General Terms and Conditions of Business of ProCase GmbH – Miltenberg, Germany
The following general terms and conditions of business pertain to our delivery and service and apply to all our business relations with our customers.
1. Quotations, Prices and Conclusion of Contract
Unless otherwise stated in the quotation, our quotations are subject to change and without obligation. This shall apply even if we have supplied the Customer with catalogues, technical documentation (such as drawings, plans, calculations, costings and references to DIN standards), other product descriptions or documents - including in electronic form - of which we reserve ownership and copyright. Unless expressly stated in writing to the contrary, we reserve the right to carry out changes to the design, whereby the interest of the purchaser will always be considered.
Ordering of goods by the Customer shall be deemed a binding contractual offer. The same applies if the buyer clicked the "Order" button in webshop orders and receives a receiving confirmation from us. Unless otherwise indicated in the order, we shall be entitled to accept the contractual offer within 2 weeks of receipt by us.
Acceptance can take place either in writing by an acknowledgment or by delivery of the goods to the Customer. The content of the order confirmation is in addition to these general terms and conditions basis for the contract. Only those prices given in the order confirmation are valid. This is especially valid for those prices mentioned or given in any purchase order. All prices given are ex-works, in Euros and subject to the relevant sales tax (V.A.T.) at that time and exclude packing unless otherwise expressly stated in writing. Should delivery be carried out later than four (4) months after the conclusion of the contract as agreed, we reserve the right to adjust any prices accordingly. These rights are also retained if, after conclusion of any contract, prices relating to the contract change considerably.
2. Delivery and Delivery Times
Only those delivery dates given in our order confirmation are valid. Those delivery dates given by the purchaser will not necessarily be adhered to. Those delivery dates given in our order confirmation are not necessarily fixed dates unless there is a written statement to the contrary. We reserve the right to make suitable part-deliveries at our discretion. Our obligation to deliver will be suspended insofar as the purchaser is in arrears with any payment due to us despite reminders to that effect. The method and type of delivery is at our discretion insofar as any other method and/or type has not been previously agreed, however, and without committing to the cheapest method or type, it will always be in the best interests of the purchaser.
3. Transfer of Risks
Delivery is to be ex-works from the place of performance. At the point of hand-over of the goods to a transport company or forwarding agent any risk is assumed by the purchaser, this applies also to ex-works delivery. The purchaser also carries all risks during the return of any goods back to us.
4. Technical specifications / Changes / Developments
We reserve the right to make changes with regards to specifications and fittings to our products, but always in consideration of the purchaser’s wishes. With the development or manufacture of a packing product according to purchaser’s requirements, any and all intellectual property rights remain with us unless expressly stated and agreed otherwise, together with the right to use said developments, designs or processes.
5. Delivery delays
Should there be any delay in delivery, then, with the exclusion of any other demands or requirements of the purchaser, the purchaser has the right within a suitable time period and with regards to the unfulfilled part of the contract, to withdraw from said contract if the purchaser has received notice from the seller that a part of the contract cannot be fulfilled. This is, however not applicable so long as we are not mandatorily liable in cases of deliberate intent or negligence. We reserve the right to make part deliveries or perform a partial supply of services. Acts of God release us from delivery for the duration of the hindrance and such acts give us the right to choose either a part delivery or to postpone the delivery in full. After a four (4) month delay the purchaser has the right to withdraw from the contract. Any Acts of God include similar acts which prevent us from fulfilling the contract or make fulfillment unreasonably difficult (e.g. strikes, other operational disturbances, lack of energy or raw materials, traffic disruption or delays through delivery of suppliers). We reserve the right to withdraw from the contract should the purchaser refuse the goods delivered in the agreed way, especially if the delivery is agreed as Cash on Delivery.
For new Customers, advance payment is required for the first two deliveries. You will receive a proforma invoice. Moreover, we reserve the right to demand payment in advance for additional orders to our sole discretion. Especially for large orders and all deliveries outside Germany. Invoices are sent either with the delivery of goods or services or afterwards. Our invoices are, subject to any payment terms previously agreed and as stated on the invoice or delivery note, payable within ten (10) days of the date of invoice per bank transfer without any discount. Should a direct debit be agreed then invoices due will be charged to the current account given to us within ten (10) days until otherwise stated. Any early payment discounts granted are not subject to freight and/or packing charges as well as for any goods by which a previously agreed net price was made.
Bills of Exchange can only be accepted after specific agreement and payment made after adjustments to any costs or early payment discounts.
We reserve the right to first settle any outstanding invoices issued by us to the purchaser plus any accrued costs or interest on the outstanding amount(s). This will not apply to any demands or claims the purchaser has made due to defective goods.
7. Delays in Payment, Ability to Pay, Counterclaims
Should payment be delayed then interest on the outstanding amount will be eight percent (8%) above the basic bank rate with an additional ten (10) Euros for each reminder issued. Furthermore, we reserve the right to withhold delivery – including deliveries from other purchase contracts. All other rights are retained. We reserve the right to refuse delivery if, after contractual obligation is finalised, the ability to settle said contractual obligation is endangered (Para 321 of German Law). We will assume the right to demand such payment in advance, demand security to the contractual amount or withdraw from the contractual obligation altogether. The customer can only counterclaim against us if their claim is undisputed or if a legally binding obligation on us exists. A general right to withhold payment cannot be assumed by the purchaser as long as the purchaser is commercially active in the sense of the German Trade Regulations. Such withholding, however, can be made should the purchaser have any undisputed claim on us or any legally binding claim to the contrary. Assertion of the specific rights to withhold payment because of any unfulfilled obligation on our part remains unaffected.
8. Retention of Property Rights (Title)
All goods delivered by us remain our property until payment in full of all amounts due to us then or in the future for whatever cause and without consideration to any other rights is made. Retention of the property rights remains should any demands have been incorporated in an outstanding invoice and the balance is reflected and acknowledged. The purchaser accepts that such goods may only be made available in a correct business manner and they will not be used for the purposes of financial security or bonding. The purchaser agrees to insure such goods until the purchaser gains title to such goods. This insurance is to cover loss and/or damage to such goods and is to come into effect at once. Should the goods be subject to resale, rental or transfer by the purchaser, then this can only be done by an express agreement on an extended retention of title and the purchaser, by doing so, foregoes any demands in full together with all associated rights to title against the purchasers’ own customer and assigns those rights in advance to us in order to protect our ongoing claims against said purchaser. The assignment of those rights will be accepted by us. Should the purchaser re-work the delivered goods in any way, then the purchaser assigns the co-ownership of title to us in proportion to the value of the goods as delivered to the purchaser against their value after re-work. The same is valid for a mixture of said goods with others. The obligation of proof of details of any re-working lies with the purchaser. The purchaser is obliged to care for the said goods in a correct manner appropriate to commercial business activities. Any assignment of title under co-ownership situations is limited proportionally to those demands against the purchaser. We reserve the right to withdraw the assignment of such rights, but will not do so, so long as the purchaser meets the payment obligations. The purchaser is obliged to inform the customer of our demands and the assignment of rights to us as well as giving the customer all necessary information and documentation especially, and for this purpose, to permit access to the purchaser’s accounts and invoices. Insofar as the purchaser receives settlement by the customer, then these receivables must be booked separately into an account especially set up for this purpose. Should the value of any security given by the purchaser against our demands rise by more than twenty percent (20%) we are obliged to return or release such securities at our choice in order to receive any amount due in full. The purchaser’s entitlement to resell, process or re-work goods that are subject to our retention of the title rights end with the purchaser’s suspension of payments or when insolvency procedures are opened against the assets, opening of insolvency procedures de facto or when commencement of insolvency proceedings are dismissed due to lack of assets of the said purchaser. The purchaser is obliged to inform us immediately of any seizure or other claim of a third party in regards to our goods and to assist us in all possible ways to maintain our rights of title to the goods, especially the name of the creditor who seizes or makes a claim against our goods. Should the purchaser not meet their obligations in a timely way, then we have the right, after due reminder and without affecting our other rights, to demand release of the retained goods to us and/or to directly assert those rights ceded to us. For this purpose the purchaser is obliged, on demand, to make available a list of all goods in the care of the purchaser and of which we retain the title rights thereof as well as a list of all amounts receivable due to us together with the names and addresses of creditors and the amounts owing to them. We retain the right, after due notification, to enter the premises of the customer at an appointed date in order to retake possession of the goods and sell them on the open market at the normal purchase price, with deductions of any operative costs, in order to make best possible use of those goods. Any repossession of goods to which we still retain the title of only has the meaning that we withdraw from the contract with the purchaser and obliges us to expressly state this in writing to the purchaser.
9. Liability for Defects
Goods purchased from us are without defects and are compliant with the specifications stated in the purchase contract. Compliance with specifications is that which has been mutually agreed and stated in the order confirmation. Any advice given by us either written form or verbally as to suitability for purpose is not binding and does not release the purchaser from checking said suitability for purpose. An acceptance of liability against suitability for purpose of our products by the purchaser is not granted. Public statements, promotions and advertisements represent no contractual basis as to specification or suitability for purpose of the products. The purchaser is granted no guarantee on a legal basis except those guarantees already stated under the product liability laws. All goods delivered from us are to be checked on receipt. Damage due to transport is to be documented in the freight documentation and to be settled with the forwarding company. Complaints concerning defects are to be reported in writing either immediately or within fourteen (14) days after receipt of goods. Defects which are not apparent on receipt of the goods are to be reported in writing within seven (7) days after discovery, but at the latest within six (6) months after receipt of the goods. Complaints received in the proper way as above will be dealt with within a suitable timeframe and, at our discretion; defective goods will be subject to replacement or re-delivery, re-work, adjustment or deduction. Should we not fulfil these obligations, the purchaser has the right to choose between the aforementioned discretionary corrections. Claims to damages on the basis of defects, missing parts or culpable breaches of other contractual obligations thereof are limited to the value of the goods delivered. Further claims – especially those not relating to the goods themselves as well as tort liability claims – are excluded. These limitations are not applicable in the case of intention or gross negligence on the part of the seller. In the case of any necessary return of goods to us due to defects, the goods are to be packed with the similar care as they were received from us and to be held ready for pick up or be sent to us. Should any returned goods arrive unpacked then the purchaser runs the risk of loss or of losing the possibility of replacement, even if the goods have already been used by the purchaser.
10. Personal Data
We store personal details of customers for the purpose of EDV processing.
11. Place of Perfomance, Jurisdiction and Choice of Law
Place of performance for delivery and payment is our head office. Jurisdiction for both parts is Miltenberg, Germany. The business relationship between us and the purchaser is subject to the valid laws of the Federal Republic of Germany at that time.
12. Final Provisions
Should one or more of these General Terms and Conditions of Business be or become invalid, then the validity of the remaining provisions under this contract will not be affected. Any provision that becomes invalid will be replaced by a provision that reflects that invalid provision in the most suitable and effective way.
Dated September 2014
ProCase GmbH, Im Bruch 2, 63897 Miltenberg, Germany