of PROMECON process measurement control GmbH, Steinfeldstrasse 5, D-39179 Barleben, hereinafter referred to as PROMECON (as per 1 May 2016).
Art. 1 Scope
(1) All offers, deliveries and services of PROMECON shall be governed exclusively by these General Terms and Conditions of Sale and Delivery, irrespective of whether PROMECON manufactures the object of sale itself or acquires it from its own suppliers. The most recent version of the General Terms and Conditions of Sale and Delivery shall be applicable, including in respect of any future contractual relationships; this may be retrieved from http://www.promecon.com/en/company-h-j/GTC. This provision shall apply even in the absence of an express reference to the validity of these terms and conditions.
(2) These General Terms and Conditions of Sale and Delivery shall apply exclusively. Conflicting or deviating terms or conditions shall be valid only to the extent to which PROMECON has expressly agreed to their validity in writing. Agreements made between the contractual parties and third parties shall have absolutely no binding effect on the legal relationship between the contractual parties.
(3) The General Terms and Conditions of Sale and Delivery shall apply only if the contractual partner is an entrepreneur (Section 14 of the German Civil Code [BGB]), a legal person under public law or a special fund under public law.
Art. 2 Choice of law; linguistic version
(1) The legal relations of the contractual parties shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) In any interpretation of the contract and of these terms and conditions, the particular meaning in the German language and under the law of the Federal Republic of Germany shall be authoritative.
Art. 3 Description of services
The properties specified in the contractual description of services detail the characteristics of the object of sale in a manner which is both comprehensive and definitive. Public statements by PROMECON, its suppliers, assistants or third parties (e.g. public representations of product characteristics) are not to be regarded as a description of the object of sale which effectively supplements or amends the description of services. The description of services specified in the German version of the text shall be authoritative; PROMECON shall not be held liable for any errors in translation.
Art. 4 Conclusion of the contract; self-delivery proviso
(1) All offers are subject to alteration. This shall apply even if PROMECON supplies brochures, technical documentation, or other product descriptions or documents, including in electronic form. Proprietary rights and copyright to such publications and documentation shall belong to PROMECON. These may only be divulged to third parties with the prior consent of PROMECON.
(2) Orders shall only be legally binding once they have been confirmed by PROMECON. Orders may be confirmed in writing or by fax on the forms used for this purpose by PROMECON. Confirmation shall be legally effective only if it has been provided by a managing director and/or authorised signatory of PROMECON who is entitled to represent the company (Prokurist) pursuant to its articles of association and/or the relevant power of attorney.
(3) PROMECON shall be entitled to withdraw from the contract if it fails to receive the object of sale from its own suppliers, despite having previously concluded a corresponding purchase contract; PROMECON’s liability in respect of malicious intent and negligence shall remain unaffected. PROMECON shall inform the buyer promptly that the object of sale shall not be available by the agreed deadline and, if it wishes to withdraw from the contract, shall exercise this right without delay. If it withdraws from the contract, PROMECON shall reimburse all corresponding payments to the contractual partner without delay.
Art. 5 Prices
(1) Unless otherwise agreed, the prices valid at the time the contract was concluded shall be applicable; these shall be for delivery ex works, and shall exclude packaging, freight, transfer, insurance and customs duties, as well as the applicable rate of statutory VAT.
(2) The deduction of any discount shall be subject to a separate written agreement.
(3) PROMECON is entitled to charge a price which deviates from that originally agreed if any amendments or supplements to the products supplied by PROMECON are negotiated following the conclusion of the contract, if additional documents or calculations are required by the contractual partner beyond the scope of those specified in the original contract, or if translations are made into a language other than German at the request of the contractual partner, provided that the contractual partner was suitably notified to this effect before the amendment or supplementary service was agreed.
(4) PROMECON is entitled to demand suitable compensation from the contractual partner for any expenses actually incurred by PROMECON in association with the conclusion of the contract prior to its conclusion (e.g. quotations, calculations or technical specifications). This shall apply even if no contract is ultimately concluded.
Art. 6 Terms of payment
(1) Unless otherwise agreed, payment must be made in advance for all deliveries by PROMECON. The latter shall issue an invoice for its services; the content of these invoices must at the very least be compliant with the tax regulations of the European Union and, if these do not exist, with those of the Federal Republic of Germany, and the invoice must be settled within ten days of the date of the invoice. The contractual partner must undertake to verify the details of any invoices issued by PROMECON upon receipt, and to address any complaints to PROMECON promptly in writing or by fax. ‘Promptly’ means that complaints must be made within eight (8) working days of the date of the invoice; the date upon which PROMECON receives the complaint shall be decisive. A complaint made about an invoice by a contractual partner shall generate a new payment deadline pursuant to Sentence 2 only if it concerns the invoice’s compliance with regulations as specified therein. If the payment deadline is exceeded by the contractual partner, the latter shall be deemed to be in default; no further reminder need be issued. If the contractual partner is in default of payment, PROMECON may levy interest at a rate of 8 percentage points above the basic rate (Section 247 BGB) per annum, but at a minimum of 8 % per annum. PROMECON reserves the right to claim additional compensation in respect of loss or damage due to delay.
(2) PROMECON is entitled to assign its claims to payment vis-à-vis the customer to a third party.
(3) If, after the contract has been concluded, PROMECON becomes aware of circumstances indicative of a deterioration in the contractual partner’s financial situation, in particular if the contractual partner fails to pay debts which have fallen due, then PROMECON is entitled to refuse performance in accordance with statutory legislation and to withdraw from the contract, if applicable after first setting a deadline (Section 321 BGB). In the case of products made to individual specifications, PROMECON may announce its withdrawal with immediate effect; statutory regulations on the dispensability of setting a deadline shall remain unaffected.
(4) In the event of insolvency or inability to pay, or if an application is filed to initiate insolvency proceedings against the assets of the contractual partner, PROMECON shall be entitled to withdraw immediately from all outstanding contracts.
(5) The contractual partner is entitled to offset or retain payments only if the counterclaims are uncontested or have been legally established. Moreover, the contractual party is entitled to exercise a right of retention only to the extent that its counterclaim arises from one and the same contract; rights of retention relating to counterclaims arising from other contractual relationships within the same business relationship are excluded.
Art. 7 Delivery times
(1) The terms of delivery shall be agreed on an individual basis and/or specified by PROMECON when the order is confirmed. The basis for delivery periods and deadlines shall be the time at which the goods are surrendered to the carrier, haulier or other third party commissioned with transportation, provided that shipment of the object of sale has been agreed.
(2) Unless otherwise agreed, delivery periods shall commence on the date on which the order is confirmed, but no earlier than the date on which the customer meets his obligations in a proper and timely manner, i.e. in particular not before the receipt of any permits or clearance documents to be provided by the customer, or before the receipt of considerations charged in advance, or of any agreed prepayments. PROMECON must be notified of all technical specifications and other specific customer requirements, especially as they relate to the surrender of documents and formulae, before the order is confirmed. Any additional requirements notified subsequently shall be the subject of a separate agreement, may require an adjustment of delivery times, and shall not justify the delay of any clearance procedures required of the customer.
(3) We reserve the right to object to non-performance of the contract.
(4) Default in delivery shall be determined in accordance with the statutory provisions and requires a written warning on the part of the customer without exception.
Art. 8 Delivery; transfer of risk
(1) PROMECON shall be deemed to have delivered goods when it makes them available to the customer at the premises of PROMECON or at another named destination (e.g. works, factories, warehouses, etc.). PROMECON is required neither to load the goods onto a means of transport for collection, nor to clear them for export, should this be necessary (delivery ex works; EXW).
(2) If the object of sale is despatched to the contractual partner at the latter’s request, then the risk of accidental loss or deterioration of the object of sale shall be transferred to the contractual partner upon despatch to him, and no later than when it leaves the production site of PROMECON, irrespective of which party is bearing the costs of shipment or whether the goods are being despatched from the place of performance.
Art. 9 Reservation of title
(1) Unless otherwise agreed, the object of sale shall remain the property of PROMECON until the settlement of all of PROMECON’s claims vis-à-vis the contractual partner arising from the business relationship.
(2) The contractual partner is permitted to process or rework the object of sale (‘processing’). Goods are processed on PROMECON’s behalf. If, after processing, PROMECON acquires no title to the new goods, then PROMECON and the contractual partner agree that the contractual partner shall grant PROMECON co-ownership of the new goods in the ratio of the value (gross invoice value) of the object of sale belonging to the supplier to that of the other goods processed at the time of processing. The previous sentence shall apply mutatis mutandis in the event of the inseparable combination or union of the object of sale with goods which are not the property of PROMECON. If PROMECON acquires ownership or co-ownership pursuant to this Art. 9 (Reservation of title), the customer shall keep the goods safe on behalf of PROMECON with the diligence of a prudent businessman.
(3) If the object of sale or the new goods are sold, the customer shall therewith assign his claim from the resale vis-à-vis his buyer together with all ancillary rights to PROMECON by way of security, without any additional specific declarations having to be made. The assignment shall apply inclusive of any balance claims. However, the assignment shall apply only up to the level of the amount corresponding to the price of the object of sale invoiced by PROMECON. The share in the claim assigned to PROMECON shall take priority over any other claims.
(4) If the customer combines the object of sale or the new goods with real estate, then he shall also assign to PROMECON the claim to which he is entitled as remuneration for the act of combining up to the level of the amount corresponding to the price of the object of sale invoiced by the supplier, without any additional specific declarations having to be made.
(5) Until such time as this right is revoked, the customer is authorised to collect the claims assigned to PROMECON pursuant to this Art. 9 (Reservation of title). The customer shall forward payments made in respect of the assigned claims to PROMECON immediately, up to the level of the secured claim. PROMECON is entitled to revoke the customer’s collection right if there are legitimate grounds for so doing, in particular in the event of default in payment, cessation of payment, the initiation of insolvency proceedings, or a protest being made in respect of a bill of exchange, or if there are justified reasons for suspecting that the customer has excessive debts or is at imminent risk of illiquidity. Moreover, provided it gives advance warning and observes an appropriate deadline, PROMECON shall be entitled to disclose details of the assignment by way of security, realise the assigned claims, and require that details of the assignment by way of security by the customer be disclosed to the latter’s buyers.
(6) If such justified reasons can be shown to be substantiated, the customer must provide PROMECON with the information it requires to exercise its rights against his buyers and surrender the necessary documents.
(7) As long as a reservation of title continues to exist, the customer is prohibited from pledging the reserved goods or using them as security. The customer must notify PROMECON immediately in the event of any seizures, attachments or other dispositions or interventions by third parties.
(8) If there is a breach of duty on the part of the customer, especially in the event of default in payment, PROMECON is entitled, even without giving notice, to demand the surrender of the object of sale and/or the new goods and/or – if necessary after setting an appropriate deadline – to withdraw from the contract; the customer is obliged to surrender the goods. Demanding the surrender of the object of sale / new goods does not imply that PROMECON is announcing its withdrawal from the contract, unless this is expressly stated.
Art. 10 Warranty
(1) The contractual party may make claims under warranty only if it has duly met his statutory obligation to inspect goods and give notice of defects pursuant to Art. 377 of the Commercial Code (HGB). The customer must inspect the goods immediately after delivery (Art. 8 Para. 1) for any defects or damage. If defects or damage are discovered during the inspection or at a later time, PROMECON must be notified to this effect promptly in writing or by fax. Notification will be deemed to be ‘prompt’ if it is made within eight (8) working days of receipt of the goods; the date upon which PROMECON receives the notification shall be decisive. Irrespective of this duty to inspect goods and give notice of defects, PROMECON must be notified promptly in writing or by fax of any obvious defects, or if the wrong goods or an insufficient quantity of goods have been delivered. If the contractual party fails to make a proper inspection of the goods and/or make notification by the specified deadline, PROMECON shall accept no liability for the unreported defect.
(2) If a justified claim is made in respect of a defect, PROMECON shall, at its own discretion, either remedy the defect or replace unusable parts with non-defective ones free of charge. Before returning defective goods to PROMECON, their return must first be agreed by both parties. They must be returned in secure packaging appropriate for the method of shipping used, and at the expense of the contractual partner. If the request for remedial action proves to be justified, PROMECON shall reimburse the contractual partner for the necessary and reasonable costs of transportation. Otherwise, the customer must bear the costs of returning the goods and of having them re-delivered to himself. Even if the complaint is substantiated, PROMECON shall not reimburse the customer for any costs arising from a failure to reach an agreement by the contractual parties pursuant to Sentence 2.
(3) If the contractual partner modifies instruments or equipment without the participation of PROMECON, the latter shall be exempt from any liability whatsoever.
(4) If goods are defective, PROMECON shall first be entitled to take remedial action by making repairs. If it twice fails to repair the defect, or if a reasonable deadline for the repair set by the contractual partner expires without a successful outcome, the contractual partner may withdraw from the contract or obtain a price reduction.
(5) Claims for defects shall not be entertained if they relate to only a minor deviation from the agreed characteristics, natural wear and tear, or loss or damage which occurred after the transfer of risk as a result of improper or negligent treatment.
(6) Warranty claims on the part of the customer expire one year after delivery of the goods pursuant to Art. 8 Para. 1.
(7) PROMECON is not obliged to keep spare parts in reserve or to supply them beyond the warranty period and/or any extended guarantee period, unless the parties have negotiated a separate spare parts guarantee.
(8) PROMECON is certified to ISO 9001 and OHSAS 18001. Compliance with additional certifications or quality standards is required only if this has been separately negotiated.
Art. 11 Patents; industrial property rights
(1) Any patents, copyright or other intellectual property rights relating to the supplied goods and to the associated documentation must be observed by the contractual partner; the latter shall be held responsible for any violation of these rights. The rights named in Sentence 1 shall not be transferred unless the contractual parties negotiate this separately.
(2) If PROMECON completes an order using drawings, sketches or other data provided by the contractual partner, this shall be done at the risk of the contractual partner in terms of patent, design and trademark rights; the latter must indemnify PROMECON against any third party claims relating to the infringement of such rights.
Art. 12 Data protection
(1) The contractual partner permits PROMECON to collect, process and store data relating to the former, provided and for as long as this is required for the execution and processing of the contract and the business relationship, and/or for as long as PROMECON is obliged to retain the data by law.
(2) PROMECON reserves the right to divulge the customer’s personal data to credit agencies to the extent necessary for a credit check or to enforce its claims.
Art. 13 Severability clause
Should a provision of these General Terms and Conditions of Sale and Delivery or a provision which is incorporated at a later date be or become invalid in whole or in part, or should there transpire to be an omission in these General Terms and Conditions of Sale and Delivery, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced or the omission rectified with a valid or enforceable provision which approximates as closely as possible to the legal and financial intentions of the contractual parties, or to what they would have wished in accordance with the meaning and purpose of the contract if they had considered the point in question at the time when the contract was concluded.
Art. 14 Legal venue; place of performance
(1) The legal venue for all disputes arising from this contractual relationship shall be D-39179 Barleben. However, PROMECON is entitled to bring an action at the place of general jurisdiction of the contractual partner.
(2) Unless otherwise stipulated in the contract or in the order confirmation, the place of performance shall be D-39179 Barleben.