing with other products has taken place or on products on which further processing has been carried out. 

If measures taken to fulfil the contract should fail, the purchaser shall be entitled to withdraw from the contract. Where the breach of contract is slight, particularly in the case of minor defects, the purchaser shall have no right of withdrawal. The purchaser shall not be entitled to claim a price reduction.

Remedial work shall be deemed to have failed after the second unsuccessful attempt, unless the nature of the item under contract is such that further remedial attempts are appropriate and acceptable to the purchaser.

(3)
If the purchaser chooses to withdraw from the contract on the grounds of a legal or material defect, following an unsuccessful fulfilment attempt, he shall have no claim to additional damages on account of that defect.

(4)
If a defect cannot be rectified and the customer chooses compensation after non-fulfilment, the goods shall remain with the purchaser, provided this is acceptable to the purchaser.

Compensation shall be limited to the difference between the purchase price and the value of the defective item, after provision of the failed service, or, if the service was provided by a third party, to the price of this service, less any expenses saved. This shall not apply if Pilz has maliciously caused the breach of contract. Where items are defective, resulting from the combining, mixing, processing or further processing of a faulty product, Pilz shall not compensate this loss in the proportion which the value of the supplied product bears to the selling price that would have been anticipated for the end product, had the delivery been free from defects.

(5)
Product descriptions issued by Pilz purely provide details of the product’s composition. Similarly, public statements, promotions or advertisements do not represent details of the product’s composition in accordance with the terms of the contract.

Additionally, product descriptions issued by a manufacturer used by Pilz purely provide details of the product’s composition. Similarly, public statements, promotions or advertisements from the manufacturer do not represent details of the product’s composition in accordance with the terms of the contract.

(6)
Should the purchaser receive insufficient installation instructions, Pilz’s only obligation shall be to supply sufficient installation instructions and this only if the inadequacy of the installation instructions could prevent proper installation.

(7)
The purchaser shall only assert a right to damages on grounds of non-fulfilment or withdraw from the contract if Pilz, despite setting an appropriate deadline, has failed to either correct the problem or supply a replacement within a reasonable time period, or if a replacement or remedy is unacceptable to the purchaser.

(8)
To make a warranty claim in accordance with paragraphs 1-7, the purchaser must report any obvious defects to Pilz within two weeks of receipt of the goods; hidden defects shall be notified in writing within two weeks of the defect being established.

(9)
The purchaser shall be responsible for proving that the defect was notified immediately. The purchaser shall also be responsible for proving that he has not taken any action himself to correct the defect.

(10)
The purchaser shall be obliged to document both the defect and any resulting damage, notwithstanding the aforementioned provisions, in accordance with generally accepted technical standards.

(11)
Pilz does not give purchasers any guarantees in the legal sense.

This shall not affect manufacturers’ guarantees from third parties.

§ 12
LIMITATIONS OF LIABILTY

(1)
Liability through Pilz presupposes that the purchaser has complied with the operating instructions when using the supply item.  The purchaser shall be obliged to provide evidence to this effect.

(2)
In the case of negligent breach of duty, Pilz’s liability is limited to the average level of immediate damage that might be anticipated for the type of product and is typical of the type of contract. This shall also apply where the negligent breach of duty is attributable to Pilz staff, employees, colleagues, representatives and those assisting with fulfilment.

Liability is excluded where there is a slightly negligent infringement of inconsequential contractual obligations.

(3)
Unless stated otherwise below, further claims from the purchaser are excluded, on whatever legal grounds.

Pilz shall therefore not be liable for damages not arising directly from the actual supply item; in particular Pilz shall not be liable for loss of profit or damage to any other assets belonging to the purchaser or a third party, including items produced as a result of combining, mixing, processing and / or further processing.

(4)
The exclusion and limitation of liability stated in paragraphs (1) and (2) shall not apply to damages resulting from injury to life, body or health, loss of life, intent or gross negligence. Neither shall the exclusion of liability apply where Pilz is in breach of an essential obligation (material contractual obligation); in such a case, liability shall be limited to the average level of immediate damage that might be anticipated in a typical contract, in accordance with paragraph (1).

(5)
If Pilz is in breach of an essential contractual obligation, Pilz’s liability to pay compensation in the case of material damage shall be limited to the amount of cover under its public liability insurance, unless the breach is due to gross negligence as a minimum. Pilz shall grant access to the insurance policy on request.

Where the liability of Pilz is excluded or limited, this shall also apply for the personal liability of salaried personnel, employees, associates, representatives and anyone acting on behalf of Pilz.

(6)
Liability of Pilz is generally excluded in a case where components other than those manufactured or specified by Pilz have been built into the supply item, at the purchaser’s request.  The purchaser shall be responsible for proving that such a modification did not cause the defect on the supply item.

(7)
Pilz shall not be liable for any installation work carried out by the purchaser himself. The purchaser shall be responsible for proving that the installation is correct.

§ 13
RETENTION OF TITLE

(1)
Goods shall remain the property of Pilz until all claims resulting from a current business relationship have been settled in full.

If the purchaser acts in breach of contract, especially in the case of late payment, Pilz shall be entitled to reclaim the item under contract. The recovery of an item under contract does not constitute withdrawal from the contract, unless Pilz specifically expresses this in writing.

Where Pilz files for attachment of the item, this shall always constitute withdrawal from the contract. Pilz shall be entitled to realise the value of the item once it has been recovered. The proceeds from realisation shall be credited against the purchaser’s liabilities – less appropriate realisation costs.

(2)
The purchaser shall be obliged to handle the goods with care: in particular he shall be obliged to ensure these, at his own cost, against fire, water and theft, to the sum of the value when new. If maintenance and inspection work is required, the purchaser shall carry this out regularly and punctually, at his own cost.

(3)
The purchaser shall inform Pilz immediately in writing of any attachments or seizures by third parties. Where the third party is unable to reimburse Pilz the legal and out-of-court costs of an action in accordance with § 771 of the German Code of Civil Procedure (ZPO), the purchaser shall be liable for any loss incurred by Pilz.

The customer shall be further obliged to inform Pilz immediately if the goods are destroyed or damaged in any way. The purchaser shall notify Pilz immediately of any change in possession of the goods or change in his place of business.

(4)
The customer shall be entitled to resell the goods within the ordinary course of business. However, any receivables due as a result of any subsequent resale of the goods to a purchaser or third party shall be assigned to Pilz, to the value of the final invoice amount (including VAT), irrespective of whether or not the goods have been processed prior to the resale. Pilz shall accept this assignment.

The purchaser shall still be authorised to collect such receivables after assignment. This shall not affect the authority of Pilz to collect the receivables itself. However, Pilz shall undertake not to collect the receivables provided the customer meets his payment obligations from the proceeds, does not delay payment and, in particular, is not subject to an application to initiate insolvency proceedings or have payments suspended. If this is the case, Pilz may demand that the purchaser provides information on the assigned receivables and debtors, including all the necessary details required in order to collect the receivables, provides the associated documentation and informs debtors (third parties) of the assignment.

(5)
Processing or restructuring of the goods by the purchaser shall always be carried out in the name of and on behalf of Pilz. If the goods are processed with other items that are not the property of Pilz, Pilz shall acquire joint ownership of the new product in the proportion of the value of the goods to that of the other processed items at the time of processing.

For the rest, the resulting product shall be subject to the same provisions applicable to the goods supplied under reservation of title.

(6)
If the goods are mixed with other items that are not the property of Pilz, Pilz shall acquire joint ownership of the new product in the proportion of the value of the goods to that of the other mixed items at the time of mixing.

If the mixture is such that the purchaser’s product may be viewed as the main component, it shall be taken as agreed that the purchaser grants Pilz proportionate joint ownership. The purchaser shall retain the resulting sole/joint property for safekeeping.

(7)
The purchaser shall also assign to Pilz any receivables due from a third party with regard to the incorporation of the goods with a fixed plot of land, as security for the receivables owed to Pilz.

(8)
At the request of the customer, Pilz shall undertake to release such realisable securities as exceed the outstanding amounts due by more than 20 %; Pilz shall select which securities are to be released.

 
§ 14
SPECIAL RIGHT OF TERMINATION / EMBARGO REGULATIONS / EU ANTI-TERROR REGULATIONS

(1)
In so far as contractual agreements between Pilz and the purchaser mean that Pilz’s supply obligations and the purchaser’s payment obligations are in violation of binding national as well as international regulations (e.g. foreign trade regulations of the Federal Republic of Germany, export and embargo regulations of the European Union or other states, in particular the USA, including EU anti-terror regulations), Pilz shall be entitled to exercise extraordinary termination of the contractual relationship and / or withdraw from the contract.

(2)
In this special case the purchaser shall not be entitled to compensation.

(3)
It is the responsibility of the purchaser to be aware of any relevant statutory regulations which could make it impossible for Pilz to fulfil a contract.

§ 15
FINAL PROVISIONS

(1)
All contracts shall be concluded in writing. Supplementary agreements shall only take effect if confirmed by Pilz in writing.

(2)
The law of the Federal Republic of Germany shall apply. The provisions of the UN Sales Convention shall not apply.

(3)
Pilz’s headquarters in Ostfildern shall be definitive in all legal disputes between Pilz and the purchaser.

(4)
If individual provisions of this contract, including these general terms and conditions of business, should be unenforceable with the purchaser in whole or in part, the remaining provisions shall continue in full force and effect.

The provision that cannot be enforced in whole or in part shall be replaced by a provision whose commercial purpose approaches that of the unworkable provision as closely as possible.

 
SPECIAL NOTE REGARDING "SAFETY DEVICE"

We refer to the regulations of the BetrSichV (Ordinance on Industrial Safety and Health - concerning the protection of safety and health in the provision of work equipment and its use at work, concerning safety when operating installations subject to monitoring and concerning the organisation of industrial safety and health at work).

In accordance with this ordinance there are minimum safety standards to be observed for the work equipment, facilities and installations named in § 1 of the BetrSichV. With regard to the definitions, the joint provisions relating to work equipment, the special provisions relating to installations subject to monitoring as well as joint provisions, reference is made to the BetrSichV.

We would therefore recommend that the situation regarding health and safety at work is examined in consideration of the regulations of BetrSichV and improved during the course of maintenance or modernisation measures. The nature of any improvements which may be necessary in an individual case can only be evaluated as part of the risk assessment of the overall machine / installation / facility. Pilz shall perform this risk assessment only when a separate order to that effect has been placed by the contracting party.

 

§ 1
GENERAL / SCOPE

(1)
Pilz General Terms and Conditions shall apply exclusively.

(2)
These General Terms and Conditions shall apply for all current and future business relations.

(3)
Where the client has his own different, conflicting or additional terms and conditions, these shall not form part of the contract, even when Pilz has full knowledge of them, unless their validity is expressly agreed in writing.

(4)
The general terms and conditions of Pilz shall still apply when Pilz supplies goods to the client without reservation, in full knowledge of the client’s terms and conditions which conflict with or differ from the present terms.

§ 2
QUOTATION / QUOTATION DOCUMENTS / SCOPE OF ORDERS

(1)
Quotations are non-binding.

(2)
By the time the order is completed, if significant increases in the price of raw materials, wages, taxes, social security contributions and / or difficulties due to laws and / or regulations have arisen, and these can be shown to affect considerably the calculation on which the quotation from Pilz is based, Pilz shall be entitled to add an appropriate surcharge.

(3)
We reserve the right to change specifications and make reasonable changes to form, colour and / or weight.

Compliance with technical data or other information / details from catalogues, printed materials, parts lists and / or drawings / sketches etc. shall only be confirmed in so far as specific data, measurements or details are expressly listed in the technical description included with the quotation. A general reference to documents or drawings shall be deemed only to confirm the function.

(4)
If the order qualifies as a quotation, Pilz shall accept this within a period of 4 weeks.

Acceptance shall either be declared in writing through an order confirmation or through provision of the service and notification thereof to the client or through the supply of goods to the client.

(5)
When Pilz has done everything demanded of it, completion of the contract is subject to timely delivery to Pilz from its suppliers, in keeping with the terms of the contract. This shall apply only in cases where non-delivery is not attributable to Pilz, in particular where a congruent hedging transaction is made with Pilz’s supplier.

Should Pilz still be unable to provide the service, the client shall be immediately informed that the service is unavailable. Any outlay on the part of the client shall be reimbursed immediately.

(6)
Pilz reserves property rights and copyright on all illustrations, drawings, drafts, models, samples, calculations, estimates and other documents; they shall not be made available to third parties. This shall apply in particular to written documents which are marked "confidential". Such data shall not be disclosed to third parties without express written agreement from Pilz. These documents shall be returned to us unrequested free of charge when they are no longer required. The client shall be liable for any loss or damage. These items shall be returned to us at any time upon request. The client shall have no right of retention to these items. The items shall be stored securely and may not be copied without prior written agreement from Pilz.

The above-named items and their intellectual contents shall be held by the client in strict confidence, unless they are already in the public domain or enter the public domain through no fault of the client.

In the case of items on which we have trademark rights and/or which are protected for us as commercial/company secrets, the client shall only be permitted to use the item in accordance with Pilz’s express conditions, unless specific usage methods are permitted to a third party.

(7)
The quotation is based on the condition of the plant / machine, as reported to Pilz by the client. Pilz shall assume that no damage or defects exist beyond natural wear and tear. Pilz shall inform the client of any further damage or defects discovered during disassembly and/or execution of the order. Should Pilz deem it necessary, the client shall receive a supplementary quotation. Scope and prices of the additional services shall be agreed separately between Pilz and the client in line with the supplementary quotation. The material costs stated within the quotation shall only apply if the plant / machine is reconditioned by  Pilz.

(8)
Unless stated otherwise in these General Terms and Conditions, services from Pilz shall be provided as works and / or services in accordance with the applicable statutory regulations, in line with the scope defined in the quotation, which shall remain non-binding until conclusion of the contract. Pilz shall provide services under its own responsibility. The client shall remain responsible for the desired / achieved outcomes. Where work is performed, Pilz shall be responsible for the achieved outcomes as well as for management, control and monitoring of the service provision, as instructed in the order.

(9)
Both Pilz and the client shall be entitled to request amendments to the agreed scope of delivery in writing. When an amendment request is received, Pilz / the client shall review the feasibility of this amendment. The other contracting party shall be informed of the outcome of this review immediately in writing. Where an amendment request necessitates an extensive, complex review and additional output, Pilz shall be entitled to charge the client for any expenses arising. The contractual adjustments necessary for such a review or for an amendment to the agreed scope of delivery shall be stipulated in an additional agreement.

 
§ 3
EXECUTION OF ORDERS
 
(1)
Orders shall be executed in compliance with the current state of the art of science and technology.
 
(2)
Pilz alone shall have authority to issue instructions to its staff.
 
(3)
Pilz shall be entitled to use the services of third parties to execute orders. However, at all times Pilz shall remain directly responsible to the client.
 

§ 4
CLIENT’S CO-OPERATION OBLIGATIONS
 
(1)
In good time before the order is executed, the client shall provide Pilz with all the information, materials, devices, documents, procedures etc. necessary to execute the order. These shall be provided free of charge and where necessary, at the client’s own cost.
 
(2)
If Pilz is to perform its activities at the client’s premises, the client shall provide Pilz staff or its authorised third parties with free access to rooms, installations (hardware, software, networks, etc.) and other work equipment necessary for Pilz to provide its services properly, within the scope of normal working hours and in keeping with company access regulations. If necessary the client shall also provide operational workstations for Pilz staff or authorised third parties, free of charge.
 
(3)
The client shall co-operate in other matters as necessary.
 
(4)
Should the client not fulfil his obligations in accordance with paragraphs 1-3, or fail to fulfil them in timely manner, and this leads to delays and / or additional expense, the agreed time scale shall be extended and / or  the agreed fee shall be increased accordingly.
 

§ 5
PRICES / PAYMENT TERMS
 
(1)
In the absence of any specific agreement, prices shall apply "ex works" Incoterms 2000, including loading inside the factory, but excluding packaging, transport and transport insurance, plus the statutory rate of VAT.

(2)
Unless a different invoicing and payment method is agreed in the quotation, works and services shall be charged at the fixed price stated in the quotation or on a time and materials basis once the services are completed or accepted. Where works and services are charged on a time and materials basis, accrued working hours and travel times shall be charged at the applicable hourly rates and materials shall be charged at the prices valid at the time the service was performed. Other expenses, in particular travel, accommodation and overnight costs, shall also be charged. Any estimated prices included in the quotation for works and services on a time and materials basis shall be non-binding.

(3)
Prices shall furthermore apply with the stipulation that, when Pilz starts to undertake reconditioning measures on a plant / machine, the client shall have the plant / machine available  in a thoroughly clean condition and guarantee support with reference to the assembly requirements, at his own cost and, if necessary, with his own staff, in particular with regard to:

• Provision of suitable support staff, where necessary
• Provision of the necessary tools and support materials
• Provision of the necessary power (current, compressed air, water etc.)
• Transport of the assembly components to the intended assembly site

(4)
Unless agreed otherwise, prices for all supplied goods shall be the list prices valid at Pilz on the day the invoice is generated (invoice date).

(5)
Discount shall only be offered by specific written agreement.

(6)
Unless stated otherwise in the order confirmation / quotation, the net sales price (before deductions) shall be due for payment within 30 days of the date of invoice. If the client defaults on payment, Pilz shall be entitled to charge interest on the money owed at a rate of 8 percentage points above the annual base interest rate of the European Central Bank. Pilz reserves the right to provide evidence of and claim for greater losses resulting from default. For his part the client has the right to prove a lower level of loss.

(7)
Pilz may issue part invoices for part shipments. Payment terms shall run separately for each part invoice.

(8)
The client shall only be entitled to offsetting rights or rights of retention if his counterclaims are declared legally valid, are undisputed or have been recognised by Pilz. The client shall only be entitled to exercise a right of retention if his counterclaim applies to the same contractual relationship. Pilz shall be entitled to set payments off against the oldest outstanding debt, notwithstanding the client’s settlement terms.

(9)
If there is a significant deterioration in the client's financial situation after the contract is concluded, or should Pilz become aware of an earlier deterioration of the financial situation after the contract is concluded, and this gives rise to serious doubts concerning the client's credit worthiness, Pilz shall be entitled to demand either payment in advance or a payment bond, at its own choosing.
Pilz shall be entitled to withdraw from the contract if the client fails to comply with this demand.

(10)
Prices shall apply exclusively to delivery and performance within the Federal Republic of Germany.

§ 6
CALL-OFF ORDERS

Delivery of call-off orders shall be taken within the agreed time scales and/or on the agreed dates.

§ 7
ACCEPTANCE / INSTALLATION / COMMISSIONING
 
(1)
Work shall be accepted by the client as soon as Pilz has notified him of compliance with the contractually agreed service description. The client shall not be entitled to refuse acceptance where any deviations are only insignificant. The client’s rights to have defects rectified under the terms of these provisions shall not be affected.
 
(2)
A record confirming compliance with the agreed service description shall be drawn up during acceptance and signed by both contracting parties.
 
(3)
Commissioning / productive usage of the works or work components shall be deemed as acceptance.

(4)
In the absence of any agreement to the contrary, the installation of replacement parts shall not be included in Pilz’s scope of services.

(5)
Should difficulties arise when installing spare parts which have been sold without installation services, responsibility for avoiding damage resulting from the installation shall lie solely with the purchaser.

(6)
Should the start and / or sequence of work to disassemble/re-assemble and commission be delayed for reasons not attributable to Pilz, any additional expense will be charged on production of evidence. Agreed delivery dates shall be adjusted where necessary.

(7)
Services required in accordance with the previous paragraphs 4 to 6 shall be charged by Pilz in accordance with the rates for daily working hours, waiting times and other costs.
Details of these rates shall be available to the client at Pilz at any time.

§ 8
OPERATIONAL TRANSFER / PRELIMINARY ACCEPTANCE / FINAL ACCEPTANCE / SPECIAL ACCEPTANCE

(1)
Unless an arrangement to the contrary has been made in writing for an individual case, acceptance of the supply item shall take place after the operational transfer from Pilz has been recorded.

(2)
Preliminary acceptance, final acceptance and/or special acceptance shall be subject to a separate written agreement and shall be charged separately, unless expressly included within the agreed scope of services.

(3)
Any fee in accordance with paragraph 2 shall be made in accordance with Pilz’s current rates for daily working hours, waiting times and other costs. The client may request a copy of the current rates from Pilz at any time.

§ 9
CANCELLATION COSTS

Should the client cancel an order without justification, where the client has been set an appropriate fulfilment period, Pilz shall be entitled to claim 10 % of the selling price for the costs incurred in processing the order and for loss of profit, without prejudice to any subsequent claim for greater actual loss. The client shall reserve the right to prove a lower level of loss.

§ 10
DELIVERY PERIOD / DELAYED DELIVERY

(1)
At the start of the delivery period specified by Pilz it shall be assumed that all technical queries have been clarified and the purchaser’s obligations have been met in timely and proper manner.
In particular this includes any documents to be obtained or produced by the purchaser, such as drawings, descriptions, any permits or approvals to be submitted by the purchaser and any agreed prepayments credited to Pilz’s account.

Should any of these prerequisites be missing or should there be any outstanding queries that the purchaser has not yet clarified, the delivery period stated by Pilz shall be delayed until the purchaser has resolved the outstanding situation.

(2)
The delivery period shall be deemed to have been met when the supply item has left the factory by the agreed delivery date, or the delivery date stated by Pilz, or at the latest by the calendar week following this date, or the purchaser has been notified that the item is ready to ship by the calendar week stated in the order confirmation.

(3)
The delivery period shall be extended appropriately in the event of any unforeseen events beyond Pilz’s control, in so far as such circumstances can be shown to affect the completion or delivery of the item under contract. This shall also apply where such events occur at one of Pilz’s subcontractors.

This shall apply in particular in the event of circumstances arising from labour disputes, particularly strikes and lockouts.

Delivery delays resulting from the aforementioned circumstances shall not be attributable to Pilz even if they arise during an existing delay. Pilz shall notify the purchaser as soon as possible regarding the start and end of such situations.

(4)
Pilz shall not be deemed to have defaulted on delivery until the purchaser has set an extension time of 2 weeks in writing, and Pilz fails to delivery within this extension time.

(5)
Should Pilz suffer delivery delays, all compensation claims on the grounds of delayed performance shall be excluded, notwithstanding the purchaser’s other rights in the event of slight negligence.

§ 11
DEFAULT / DELAY IN ACCEPTANCE

(1)
If the client should default in acceptance or breach any other co-operation obligation, Pilz shall be entitled to claim for any loss incurred, including any additional expenses. In this case, the risk of a random decline or deterioration of the item under contract shall pass to the client at the point at which acceptance was delayed.

(2)
If delivery of the item is delayed at the client’s request, the latter shall be charged for the resulting storage costs from the beginning of the month in which the item was notified as ready for dispatch/delivery, at a minimum rate of 0.5 % of the invoice amount, for each month that is started. The client shall reserve the right to prove a lower level of loss.

(3)
Additionally, after an appropriate period has passed, of which the purchaser has been notified, Pilz shall be entitled to withdraw from the contract or deliver the supply item elsewhere, and also to deliver to the purchaser in keeping with the contract, after an appropriate, extended period.

§ 12
PACKAGING AND SHIPMENT

Packaging shall become the property of the client and shall be charged by Pilz. Postage and packaging fees shall be charged separately. The choice of shipment method shall be at Pilz’s discretion.

§ 13
PLACE OF FULFILMENT

Pilz expressly states that for each service for which "ex works” Incoterms 2000 is agreed, the place of fulfilment for the contractual relationship shall be either Ostfildern or the location of the Pilz subsidiary from which the service shall be provided.

The provision under § 14 shall remain unaffected.

§ 14
TRANSFER OF RISK

(1)
Where Pilz is to undertake installation services on the client’s premises, the transfer of risk shall take place on the client’s premises when the operational transfer is recorded. Where spare parts are delivered without installation services on the client’s premises or pure spare parts are supplied, delivery shall be "ex works” Incoterms 2000.

(2)
This shall still apply if the client is in delay of acceptance.

(3)
The above clauses shall also apply where part-shipments are agreed.

(4)
In so far as Pilz has contractually agreed to assume the shipping costs, delivery or assembly of the item under contract, this shall not affect the above clauses regarding transfer of risk.

(5)
If the client is in delay of acceptance or if performance and delivery are delayed at his request, the risk shall be transferred to the client from the day on which the item became ready to ship; however, Pilz shall be obliged to arrange insurance at the client’s request and cost.

(6)
Clients shall accept delivery of items, including those that show slight defects, without affecting their rights under §12.

(7)
Part shipments shall be permitted.

§ 15
WARRANTY

(1)
Claims for material and legal defects shall carry a 12 month statute of limitations, starting with the transfer of risk. This shall not apply in so for as the law in accordance with §§ 438 paragraph 1 no. 2, 479 paragraph 1 or 634 a) paragraph 1 no. 2 of the German Civil Code (BGB) stipulates longer periods.

(2)
In other respects the warranty and liability of Pilz shall be limited to fulfilment of contract, through remedy or replacement, at Pilz’s discretion.

If measures taken to remedy the contract should fail, the client shall be entitled to withdraw from the contract. Where the breach of contract is slight, particularly in the case of minor defects, the client shall have no right of withdrawal. The client shall not be entitled to claim a price reduction.

(3)
If the client chooses to withdraw from the contract on the grounds of a legal or material defect, following an unsuccessful attempt to remedy the situation, he shall have no claim to additional damages on account of that defect.

(4)
If the client should opt for compensation following an unsuccessful attempt to remedy the situation, the client shall be entitled to demand removal of the rendered service, if the client demonstrates that he can no longer use the rendered service.

In other respects, compensation shall be limited to the difference between the service price and the value of the rendered service, after provision of the failed service, or, if the service was provided by a third party, to the price of this service, less any expenses saved.

(5)
Service descriptions issued by Pilz shall merely represent statements of composition, not a promise of guarantee. Public statements, promotions or advertisements represent neither a statement of composition under the terms of the contract nor a promise of guarantee.

(6)
Should the client receive insufficient installation instructions, Pilz’s only obligation shall be to supply sufficient instructions. This shall only apply if the inadequacy of the installation instructions prevents proper installation.

(7)
The client can only assert a right to damages on grounds of non-fulfilment or withdraw from the contract if Pilz, despite setting a deadline, has failed to either correct the problem or supply a replacement, or if a replacement or remedy is unacceptable to the client.

(8)
To make a warranty claim in accordance with paragraphs (2) - (7), the client must report any obvious defects to Pilz within two weeks of receipt of the goods; hidden defects shall be notified in writing within two weeks of the defect being established.

(9)
The client shall be responsible for proving that the defect was notified immediately. The client shall also be responsible for proving that he has not taken any action himself to correct the defect.

(10)
The client shall be obliged to document both the defect and any resulting damage, notwithstanding the aforementioned provisions, in accordance with generally accepted technical standards.

(11)
Pilz cannot give the client guarantees in any legal sense. This shall not affect manufacturers’ guarantees from third parties.

(12)
At any time we reserve the right to amend obvious errors such as typing errors, miscalculations, formal defects etc. contained in reports, surveys or other professional statements made by Pilz staff.

§ 16
LIMITATIONS OF LIABILITY

(1)
Liability through Pilz presupposes that the purchaser has complied with the operating instructions when using the supply item. The purchaser shall be obliged to provide evidence to this effect.

In the case of negligent breach of duty, Pilz’s liability is limited to the average level of immediate damage that might be anticipated for the type of product and is typical of the type of contract. This shall also apply where the negligent breach of duty is attributable to Pilz staff, employees, colleagues, representatives and those assisting with fulfilment.

Liability is excluded where there is a slightly negligent infringement of inconsequential contractual obligations.

(2)
Unless stated otherwise below, further claims from the client are excluded, on whatever legal grounds.

Pilz shall therefore not be liable for damages not arising directly from the actual supply item; in particular Pilz shall not be liable for loss of profit or damage to any other assets belonging to the client or a third party, including items produced as a result of combining, mixing, processing and / or further processing.

(3)
The exclusion and limitation of liability stated in paragraphs (1) and (2) shall not apply to damages resulting from injury to life, body or health, loss of life, intent or gross negligence. Neither shall the exclusion of liability apply where Pilz is in breach of an essential obligation (material contractual obligation); in such a case, liability shall be limited to the average level of immediate damage that might be anticipated in a typical contract, in accordance with paragraph (1).

(4)
If Pilz is in breach of an essential contractual obligation, Pilz’s liability to pay compensation in the case of material damage shall be limited to the amount of cover under its public liability insurance, unless the breach is due to gross negligence as a minimum. Pilz shall grant access to the insurance policy on request.

Where the liability of Pilz is excluded or limited, this shall also apply for the personal liability of salaried personnel, employees, associates, representatives and anyone acting on behalf of Pilz.

(5)
Liability of Pilz is generally excluded in a case where components other than those manufactured or specified by Pilz have been built into the supply item, at the client’s request.  The client shall be responsible for proving that such a modification did not cause the defect on the supply item.

(6)
Pilz shall not be liable for any installation work carried out by the client himself. The client shall be responsible for proving that the installation is correct.

§ 17
RETENTION OF TITLE

(1)
Goods shall remain the property of Pilz until all claims resulting from a current business relationship have been settled in full.

If the client acts in breach of contract, especially in the case of late payment, Pilz shall be entitled to reclaim the item under contract. The recovery of an item under contract does not constitute withdrawal from the contract, unless Pilz specifically expresses this in writing.

Where Pilz files for attachment of the item, this shall always constitute withdrawal from the contract. Pilz shall be entitled to realise the value of the item once it has been recovered. The proceeds from realisation shall be credited against the client’s liabilities – less appropriate realisation costs.

(2)
The client is obliged to handle the goods with care: in particular he is obliged to ensure these, at his own cost, against fire, water and theft, to the sum of the value when new. If maintenance and inspection work is required, the client shall carry this out regularly and punctually, at his own cost.

(3)
The client shall inform Pilz immediately in writing of any attachments or seizures by third parties. Where the third party is unable to reimburse Pilz the legal and out-of-court costs of an action in accordance with § 771 of the German Code of Civil Procedure (ZPO), the client shall be liable for any loss incurred by Pilz.

The client shall be further obliged to inform Pilz immediately if the goods are destroyed or damaged in any way. The client shall notify Pilz immediately of any change in possession of the goods or change in his place of business.

(4)
The client shall be entitled to resell the goods within the ordinary course of business. However, any receivables due as a result of any subsequent resale of the goods to a purchaser or third party shall be assigned to Pilz, to the value of the final invoice amount (including VAT), irrespective of whether or not the goods have been processed prior to the resale. Pilz shall accept this assignment.

The client shall still be authorised to collect such receivables after assignment. This shall not affect the authority of Pilz to collect the receivables itself. However, Pilz shall undertake not to collect the receivables provided the client meets his payment obligations from the proceeds, does not delay payment and, in particular, is not subject to an application to initiate insolvency proceedings or have payments suspended. If this is the case, Pilz may demand that the client provides information on the assigned receivables and debtors, including all the necessary details required in order to collect the receivables, provides the associated documentation and informs debtors (third parties) of the assignment.

(5)
Processing or restructuring of the goods by the client shall always be carried out in the name of and on behalf of Pilz. If the goods are processed with other items that are not the property of Pilz, Pilz shall acquire joint ownership of the new product in the proportion of the value of the goods to that of the other processed items at the time of processing.

For the rest, the resulting product shall be subject to the same provisions applicable to the goods supplied under reservation of title.

(6)
If the goods are mixed with other items that are not the property of Pilz, Pilz shall acquire joint ownership of the new product in the proportion of the value of the goods to that of the other mixed items at the time of mixing.

If the mixture is such that the client’s product may be viewed as the main component, it shall be taken as agreed that the client grants Pilz proportionate joint ownership. The client shall retain the resulting sole/joint property for safekeeping.

(7)
The client shall also assign to Pilz any receivables due from a third party with regard to the incorporation of the goods with a fixed plot of land, as security for the receivables owed to Pilz.

(8)
At the request of the client, Pilz shall undertake to release such realisable securities as exceed the outstanding amounts due by more than 20 %; Pilz shall select which securities are to be released.

§ 18
CONFIDENTIALITY
 
(1)
Beyond the purpose of the application, the contracting parties shall not use, exploit or disclose to third parties any economic, technical or other information and knowledge made available to them by the respective party in the provision and execution of orders or made known by other means during the duration of the order, without the prior written consent of the respective party.
 
(2)
The obligation under paragraph 1 shall not apply for information and knowledge which
 
- was known to Pilz already before the order was placed 
- Pilz obtains legitimately from third parties 
- was already in the public domain when the order was placed 
- enters the public domain retrospectively, without breaching the obligation under paragraph 1.
 
(3)
The obligation under paragraph 1 shall apply to both contracting parties for two additional years after the order is completed.
 
(4)
The client shall recognise the need for Pilz to produce academic presentations and publications and shall not unreasonably refuse the consent necessary under paragraph 1.
 

§ 19
DATA PROTECTION
 
The contracting partners shall only process or use the personal data of their respective partner for contractually agreed purposes, in compliance with statutory provisions.
 

§ 20
INVENTIONS
 
(1)
Both contracting parties shall have shared entitlement to inventions conceived jointly by staff from Pilz and the client during execution of an order; the same shall apply to any subsequent trademark rights.
 
(2)
Inventions conceived by Pilz staff during execution of an order, and any subsequent trademark rights, shall belong to Pilz.  (2)
Inventions conceived by the client’s staff during execution of an order, and any subsequent trademark rights, shall belong to the client. 
 
(3)
The granting of licences related to inventions under paragraphs 1 and 2 and any subsequent trademark rights shall require a special written agreement.
 

§ 21
WORK OUTCOMES
 
(1)
The transfer of ownership and usage rights to work outcomes of any type, which are produced within the framework of the scope of services agreed in the quotation and disclosed to the client, for example: documentation, reports, planning documents, evaluations, drawings, program materials etc., shall require a special written agreement. In any case Pilz shall retain free, non-exclusive usage rights to these work outcomes for research and education purposes.
 
(2)
Pilz shall bear no responsibility if technical documents provided by the client or supplied on the client’s instructions breach existing copyrights, commercial trademark rights or other third party rights. The client alone shall be liable if third party rights are violated during execution of his order. When first requested the client shall indemnify Pilz against all third party claims resulting from such a violation. This shall not effect § 13, liability.
 

§ 22
TERMINATION
 
(1)
Contracts may be terminated at any time with 30 days’ notice to the end of the month.
 
(2)
Contracts may be terminated for cause at any time.
 
(3)
Where a contract is terminated under paragraphs 1 and 2, the client shall pay the agreed fee, less that proportion of the fee for the agreed scope of services which was not performed due to the termination. Pilz shall also be entitled to claim a fee for services and expenses arising in connection with the termination - including relations between Pilz and third parties.
 
(4)
If termination can be attributed to Pilz, Pilz shall be entitled to claim a fee for the services performed to that point, but only in so far as the client is able to use these services.
 
(5)
Termination shall always be in writing.
 

§ 23
PUBLICATION OF DOCUMENTS AND MATERIALS, RIGHT OF RETENTION
 
(1)
Once an order is complete the client can request that Pilz surrenders the documents and materials provided. Pilz may refuse to surrender these items until all claims from the contract have been satisfied, unless retention of individual documents and materials under the circumstances, in particular on account of the relative insignificance of the amounts owed, would breach good faith.
 
(2)
Pilz may transcribe or copy and retain documents which it returns to the client.

§ 24
SPECIAL RIGHT OF TERMINATION / EMBARGO REGULATIONS / EU ANTI-TERROR REGULATIONS

(1)
In so far as contractual agreements between Pilz and the client mean that Pilz’s service obligations and the client’s payment obligations are in violation of binding national as well as international regulations (e.g. foreign trade regulations of the Federal Republic of Germany, export and embargo regulations of the European Union or other states, in particular the USA, including EU anti-terror regulations), Pilz shall be entitled to exercise extraordinary termination of the contractual relationship and / or withdraw from the contract.

(2)
In this special case the client shall not be entitled to compensation.

(3)
It is the client’s responsibility to be aware of any relevant statutory regulations which could make it impossible for Pilz to fulfil a contract.

§ 25
FINAL PROVISIONS

(1)
All contracts shall be concluded in writing. Supplementary agreements shall only take effect if confirmed by Pilz in writing.

(2)
The law of the Federal Republic of Germany shall apply. The provisions of the UN Sales Convention shall not apply.

(3)
Pilz’s headquarters in Ostfildern shall be definitive in all legal disputes between Pilz and the client.

(4)
If individual provisions of this contract, including these general terms and conditions of business, should be unenforceable with the client in whole or in part, the remaining provisions shall continue in full force and effect.

The provision that cannot be enforced in whole or in part shall be replaced by a provision whose commercial purpose approaches that of the unworkable provision as closely as possible.

 

 
§ 1
GENERAL / SCOPE

(1)
Pilz General Terms and Conditions shall apply exclusively.

(2)
These General Terms and Conditions shall apply for all current and future business relations.

(3)
Where the purchaser has his own different, conflicting or additional terms and conditions, these shall not form part of the contract, even when Pilz has full knowledge of them, unless their validity is expressly agreed in writing.

(4)
The general terms and conditions of Pilz shall still apply when Pilz supplies goods to the purchaser without reservation, in full knowledge of the purchaser’s terms and conditions which conflict with or differ from the present terms.

§ 2
QUOTATION / QUOTATION DOCUMENTS

(1)
Quotations are non-binding. Quotations from Pilz in the webshop represent a no-obligation invitation to customers to order goods from Pilz.

(2)
By ordering the required goods through completing and sending the shop’s online form, whether via eMail, telefax or telephone, the customer submits a binding offer to conclude a contract of sale. At the latest this offer shall become binding when it reaches Pilz’s sphere of control. 
 
(3)
We reserve the right to change specifications and make reasonable changes to form, colour and / or weight.

Compliance with technical data or other information / details from catalogues, printed materials, parts lists and / or drawings / sketches etc. shall only be confirmed in so far as specific data, measurements or details are expressly listed in the technical description included with the quotation. A general reference to documents or drawings shall be deemed only to confirm the function.

(4)
If the order qualifies as a quotation in accordance with § 145 of the German Civil Code (BGB), Pilz shall accept this within a period of 4 weeks.

Acceptance shall either be declared in writing or through provision of the service and notification thereof to the purchaser or through the supply of goods to the purchaser.

(5)
If the order qualifies as a quotation, Pilz shall accept this within a period of seven calendar days by sending an order confirmation or sending the goods that have been ordered. The order confirmation shall be sent via eMail.

(6)
Completion of the contract is subject to timely delivery to Pilz from its suppliers, in keeping with the terms of the contract. This shall apply only in cases where non-delivery is not attributable to Pilz, in particular where a congruent hedging transaction is made with Pilz’s supplier.

Should Pilz still be unable to provide the service, the purchaser shall be immediately informed that the service is unavailable. Any outlay on the part of the purchaser shall be reimbursed immediately.

(7)
Pilz reserves property rights and copyright on all illustrations, drawings, drafts, models, samples, calculations, estimates and other documents; they shall not be made available to third parties. This shall apply in particular to written documents which are marked "confidential". Such data shall not be disclosed to third parties without express written agreement from Pilz. These documents shall be returned to us unrequested free of charge when they are no longer required. The purchaser shall be liable for any loss or damage. These items shall be returned to us at any time upon request. The purchaser shall have no right of retention to these items. The items shall be stored securely and may not be copied without prior written agreement from Pilz.

The above-named items and their intellectual contents shall be held by the purchaser in strict confidence, unless they are already in the public domain or enter the public domain through no fault of the purchaser.

In the case of items on which we have trademark rights and/or which are protected for us as commercial/company secrets, the purchaser shall only be permitted to use the item in accordance with Pilz’s express conditions, unless specific usage methods are permitted to a third party.

 
§ 3
SCOPE OF SUPPLY

(1)
In his order the purchaser shall be obliged to state the individual specification of the respective supply item in accordance with the specific intended application, in consideration of all the relevant technical factors.

If this information from the purchaser is missing or incomplete, Pilz general product information shall additionally apply where necessary.

(2)
The written order confirmation from Pilz shall be definitive for the scope of supply. Should the contract be concluded by accepting a time-limited quotation from Pilz, the contents of the quotation from Pilz shall be definitive for the contents of that contract.

Supplementary agreements and changes shall require written confirmation from Pilz.

(3)
Pilz shall not accept the return of packaging used in shipment or any other packaging in accordance with the German packaging regulation, with the exception of pallets. The purchaser shall dispose of the packaging at his own cost.

(4)
During the delivery period we reserve the right to amend the design or form based on technical improvements and / or legal requirements, provided these do not significantly change the supply item or agreed delivery and the amendments are acceptable to the purchaser.

§ 4
PRICES / PAYMENT TERMS

(1)
In the absence of any specific agreement, prices shall apply "ex works" Incoterms 2000, including loading inside the factory, but excluding packaging, transport and transport insurance, plus the statutory rate of VAT.

(2)
Unless agreed otherwise, prices for all supplied goods shall be the list prices valid at Pilz on the day the invoice is generated (invoice date).

(3)
Discount shall only be offered by specific written agreement.
(4)
Unless stated otherwise in the order confirmation / quotation, the net sales price (before deductions) shall be due for payment within 30 days of the date of invoice. If the purchaser defaults on payment, Pilz shall be entitled to charge interest on the money owed at a rate of 8 percentage points above the annual base interest rate of the European Central Bank. Pilz reserves the right to provide evidence of and claim for greater losses resulting from default. For his part the purchaser shall have the right to prove a lower level of loss.

(5)
Pilz may issue part invoices for part shipments. Payment terms shall run separately for each part invoice.

(6)
The purchaser shall only be entitled to offsetting rights or rights of retention if his counterclaims are declared legally valid, are undisputed or are recognised by Pilz. The purchaser shall only be entitled to exercise a right of retention if his counterclaim applies to the same contractual relationship. Pilz shall be entitled to set payments off against the oldest outstanding debt, notwithstanding the purchaser’s settlement terms.

(7)
If there is a significant deterioration in the purchaser's financial situation after the contract is concluded, or should Pilz become aware of an earlier deterioration of the financial situation after the contract is concluded, and this gives rise to serious doubts concerning the purchaser's credit worthiness, Pilz shall be entitled to demand either payment in advance or a payment bond, at its own choosing.
Pilz shall be entitled to withdraw from the contract if the purchaser fails to comply with this demand.

(8)
Prices shall apply exclusively to delivery and performance within the Federal Republic of Germany.

 
§ 5
CALL-OFF ORDERS

Call-off orders shall be taken within the agreed time scales and/or on the agreed dates.

§ 6
DELIVERY PERIOD / DELAYED DELIVERY

(1)
At the start of the delivery period specified by Pilz it shall be assumed that all technical queries have been clarified and the purchaser’s obligations have been met in timely and proper manner.
In particular this includes any documents to be obtained or produced by the purchaser, such as drawings, descriptions, any permits or approvals to be submitted by the purchaser and any agreed prepayments credited to Pilz’s account.

Should any of these prerequisites be missing or should there be any outstanding queries that the purchaser has not yet clarified, the delivery period stated by Pilz shall be delayed until the purchaser has resolved the outstanding situation.

(2)
The delivery period shall be deemed to have been met when the supply item has left the factory by the agreed delivery date, or the delivery date stated by Pilz, or at the latest by the calendar week following this date, or the purchaser has been notified that the item is ready to ship by the calendar week stated in the order confirmation.

(3)
The delivery period shall be extended appropriately in the event of any unforeseen events beyond Pilz’s control, in so far as such circumstances can be shown to affect the completion or delivery of the item under contract. This shall also apply where such events occur at one of Pilz’s subcontractors.

This shall apply in particular in the event of circumstances arising from labour disputes, particularly strikes and lockouts.

Delivery delays resulting from the aforementioned circumstances shall not be attributable to Pilz even if they arise during an existing delay. Pilz shall notify the purchaser as soon as possible regarding the start and end of such situations.

(4)
Pilz shall not be deemed to have defaulted on delivery until the purchaser has set an extension time of 2 weeks in writing, and Pilz fails to delivery within this extension time.

(5)
Should Pilz suffer delivery delays, all compensation claims on the grounds of delayed performance shall be excluded, notwithstanding the purchaser’s other rights in the event of slight negligence.

§ 7
CANCELLATION COSTS

Should the purchaser cancel an order without justification, where the purchaser has been set an appropriate fulfilment period, Pilz shall be entitled to claim 10 % of the selling price for the costs incurred in processing the order and for loss of profit, without prejudice to any subsequent claim for greater loss.
The purchaser shall reserve the right to prove a lower level of loss.

§ 8
DEFAULT / DELAY IN ACCEPTANCE

(1)
If the purchaser should default in acceptance or breach any other co-operation obligation, Pilz shall be entitled to claim for any loss incurred, including any additional expenses. In this case, the risk of a random decline or deterioration of the item under contract shall pass to the purchaser at the point at which acceptance was delayed.

(2)
If delivery of the item is delayed at the request of the purchaser, the latter shall be charged for the resulting storage costs from the beginning of the month in which the item was notified as ready for dispatch/delivery, at a minimum rate of 0.5 % of the invoice amount, for each month that is started.
The purchaser shall reserve the right to prove a lower level of loss, and Pilz the right to prove a greater loss.

(3)
Additionally, after an appropriate period has passed, of which the purchaser has been notified, Pilz shall be entitled to withdraw from the contract or deliver the supply item elsewhere, and also to deliver to the purchaser in keeping with the contract, after an appropriate, extended period.

 
§ 9
PLACE OF FULFILMENT

Pilz expressly states that for each delivery for which "ex works” Incoterms 2000 is agreed, the place of fulfilment for the contractual relationship shall be Ostfildern, regardless of which Pilz subsidiary makes the delivery.

§ 10
TRANSFER OF RISK

(1)
Unless stated otherwise in the contract documents, delivery shall be "ex works” Incoterms 2000.

(2)
This shall still apply if the purchaser is in delay of acceptance.

(3)
The above paragraphs shall also apply where part-shipments are agreed.

(4)
In so far as Pilz has contractually agreed to assume the shipping costs, delivery or assembly of the item under contract, this shall not affect the above paragraphs regarding transfer of risk.

(5)
If shipment of the item under contract is delayed as a result of circumstances attributable to the purchaser, the risk shall be transferred from the day on which the item became ready to ship; however, Pilz shall be obliged to arrange insurance at the purchaser’s request and cost.

(6)
Purchasers shall accept delivery of items, including those that show slight defects, without affecting their rights under § 11, Warranty.

(7)
Part shipments shall be permitted.

§ 11
WARRANTY

(1)
The warranty period shall be 12 months and shall start with the transfer of risk.

(2)
In other respects the warranty and liability of Pilz shall be limited to fulfilment of contract, through remedy or replacement, at Pilz’s discretion. Where a defect is to be rectified, Pilz shall bear the necessary costs, insofar as these do not increase because the item under contract is located somewhere other than the place of fulfilment. Where additional remedial work is necessary on the end product for legal and commercial reasons and this is made within the scope of fulfilment when combining, mixing or processing, or through any other type of damage repair, Pilz shall not compensate the cost of this additional work in the proportion which the value of the supplied product bears to the selling price of the end product. This shall also apply where fulfilment is made on end products on which no mixing, combining or processing with other products has taken place or on products on which further processing has been carried out. 

If measures taken to fulfil the contract should fail, the purchaser shall be entitled to withdraw from the contract. Where the breach of contract is slight, particularly in the case of minor defects, the purchaser shall have no right of withdrawal. The purchaser shall not be entitled to claim a price reduction.

Remedial work shall be deemed to have failed after the second unsuccessful attempt, unless the nature of the item under contract is such that further remedial attempts are appropriate and acceptable to the purchaser.

(3)
If the purchaser chooses to withdraw from the contract on the grounds of a legal or material defect, following an unsuccessful fulfilment attempt, he shall have no claim to additional damages on account of that defect.

(4)
If a defect cannot be rectified and the customer chooses compensation after non-fulfilment, the goods shall remain with the purchaser, provided this is acceptable to the purchaser.

Compensation shall be limited to the difference between the purchase price and the value of the defective item, after provision of the failed service, or, if the service was provided by a third party, to the price of this service, less any expenses saved. This shall not apply if Pilz has maliciously caused the breach of contract. Where items are defective, resulting from the combining, mixing, processing or further processing of a faulty product, Pilz shall not compensate this loss in the proportion which the value of the supplied product bears to the selling price that would have been anticipated for the end product, had the delivery been free from defects.

(5)
Product descriptions issued by Pilz purely provide details of the product’s composition. Similarly, public statements, promotions or advertisements do not represent details of the product’s composition in accordance with the terms of the contract.

Additionally, product descriptions issued by a manufacturer used by Pilz purely provide details of the product’s composition. Similarly, public statements, promotions or advertisements from the manufacturer do not represent details of the product’s composition in accordance with the terms of the contract.

(6)
Should the purchaser receive insufficient installation instructions, Pilz’s only obligation shall be to supply sufficient installation instructions and this only if the inadequacy of the installation instructions could prevent proper installation.

(7)
The purchaser shall only assert a right to damages on grounds of non-fulfilment or withdraw from the contract if Pilz, despite setting an appropriate deadline, has failed to either correct the problem or supply a replacement within a reasonable time period, or if a replacement or remedy is unacceptable to the purchaser.

(8)
To make a warranty claim in accordance with paragraphs 1-7, the purchaser must report any obvious defects to Pilz within two weeks of receipt of the goods; hidden defects shall be notified in writing within two weeks of the defect being established.

(9)
The purchaser shall be responsible for proving that the defect was notified immediately. The purchaser shall also be responsible for proving that he has not taken any action himself to correct the defect.

(10)
The purchaser shall be obliged to document both the defect and any resulting damage, notwithstanding the aforementioned provisions, in accordance with generally accepted technical standards.

(11)
Pilz does not give purchasers any guarantees in the legal sense.

This shall not affect manufacturers’ guarantees from third parties.

§ 12
LIMITATIONS OF LIABILITY

(1)
Liability through Pilz presupposes that the purchaser has complied with the operating instructions when using the supply item.  The purchaser shall be obliged to provide evidence to this effect.

(2)
In the case of negligent breach of duty, Pilz’s liability is limited to the average level of immediate damage that might be anticipated for the type of product and is typical of the type of contract. This shall also apply where the negligent breach of duty is attributable to Pilz staff, employees, colleagues, representatives and those assisting with fulfilment.

Liability is excluded where there is a slightly negligent infringement of inconsequential contractual obligations.

(3)
Unless stated otherwise below, further claims from the purchaser are excluded, on whatever legal grounds.

Pilz shall therefore not be liable for damages not arising directly from the actual supply item; in particular Pilz shall not be liable for loss of profit or damage to any other assets belonging to the purchaser or a third party, including items produced as a result of combining, mixing, processing and / or further processing.

(4)
The exclusion and limitation of liability stated in paragraphs (1) and (2) shall not apply to damages resulting from injury to life, body or health, loss of life, intent or gross negligence. Neither shall the exclusion of liability apply where Pilz is in breach of an essential obligation (material contractual obligation); in such a case, liability shall be limited to the average level of immediate damage that might be anticipated in a typical contract, in accordance with paragraph (1).

(5)
If Pilz is in breach of an essential contractual obligation, Pilz’s liability to pay compensation in the case of material damage shall be limited to the amount of cover under its public liability insurance, unless the breach is due to gross negligence as a minimum. Pilz shall grant access to the insurance policy on request.

Where the liability of Pilz is excluded or limited, this shall also apply for the personal liability of salaried personnel, employees, associates, representatives and anyone acting on behalf of Pilz.

(6)
Liability of Pilz is generally excluded in a case where components other than those manufactured or specified by Pilz have been built into the supply item, at the purchaser’s request.  The purchaser shall be responsible for proving that such a modification did not cause the defect on the supply item.

(7)
Pilz shall not be liable for any installation work carried out by the purchaser himself. The purchaser shall be responsible for proving that the installation is correct. 

 
§ 13
RETENTION OF TITLE

(1)
Goods shall remain the property of Pilz until all claims resulting from a current business relationship have been settled in full.

If the purchaser acts in breach of contract, especially in the case of late payment, Pilz shall be entitled to reclaim the item under contract. The recovery of an item under contract does not constitute withdrawal from the contract, unless Pilz specifically expresses this in writing.

Where Pilz files for attachment of the item, this shall always constitute withdrawal from the contract. Pilz shall be entitled to realise the value of the item once it has been recovered. The proceeds from realisation shall be credited against the purchaser’s liabilities – less appropriate realisation costs.

(2)
The purchaser shall be obliged to handle the goods with care: in particular he shall be obliged to ensure these, at his own cost, against fire, water and theft, to the sum of the value when new. If maintenance and inspection work is required, the purchaser shall carry this out regularly and punctually, at his own cost.

(3)
The purchaser shall inform Pilz immediately in writing of any attachments or seizures by third parties. Where the third party is unable to reimburse Pilz the legal and out-of-court costs of an action in accordance with § 771 of the German Code of Civil Procedure (ZPO), the purchaser shall be liable for any loss incurred by Pilz.

The customer shall be further obliged to inform Pilz immediately if the goods are destroyed or damaged in any way. The purchaser shall notify Pilz immediately of any change in possession of the goods or change in his place of business.

(4)
The customer shall be entitled to resell the goods within the ordinary course of business. However, any receivables due as a result of any subsequent resale of the goods to a purchaser or third party shall be assigned to Pilz, to the value of the final invoice amount (including VAT), irrespective of whether or not the goods have been processed prior to the resale. Pilz shall accept this assignment.

The purchaser shall still be authorised to collect such receivables after assignment. This shall not affect the authority of Pilz to collect the receivables itself. However, Pilz shall undertake not to collect the receivables provided the customer meets his payment obligations from the proceeds, does not delay payment and, in particular, is not subject to an application to initiate insolvency proceedings or have payments suspended. If this is the case, Pilz may demand that the purchaser provides information on the assigned receivables and debtors, including all the necessary details required in order to collect the receivables, provides the associated documentation and informs debtors (third parties) of the assignment.

(5)
Processing or restructuring of the goods by the purchaser shall always be carried out in the name of and on behalf of Pilz. If the goods are processed with other items that are not the property of Pilz, Pilz shall acquire joint ownership of the new product in the proportion of the value of the goods to that of the other processed items at the time of processing.

For the rest, the resulting product shall be subject to the same provisions applicable to the goods supplied under reservation of title.

(6)
If the goods are mixed with other items that are not the property of Pilz, Pilz shall acquire joint ownership of the new product in the proportion of the value of the goods to that of the other mixed items at the time of mixing.

If the mixture is such that the purchaser’s product may be viewed as the main component, it shall be taken as agreed that the purchaser grants Pilz proportionate joint ownership. The purchaser shall retain the resulting sole/joint property for safekeeping.

(7)
The purchaser shall also assign to Pilz any receivables due from a third party with regard to the incorporation of the goods with a fixed plot of land, as security for the receivables owed to Pilz.

(8)
At the request of the customer, Pilz shall undertake to release such realisable securities as exceed the outstanding amounts due by more than 20 %; Pilz shall select which securities are to be released.

 
§ 14
SPECIAL RIGHT OF TERMINATION / EMBARGO REGULATIONS / EU ANTI-TERROR REGULATIONS

(1)
In so far as contractual agreements between Pilz and the purchaser mean that Pilz’s supply obligations and the purchaser’s payment obligations are in violation of binding national as well as international regulations (e.g. foreign trade regulations of the Federal Republic of Germany, export and embargo regulations of the European Union or other states, in particular the USA, including EU anti-terror regulations), Pilz shall be entitled to exercise extraordinary termination of the contractual relationship and / or withdraw from the contract.

(2)
In this special case the purchaser shall not be entitled to compensation.

(3)
It is the responsibility of the purchaser to be aware of any relevant statutory regulations which could make it impossible for Pilz to fulfil a contract.

§ 15
FINAL PROVISIONS

(1)
All contracts shall be concluded in writing. Supplementary agreements shall only take effect if confirmed by Pilz in writing.

(2)
The law of the Federal Republic of Germany shall apply. The provisions of the UN Sales Convention shall not apply.

(3)
Pilz’s headquarters in Ostfildern shall be definitive in all legal disputes between Pilz and the purchaser.

(4)
If individual provisions of this contract, including these general terms and conditions of business, should be unenforceable with the purchaser in whole or in part, the remaining provisions shall continue in full force and effect.

The provision that cannot be enforced in whole or in part shall be replaced by a provision whose commercial purpose approaches that of the unworkable provision as closely as possible.

 

 
1. GENERAL/VALIDITY

1.1. The general terms and conditions shall apply for all current and future business relations.

1.2. Where the customer's own general business terms and conditions are different, conflicting or supplementary, they shall not form part of the contract, even when known, unless their validity is expressly agreed in writing.

Where Pilz supplies goods to the customer without reservation, despite knowledge of the customer's terms and conditions, which conflict with or differ from the present terms, the general terms and conditions of Pilz shall still apply.
 

2. GENERAL DEFINITIONS OF THESE LICENSING TERMS AND CONDITIONS

2.1. Basic licence
Under the general terms and conditions, this grants the right to use a Pilz software product over an unlimited time period, on one PC at any one time.

2.2. User licence
Under the general terms and conditions, this grants the right to make an approved number of copies of a basic licence, on condition that the basic licence has already been purchased.

2.3. Project licence
Under the general terms and conditions, the scope of this licence is defined contractually as regards the use of a basic and/or user and/or upgrade licence.

2.4. Basic upgrade licence/User upgrade licence
Under the general terms and conditions, this is a new version with expanded functionalities, which is available to customers who have already purchased a basic or user licence.

2.5. Temporary licence
Under the general terms and conditions, this is a basic and/or user or upgrade licence, which is valid for a limited time period.

2.6. Software
Under the general terms and conditions, software implies the right to use Pilz software products and, where applicable, data media.
 

3. QUTATION

3.1. Quotations are non-binding. We reserve the right to change specifications within reason.

3.2. If the order is to qualify as a quotation in accordance with § 145 of the German Civil Code, Pilz can accept this within a period of 4 weeks.

Acceptance may either be declared in writing or through the supply of goods to the customer.
 

4. BASIC LICENCE

4.1. The customer shall receive the software stipulated in the order confirmation or software product certificate. Software documentation shall be purchased separately from the software, unless stated otherwise in the order confirmation from Pilz.

4.2. For an unlimited time period, the customer has the non-exclusive right to use the software on the hardware stipulated in the order confirmation or software product certificate where applicable; each individual basic licence purchased by the customer may only be used on one computer at a time. The customer is entitled to use the software exclusively to create a customer-specific application, on appropriate hardware.

4.3. Unless stated otherwise on the software supplied by Pilz, the customer may make 2 copies of each set of software. These copies shall be used exclusively for security purposes. In other cases, the customer shall only copy the software if granted a user licence by Pilz in writing, in advance.

4.4. The customer shall not modify, reverse engineer or translate the software, nor shall any parts be disassembled. The customer shall not remove any alphanumeric identifiers on the data medium; if the customer is entitled to make copies, the alphanumeric identifiers shall also be copied unamended. The same shall apply to documentation supplied in accordance with 4.1.

4.5. Pilz grants the customer the right to resell the basic licence purchased from Pilz to a third party; this right may be revoked. This shall be permitted on condition that legal relations with the third party are governed by an agreement which guarantees to protect the rights of Pilz, in keeping with the provisions of this licence agreement, and that the third party shall be subject to the obligations of this contract.

The customer is obliged to observe all applicable laws, rules and provisions and to obtain the necessary approvals, licences, authorisations or documents necessary for the implementation of this agreement. This includes all laws, provisions and decrees or any other restrictions which the German government may establish in the future regarding the export of software from Germany. Without the corresponding licences or approvals, the licensee is not entitled, whether directly or indirectly, to export or re-export the software or any associated information to countries for which the above government requires an export licence or government approval at the time of export/re-export.
 

5. USER LICENCE

5.1. Where Pilz has granted the customer a user licence for an item of software, the customer shall receive written confirmation of the number of copies he is entitled to make of the data medium supplied with the basic licence, enabling the software to be used simultaneously on several workstations, up to the number of user licences issued. The purchase of a user licence shall always require the simultaneous or prior purchase of a basic licence.

For an unlimited time period, the customer has the non-exclusive and transferable right to use the number of copies stipulated in the order confirmation in accordance with the provisions of the basic licences and - provided the contract does not state otherwise - to license its use to third parties. Under the terms of this provision, third parties are defined as the customer's colleagues or parties from external companies who work directly on behalf of the customer. Where the customer has been granted a user licence, each copy the customer creates shall only be used on one piece of hardware at a time.

5.2. The customer is obliged to observe all copy instructions received in conjunction with the user licence. The customer shall keep proper, complete records of the whereabouts of all copies; from these records it shall be possible to deduce the number of copies made and the application area. The customer shall make these available to Pilz at any time upon request. At 14 days' notice, Pilz is entitled to have the records checked by an independent auditor of its own choice. The auditor shall be permitted access to the customer's business premises during normal business hours. Where the records are found to deviate from the contractual agreements, to the detriment of Pilz, the customer shall reimburse Pilz for the costs arising from the audit.
 

6. PROJECT LICENCE 

6.1. The customer shall receive a project licence for the software stipulated in the order confirmation or software product certificate. The project licence comprises the basic and user licence of the software products and may be used on several devices simultaneously.

6.2. For an unlimited time period, the customer has the non-exclusive and transferable right to use the software stipulated in the order acknowledgement in accordance with 6.1 and to licence its use to third parties.

Under the terms of this provision, a third party is defined as anyone involved in creating, implementing and managing the project.
 

7. UPGRADE LICENCE

7.1. The customer shall receive an upgrade licence for the software stipulated in the order confirmation or software product certificate.

7.2. The basic upgrade licence is available to customers who have already purchased a basic licence. The user upgrade licence is available to customers who have already purchased a user licence.

7.3. For an unlimited time period, the customer has the non-exclusive and transferable right to use the software stipulated in the order acknowledgement in accordance with 7.1 and to licence its use to third parties.
 

8. TEMPORARY LICENCE 

8.1. The customer shall receive a temporary licence to use the software stipulated in the order confirmation or software product certificate.

8.2. For a limited time period, the customer has the non-exclusive and transferable right to use the software stipulated in the order acknowledgement in accordance with 8.1 and to licence its use to third parties.
 

9. TRANSFER OF RISK

9.1. Unless stated otherwise in the contract documents, delivery is "ex works".

9.2. If the customer defaults on accepting the goods, the transfer shall still be deemed to have taken place.

9.3. The above clauses shall also apply where part-shipments are agreed.

9.4. In so far as Pilz has contractually agreed to assume the shipping costs, delivery or installation of hardware and/or software relating to the subject of the contract, this shall not affect the above clauses regarding transfer of risk.

9.5. If shipment of the subject of the contract is delayed as a result of circumstances requiring the customer's attention, the risk is transferred to the customer from the day that notification of readiness to ship is issued.

Customers shall accept delivery of items, including those that show slight defects, without affecting their rights under clause 10.

9.6. Part shipments shall be permitted.

 
10. WARRANTY

10.1. The warranty period for each item of software shall be 12 months. The warranty period shall begin when the software products and any data media are delivered to the customer or with notification that the items are ready to ship.

10.2. Warranty from Pilz is limited to fulfilment of contract; this shall be through remedy or replacement, at the discretion of Pilz.

Considering the complexity of the software, Pilz shall be granted up to three attempts to achieve these remedies.

10.3. A software defect shall only exist if an error can be reproduced on the reference hardware used by Pilz, and not if an error should only occur when the software is used in conjunction with the specific target system hardware or software.

As the hardware in each target system is unique, the development of drivers and other software modifications and/or supplements required in order to use Pilz software on a customer's specific system shall not be regarded as a software error. A defect shall not exist, therefore, if Pilz software is not used on appropriate hardware belonging to the customer or a third party, or if the fault does not lie with the Pilz software as such, but with third party software or with development work performed by the licensee.

Pilz shall rectify software errors by shipping an appropriate form of data medium containing the latest version of the product. This may be an update or upgrade, at the discretion of Pilz. If no current update or upgrade is available at the time the remedy is required, Pilz has the right to provide the customer with an interim solution to work round the error until a new version of the product can be supplied, if this is necessary to ensure that the customer processes urgent tasks arising from the defect.

10.4. If Pilz has granted the customer a user licence, the customer may make copies of the new product version supplied under 10.3; the number of copies shall correspond to the number permitted under the terms of the user licence. In other cases, 10.3 applies accordingly.

10.5. Fault diagnostics and the remedy of defects under warranty shall take place at the customer's premises or at Pilz, at the discretion of Pilz. If there is a service (repair) agreement between the customer and Pilz, after consultation with the customer, fault diagnostics and remedy of defects may also take place at the site of the unit on which the software corresponding to 4.2 is used.

The customer shall provide Pilz with all the documents and information required in order to remedy the defect. Where Pilz is to rectify the error on the customer's premises, the customer shall provide without charge the necessary hardware and software, as well as any other operating conditions which may be required, together with appropriate operating personnel. If Pilz is to fulfil the contract at a site other than the place of delivery and no repair/service agreement is in place, the customer shall reimburse Pilz the transport, travel and accommodation costs that result from travelling to the actual site, plus any other costs arising from fulfilment of the contract.

10.6. If measures taken to fulfil the contract should fail, the customer is entitled to cancel the contract. Where the breach of contract is slight, particularly in the case of minor defects, the customer shall have no right of withdrawal. The customer is not entitled to claim a price reduction.

10.7. If the customer chooses to cancel the contract on the grounds of non-fulfilment, he shall have no claim to additional damages on account of the defect.

10.8. If a defect cannot be rectified and the customer chooses damages after non-fulfilment, the goods shall remain with the customer, provided this is acceptable to the customer.

Damages will be limited to the difference between the sales price and the value of the defective item. This shall not apply if Pilz has maliciously caused the breach of contract.

10.9. Product descriptions issued by Pilz purely provide details of the product's composition. Similarly, public statements, promotions or advertisements do not represent details of the product's composition in accordance with the terms of the contract.

Additionally, product descriptions issued by a manufacturer used by Pilz purely provide details of the product's composition. Similarly, public statements, promotions or advertisements from the manufacturer do not represent details of the product's composition in accordance with the terms of the contract.

10.10. Should the customer receive insufficient documentation, Pilz's only obligation is to supply sufficient documentation, and this only if the inadequacy of the documentation is contrary to the proper use of the software.

10.11. The customer can only assert a right to damages on grounds of non-fulfilment or cancel the contract if Pilz, despite setting a deadline, has failed to either correct the problem or supply a replacement within a reasonable time period, or if a replacement or remedy is unacceptable to the customer.

10.12. To make a warranty claim in accordance with clauses 10.1 to 10.11, the customer must report the defect in writing. Obvious defects must be reported within two weeks of receipt of the goods, hidden defects within two weeks of the defect being established.

10.13. Pilz cannot give customers guarantees in any legal sense.

This shall not affect manufacturers' guarantees from third parties.
 

11. LIMITATION OF LIABILITY

11.1. In the case of negligent breach of duty, Pilz's liability is limited to the average level of immediate damage that might be anticipated for the type of software and is typical of the type of contract. This shall also apply where the negligent breach of duty is attributable to Pilz staff, employees, colleagues, representatives and those assisting with fulfilment.

Liability is excluded where there is a slightly negligent infringement of inconsequential contractual obligations.

11.2. Unless stated otherwise below, further customer claims are excluded, on whatever legal grounds.

11.3. Pilz shall not be liable for damages not arising directly from the actual article of sale; in particular, Pilz shall not be liable for loss of profit or damage to any other of the customer's assets.

11.4. If Pilz is in negligent breach of a key contractual obligation, Pilz's liability to pay compensation in the case of material damage or personal injury shall be limited to the amount of cover under it's product liability insurance. Pilz shall grant access to the insurance policy on request.

11.5. These limitations of liability do not affect the customer's claims in terms of product liability. In addition, the limitations of liability do not apply where Pilz is responsible for physical injury, damage to health or loss of life.

11.6. Even when not specifically identified, the reproduction of registered names or trade names and trademarks etc. and all supplied files does not grant the right to assume that such names are free in terms of trademark and brand protection legislation and as such may be used by anybody.
 

12. RETENTION OF TITLE 

12.1. Goods remain the property of Pilz until all claims resulting from a current business relationship have been settled in full.

If the customer acts in breach of contract, especially in the case of late payment, Pilz is entitled to take the item back. The recovery of an item does not constitute withdrawal from the contract, unless Pilz specifically expresses this in writing.

Where Pilz files for attachment of the item, this will always constitute withdrawal from the contract. Pilz is authorised to realise the value of the item once it has been recovered. The proceeds from realisation are to be credited against the customer's liabilities - less appropriate realisation costs.

12.2. The customer is obliged to handle the goods with care: in particular he is obliged to ensure these, at his own cost, against fire, water and theft, to the sum of the value when new. If maintenance and inspection work is required, the customer must carry this out regularly and punctually, at his own cost.

12.3. The customer shall inform Pilz immediately in writing of any attachments or other access from third parties, so that Pilz can institute proceedings in accordance with § 771 ZPO (third party proceedings). Where the third party is unable to reimburse Pilz the legal and out-of-court costs of an action in accordance with § 771 ZPO, the customer shall be liable for any loss incurred by Pilz.
The customer is further obliged to inform Pilz immediately if the goods are destroyed or damaged in any way. The customer shall notify Pilz immediately of any change in possession of the goods or change in his place of business.

12.4. The customer is entitled to resell the goods within the ordinary course of business. However, any receivables due as a result of any subsequent resale of the goods to a purchaser or third party shall be assigned to Pilz, to the value of the final invoice amount (including VAT), whether the goods have been resold without processing or after processing. Pilz shall accept this assignment.

The customer shall still be authorised to collect such receivables after assignment. This shall not affect the authority of Pilz to collect the receivables itself. However, Pilz shall undertake not to collect the receivables provided the customer meets his payment obligations from the proceeds, does not delay payment and, in particular, is not subject to an application to initiate insolvency proceedings or have payments suspended. If this is the case, Pilz may demand that the customer provides information on the assigned receivables and debtors, including all the necessary details required in order to collect the receivables, provides the associated documentation and informs debtors (third parties) of the assignment.

12.5. Processing or restructuring of the goods by the customer shall always be carried out in the name of and on behalf of Pilz. If the goods are processed with other items that are not the property of Pilz, Pilz acquires joint ownership of the new product in the ratio of the value of the goods to that of the other processed items at the time of processing.

For the rest, the resulting product shall be subject to the same provisions applicable to the goods supplied under reservation of title.

12.6. If the goods are mixed with other items that are not the property of Pilz, Pilz acquires joint ownership of the new product in the ratio of the value of the goods to that of the other mixed items at the time of mixing.

If the mixture is such that the customer's product may be viewed as the main component, it shall be taken as agreed that the customer grants Pilz proportionate joint ownership. The customer shall retain the resulting sole/joint property for safekeeping.

12.7. The customer shall also assign to Pilz any receivables due from a third party with regard to the incorporation of the goods with a fixed plot of land, as security for the receivables owed to Pilz.

12.8. At the request of the customer, Pilz undertakes to release such realisable securities as exceed the outstanding amounts due by more than 20%; Pilz shall select which securities are to be released.
 

13. PRICES

13.1. In addition to the applicable list prices, Pilz charges separately for:
- Support during commissioning of software
- Support in analysing and correcting faults that have arisen as a result of improper operation or other circumstances not attributable to the software.

13.2. In the absence of any specific agreement, prices include loading and packaging but exclude the statutory rate of VAT.

13.3. Discount is only offered by specific written agreement.

13.4. Unless stated otherwise in the order confirmation/quotation, the net sales price (before deductions) is due for payment within 30 days of the date of invoice. If the customer defaults on payment, Pilz is entitled to charge interest on the money owed at a rate of 8% above the base interest rate of the European Central Bank p.a. Pilz reserves the right to provide evidence of and claim for greater losses resulting from default. For his part the customer has the right to prove a lower level of loss.

13.5. The customer shall only be entitled to offsetting rights or rights of retention if his counterclaims are declared legally valid, are undisputed or have been recognised by Pilz. The customer is only entitled to exercise a right of retention if his counterclaim applies to the same contractual relationship.
 

14. FINAL PROVISIONS

14.1. The law of the Federal Republic of Germany shall apply. The provisions of the UN Sales Convention shall not apply.

14.2. If the customer is a businessman, a public body or a separate estate under public law, Pilz's place of business shall be the exclusive court of jurisdiction for all disputes arising from this contract. This also applies if the customer has no general court of jurisdiction in Germany, or if a permanent / habitual place of residence is unknown at the time the claim is raised.

14.3. If individual provisions of this contract, including these general terms and conditions of business, should be unenforceable with the customer in whole or in part, the remaining provisions shall continue in full force and effect.

The provision that cannot be enforced in whole or in part shall be replaced by a provision whose commercial purpose approaches that of the unworkable provision as closely as possibleIn the case of doubt or questions of clarity, the original German version of the current terms and conditions shall apply.

 

  
§ 1

1. These terms and conditions apply to all business transactions between us and the purchaser. They also apply to future transactions, even if no express reference is made to such terms.

2. Our terms and conditions shall apply exclusively. We shall not recognise customer's terms and conditions that conflict with or differ from these conditions, unless we have expressly agreed their validity in writing. Neither shall we recognise different terms and conditions if we supply an order without reservation, in full knowledge of the customer's terms and conditions which conflict with or differ from our own.
 

§ 2

1. Our quotations are non-binding. Our written order confirmation shall be the sole definitive factor in terms of the scope and content of the contractual services. Supplementary agreements, changes and additions to the contract also require our written confirmation.

2. In the case of obvious typing errors or miscalculations in the quotation or written order confirmation, we reserve the right to cancel the contract without prejudice to our other rights.

3. Estimates, diagrams, drawings, drafts, models, samples etc. remain our property and should be returned to us unrequested free of charge when they are no longer required. The purchaser is liable for any loss or damage. These items should be returned to us at any time upon request. The purchaser has no right of retention to these items.
The items must be kept safely and may not be made accessible or copied to third parties without our prior written agreement.

The above-named items and their intellectual contents are our commercial and company secrets and must be held by the purchaser in strict confidence, unless they are already in the public domain or enter the public domain through no fault of the purchaser.

In the case of items on which we have trademark rights and/or which are protected for us as commercial/company secrets, the purchaser shall only be permitted to use the item in accordance with our express conditions, unless specific usage methods are permitted to a third party. 
 

§ 3

1. The purchaser shall pay the agreed price plus statutory VAT. Unless agreed otherwise, all prices stated are ex works, excluding transport, transport insurance and packing.

2. The prices for all supplied goods are the list prices valid on the day the invoice is generated (invoice date). 
 

§ 4

1. All goods remain our property until the purchaser has paid all outstanding invoices due to us as a result of the business relationship both now and in the future. It is the purchaser's responsibility to handle the goods with care. The customer shall inform Pilz immediately in writing of any attachments or other access from third parties. If we institute proceedings in accordance with § 771 ZPO and the third party is unable to reimburse the legal and out-of-court costs, the purchaser shall be liable for the resulting loss.

2. The purchaser may only resell the supplied goods in the normal course of business; goods may not be pledged or transferred by way of security. We reserve the right to cancel authorisation to resell the goods if the purchaser defaults on payment or if, once the contract is concluded, there is a significant deterioriation in the purchaser's financial situation which gives rise to serious doubts concerning the purchaser's credit worthiness. If the purchaser is in breach of the obligation stated under clause 1 or defaults on payment, we are entitled to cancel the contract and reclaim the goods.

3. To protect all current and future receivables owed to us by the purchaser, the purchaser shall assign to us now all receivables due as a result of any subsequent resale to a purchaser or third-party, to the value of the final invoice amount (including VAT), with all ancillary rights. The purchaser remains authorised to collect these receivables. He shall accept receipt of the incoming payments in trust and transfer the funds to us in settlement of the outstanding account. This shall in no way affect our authority to collect the receivables ourselves. However, we shall undertake not to collect the receivables provided the purchaser meets his payment obligations from the proceeds, does not default on payment and, in particular, is not subject to an application to initiate insolvency proceedings or have payments suspended. If this is the case, we may demand that the purchaser provides us with information on the assigned receivables and debtors, including all the details required for collection, transfers the associated documentation and informs the purchaser or third-party of the assignment and the value of our receivables.

4. Processing or restructuring of the goods by the purchaser shall always be carried out on our behalf. If the goods are processed in conjunction with other items that are not our property, we shall acquire joint ownership of the new product in the ratio of the value of our goods to that of the other processed items at the time of processing.

5. If the goods are inextricably mixed with other items that are not our property and the mixture is such that the purchaser’s product may be viewed as the main component, it shall be taken as agreed that the purchaser grants Pilz proportionate joint ownership. The purchaser shall retain the resulting sole/joint property for safekeeping. 
 

§ 5

1. The price plus statutory VAT shall be paid within 30 days of receipt of the invoice, without deductions. We shall grant 2 % discount for cash payments within 14 days of the invoice date. Part invoices may be issued for part deliveries. Payment terms shall run separately for each part invoice.

2. Cheques and bills of exchange shall only be accepted for purposes of fulfilment, bills of change on condition that they can be discounted. Payment shall not be deemed to have taken place until a bill of exchange has been redeemed or, when paying by cheque, until the amount is credited to our account. Discount charges, interest and all supplementary costs shall be borne by the purchaser.

3. Should the purchaser default on payment, we are entitled to demand either payment in advance or a payment bond for any outstanding deliveries, at our choosing. We reserve the right to assert additional rights.

4. The purchaser is entitled to assert a right of retention and offset a claim only in relation to receivables that are either undisputed or have been declared legally valid. He is only entitled to exercise a right of retention if his counterclaim applies to the same contractual relationship.

5. If there is a significant deterioration in the purchaser's financial situation after the contract is concluded, or should we become aware of an earlier deterioration of the financial situation after the contract is concluded, and this gives rise to serious doubts concerning the purchaser's credit worthiness, we are entitled to demand either payment in advance or a payment bond, at our choosing. If the purchaser does not comply with this demand, we are entitled to cancel the contract. 
 

§ 6

1. Information regarding the delivery period shall not be binding unless, in exceptional cases, a delivery date has been specified in a binding agreement. If, in exceptional cases, a binding delivery period has been agreed, it shall start on the day of the order confirmation. However, its start shall be deferred if any of the contract details require clarification while the purchaser has met all his contractual obligations, particularly with regard to the documentation the purchaser is to provide, and any advance payment that has been agreed has been received. The delivery period has been met if the goods are dispatched before it expires.

2. If we are prevented from delivering due to force majeure, the delivery date shall immediately be extended for the duration of the force majeure, plus an appropriate start-up time. Force majeure is defined as unforeseen circumstances beyond our control, which make it unreasonably difficult or temporarily impossible for us to deliver. Examples include delivery delays from upstream suppliers, industrial action, official actions, lack of raw material or energy shortages, key operational malfunctions which destroy overall operation or that of key departments, the failure of essential manufacturing plants, serious transport problems, e.g. road blockades, industrial action within the transport industry, energy shortages, travel bans. Should these circumstances last more than four months, we have the right to cancel the contract. On the purchaser's request, once the period has elapsed we shall state whether we intend to cancel or to deliver within an appropriate period, as defined by us.

3. If an appropriate delivery period is to be exceeded, we shall not be in default until the customer has set an appropriate extension time in writing of at least two weeks, which we have failed to meet.

4. If goods have been pronounced ready for dispatch and the purchaser fails to take delivery in due time, we are entitled to store the goods at the purchaser's cost and risk and to demand payment of the purchase price or, once an appropriate extension time has elapsed, to decline to fulfil the contract and to claim damages in lieu of performance.

5. We are entitled to make part deliveries, provided this is acceptable to the customer.
 

§ 7

1. We deliver ex works. If the goods are sent at the purchaser's request, the purchaser shall bear the costs.

2. Unless the purchaser has instructed otherwise, we shall determine the means of transport and transportation route; no responsibility shall be taken for selecting the quickest or cheapest option.

3. Delivery of call-off orders shall be taken within the agreed time scales and/or on the agreed dates. 
 

§ 8

1. The purchaser may not assert his rights on account of an insignificant defect with the goods. Where defects are not insignificant, the rights of the purchaser are restricted to a claim for fulfilment. This shall not effect § 439 clause 3 of the civil code (BGB). Should the subsequent fulfilment fail, the purchaser has the right to choose whether to reduce or cancel the contract.

2. This shall not effect § 377 of the commerical code (HGB). Should the purchaser find a defect upon examination of the item, the purchaser must report this to us immediately, within 2 weeks at the latest.

3. All the purchaser's warranty claims in accordance with § 437 of the civil code (BGB) shall expire within one year of the goods being supplied.

4. This shall not effect § 478 of the civil code (BGB). 
 

§ 9

1. Claims for damages by the purchaser shall be excluded. We shall not be liable for damages that do not arise directly from the item supplied; in particular we shall not be liable for loss of profit or any other financial losses incurred by the customer.

2. The exclusion of liability in accordance with clause 1 shall not apply in the case of intentional and gross negligence, warranty claims, injury to life, body or health, claims in accordance with §§ 1, 4 of the product liability law and slightly negligent infringement of material contractual obligations. In the case of slightly negligent infringement of material contractual obligations, liability is restricted to foreseeable, typical damages at the time the contract was concluded. The same applies in the case of gross negligence on the part of an individual acting on our behalf.

3. Where our liability is excluded or restricted, this shall also apply for the personal liability of our salaried personnel, employees, associates, representatives and anyone acting on our behalf.

4. It is the purchaser's responsibility to indemnify us against any claims for damages from his customers arising from the condition of the product he sold, if and to the extent that he himself has culpably contributed to the origin of the damage. 
 

§ 10

1. The purchaser shall not be entitled to the statutory right of withdrawal where a service is not provided or is provided contrary to the terms of the contract, where there has been no breach of duty on our part.

2. Paragraph 1 shall not apply if specific agreements (e.g. where a fixed delivery date has been agreed) grant a seller's right of withdrawal, irrespective of fault. Furthermore, paragraph 1 shall not apply in the case of a defect in the item being sold; in this case the statutory regulations for the sale of goods shall apply, unless stated otherwise in these general terms and conditions. 
 

§ 11

1. Our company's registered office shall be the place of fulfilment for all contractual obligations.

2. The court of jurisdiction for any disputes arising from the preparation and implementation of contracts, including actions relating to cheques and bills of exchange, shall be the competent court for our company's registered office.

3. The law applicable for the Federal Republic of Germany shall apply exclusively for all legal relations resulting from the preparation and implementation of contracts. The UN Convention for the International Sale of Goods shall not apply.

4. Should any provision within these delivery and payment terms be unenforceable, all remaining provisions shall continue in full force and effect. In this case, both contracting partners shall undertake to replace the unenforceable provision with a workable provision that comes closest to the original economic outcome. 
 

§ 12

Supplied goods may fall within the scope of the foreign trade regulations of the Federal Republic of Germany. If the purchaser exports the goods to non-resident third-parties, it is the purchaser's responsibility to determine whether the export is subject to approval, and – if this is the case – to obtain the necessary licences. No claims can be derived against us on this matter; this shall also apply if a licence is refused.

 

 
VALIDITY

1. The facility to place orders online is offered exclusively to commercial customers. By registering the customer confirms that all legal transactions concluded with us online are intended for their own commercial or independent professional purposes.

2. The provisions relating to distance selling (§§ 312b ff. BGB) are intended exclusively for consumer protection and shall not apply to agreements between companies under the terms of § 14 BGB.

3. Our other general business terms and conditions shall apply in addition to the agreements made under the administration of eCommerce agreements.
 

PERMISSION FOR ONLINE USE

1. Purchasers must register before ordering products online. Registered customers are given access to information (in particular price lists) based on their business location.

2. The customer is responsible for ensuring that the information entered during registration is correct. When registering the customer undertakes to use the account solely for his own purposes and, in particular, to ensure that his password is not revealed to any third party. The customer shall inform us immediately if he discovers that an unauthorised third party is using or can use his account.

3. Permission to open an account and subsequent use and availability is subject to our discretion. We reserve the right to fully or partially close or disable the account to all or selected customers at any time, without further reason.

4. The customer has no additional rights beyond the facility to use the account for his own purposes. In particular, he does not have the right to use the content of our Internet pages.
 

CONCLUSION OF THE AGREEMENT

1. All services advertised on the Internet serve merely as an invitation to the customer to submit an offer. We reserve the right to accept or reject such an offer. An agreement is only concluded once we have given confirmation. Confirmation may be given by letter, telefax, E-Mail or through delivery of the order.

2. An order for services advertised on the Internet shall only be placed via the Internet and in accordance with the specified terms and conditions.

3. The customer alone is responsible for selecting the right product for his intended purpose, unless a specific agreement to the contrary has been made in writing.

 
PRICES

1. The prices quoted are exclusive of VAT at the statutory rate. They are valid ex-works and do not include costs for packaging, transport, postage, insurance or any other shipping costs.

2. We cannot accept liability for the accuracy and entirety of online prices/price lists.

 
EXCLUSION OF LIABILITY FOR ONLINE USE

1. We accept no liability for the availability of our Internet pages or for the validity, accuracy, entirety and availability of the advertised services. In particular, illustrations and descriptions of individual products do not necessarily represent a complete description of their properties. Product illustrations generally represent part of the relevant product range. Individual articles within this product range may vary.

2. We cannot be made liable for any misuse of the account by the customer's staff or any third party. The customer shall inform us if he is aware of any improper use of his account.

 

 
1. GENERAL/VALIDITY

1.1. The general terms and conditions shall apply for all current and future business relations.

1.2. Where the customer's own general business terms and conditions are different, conflicting or supplementary, they shall not form part of the contract, even when known, unless their validity is expressly agreed in writing.

Where Pilz supplies goods to the customer without reservation, despite knowledge of the customer's terms and conditions, which conflict with or differ from the present terms, the general terms and conditions of Pilz shall still apply.
 

2. GENERAL DEFINITIONS OF THESE LICENSING TERMS AND CONDITIONS

2.1. Basic licence
Under the general terms and conditions, this grants the right to use a Pilz software product over an unlimited time period, on one PC at any one time.

2.2. User licence
Under the general terms and conditions, this grants the right to make an approved number of copies of a basic licence, on condition that the basic licence has already been purchased.

2.3. Project licence
Under the general terms and conditions, the scope of this licence is defined contractually as regards the use of a basic and/or user and/or upgrade licence.

2.4. Basic upgrade licence/User upgrade licence
Under the general terms and conditions, this is a new version with expanded functionalities, which is available to customers who have already purchased a basic or user licence.

2.5. Temporary licence
Under the general terms and conditions, this is a basic and/or user or upgrade licence, which is valid for a limited time period.

2.6. Software
Under the general terms and conditions, software implies the right to use Pilz software products and, where applicable, data media.
 

3. QUTATION

3.1. Quotations are non-binding. We reserve the right to change specifications within reason.

3.2. If the order is to qualify as a quotation in accordance with § 145 of the German Civil Code, Pilz can accept this within a period of 4 weeks.

Acceptance may either be declared in writing or through the supply of goods to the customer.
 

4. BASIC LICENCE

4.1. The customer shall receive the software stipulated in the order confirmation or software product certificate. Software documentation shall be purchased separately from the software, unless stated otherwise in the order confirmation from Pilz.

4.2. For an unlimited time period, the customer has the non-exclusive right to use the software on the hardware stipulated in the order confirmation or software product certificate where applicable; each individual basic licence purchased by the customer may only be used on one computer at a time. The customer is entitled to use the software exclusively to create a customer-specific application, on appropriate hardware.

4.3. Unless stated otherwise on the software supplied by Pilz, the customer may make 2 copies of each set of software. These copies shall be used exclusively for security purposes. In other cases, the customer shall only copy the software if granted a user licence by Pilz in writing, in advance.

4.4. The customer shall not modify, reverse engineer or translate the software, nor shall any parts be disassembled. The customer shall not remove any alphanumeric identifiers on the data medium; if the customer is entitled to make copies, the alphanumeric identifiers shall also be copied unamended. The same shall apply to documentation supplied in accordance with 4.1.

4.5. Pilz grants the customer the right to resell the basic licence purchased from Pilz to a third party; this right may be revoked. This shall be permitted on condition that legal relations with the third party are governed by an agreement which guarantees to protect the rights of Pilz, in keeping with the provisions of this licence agreement, and that the third party shall be subject to the obligations of this contract.

The customer is obliged to observe all applicable laws, rules and provisions and to obtain the necessary approvals, licences, authorisations or documents necessary for the implementation of this agreement. This includes all laws, provisions and decrees or any other restrictions which the German government may establish in the future regarding the export of software from Germany. Without the corresponding licences or approvals, the licensee is not entitled, whether directly or indirectly, to export or re-export the software or any associated information to countries for which the above government requires an export licence or government approval at the time of export/re-export.
 

5. USER LICENCE

5.1. Where Pilz has granted the customer a user licence for an item of software, the customer shall receive written confirmation of the number of copies he is entitled to make of the data medium supplied with the basic licence, enabling the software to be used simultaneously on several workstations, up to the number of user licences issued. The purchase of a user licence shall always require the simultaneous or prior purchase of a basic licence.

For an unlimited time period, the customer has the non-exclusive and transferable right to use the number of copies stipulated in the order confirmation in accordance with the provisions of the basic licences and - provided the contract does not state otherwise - to license its use to third parties. Under the terms of this provision, third parties are defined as the customer's colleagues or parties from external companies who work directly on behalf of the customer. Where the customer has been granted a user licence, each copy the customer creates shall only be used on one piece of hardware at a time.

5.2. The customer is obliged to observe all copy instructions received in conjunction with the user licence. The customer shall keep proper, complete records of the whereabouts of all copies; from these records it shall be possible to deduce the number of copies made and the application area. The customer shall make these available to Pilz at any time upon request. At 14 days' notice, Pilz is entitled to have the records checked by an independent auditor of its own choice. The auditor shall be permitted access to the customer's business premises during normal business hours. Where the records are found to deviate from the contractual agreements, to the detriment of Pilz, the customer shall reimburse Pilz for the costs arising from the audit.
 

6. PROJECT LICENCE 

6.1. The customer shall receive a project licence for the software stipulated in the order confirmation or software product certificate. The project licence comprises the basic and user licence of the software products and may be used on several devices simultaneously.

6.2. For an unlimited time period, the customer has the non-exclusive and transferable right to use the software stipulated in the order acknowledgement in accordance with 6.1 and to licence its use to third parties.

Under the terms of this provision, a third party is defined as anyone involved in creating, implementing and managing the project.
 

7. UPGRADE LICENCE

7.1. The customer shall receive an upgrade licence for the software stipulated in the order confirmation or software product certificate.

7.2. The basic upgrade licence is available to customers who have already purchased a basic licence. The user upgrade licence is available to customers who have already purchased a user licence.

7.3. For an unlimited time period, the customer has the non-exclusive and transferable right to use the software stipulated in the order acknowledgement in accordance with 7.1 and to licence its use to third parties.
 

8. TEMPORARY LICENCE 

8.1. The customer shall receive a temporary licence to use the software stipulated in the order confirmation or software product certificate.

8.2. For a limited time period, the customer has the non-exclusive and transferable right to use the software stipulated in the order acknowledgement in accordance with 8.1 and to licence its use to third parties.
 

9. TRANSFER OF RISK

9.1. Unless stated otherwise in the contract documents, delivery is "ex works".

9.2. If the customer defaults on accepting the goods, the transfer shall still be deemed to have taken place.

9.3. The above clauses shall also apply where part-shipments are agreed.

9.4. In so far as Pilz has contractually agreed to assume the shipping costs, delivery or installation of hardware and/or software relating to the subject of the contract, this shall not affect the above clauses regarding transfer of risk.

9.5. If shipment of the subject of the contract is delayed as a result of circumstances requiring the customer's attention, the risk is transferred to the customer from the day that notification of readiness to ship is issued.

Customers shall accept delivery of items, including those that show slight defects, without affecting their rights under clause 10.

9.6. Part shipments shall be permitted.

 
10. WARRANTY

10.1. The warranty period for each item of software shall be 12 months. The warranty period shall begin when the software products and any data media are delivered to the customer or with notification that the items are ready to ship.

10.2. Warranty from Pilz is limited to fulfilment of contract; this shall be through remedy or replacement, at the discretion of Pilz.

Considering the complexity of the software, Pilz shall be granted up to three attempts to achieve these remedies.

10.3. A software defect shall only exist if an error can be reproduced on the reference hardware used by Pilz, and not if an error should only occur when the software is used in conjunction with the specific target system hardware or software.

As the hardware in each target system is unique, the development of drivers and other software modifications and/or supplements required in order to use Pilz software on a customer's specific system shall not be regarded as a software error. A defect shall not exist, therefore, if Pilz software is not used on appropriate hardware belonging to the customer or a third party, or if the fault does not lie with the Pilz software as such, but with third party software or with development work performed by the licensee.

Pilz shall rectify software errors by shipping an appropriate form of data medium containing the latest version of the product. This may be an update or upgrade, at the discretion of Pilz. If no current update or upgrade is available at the time the remedy is required, Pilz has the right to provide the customer with an interim solution to work round the error until a new version of the product can be supplied, if this is necessary to ensure that the customer processes urgent tasks arising from the defect.

10.4. If Pilz has granted the customer a user licence, the customer may make copies of the new product version supplied under 10.3; the number of copies shall correspond to the number permitted under the terms of the user licence. In other cases, 10.3 applies accordingly.

10.5. Fault diagnostics and the remedy of defects under warranty shall take place at the customer's premises or at Pilz, at the discretion of Pilz. If there is a service (repair) agreement between the customer and Pilz, after consultation with the customer, fault diagnostics and remedy of defects may also take place at the site of the unit on which the software corresponding to 4.2 is used.

The customer shall provide Pilz with all the documents and information required in order to remedy the defect. Where Pilz is to rectify the error on the customer's premises, the customer shall provide without charge the necessary hardware and software, as well as any other operating conditions which may be required, together with appropriate operating personnel. If Pilz is to fulfil the contract at a site other than the place of delivery and no repair/service agreement is in place, the customer shall reimburse Pilz the transport, travel and accommodation costs that result from travelling to the actual site, plus any other costs arising from fulfilment of the contract.

10.6. If measures taken to fulfil the contract should fail, the customer is entitled to cancel the contract. Where the breach of contract is slight, particularly in the case of minor defects, the customer shall have no right of withdrawal. The customer is not entitled to claim a price reduction.

10.7. If the customer chooses to cancel the contract on the grounds of non-fulfilment, he shall have no claim to additional damages on account of the defect.

10.8. If a defect cannot be rectified and the customer chooses damages after non-fulfilment, the goods shall remain with the customer, provided this is acceptable to the customer.

Damages will be limited to the difference between the sales price and the value of the defective item. This shall not apply if Pilz has maliciously caused the breach of contract.

10.9. Product descriptions issued by Pilz purely provide details of the product's composition. Similarly, public statements, promotions or advertisements do not represent details of the product's composition in accordance with the terms of the contract.

Additionally, product descriptions issued by a manufacturer used by Pilz purely provide details of the product's composition. Similarly, public statements, promotions or advertisements from the manufacturer do not represent details of the product's composition in accordance with the terms of the contract.

10.10. Should the customer receive insufficient documentation, Pilz's only obligation is to supply sufficient documentation, and this only if the inadequacy of the documentation is contrary to the proper use of the software.

10.11. The customer can only assert a right to damages on grounds of non-fulfilment or cancel the contract if Pilz, despite setting a deadline, has failed to either correct the problem or supply a replacement within a reasonable time period, or if a replacement or remedy is unacceptable to the customer.

10.12. To make a warranty claim in accordance with clauses 10.1 to 10.11, the customer must report the defect in writing. Obvious defects must be reported within two weeks of receipt of the goods, hidden defects within two weeks of the defect being established.

10.13. Pilz cannot give customers guarantees in any legal sense.

This shall not affect manufacturers' guarantees from third parties.
 

11. LIMITATION OF LIABILITY

11.1. In the case of negligent breach of duty, Pilz's liability is limited to the average level of immediate damage that might be anticipated for the type of software and is typical of the type of contract. This shall also apply where the negligent breach of duty is attributable to Pilz staff, employees, colleagues, representatives and those assisting with fulfilment.

Liability is excluded where there is a slightly negligent infringement of inconsequential contractual obligations.

11.2. Unless stated otherwise below, further customer claims are excluded, on whatever legal grounds.

11.3. Pilz shall not be liable for damages not arising directly from the actual article of sale; in particular, Pilz shall not be liable for loss of profit or damage to any other of the customer's assets.

11.4. If Pilz is in negligent breach of a key contractual obligation, Pilz's liability to pay compensation in the case of material damage or personal injury shall be limited to the amount of cover under it's product liability insurance. Pilz shall grant access to the insurance policy on request.

11.5. These limitations of liability do not affect the customer's claims in terms of product liability. In addition, the limitations of liability do not apply where Pilz is responsible for physical injury, damage to health or loss of life.

11.6. Even when not specifically identified, the reproduction of registered names or trade names and trademarks etc. and all supplied files does not grant the right to assume that such names are free in terms of trademark and brand protection legislation and as such may be used by anybody.
 

12. RETENTION OF TITLE 

12.1. Goods remain the property of Pilz until all claims resulting from a current business relationship have been settled in full.

If the customer acts in breach of contract, especially in the case of late payment, Pilz is entitled to take the item back. The recovery of an item does not constitute withdrawal from the contract, unless Pilz specifically expresses this in writing.

Where Pilz files for attachment of the item, this will always constitute withdrawal from the contract. Pilz is authorised to realise the value of the item once it has been recovered. The proceeds from realisation are to be credited against the customer's liabilities - less appropriate realisation costs.

12.2. The customer is obliged to handle the goods with care: in particular he is obliged to ensure these, at his own cost, against fire, water and theft, to the sum of the value when new. If maintenance and inspection work is required, the customer must carry this out regularly and punctually, at his own cost.

12.3. The customer shall inform Pilz immediately in writing of any attachments or other access from third parties, so that Pilz can institute proceedings in accordance with § 771 ZPO (third party proceedings). Where the third party is unable to reimburse Pilz the legal and out-of-court costs of an action in accordance with § 771 ZPO, the customer shall be liable for any loss incurred by Pilz.
The customer is further obliged to inform Pilz immediately if the goods are destroyed or damaged in any way. The customer shall notify Pilz immediately of any change in possession of the goods or change in his place of business.

12.4. The customer is entitled to resell the goods within the ordinary course of business. However, any receivables due as a result of any subsequent resale of the goods to a purchaser or third party shall be assigned to Pilz, to the value of the final invoice amount (including VAT), whether the goods have been resold without processing or after processing. Pilz shall accept this assignment.

The customer shall still be authorised to collect such receivables after assignment. This shall not affect the authority of Pilz to collect the receivables itself. However, Pilz shall undertake not to collect the receivables provided the customer meets his payment obligations from the proceeds, does not delay payment and, in particular, is not subject to an application to initiate insolvency proceedings or have payments suspended. If this is the case, Pilz may demand that the customer provides information on the assigned receivables and debtors, including all the necessary details required in order to collect the receivables, provides the associated documentation and informs debtors (third parties) of the assignment.

12.5. Processing or restructuring of the goods by the customer shall always be carried out in the name of and on behalf of Pilz. If the goods are processed with other items that are not the property of Pilz, Pilz acquires joint ownership of the new product in the ratio of the value of the goods to that of the other processed items at the time of processing.

For the rest, the resulting product shall be subject to the same provisions applicable to the goods supplied under reservation of title.

12.6. If the goods are mixed with other items that are not the property of Pilz, Pilz acquires joint ownership of the new product in the ratio of the value of the goods to that of the other mixed items at the time of mixing.

If the mixture is such that the customer's product may be viewed as the main component, it shall be taken as agreed that the customer grants Pilz proportionate joint ownership. The customer shall retain the resulting sole/joint property for safekeeping.

12.7. The customer shall also assign to Pilz any receivables due from a third party with regard to the incorporation of the goods with a fixed plot of land, as security for the receivables owed to Pilz.

12.8. At the request of the customer, Pilz undertakes to release such realisable securities as exceed the outstanding amounts due by more than 20%; Pilz shall select which securities are to be released.
 

13. PRICES

13.1. In addition to the applicable list prices, Pilz charges separately for:
- Support during commissioning of software
- Support in analysing and correcting faults that have arisen as a result of improper operation or other circumstances not attributable to the software.

13.2. In the absence of any specific agreement, prices include loading and packaging but exclude the statutory rate of VAT.

13.3. Discount is only offered by specific written agreement.

13.4. Unless stated otherwise in the order confirmation/quotation, the net sales price (before deductions) is due for payment within 30 days of the date of invoice. If the customer defaults on payment, Pilz is entitled to charge interest on the money owed at a rate of 8% above the base interest rate of the European Central Bank p.a. Pilz reserves the right to provide evidence of and claim for greater losses resulting from default. For his part the customer has the right to prove a lower level of loss.

13.5. The customer shall only be entitled to offsetting rights or rights of retention if his counterclaims are declared legally valid, are undisputed or have been recognised by Pilz. The customer is only entitled to exercise a right of retention if his counterclaim applies to the same contractual relationship.
 

14. FINAL PROVISIONS

14.1. The law of the Federal Republic of Germany shall apply. The provisions of the UN Sales Convention shall not apply.

14.2. If the customer is a businessman, a public body or a separate estate under public law, Pilz's place of business shall be the exclusive court of jurisdiction for all disputes arising from this contract. This also applies if the customer has no general court of jurisdiction in Germany, or if a permanent / habitual place of residence is unknown at the time the claim is raised.

14.3. If individual provisions of this contract, including these general terms and conditions of business, should be unenforceable with the customer in whole or in part, the remaining provisions shall continue in full force and effect.

The provision that cannot be enforced in whole or in part shall be replaced by a provision whose commercial purpose approaches that of the unworkable provision as closely as possibleIn the case of doubt or questions of clarity, the original German version of the current terms and conditions shall apply.

 

Pilz GmbH & Co. KG
Felix-Wankel-Str. 2
73760 Osfildern 
Germany
Telephone: +49 711 3409-0
Telefax: +49 711 3409-133
E-Mail: info@pilz.de
Internet: www.pilz.com