These General Terms and Conditions apply to all product orders that you (the "Buyer") place with pjur group Luxembourg SA ("pjur"), provided that these Terms and Conditions have not been replaced by the provisions of a separate written agreement concluded between the Buyer and pjur.
1.0 SCOPE
1.1 These Terms and Conditions apply exclusively to entrepreneurs, legal persons under public law and special funds under public law as defined in Section 310(1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB) and retailers as defined in Regulation (EU)2017/745. We recognise terms and conditions of the ordering party that conflict with or deviate from our Terms and Conditions only if we expressly agree to the application of such terms and conditions of the ordering party in writing.
1.2 These Terms and Conditions also apply to all future contracts with the Buyer to the extent that such contracts involve legal transactions of a similar nature. Unless agreed otherwise, our Terms and Conditions apply in the version in force at the time that the order is placed or the contract is concluded, provided that pjur notifies the Buyer of the new version of our Terms and Conditions by this point in time at the latest.
2.0 PRODUCT ORDERS
2.1 All product orders placed by the Buyer will be confirmed and accepted by pjur at pjur's sole discretion within 14 days by means of a written order confirmation.
2.2 Offers by pjur are subject to alteration and non-binding. The Buyer simply possessing a price list or these General Terms and Conditions does not constitute a legally binding offer for sale.
2.3 If a delivery is made without the Buyer receiving order confirmation in advance, a contract is concluded with respect to this delivery upon acceptance of the delivery if the Buyer does not send a written objection to the conclusion of the contract to pjur within one week following acceptance of the delivery.
2.4 pjur retains the proprietary rights and copyrights to all documents provided to the Buyer in connection with the order or the conclusion of the contract, such as illustrations, drawings, calculations and any other documentation. Documents designated as "confidential" may only be passed on to or otherwise made available to third parties with pjur's prior written consent.
3.0 DELIVERY
3.1 Deliveries are made ex warehouse. The warehouse is also the place of fulfilment for the delivery and any supplementary performance. The goods will be sent to another destination at the Buyer's request and expense (sale by dispatch). Unless agreed otherwise, pjur is entitled to determine the shipping method (in particular, the transportation company, dispatch route, packaging) itself.
3.2 The risk of accidental loss or deterioration of the goods is transferred to the Buyer upon handover at the latest. In the case of sale by dispatch, however, the risk of accidental loss or deterioration of the goods, as well as the risk of delay, is transferred upon delivery of the goods to the shipping company, the forwarding agent, or another person or institution tasked with shipping the goods.
3.3. Transport insurance is provided only at the special request of and at the expense of the Buyer. The Buyer shall bear the cost of any customs duties, fees, taxes and other public dues.
3.4 If the Buyer is in default of acceptance, if the Buyer fails to cooperate or if our delivery is delayed for any other reason for which the Buyer is responsible, pjur is entitled to request compensation for the damage incurred as a result, including additional expenses (e.g. storage costs). To this end, pjur shall calculate flat-rate compensation of 1% of the net purchase price for each full calendar week of the delay or 10% of the net purchase price if the delivery is ultimately not accepted, starting on the delivery date or – if no delivery date was specified – starting on the date that notification that the goods are ready for dispatch is sent.
Our right to provide proof of greater loss and our legal claims (in particular, compensation for additional expenses, appropriate compensation, termination) remain unaffected; however, the flat-rate compensation is to be offset against any further monetary claims. The Buyer has the right to provide proof that we did not incur any damage or that the damage we incurred was significantly less than the flat-rate amount specified above.
4.0 DELIVERY DATES, IMPEDIMENTS TO DELIVERY, WITHDRAWAL
4.1 pjur shall make every effort to fulfil the orders. However, pjur is not liable for any delivery delays caused by unforeseen circumstances, such as force majeure, a shortage of raw materials, industrial action, business interruption for which pjur is not responsible, unrest, official measures or other unavoidable events. In the case of such events, pjur shall be entitled to delay delivery by the duration of the event concerned. In this case, pjur may withdraw from the contract, even if the contract has not yet been fulfilled, or – if only part of the agreed delivery is affected – withdraw from this part of the contract accordingly.
4.2 The Buyer will be notified of the delivery date in the order confirmation. The goods will be ready for the Buyer to collect from this date.
4.3 Any delay in delivery on the part of pjur is governed by the statutory regulations. However, a reminder is required from the Buyer in any case. If pjur is in default with delivery, the Buyer may request flat-rate compensation for the damage it incurs as a result of the delay. The flat-rate compensation is 0.5% of the net price (delivery value) for each full calendar week of the delay, however a maximum of 5% of the delivery value of the goods delivered late in total. pjur reserves the right to provide proof that the Buyer did not incur any damage or that the damage that the Buyer incurred was significantly less than the flat rate specified above. The rights of the Buyer according to Section 8 of these GTC and our legal rights, particularly in the event of an exclusion of the duty to perform (for example, due to the impossibility or unreasonableness of the service and/or supplementary performance), remain unaffected.
5.0 PAYMENT OF THE PURCHASE PRICE, SET-OFF AND RIGHT OF RETENTION
5.1 Unless agreed otherwise in writing, payment is always made when the order is placed.
5.2 Payment is deemed to have been made only when the relevant amount has been credited to pjur. In the case of default in payment, without prejudice to further claims for compensation, default interest is payable at a rate of 8 percentage points above the base rate in accordance with Section 247 BGB, insofar as pjur is not entitled to a higher rate. This does not exclude further liability for damages.
5.3 The Buyer is entitled to rights of set-off and retention only if its counterclaims are legally established or undisputed. The Buyer's rights in the case of defects remain unaffected.
6.0 RETENTION OF TITLE
6.1 pjur retains ownership of the supplied goods until all current and future claims from the individual contract and the ongoing business relationship, including claims from supplementary agreements, have been settled.
6.2 The goods subject to retention of title may not be pledged to third parties nor assigned by way of security until the secured claims have been paid in full. The Buyer shall notify pjur in writing without delay if an application is filed for the opening of insolvency proceedings or if third parties access (e.g. seize) the goods belonging to pjur. If the Buyer is in violation of the contract, in particular if the Buyer fails to pay the purchase price owed, pjur is entitled to withdraw from the contract in accordance with the statutory regulations and/or to request the goods are returned on the basis of retention of title. Requesting the return of the goods does not simultaneously include a declaration of withdrawal from the contract; rather, pjur is entitled to solely request the return of the goods and reserve the right to withdraw from the contract. If the Buyer does not pay the purchase price owed, pjur may assert these rights only if pjur has first given the Buyer a reasonable period of time to make the payment concerned and payment was still not made, or if the provision of said period of time is not necessary in accordance with the statutory regulations.
6.3 The Buyer shall store the products supplied by pjur separately to other items in a storage facility at the agreed place of delivery and on its own premises at the Buyer's expense. The Buyer undertakes to send pjur a written notification of stock levels at any time when requested to do so, and give pjur or its representatives access to the storage facility for the purposes of repossessing all goods subject to retention of title.
6.4 The Buyer shall use the goods subject to retention of title itself or shall sell said goods in the normal course of business in accordance with these Terms and Conditions. pjur may revoke this right to the use and sale of the goods if the Buyer is in default with payment. Furthermore, the Buyer shall assign to pjur by way of security the full amount of all claims arising from sales to its customers or third parties, as well as insurance claims arising from the loss of or damage to goods subject to retention of title or from unauthorised actions; pjur accepts this assignment. The Buyer shall collect these claims, provided that this right has not been revoked. pjur shall revoke this right only if the Buyer is in default with payment, if the Buyer stops making payments or if insolvency proceedings or similar proceedings are initiated in the Buyer's home country; pjur shall then collect the assigned claims itself.
6.5 The Buyer shall provide pjur with information about the inventory of goods subject to retention of title and the assigned claims. If a third party gains access to these goods or the assigned claims, the Buyer shall notify pjur without delay and shall support pjur in the assertion of pjur's rights, in particular by taking the necessary legal steps to protect pjur's rights.
6.6 If the achievable value of the assigned collateral exceeds the amount owed to pjur by more than 10%, pjur shall release the collateral that exceeds this amount at the Buyer's request. pjur shall select the collateral that will be released.
6.7 The Buyer undertakes to treat the purchased items with care while ownership has not yet been transferred to it.
6.8 The retention of title covers products that are produced by processing, mixing or combining pjur's goods at their full value, whereby pjur is deemed the manufacturer. If pjur's goods are processed, mixed or combined with third-party goods and said third party retains ownership to its goods, pjur shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same provisions apply to the product produced as for the other goods supplied subject to retention of title.
7.0 WARRANTY
7.1 If the supplied goods have a defect that is present at the time of transfer of risk, pjur shall, subject to timely notification of the defect, either repair the goods or deliver a new, defect-free item (supplementary performance), at its own choice of type of supplementary performance. pjur's right to refuse supplementary performance in accordance with the statutory requirements remains unaffected.
7.2 pjur is entitled to make the supplementary performance owed dependent on the Buyer paying the purchase price due. However, the Buyer is entitled to retain a portion of the purchase price that is appropriate in relation to the defect.
The Buyer shall give pjur the time and opportunity required to provide the supplementary performance owed, and in particular shall provide the goods subject to complaint for inspection purposes. If a replacement item is supplied, the Buyer shall return the defective item to pjur in accordance with the statutory regulations. The supplementary performance does not include the disassembly of the defective item nor the reinstallation of the defective item if pjur was not originally responsible for installation.
7.3 The expenses necessary for the purposes of the inspection and supplementary performance, in particular any transport and travel costs, labour costs and material costs, as well as any disassembly and installation costs where applicable, will be borne or reimbursed by pjur in accordance with the statutory regulations, provided that a defect actually exists. Otherwise, pjur may demand reimbursement from the Buyer for the costs incurred as a result of the unjustified defect rectification request (in particular inspection and transport costs), unless the lack of defect could not have been detected by the Buyer.
7.4 pjur provides no warranty for deterioration resulting from natural wear and tear, ageing, misuse, accidents or damage caused by improper storage and handling and improper transport. The Buyer undertakes where appropriate to fulfil pjur’s specifications as regards proper storage and transport conditions. Without express consent from pjur, the Buyer is not permitted to make changes to the products, including the original packaging and enclosed information.
7.5 The obligation to inspect goods and give notice of any defects as defined in Section 377 of the German Commercial Code (Handelsgesetzbuch – HGB) applies to transactions undertaken between business people. If the Buyer does not give notification as stipulated therein, the goods will be deemed to have been accepted, unless there is a defect that could not have been identified during the inspection. This provision does not apply if pjur has fraudulently concealed a defect.
7.6 In the case of compensation claims based on defects in the purchased goods, the general limitations of liability defined in Section 8 apply accordingly.
7.7 Claims for defects become time-barred after one year unless there is wilful intent on pjur's part. This provision excludes fraudulent misrepresentation and deceit, as well as the Buyer's right of recourse. The limitation period is based on the statutory regulations.
7.8 pjur shall comply with claims for recourse asserted by the Buyer only if a claim is asserted against the Buyer by one of the Buyer's customers on the basis of mandatory legal provisions and the Buyer notifies pjur in writing without delay, within one week following assertion of the claim at the latest, and gives the company the opportunity to investigate and, if necessary, settle the customer's claims.
7.9 The Buyer is liable exclusively for all product-related declarations made by the Buyer or its vicarious agents, in particular in advertising or brochures, unless pjur has provided its prior written consent to such declarations. This also applies to declarations in the form of an agreement between the Buyer and its customers. If a third party asserts a claim against pjur on any legal grounds as a result of or in connection with these declarations, the Buyer shall indemnify pjur against all claims.
7.10 Warranty claims may not be transferred to third parties.
8.0 COMPENSATION AND LIABILITY
8.1 Unless stipulated otherwise in these GTC, including the following provisions, pjur is liable in accordance with the statutory regulations in the event of a violation of contractual or non-contractual obligations. Irrespective of the legal grounds, pjur is liable for compensation in the case of fault-based liability involving wilful intent and gross negligence. In the case of simple negligence, pjur is liable, subject to the statutory limitations of liability (e.g. due care in own affairs; insignificant breach of duty), only
a) for damage resulting from injury to life, limb or health,
b) for damage resulting from the violation of an essential contractual obligation (an obligation whose fulfilment is a prerequisite for proper performance of the contract and whose fulfilment the contractual partner regularly relies upon and is entitled to rely upon); in this case, however, pjur's liability is limited to compensation for foreseeable, typical damage.
These limitations of liability also apply in the case of breaches of duty by or for the benefit of persons for whose fault pjur is responsible in accordance with statutory regulations. They do not apply to the extent that pjur has fraudulently concealed a defect or has provided a guarantee for the quality of the goods, nor do they apply to claims asserted by the Buyer under the German Product Liability Act (Produkthaftungsgesetz).
8.2 Any further liability for injury to life, health and well-being, the provision of a guarantee, wilful intent or gross negligence remains unaffected.
8.3 The mandatory provisions of the German Product Liability Act remain unaffected.
8.4 In all other respects, pjur's liability is excluded – irrespective of the legal nature of the claim asserted.
8.5 The afore-mentioned limitations of liability also apply in terms of the basis and amount to actions by pjur's legal representatives, employees and vicarious agents.
8.6 To the extent that a limitation of liability is agreed in accordance with the afore-mentioned provisions, compensation claims become time-barred after one year. Compensation claims by the Buyer according to Sections 8.1 p 2 and 8.1 p 3 lit. a become time-barred exclusively after the legal limitation periods.
9.0 PRODUCT LIABILITY AND INDEMNITY
9.1 The Buyer is liable for the fulfilment of statutory and administrative requirements by the products in each marketing region, in particular with respect to the packaging design, identification, labelling, formula and composition. The Buyer shall provide pjur with all information and documents that are required for fulfilment of these requirements. If official documents, certificates or other approvals are required, the Buyer shall provide these documents at its own expense.
9.2 If buyers or authorities in any of the Buyer's marketing regions assert a claim against pjur on account of non-fulfilment of statutory and administrative requirements by the products in the region concerned, in particular with respect to the packaging design, identification, labelling, formula and composition, the Buyer shall without delay indemnify pjur against such claims, unless pjur has – contrary to the information provided by the Buyer – supplied defective products and the Buyer could not or did not have to give notice of these defects in accordance with Section 6.3.
10.0 COMPLIANCE AND QUALITY ASSURANCE
10.1 In the scope of Regulation (EU) 2017/745 (Medical Device Regulation), the Buyer complies with the obligations they are subject to within their scope arising from the Medical Device Regulation and the national implementation act related to the Medical Device Regulation.
10.2 Insofar as the Buyer meets the obligations of a retailer in line with the Medical Device Regulation, the Buyer undertakes to
a. Maintain the declaration of conformity of pjur medical devices in its current form and submit it on the authorised request from the responsible authorities.
b. Immediately inform pjur in the event that they become aware of malfunctions or deteriorations of the features or performance, including application errors due to ergonomic characteristics and inadequate product information provided by pjur or undesired side effects in connection with a pjur product.
c. Document non-compliant products and recalls and returns.
d. Immediately inform pjur and the responsible authorities of the member state in which they are based insofar as they are of the opinion or have a reason to believe that there is a serious danger from a pjur product or that it is a counterfeit product.
e. Cooperate with pjur and the responsible authorities at their request with all necessary measures as part of the fulfilment of the specified obligations according to Section 10.1 and 10.2.
10.3 Outside the scope of the Medical Device Regulation, the Buyer undertakes to
a. Ensure that the storage and transport conditions meet the requirements of pjur while the products purchased by them are under the Buyer’s responsibility.
b. To immediately process all product complaints and comprehensively and immediately inform pjur about all complaints including actual or alleged product defects as soon as they become aware of them and document said complaints.
c. To comprehensively support pjur with necessary corrective and preventive measures (including recalls).
d. To work with pjur to achieve an appropriate level of traceability of products.
11.0 INTELLECTUAL PROPERTY
11.1 The Buyer and its managing directors personally acknowledge that pjur owns all current and future intellectual property rights in connection with the contractual products, including their design/composition. The Buyer and its managing directors further personally acknowledge that the Buyer may use these intellectual property rights only for the purposes of fulfilling the contract concluded with pjur on the basis of the contractual approval for use provided by pjur. No intellectual property rights are transferred to the Buyer. The Buyer shall not assert any claims to these intellectual property rights and shall not use said rights in any other way.
12.0 SALES AREA
12.1 The Buyer acknowledges that all product orders and deliveries made in accordance with these Terms and Conditions concern products that are intended exclusively for the European Economic Area. The products are designated and labelled solely in accordance with EU regulations. The products may be marketed only within the European Economic Area.
12.2 The Buyer acknowledges that the products may not be sold outside of the European Economic Area, and in particular may not be exported to the USA, Asia, Australia, Africa and/or South America.
12.3 If the Buyer exports products in violation of these provisions to the regions defined in Section 11.2 and if buyers or authorities assert claims against pjur on account of non-fulfilment of statutory and administrative requirements by the products in the region, in particular with respect to the packaging design, identification, labelling, formula and composition, the Buyer shall without delay indemnify pjur against such claims.
13.0 CHOICE OF LAW, PLACE OF JURISDICTION
13.1 The law of the Federal Republic of Germany applies to this contract; the UN Convention on Contracts for the International Sale of Goods and private international law are excluded.
13.2 The German courts are responsible for any legal disputes arising from this contract or from any future individual contracts within the framework of this contract. The non-exclusive place of jurisdiction in Germany is Cologne.
14.0 OTHER PROVISIONS
14.1 The contractual language of this contract and any individual contracts concluded in the future is German or English. With regard to the interpretation of this contract, the German version is authoritative.
14.2 The parties have agreed on the EURO as the contractual currency. All invoices and payments are to be made in this currency.
14.3 The costs of financial transactions will be borne by the contractual party whose credit institution or other paying agent is charging these costs.
14.4 With the exception of the appendices explicitly mentioned in this contract, no supplementary agreements have been concluded.
14.5 If individual provisions of this contract or parts of these provisions are or become invalid, this will not affect the validity of the remaining provisions. In this case, the parties shall agree to replace the invalid provision with a legally valid provision whose content reflects the original provision as closely as possible. The same applies to any gaps or omissions in the contract.
DCO 22-029 General Terms and Conditions pjur V1.0 Date effective: 01/05/2023