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1.1 These General Terms and Conditions apply to all offers, contractual relationships, deliveries and other services, including future ones, between Pyro Artists GmbH (“Supplier”) and the “Customer”. Deviating terms of the Customer that are not expressly acknowledged in writing or in text form are not binding, even if the Supplier performs a contract without objecting to them.
1.2 Consumers within the meaning of these General Terms and Conditions are natural persons who enter into business relations with the Supplier for a purpose that can be attributed neither to their commercial nor to their independent professional activity. Entrepreneurs within the meaning of these terms are natural or legal persons or partnerships with legal capacity who enter into business relations with the Supplier in the exercise of their commercial or independent professional activity, as well as legal entities under public law and special funds under public law. “Customer” within the meaning of these General Terms and Conditions refers to both consumers and entrepreneurs.
1.3 The invalidity of individual provisions of these General Terms and Conditions does not affect the validity of the remaining terms. The invalid provision is replaced by the customary provision of the industry for that case and, where no permissible customary provision exists, by the corresponding statutory provision.
2.1 The Supplier’s offers are always subject to change and non-binding. A contract is only concluded once the Supplier has confirmed acceptance of the order in writing or in text form, or once the delivery has been made. The Supplier’s order confirmation in writing or in text form is decisive for the scope of the delivery. The correction of errors in offers, order confirmations and (pro forma) invoices remains reserved.
2.2 Communications from the Supplier in writing or in text form are deemed to have been received by the Customer after the usual postal or shipping time if they were sent to the address, fax number or email address last made known to the Supplier and the Supplier can prove this. Declarations of particular importance, in particular notices of termination, declarations of withdrawal and the setting of grace periods, are excluded from this presumption of receipt.
Unless otherwise agreed, the prices stated in price lists and catalogues are ex works of the Supplier (EXW in accordance with the INCOTERMS in their current version), excluding packaging, plus value added tax. If delivery is to take place later than 4 months after conclusion of the contract, the Supplier reserves the right to a reasonable increase in the price in the event that the circumstances relevant to determining the price at the time the contract was concluded, in particular costs of materials, wages, transport and public charges, have changed significantly.
4.1 All invoices are payable immediately upon invoicing without deduction (due date). From the 30th day after the due date, the Supplier charges default interest at the statutory rate for commercial transactions pursuant to Section 288 (2) of the German Civil Code (BGB) if the Customer is an entrepreneur. If the Customer is a consumer, the Supplier charges default interest of five percentage points above the respective base rate of the European Central Bank from the 30th day after the due date. The Supplier reserves the right to prove a higher loss of interest.
4.2 Payment orders and cheques are only accepted by special agreement in writing or in text form and only on account of performance, with all collection charges and any discount charges being charged.
4.3 The Customer’s right to determine which claims are settled by the Customer’s payments is excluded in favour of the statutory order of settlement under Section 367 (1) BGB.
4.4 If the Customer is in arrears with any agreed instalment of at least 10 % of the purchase price, the Supplier may declare the entire remaining claim immediately due.
4.5 If the Customer is in default of payment, the Supplier may withdraw from the contract and claim damages in lieu of performance after a reasonable grace period has expired without result. In the event of default by the Customer caused by a significant deterioration of the Customer’s financial situation, the Supplier may, in deviation from the preceding sentence, withdraw from the contract and claim damages in lieu of performance without setting a grace period.
4.6 The Customer may only set off claims that are undisputed or have been established by a final court decision, or claims that stand in a contractual reciprocal relationship with the Supplier’s claim and/or claims of the Customer that would entitle the Customer to refuse performance under Section 320 BGB. The Customer is only entitled to rights of retention insofar as they are based on the same contractual relationship.
5.1 Deviations in quality, design and colour that are customary in the trade and for the material remain reserved. Changes in construction and form by the Supplier that are not customary in the trade are also permissible, unless the change or deviation is unreasonable for the Customer in the individual case.
5.2 Delivery dates or delivery periods must be stated in writing or in text form. If they are to be binding, their binding nature must also be agreed in writing or in text form. Timely delivery is determined by the point in time at which the items delivered by the Supplier (the “Goods”) are handed over to the carrier or loaded onto a vehicle of the Supplier, or by the time of readiness for dispatch if dispatch or delivery of the Goods is delayed by circumstances for which the Customer is responsible. In the event of later changes to the contract agreed at the Customer’s initiative that affect the delivery time, the delivery time is extended to a reasonable extent.
5.3 The Supplier’s obligation to deliver is subject to correct and timely delivery by its own suppliers, unless the Supplier is at fault for the late or delayed delivery by its own suppliers.
5.4 If dispatch or acceptance of the Goods is delayed for reasons for which the Customer is responsible, the costs incurred as a result of the delay are charged to the Customer, beginning one month after notification of readiness for dispatch or acceptance.
5.5 If the Customer is an entrepreneur, the Supplier is entitled at any time to make partial deliveries and partial performances customary in the trade, unless the partial delivery or partial performance is unreasonable for the Customer; excess or short deliveries of the agreed quantity that are customary in the industry are permissible.
5.6 The Supplier is not responsible for disruptions in its business operations, in particular absences of its senior staff due to illness, epidemics, pandemics, strikes, lockouts and staff shortages, including at the Supplier’s suppliers and manufacturers, lack of shipping options and raw material procurement, and cases of force majeure. In such cases, delivery periods are extended by the duration of the disruptions caused by these circumstances. The Supplier is obliged to inform the Customer as soon as possible of the beginning and the expected and actual end of obstacles of the kind described above.
5.7 The Supplier is also not responsible for the circumstances described in § 5.6 above if they arise during an existing default.
5.8 The Supplier is entitled to withdraw from the contract if, after conclusion of the contract, circumstances essential to the performance of the contract have developed, without the Supplier being able to influence them, in such a way that performance becomes impossible or unreasonably difficult for the Supplier (for example, non-delivery by a sub-supplier for which the Supplier is not responsible, or delivery being possible only under substantially more difficult conditions).
5.9 If delivery is not made on time, the Customer must set the Supplier a grace period of at least fourteen working days. All reminders and the setting of deadlines by the Customer must be in writing or in text form to be effective. If, after expiry of the period set by the Customer, the Goods have not been reported as ready for dispatch, the Customer is entitled to withdraw from the contract or to terminate it in another way, provided the Customer announced this consequence of the period expiring without result in writing or in text form when setting the period. The extended liability of the Supplier under Section 287 BGB is excluded.
5.10 Unless expressly agreed otherwise, all Incoterms used by the Supplier refer to the INCOTERMS published by the International Chamber of Commerce (ICC) in their current version.
6.1 The Supplier retains title to the respective Goods until the respective Goods have been paid for in full (“Reserved Goods”).
6.2 If the Customer is an entrepreneur, the retention of title to the Reserved Goods applies until all claims arising from the business relationship have been settled in full, including claims arising in the future, also from contracts concluded at the same time or later with the Customer; in addition, the following provisions apply if the Customer is an entrepreneur:
a) The Customer is entitled to further process and work the Reserved Goods in the ordinary course of business. Processing or working of the Reserved Goods by the Customer is always carried out for the Supplier as manufacturer within the meaning of Section 950 BGB, without the Supplier incurring any obligation as a result. The processed and worked goods are deemed to be Reserved Goods within the meaning of § 6.1 of these General Terms and Conditions. If the Customer processes, combines or mixes the Reserved Goods with other items not belonging to the Supplier, the Supplier acquires co-ownership of the new item in proportion to the invoice value of the Reserved Goods to the invoice value of the other processed, combined or mixed items at the time of processing, combining or mixing. If the Supplier’s ownership expires through combining or mixing, the Customer hereby transfers to the Supplier the ownership rights to which the Customer is entitled in the new stock or item and keeps it in safe custody for the Supplier free of charge. The Supplier’s co-ownership rights are deemed to be Reserved Goods within the meaning of § 6.1 of these General Terms and Conditions.
b) The Customer is entitled to dispose of the delivered Reserved Goods only in the ordinary course of business, as long as the Customer meets its obligations from the business relationship with the Supplier on time. However, the Customer may neither pledge the Reserved Goods nor transfer them by way of security. The Customer is obliged to secure the Supplier’s rights when reselling the Reserved Goods on credit.
c) If the Customer is in default with an amount of at least 10 % of the purchase price for more than 30 days, the Supplier may, at the Customer’s expense and after setting a reasonable deadline, take back the Reserved Goods until the outstanding amount has been paid in order to secure its claims, insofar as this is reasonable for the Customer, for example in the case of goods that are merely in storage, have not yet been sold and are not currently in use. With regard to the costs of storing the Reserved Goods at the Supplier, the provision in § 5.4 of these General Terms and Conditions applies accordingly. Taking back the goods is not to be interpreted as a declaration of withdrawal by the Supplier; Section 449 (2) BGB is excluded in this respect. A right of retention of the Customer is excluded in this case.
d) The Customer keeps the ownership or co-ownership in safe custody for the Supplier. For items created through processing, combining or mixing, the same applies as for the Reserved Goods.
e) The Customer hereby assigns to the Supplier, by way of security, all claims and rights arising from the resale of the Reserved Goods. They serve as security to the same extent as the Reserved Goods. The Supplier hereby accepts the assignment. If the Customer sells the Reserved Goods together with other goods not sold by the Supplier, the claim from the resale is assigned in proportion to the invoice value of the other goods sold. When items are sold in which the Supplier holds co-ownership shares pursuant to § 6.3 a) of these General Terms and Conditions, a part corresponding to the co-ownership share is assigned to the Supplier.
f) Subject to Section 354a of the German Commercial Code (HGB), the Customer is not entitled to assign the claims, including the sale of receivables to factoring banks, without the prior consent of the Supplier in writing or in text form. The Supplier grants its consent to a sale of receivables to a factoring bank without recourse (genuine factoring) under the condition precedent that the Customer immediately forwards to the Supplier the payments made to it by the factoring bank.
g) The Customer is only authorised to collect the assigned claims for as long as it meets its contractual payment obligation towards the Supplier on time.
h) The authorisation to collect may also be expressly revoked by the Supplier if
i) the Customer fails to honour a bill of exchange when due, or
j) the conditions for the Supplier’s right to refuse performance pursuant to § 9.1 of these General Terms and Conditions are met.
k) If the authorisation to resell expires, the Customer is obliged, at the Supplier’s request, to provide information on the stock of Reserved Goods and of the goods owned or co-owned by the Supplier pursuant to § 6.3 a) of these General Terms and Conditions, and to hand over the Reserved Goods at the Supplier’s request; Section 449 (2) BGB is excluded in this respect.
l) With regard to the collection of the claims, the Customer acts as a trustee with the express obligation to pay over the proceeds less its profit.
m) At the Supplier’s request, the Customer is obliged to inform its customers immediately of the assignment to the Supplier and to provide the Supplier without delay with the information and documents required for collection. In the event of default of payment, the Customer is obliged, at the Supplier’s request, to name without delay those customers to whom it has sold the Reserved Goods, unless these have already been paid for in full.
n) The Supplier undertakes to release the securities to which it is entitled at the Customer’s request insofar as the realisable value of the securities exceeds the claims to be secured by more than 10 % or the nominal amount by more than 50 %; the choice of securities to be released lies with the Supplier.
o) If the Customer intends to take the Reserved Goods abroad, it must inform the Supplier of this immediately in writing or in text form. At the Supplier’s request, the Customer must grant the Supplier a security right that comes closest to the above retention of title under the legal system of the place of destination. The Customer must carry out without delay and at its own expense all acts and declarations required to create and maintain such rights.
p) If the effectiveness of the retention of title requires registration in a public register or other cooperation by the Customer, the Customer hereby irrevocably consents to the registration and undertakes to carry out the necessary acts and declarations without delay and at its own expense.
q) In the event of access by third parties to the Reserved Goods, to the claims assigned to the Supplier or to other securities, in particular in the context of enforcement measures, the Customer will point out the Supplier’s ownership and notify the Supplier without delay of the threatened, imminent or already occurring access by third parties, handing over the documents required for an intervention. This also applies to impairments of any other kind. The Customer bears the costs for this.
7.1 The risk passes to the Customer upon handover of the Goods to the carrier, forwarder or freight carrier, or upon loading onto a vehicle of the Supplier, but at the latest when the Goods leave the works or the warehouse. This also applies if partial deliveries are made or if the Supplier has taken over other services, for example shipping costs or transport. The Supplier only takes out insurance against loss of and damage to the Goods in transit on the Customer’s instructions and at the Customer’s expense.
7.2 If dispatch is delayed at the Customer’s request or as a result of circumstances for which the Customer is responsible, the risk passes to the Customer upon notification that the Goods are ready for dispatch or collection.
7.3 Goods reported as ready for dispatch in accordance with the contract must be called off without delay; otherwise the Supplier is entitled, after a reminder, to ship the Goods at the Customer’s expense and risk at the Supplier’s choice, or to store them at its own discretion and invoice them immediately.
7.4 If, through no fault of the Supplier, transport by the intended route or to the intended place within the intended time becomes impossible, the Supplier is entitled to deliver by another route or to another place; the Customer bears the resulting additional costs. The Customer is to be given the opportunity to comment beforehand.
7.5 In the event of transport damage, the Customer must immediately arrange for a record of the facts by the competent bodies and notify the Supplier in writing or in text form.
7.6 Delivered Goods must be accepted by the Customer, without prejudice to its rights under § 12 of these General Terms and Conditions, even if they show insignificant defects.
8.1 Defects in the Goods must be reported by the Customer to the Supplier in writing or in text form without delay, and at the latest fourteen days after delivery, with an exact description of the defect. Hidden defects that cannot be discovered within the aforementioned period even with the most careful inspection must be reported to the Supplier immediately after they appear.
8.2 If the Customer is an entrepreneur, the following applies instead of § 8.1 above:
a) The Customer’s warranty rights always require that the Customer has properly fulfilled its obligations to inspect and give notice of defects under Section 377 HGB and under the following provisions.
b) Complaints about obvious defects that are not asserted without delay, and at the latest within two weeks of receipt of the Goods, in writing or in text form with an exact description of the defect cannot be considered. Defects that were not obvious on delivery and could not be detected despite fulfilment of the obligations under Section 377 HGB must, in order to preserve the warranty rights and with immediate cessation of any processing or working, be asserted in writing or in text form with an exact description of the defect without delay after becoming known, and at the latest 2 weeks after becoming known. If the Customer breaches its obligations under this § 8.2 b), all warranty claims of the Customer lapse.
c) The defective items must be kept available for inspection by the Supplier in the condition in which they were when the defect was discovered. The Supplier has the right to verify on site whether the complaints are justified. On request, the Supplier must be provided with the goods complained about or a sample of them.
9.1 If it becomes apparent to the Supplier after conclusion of the contract that its claim to consideration is jeopardised by the Customer’s lack of ability to perform, the Supplier may refuse its performance, unless the Customer provides suitable security within a reasonable period at the Supplier’s request.
9.2 If the Customer does not comply, or does not comply in time, with the Supplier’s justified request, the Supplier may withdraw from the contract and claim damages in lieu of performance.
9.3 In the event of default by the Customer caused by a significant deterioration of the Customer’s financial situation, the Supplier may withdraw from the contract and claim damages in lieu of performance without setting a grace period.
10.1 Cost estimates, designs, drawings and other documents remain the property of the Supplier. In relation to the Customer, the comprehensive copyright with all powers to all documents and information provided within the contractual relationship belongs exclusively to the Supplier, even insofar as these items were created on the basis of specifications or with the cooperation of the Customer. They may only be made accessible to third parties with the Supplier’s consent. Drawings and other documents belonging to offers must be returned without delay on request or if the order is not placed.
10.2 If third-party property rights are infringed when manufacturing the Goods according to drawings, samples or other specifications of the Customer, the Customer is obliged to indemnify the Supplier against all claims if the Customer is an entrepreneur. The Supplier is not obliged to examine the aforementioned documents, including with regard to existing industrial property rights of third parties.
11.1 Statements by the Supplier about the quality of the Goods do not constitute a guarantee of quality, unless the parties expressly agree this in writing or in text form. Only the Supplier’s legal representatives and authorised signatories (Prokuristen) are entitled to give guarantee commitments. In this case, the Customer’s rights are determined by the content of the guarantee declaration given by the Supplier. The Customer must assert the rights arising from the guarantee declaration against the Supplier in writing or in text form within two months of the guarantee case occurring (cut-off period).
11.2 Public statements, promotion or advertising do not constitute a description of the quality of the Goods. These statements only become part of the contract if and insofar as the Supplier has expressly confirmed them as binding in writing or in text form.
11.3 If the Customer is an entrepreneur, the quality of the Goods is in addition conclusively described by expressly agreed performance characteristics (for example specifications, markings, approval, other information). Qualities of the Goods other than those expressly agreed are not owed. A warranty for a specific purpose or a specific suitability beyond the warranty for this agreed quality is only assumed insofar as this is expressly agreed in writing or in text form; otherwise the risk of suitability and use lies exclusively with the Customer. In particular, insofar as the delivered Goods are intended for, or for installation in, machines and devices or containers of the Customer and have not been specifically developed and/or designed for this by the Supplier, the Supplier does not warrant the sufficient suitability, strength or durability of the delivered Goods. In the absence of a deviating agreement, testing the Goods for suitability for the Customer’s purposes is the sole responsibility of the Customer.
12.1 The Supplier warrants that the Goods it delivers are free from defects in accordance with the rules of sales law and as further specified in the following provisions.
12.2 In the case of proven material defects, the Supplier provides warranty by subsequent performance in such a way that, at the Supplier’s choice, it provides the Customer with new, defect-free Goods (replacement delivery) or remedies the defect (repair). If the Customer is a consumer, the aforementioned right of choice belongs, contrary to sentence 1 of this paragraph, to the Customer and not to the Supplier. In that case, however, the Supplier is entitled to refuse the type of subsequent performance chosen if it is only possible at disproportionate cost and the other type of subsequent performance would not cause significant disadvantages for the consumer.
12.3 In the case of repair, the Customer must, at the Supplier’s request, specify notifications of defects, submit defect reports in writing or in text form and provide other data suitable for analysing the defect.
12.4 If subsequent performance pursuant to §§ 12.2 and 12.3 above fails, the Customer may withdraw from the contract or reduce the price. If there are only minor defects, however, the Customer has no right of withdrawal. In any case, the exercise of the right of withdrawal requires the unsuccessful expiry of a reasonable period set in writing or in text form, unless setting a period is not required by law. If the Customer chooses to withdraw from the contract because of a legal or material defect, it is not entitled to claim damages for the defect in addition. In the event of withdrawal, the Customer is liable for deterioration, loss and benefits not derived, not only for the care it customarily applies in its own affairs but for any fault for which it is responsible.
12.5 If a defect is due to the fault of the Supplier, the Supplier pays damages or compensation for futile expenses because of a defect only within the limits set out in § 14 of these General Terms and Conditions.
12.6 The mere provision of subsequent performance by the Supplier, regardless of its scope, does not constitute an acknowledgement of the defect alleged by the Customer. Only the Supplier’s legal representatives and authorised signatories (Prokuristen) are entitled to make an acknowledgement.
12.7 The warranty lapses if the Customer changes the Goods, or has them changed by third parties, without the Supplier’s consent and remedying the defect becomes impossible or unreasonably difficult as a result. In any case, the Customer bears the additional costs of remedying the defect caused by the change.
12.8 In the case of proven defects of title, the Supplier provides warranty by subsequent performance by giving the Customer a legally unobjectionable possibility of using the delivered Goods or, at the Supplier’s choice, exchanged or modified equivalent Goods. If the Supplier does not succeed in this within a reasonable period, the Customer is entitled to withdraw from the contract or to reduce the purchase price appropriately. Under the conditions mentioned, the Supplier also has a right to withdraw from the contract. Any claims for damages are subject to the limitations set out in § 14 of these General Terms and Conditions.
12.9 If the Customer is an entrepreneur, the following also applies:
a) The Customer cannot claim costs in the context of subsequent performance, rescission or the settlement of damages, in particular installation and removal costs, test, validation, transport, travel, labour and material costs, (i) insofar as these have arisen because the Goods delivered by the Supplier were taken after the transfer of risk to a place other than the agreed place of performance, unless taking the Goods there corresponds to their intended use and this is known to the Supplier, or (ii) if the Customer knew of or could recognise the defect in question when the costs were incurred, that is, as a rule on delivery, but at the latest on installation, processing or alteration of the Goods.
b) If the Customer has installed the defective Goods in another item or attached them to another item in accordance with their nature and intended use, the Customer may otherwise only demand compensation for the necessary expenses for removing the defective Goods and installing or attaching the repaired or delivered defect-free Goods (“removal and installation costs”) in accordance with the following provisions:
c) Only those removal and installation costs are necessary that relate directly to the removal or dismantling of the defective Goods and the installation or attachment of identical goods, that have been incurred on the basis of customary market conditions and that the Customer proves to the Supplier by submitting suitable documents, at least in text form.
d) Further costs of the Customer for consequential damage caused by the defect, such as loss of profit, costs of business interruption or additional costs for replacement purchases, are not direct removal and installation costs and are therefore not recoverable as reimbursement of expenses under Section 439 (3) BGB.
e) The Customer is not entitled to demand an advance for removal and installation costs and other costs of subsequent performance.
f) The Customer’s rights of recourse under Section 478 BGB remain unaffected. However, statutory recourse claims of the Customer against the Supplier only exist insofar as the Customer has not made any agreements with its own customer that go beyond the statutory claims for defects, and insofar as the defect was reported in due time as further specified in § 8 of these General Terms and Conditions.
g) Used goods are delivered to the exclusion of any warranty.
h) In the case of unjustified complaints, the Supplier reserves the right to charge the Customer reasonable travel, freight and handling costs as well as other reasonable inspection expenses.
If the Customer is an entrepreneur, the following applies:
13.1 If a third party asserts claims that prevent the exercise of the right of use granted to the Customer under the contract, the Customer must inform the Supplier without delay and comprehensively in writing or in text form. The Customer hereby authorises the Supplier to conduct the dispute with the third party alone, in and out of court. If the Supplier makes use of this authorisation at its sole discretion, the Customer may not acknowledge the third party’s claims without the Supplier’s consent. The Supplier is obliged to defend against the claims at its own expense and to indemnify the Customer against all costs and damages associated with defending against the claims, insofar as these are not based on a breach of duty by the Customer.
13.2 In the case of infringements by products of other manufacturers delivered by the Supplier, the Supplier will, at its choice, assert its claims against the manufacturers and sub-suppliers on the Customer’s account or assign them to the Customer. In these cases, claims against the Supplier under this § 13 only exist if the judicial enforcement of the aforementioned claims against the manufacturers and sub-suppliers was unsuccessful or is futile, for example due to insolvency.
13.3 The Customer has no claims for defects of title insofar as
(i) the Supplier manufactured the Goods according to drawings, models or other descriptions or specifications provided by the Customer and the Supplier did not know, or in connection with the Goods developed by the Supplier did not have to know, that third-party property rights would be infringed as a result, or (ii) the infringement of third-party property rights was caused by the Customer changing the Goods on its own authority after delivery or using them in a manner not in accordance with the contract. In the aforementioned cases, the Customer is liable to the Supplier for infringements of property rights that have already occurred or will occur.
14.1 The Supplier’s liability for damages, irrespective of the legal grounds, in particular for impossibility, default, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, is limited in accordance with this § 14 insofar as fault is relevant in each case.
a) The Supplier is not liable in the event of slight negligence on the part of its bodies, legal representatives, employees or other vicarious agents, unless this concerns a breach of material contractual obligations. A contractual obligation is material if its fulfilment makes the proper performance of the contract possible in the first place and the Customer regularly relies, and may rely, on its being met.
b) Insofar as the Supplier is liable in principle for damages under lit. a) above, this liability is limited to the damage typical for the contract and reasonably foreseeable.
14.1 The above exclusions and limitations of liability of § 14.1 apply to the same extent in favour of the bodies, legal representatives, employees and other vicarious agents of the Supplier.
14.2 The above exclusions and limitations of liability of § 14.1 do not apply to the Supplier’s liability (i) for intentional conduct, for fraudulent concealment of a defect or for defects whose absence the Supplier has guaranteed, (ii) for guaranteed quality characteristics, (iii) for injury to life, body or health, and (iv) under the German Product Liability Act (ProdHG).
14.3 The Customer’s claims for reimbursement of expenses are limited to the amount of the interest the Customer has in the performance of the contract.
14.4 The Supplier is not liable for deterioration or loss due to improper handling of the Goods after the transfer of risk.
14.5 The rules on the burden of proof remain unaffected by the provisions of this § 14.
15.1 Subject to the provision of § 15.2 below, and in deviation from Section 438 (1) No. 3 BGB, the Customer’s warranty claims for material defects and defects of title become time-barred (i) after one (1) year if the Customer is an entrepreneur and (ii) after two (2) years if the Customer is a consumer, in each case beginning with delivery; where acceptance has been agreed, the limitation period begins with acceptance. In the case of the delivery of used items, the aforementioned claims become time-barred within one year from the aforementioned point in time if the Customer is a consumer. If a defect has become apparent within the limitation period, the limitation period does not, if the Customer is a consumer, expire before four (4) months have passed since the point in time at which the defect first became apparent. In cases of subsequent performance, the limitation period does not start to run again. Other contractual claims of the Customer due to breaches of duty by the Supplier and all non-contractual claims of the Customer become time-barred after one year, beginning with the start of the limitation period provided for by law in each case.
15.2 In deviation from the provisions of § 15.1 above, the statutory limitation periods apply if and insofar as a) the Customer’s claim against the Supplier is based on Section 478 BGB or Sections 651, 478 BGB, or b) the Customer’s claim is based on intentional, fraudulent or grossly negligent conduct on the part of the Supplier or its vicarious agents, or c) the Customer’s claim against the Supplier is based on injury to life, body or health, or d) the Customer asserts claims against the Supplier under the Product Liability Act, or e) claims for defects are based on a right in rem of a third party on the basis of which the return of the purchased item can be demanded, or f) claims for defects are based on another right that is entered in the land register. The provisions of § 15.1 above also do not apply if the claim asserted is based on a guarantee given by the Supplier within the meaning of Section 443 BGB; in this respect, only the following provisions in § 15.3 of these General Terms and Conditions apply.
15.3 The limitation periods for claims based on a guarantee given are governed by Section 438 BGB, unless a shorter limitation period results from the content of the guarantee.
15.4 The suspension of the limitation period for claims arising from or in connection with the contractual relations between the parties under Section 203 BGB ends at the point in time at which the Supplier or the Customer refuses to continue negotiations on the claim or on the circumstances giving rise to the claim. Unless one of the parties expressly declares in writing or in text form that the negotiations have failed, the continuation of the negotiations is deemed to have been refused six months after the last correspondence concerning the claim or the circumstances giving rise to the claim was sent.
15.5 The provisions of Sections 196, 197 and 479 BGB and the rules on the burden of proof remain unaffected by the provisions of §§ 15.1 to 15.4 above.
Insofar as the subject of the contract concluded between the Supplier and the Customer is the performance of work by the Supplier on the Customer’s commissioned items, the following provisions apply in addition to the provisions above:
16.1 Scope of the order
a) By placing an order for the performance of fireworks displays and commissioned work, the Customer at the same time authorises the Supplier to carry out scheduled and unscheduled work and/or inspections prescribed under explosives law. These may in particular, but not exclusively, include applications, the preparation of aerial images and inspections. No prior express consent of the Customer is required for this. Where the subject of the order is a fireworks display, the Supplier is also authorised, without prior express consent of the Customer, to carry out site visits, measurements or other work necessary to check the fireworks display or the subject of the order. The Supplier will deploy appropriately qualified personnel for these tasks.
b) The Supplier is entitled, at its sole discretion, to have work carried out by affiliated companies or agents (including self-employed contractors) as subcontractors, provided that they are licensed under applicable aviation law or otherwise meet the regulatory requirements.
16.2 Cost estimates and binding quotations, advance payments
a) Unlike a binding quotation, the Supplier’s cost estimates are merely a non-binding forecast of the expected prices associated with a service of the Supplier. A cost estimate is not binding; the service is invoiced in the final invoice according to the actual working time and material costs.
b) If the Customer wishes to receive a binding price, a quotation in text form is required, in which the work and spare parts are each listed individually with their respective price. The Supplier only owes the professional calculation of the expected costs and gives no warranty for the accuracy of the quotation; the provision of Section 649 BGB remains unaffected. The Supplier is bound by the quotation until three (3) weeks after it has been issued. The services provided for preparing a quotation may be charged to the Customer if this has been agreed in the individual case. If an order is placed on the basis of the quotation, any costs for the quotation are offset against the invoice for the order.
c) If and insofar as the Supplier considers other additional work necessary or economically sensible when carrying out the order, it is entitled to carry out and invoice this work without separate approval, provided the invoice value of the additional work does not exceed a total of 15 % of the previous order volume. If the aforementioned 15 % limit is exceeded, the Supplier will inform the Customer of the expected additional costs and carry out the work after a separate order.
d) If the performance of services is delayed by more than sixty (60) days after the order was placed for reasons for which the Supplier is not responsible, the Supplier is entitled to adjust the prices appropriately to changed labour costs, material prices or prices of third-party suppliers.
e) The Supplier is entitled at any time, also within an ongoing business relationship, to carry out an order in whole or in part only against advance payment or against interim or milestone payments. The Supplier declares such a reservation at the latest with the order confirmation.
16.3 Dates
a) Compliance with a binding date by the Supplier requires that the Customer fulfils all necessary acts of cooperation and obligations completely and on time. These include in particular, but not exclusively, the timely delivery of the subject of the order, including keys and on-board documents, the presentation of all permits, approvals and clarifications that may be required, answering the Supplier’s technical queries and the receipt of any agreed advance payments. If the Customer does not comply, or does not comply in time, with the above obligations, the Supplier is entitled to suspend the work and/or to extend binding dates appropriately. In such a case, the Supplier will inform the Customer of the expected delay and the new date.
16.4 No liability of the Supplier for contractual penalties to be borne by the Customer
Any liability of the Supplier for contractual penalties to be borne by the Customer towards third parties arising from or in connection with the services performed by the Supplier, in particular but not exclusively where the Supplier acts as a subcontractor for the Customer, is excluded, unless the parties expressly make a deviating agreement in text form in the individual case with reference to this provision.
17.1 The place of performance for all obligations arising from the contractual relationship is the location of the Supplier’s supplying works or warehouse. If the Customer is an entrepreneur, the exclusive place of jurisdiction for all legal disputes, including proceedings concerning bills of exchange or cheques, is the Supplier’s registered office and thus Hünxe, Germany.
17.2 The contractual relationship is governed by German law, excluding the rules of conflict of laws. The provisions of the Vienna UN Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG) and other bilateral or multilateral agreements serving the unification of international sales law do not apply. The statutory provisions restricting the choice of law and on the applicability of mandatory provisions, in particular of the state in which a Customer who is a consumer has their habitual residence, remain unaffected.
18.1 Previous General Terms and Conditions of the Supplier hereby cease to apply.
18.2 The Supplier stores personal data of the Customer in the course of business and transmits, uses, modifies and deletes it in each case in accordance with the applicable data protection provisions, in particular the German Federal Data Protection Act (BDSG) and the European General Data Protection Regulation (GDPR).
Pyro Artists GmbH, Hünxe, 29.08.2025