Penney Electric Disclaimer
(The Fine Print)
I. General Scope
1. These general conditions of supply and sale shall apply to all relationships subject to the law of obligations prior to the signing of the contract, and to all contracts and business relationships between Penney Electric (hereinafter referred to as 'Penney Electric') and its customers, in as much as the latter are entrepreneurs, legal entities under public law or separate bodies of public law (hereinafter referred to as 'customers'), the two sides together also being known as 'contractual partners'.
2. In the absence of any other agreement, these general conditions of supply and sale shall also apply to future contracts between the partners, without its being necessary to draw attention to them anew. This shall also apply if, at the time of the first transaction, these conditions do not come to the knowledge of the customer until after conclusion of the contract.
3. These general conditions of supply and sale shall apply exclusively. No conditions of the customer's which contradict or deviate from these conditions shall apply unless Penney Electric has agreed expressly to their applicability. Neither shall Penney Electric accept any conditions other than its own if it sells goods and services unconditionally to the customer while aware of contradictory or deviating conditions. It shall not be necessary for Penney Electric to object specifically to any other business and supply conditions.
II. Negotiation and content of contracts; written form; quotation documents
1. Quotations issued by Penney Electric shall be non-binding and thus freely revocable until receipt of a declaration of acceptance from the customer. As regards the scope and terms of deliveries, it is the written confirmation of the order by Penney Electric which shall be binding, unless the customer objects within two weeks of receiving it. If the contract is concluded by acceptance of the order, the declaration of acceptance by Penney Electric shall require to be made in writing.
2. All product information (e.g. technical data, capacity, description of product characteristics etc.) issued by Penney Electric, as for example in catalogs, advertisements, illustrations and suchlike, shall be approximate and only binding on Penney Electric if this is expressly agreed in the written contract between the partners.
3. Penney Electric reserves all ownership rights and intellectual property rights to illustrations, drawings, calculations and other records. This shall also apply to such written records as are designated as 'confidential'. Before passing on any such records to third parties, the customer shall require the express written approval of Penney Electric.
4. Any legally relevant declarations shall require to be made in writing if they are to have any validity. Written form shall also be deemed to have been observed if such declarations are sent by fax or e-mail.
III. Prices and terms of payment; set-off
1. In the absence of any other agreement, prices shall be deemed valid for a period of 30 days. Penney Electric prices are inclusive of all taxes.
2. Unless the parties make any other provision in their written agreement, the purchase price shall fall due for payment in full within 5 days of the invoice date. The statutory consequences shall apply in cases of default in payment.
3. The customer shall only have the right to offset if his counter-claims have been established as legally binding, are undisputed, or have been recognized by Penney Electric. The customer shall only be empowered to exercise a right of retention if his counter-claim has its origin in the same contractual relationship.
IV. Final / Services delivery date; liability for default
1. Unless indicated otherwise in the agreement between the parties, delivery shall be completed within the agreed upon time frame or in absence of such time frame shall be deemed a ‘reasonable’ time allotted to complete the project.
2. The agreed lead time shall only be deemed to have begun – or the agreed delivery date only deemed to have been fixed – when all technical and other issues have been resolved, and in particular when all information on the project has been clearly provided.
3. The agreed period in which final may be made or agreed final stage date shall be extended by a period appropriate to the circumstances if the customer requests alterations or additions after conclusion of the contract.
4. In the case of delay in final, Penney Electric shall be fully liable for damages if the delay has its origin in an intentional or grossly negligent breach of contract for which Penney Electric or its representatives or vicarious agents are responsible. In other cases the liability of Penney Electric's delay in delivery shall be limited to typical foreseeable loss of time or other unforeseen causes of damage.
V. Default of acceptance; breach of duties to cooperate
1. If the customer fails to accept the products ordered and or installed on the agreed date or considers a delay in acceptance likely, he must inform Penney Electric of the fact without delay stating the cause of the delay and, as far as possible, indicating the point in time at which the products or services are likely to be accepted. Notwithstanding, the customer shall be under obligation to make payment for such at the agreed point in time. If the due date for payment was connected to the time of final, the final shall be deemed to have been made.
2. If the default of acceptance persists for longer than two months, Penney Electric shall have the right to sell or dispose of the products as it sees fit. If the yield from said sale is not sufficient to cover the amount due to Penney Electric (sales price, costs of storage and insurance etc.), the customer shall be under obligation to reimburse the difference. Penney Electric right to enforce payment of the purchase price and any loss or damage and additional expenses against acceptance of the products shall remain unaffected by this.
3. If the customer is in culpable breach of any other duties to cooperate, Penney Electric shall also have the right to request reimbursement for any loss or damage thus incurred, including any additional expenses. Penney Electric's right to make further claims is nevertheless reserved.
VI. Force majeure
1. If a case of force majeure arises, the party affected by it shall inform the other party in writing without delay, if possible within 15 days of becoming aware of the event or circumstance himself. In doing so, he shall give a detailed description of the event or circumstance concerned and state which of his contractual obligations he is unable to fulfil, or only able to fulfil with some delay, as a result of it. The party affected shall not be to blame for said inability or delay.
2. In the case of delays caused by force majeure, cause for exemption shall be deemed to exist for as long as the event or circumstance constitutes an obstruction to the performance of the contractual obligation. If the delay persists for a period of more than six months, each of the parties shall have the right to rescind the contract, without this giving rise to any entitlements in favor of the other party. Obligations to pay remuneration for parts and service performance which has already been carried out shall remain unaffected.
3. Force majeure within the meaning of this contract shall cover all unforeseeable events or circumstances and such as are beyond the control of the contractual partners, and the effects of which on the partners' performance of their contractual obligations cannot be averted by reasonable efforts. These shall include state of war or similar, uprising, rebellion, military or civil coup d'état, revolt, disturbance, riot, blockade, embargo, government order, sabotage, strike, go-slow, lock-out, epidemic, fire, flooding, storm tide, typhoon, hurricane or other storm of disastrous proportions, earthquake, landslide, and lightning strike.
VII. Rescission or notice of termination
1. Penney Electric shall have the right to rescind the contract or, if there is an ongoing agreement, to give summary notice of termination if;
a) the contractual partner fails to fulfil his financial obligations within the fixed period in spite of having been set a reasonable extension period, or
b) judicial insolvency or composition proceedings are instituted regarding the assets of the contractual partner, or
c) products or services which have been delivered to the customer but are still the property of Penney Electric are seized or claimed by a third party or parties.
2. If a purchase agreement has been concluded between the parties for an indefinite period of time, each of them shall have the right to give ordinary notice of termination of said agreement observing a period of three months to the end of a calendar month.
3. If no progress has been attempted, completed or made by the customer to continue fulling the binding agreement the agreement shall automatically become void and no longer valid after 12 months from the date the project originally commenced.