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General Terms and Conditions of Sale

General Terms and Conditions of Sale of Profindustry GmbH
Last Update: November 2010
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1. GENERAL PROVISIONS, APPLICABILITY
1.1 Our Terms and Conditions of Sale (the “Terms and Conditions”)
have exclusive applicability, and any terms and conditions of the
Customer in conflict with or different from our Terms and Conditions
are inapplicable unless we have expressly consented to their
applicability in writing. Our Terms and Conditions are applicable even
if we make deliveries to the Customer without any reservation of
rights, knowing the Customer's terms and conditions which are in
conflict with or different from our Terms and Conditions.
1.2 Individual arrangements made in a particular case (inclusive
collateral agreements, amendments and modifications) shall take
priority over these Terms and Conditions. The contents of such
arrangements shall be subject to a written contract or to our
confirmation in writing.
1.3 Our Terms and Conditions apply only to commercial
entrepreneurs (Sec. 14 of the German Civil Code (BGB)), legal persons
under public law or special funds under public law.
1.4 Our Terms and Conditions as last amended shall also apply to
future contracts on the sale and/or the delivery of movable goods
with the same Customer, even if they have not been pointed out
specifically.
2. CONCLUSION OF CONTRACT
2.1 Our offers are subject to change and non-binding.
2.2 Orders of the Customer qualifying as binding offers within the
meaning of Sec. 145 of the German Civil Code (BGB) may be accepted
by us within a time period of two weeks upon receipt of the order.
2.3 The acceptance may be declared in writing (e.g. by the order
acknowledgment) or by delivery of the goods to the Customer.
2.4 We reserve all rights, including copyrights, to all illustrations,
drawings, calculations and other documentation, including
documentation designated as “confidential”. Any disclosure of such
documentation by the Customer is subject to our express written
consent.
3. DELIVERY, TRANSFER OF RISK
3.1 Unless otherwise specified in the order conformation, all
deliveries are “ex works“. On request and at the expense of the
Customer the goods are to be dispatched to a place designated by
the Customer (sales shipment). Unless otherwise agreed, we are
entitled to determine the kind of dispatching (especially the transport
enterprise, route of shipment and packaging).
3.2 The return of packaging shall be subject to a separate
agreement between the parties.
3.3 The risk of accidental loss and accidental deterioration of the
sold good will pass to the Customer at the latest upon delivery, and in
cases of sales shipment (Clause 3.1) upon delivery of the good to the
freight forwarder, carrier, or any other person or institution assigned
to such delivery.
3.4 If the Customer is in default with acceptance or wrongfully
breaches any other duties of cooperation, or if the delivery is delayed
for other reasons which the Customer is responsible for, we are
entitled to demand compensation for any resulting damages,
including any additional costs and expenses incurred as a result of
the breach. We reserve the right to seek additional remedies in
accordance with applicable law.
3.5 If the requirements for applicability of Clause 3.4 are satisfied,
the risk of accidental loss or accidental deterioration of the sold good
shall pass to the Customer at the time the Customer defaults on
acceptance, payment or other obligations.
4. DELIVERY PERIOD, DELAY IN DELIVERY
4.1 The delivery time will be agreed on an individual basis or
specified by us in the order conformation. The delivery period does
not begin to run until all technical questions have been resolved.
4.2 Performance of our delivery obligations is conditional upon
timely and due performance of the Customer's obligations. We
reserve the right to refuse delivery in the event of the Customer's
non-performance.
4.3 The accrual of our delay in delivery is regulated under the
statutory provisions. In any case, however, a reminder of the
Customer is necessary.
5. PRICES, PAYMENT TERMS
5.1 Unless otherwise stated in the order confirmation, all prices
quoted by us are “ex works”, and exclude packaging; there is an
additional charge for packaging. All prices quoted by us are exclusive
of applicable VAT; VAT is stated separately in the invoice at the rate
applicable on the invoice date.
5.2 In cases of sales shipment (Clause 3.1) the Customer is
responsible for shipping costs ex stock. If requested by the Customer,
we will provide insurance coverage for shipments at the cost of the
Customer. Any customs duties, fees, taxes and other public charges
shall be borne by the Customer.
5.3 Unless otherwise expressly agreed, the total amount invoiced
is due in full (without any deduction) within 14 days upon receipt of
the invoice and delivery of the good or acceptance by the Customer.
In the event of the Customer's payment default, we may avail
ourselves of all remedies provided for by applicable law.
5.4 Deduction of any cash discounts is subject to a special written
approval.
5.5 The Customer shall have no right to offset any counterclaims
against our claims for payment, unless such counterclaims are
undisputed, or we have accepted liability for such claims. In addition,
the Customer may exercise the right to withhold payment based
upon any counterclaims only if such counterclaims arise from the
same transaction.
6. RETENTION OF TITLE
6.1 We retain title to all sold goods until all our present and future
claims arising from the supply contract and a current business
relationship (the “Secured Claims”) have been paid in full.
6.2 The Customer shall treat the sold goods which are subject to
retention of title (the “Reserved Good”) with due care; in particular,
the Customer shall insure the Reserved Goods against the risks of fire
and water damage, as well as the risk of theft, at replacement value.
The Customer shall at its own cost perform any necessary
maintenance and inspection work in a timely manner.
6.3 The Reserved Goods may be neither pledged nor transferred
for security to third parties before the Secured Claims have been paid
in full. The Customer shall provide us with prompt written notice of
any attachment or other proceedings filed by third parties with
respect to the Reserved Goods belonging to us, so as to allow us to
take legal action in accordance with Sec. 771 of the German Code of
Civil Procedure (ZPO). In the event that the third party is unable to
indemnify us for any costs incurred in or out of court in connection
with a legal action in accordance with Sec. 771 of the German Code
of Civil Procedure (ZPO), the Customer shall be liable to us for such
losses.
6.4 In the event of any breach of contract by the Customer,
especially when the purchase price is not paid, we shall be entitled to
rescind the contract according to the statutory provisions and/or to
repossess the Reserved Good on the basis of the retention of title.
Repossession of the Reserved Good shall not result in rescission of
the contract; we shall rather be entitled to repossess the good and to
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reserve the right of rescission. Upon repossession of the good, we
shall be entitled to sell the good to a third party and to credit the
sales proceeds against the amount due from the Customer, subject to
deduction of reasonable sales costs.
6.5 The Customer is entitled to resell the Reserved Goods in the
ordinary course of business. However, the Customer, already at this
point, assigns to us any claims in the total of the outstanding invoice
amount (including VAT) which are owed to him from the resale of the
Reserved Good to his customers or third parties. We hereby accept
the assignment. The Customer remains authorized to collect these
claims even after the assignment. Our authority to collect the claims
ourselves is not affected by this; but we undertake not to collect the
claims, as long as the Customer properly meets his payment
obligations and is not in default of payment. If this is nevertheless the
case, we can demand that the Customer make known the assigned
claims and their debtor, give all details required for collection, hand
over the relevant documents and the inform the debtors (third
parties) of the assignment.
6.6 We undertake to release, upon demand of the Customer, any
security interests which we are entitled to, if and to the extent that
the enforceable value of such security interests exceeds by more
than 10 % our claims secured by such security interests; the security
interests subject to release shall be selected by us.
7. LIABILITY FOR DEFECTS
7.1 Any claims for defects by the Customer are conditional upon
compliance with the inspection and notice obligations defined in
Sec. 377 of the German Commercial Code (HGB). The goods delivered
by us must be inspected and notice of any defect must be provided
to us within two weeks of receipt. If the Customer fails to report a
defect as indicated above, we are exempt from liability for the defect
which had not been reported.
7.2 If the good delivered is defective or lacks guaranteed
characteristics, we may, at our choice, provide subsequent
performance (cure) either by removing the defect (remedy) or
delivery of a good free of defects (replacement) within an
appropriate time period. The Customer shall allow us the time and
opportunity necessary for the owed cure action, especially handover
the faulty good for testing purposes. We shall bear all costs and
expenses necessary to provide such subsequent performance,
including costs of shipping and transportation, and costs of labor and
materials, unless such costs increase because goods are delivered to
a location other than the agreed place of performance. In the event
of the replacement, the Customer shall return the defective good to
us.
7.3 We shall be entitled to make the subsequent performance
owed by us conditional upon the Customer paying the outstanding
purchase price. The Customer, however, may withhold a part of the
purchase price reasonable in relation to the defect.
7.4 In urgent cases i.e., whenever the operational safety is put at
risk, or to defend against unreasonable damages, or with our
consent, the Customer shall be entitled to (on his own accord)
remedy the defect himself and demand from us the compensation
for the corresponding (objectively necessary) expenses. In this case
we must be immediately notified of such self-remedy action taken by
the Customer – or, insofar as possible, in advance of this action. The
right to provide self-remedy actions shall not apply when we were
entitled to deny the subsequent fulfillment according to the statutory
provisions.
7.5 If the subsequent performance failed, or a grace period for the
subsequent performance as determined by the Customer expired
unsuccessfully or is dispensable according to the statutory provisions,
the Customer may withdraw from the purchase contract or reduce
the purchase price. The right of withdrawal, however, shall not apply
upon the occurrence of an insignificant defect.
7.6 The Customer's claims for damages or compensation of futile
expenditure shall only exist in compliance with the Clause 8,
otherwise they shall be excluded.
8. ADDITIONAL SCOPE OF LIABILITY
8.1 Unless otherwise provided for in these Terms and Conditions
including the following provisions, we shall be liable for breach of
contractual and non-contractual obligations according to the
statutory provisions.
8.2 We shall be liable for damages compensation – irrespective of
the legal grounds – in the event of malicious intent and gross
negligence. In the event of simple negligence, we shall be only liable
for the following:
a) for damages arising from injury to life, body or health,
b) for damages arising from the breach of a significant contractual
obligation (this is an obligation the fulfillment of which is subject to
the due execution of a contract and the observance of which the
contractual partner relies on and may rely on regularly); in this case,
however, our liability shall be limited to the compensation of the
foreseeable, typically occurring damage.
8.3 The limitations of liability resulting from Clause 8.2 shall not
apply insofar as we have refrained, with malicious intent, from
disclosing a defect or on our own accord assumed a guarantee for the
condition of the goods. The same shall apply to the Customer’s claims
according to the Product Liability Act (Produkthaftungsgesetz).
8.4 The limitations of liability provided for in Clauses 8.2 shall also
apply if the Customer demands compensation of futile expenditure
instead of his claim for compensation for damages in place of
performance.
8.5 Except as provided in Clauses 8.1 to 8.3 any liability for
damages – regardless of the legal grounds for the Customer's claims
– is hereby excluded. This applies, without limitation, to any claims
for damages based upon culpa in contrahendo or any other breaches,
as well as to any tort claims for damages in accordance with Sec. 823
of the German Civil Code (BGB).
8.6 To the extent that our liability is excluded or limited, such
exclusion or limitation shall also apply to any personal liability of our
employees, staff, agents and representatives.
8.7 On grounds of an infringement upon obligations which does
not constitute a defect, the Customer may only withdraw from or
rescind the contract of purchase if we are responsible for the
infringement upon such obligations. Furthermore the statutory
requirements and legal consequences shall apply.
9. LIMITATION PERIOD
9.1 Any claims for defects shall be subject to a limitation period of
12 months from the transfer of risk.
9.2 The limitation period for any claims against suppliers in
accordance with Sec. 478, 479 of the German Civil Code (BGB) as well
as for real claims for restitution of property of third parties (Sec. 438
Para. 1 No. 1 of the German Civil Code (BGB)) and compensation
claims specified in Clauses 8.2 and 8.3 shall remain unaffected
thereby. In these and other cases statutory provisions governing
limitation periods shall apply exclusively.
10. PLACE OF PERFORMANCE, APPLICABLE LAW, JURISDICTION
10.1 Unless otherwise stated in the order confirmation, the place of
performance for all obligations shall be our registered office.
10.2 All agreements with the Customer as well as this General
Terms and Conditions shall be governed by and construed in
accordance with the laws of the Federal Republic of Germany;
applicability of the UN Convention on Contracts with International
Sale of Goods is hereby excluded.
10.3 Provided that the Customer is a merchant within the meaning
of German commercial law, any disputes shall be determined by a
court of competent jurisdiction at the place of our registered office in
Hamburg, provided however that we shall have the right to file suit
against the Customer in any court of competent jurisdiction at the
place of the Customer's residence.