General terms and conditions of business of Proxitron GmbH
1.1 The following terms and conditions of business only apply with respect to companies in the meaning of Article 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB). They are a component of all our offers and contract acceptance declarations and the basis for all our sales, deliveries, services and lease agreements, including consulting, provision of information, installation and maintenance.
1.2 Any terms and conditions of our contract partner that differ from or are contrary to our terms and conditions of business will not be a part of the contract unless we explicitly acknowledge them in writing with legally binding effect.
1.3 These General Terms and Conditions of Business shall then also extend to all follow-up business if their inclusion is not explicitly agreed.
2. The content of the contract
2.1 Unless explicitly agreed otherwise, our precontractual notices, particularly offers, descriptions and cost estimates, are subject to confirmation. For the content and scope of the contract our written order confirmation is decisive. If the order confirmation is not issued separately in advance, it shall be replaced by a delivery note or invoice.Oral additional agreements and contractual amendments shall only be binding if they are confirmed in writing.
2.2 We reserve the right to carry out technical changes when fulfilling orders insofar as they arise from technological progress or if, in an individual case, they prove to be expedient in the interests of the performance of the subject of the delivery and are reasonable for the customer.
2.3 We reserve the ownership title and copyrights to any quotations, drawings or other documents. They must not be made available to third parties.
3.1 Unless otherwise agreed in writing, the prices specified by us should be understood as being ex works / our warehouse and excluding statutory VAT,packing, transport, transit insurance and customs duty. In the event of calculation or other errors we reserve the right to adjust our offer and invoice prices.
3.2 If we have made a price arrangement being binding for us, we may nevertheless adjust the prices if the delivery or service is provided more than four months from the conclusion of the contract, particularly if material prices, prices of upstream suppliers or energy costs have increased. However, this only applies if a fixed price has not been explicitly agreed in writing. Price increases due to cost increases that occurred before the conclusion of the contract are excluded.
4. Delivery periods, delivery and transfer of risk
4.1 Delivery periods and deadlines specified by us are only approximate, unless we have stated explicitly and in writing that they are binding. The delivery period begins on the day of receipt of our order confirmation by the contract partner, but not before the clarification of all the details of the fulfilment of the order and the fulfilment of all other requirements which the contract partner is required to satisfy.
4.2 The delivery periods shall be extended – without prejudice to any other rights to which we are entitled – by the period by which the contract partner is late in fulfilling its obligations under the contract. For delivery deadlines the above applies accordingly.
4.3 Disruptions beyond our control to our business operations or those of our upstream suppliers due to events of force majeure or due to unforeseeable events for which we are not culpable (e.g. strikes, lock-outs, operational disruptions, orders issued by governmental authorities, mobilisation, war) shall extend the delivery period accordingly. The contract partner shall only have the right to rescind the unfulfilled part of the contract if, in these cases, it demands the delivery in writing after the end of the agreed delivery period and it is then not carried out within a reasonable additional time limit to be set by it.
4.4 We shall have the right to carry out partial deliveries / services. This does not apply if partial deliveries are unreasonable for the contract partner.
4.5 If an agreed delivery period is not adhered to due to our fault, provided we have not acted with gross negligence or intentionally or violated a key contractual obligation, our contract partner shall have the right, after the lapse of a reasonable additional time limit and to the exclusion of further claims, to demand compensation for delay or rescind the contract. The compensation for delay shall amount to 0.5% for each completed calendar week of the delay, but in total no more than 5% of the net price for the part of the delivery or service on which we have defaulted. Rescission and/or the claiming of compensation for delayshall be excluded if our contract partner is in default of acceptance itself. The contract partner shall retain the right to provide proof of higher losses and we shall retain the right to provide proof of lower losses.
4.6 The risk of loss, damage or accidental destruction shall transfer to our contract partner:
- when, in the case of a mail order purchase, we deliver the goods to the carrier, forwarder or other person or organisation designated to carry out the delivery. At the request and expense of our contract partner, the goods shall be insured by us against breakage and transport and fire damage.
- if our contract partner postpones the agreed delivery deadline or fails to accept the performance offered to it for reasons for which it is responsible. Furthermore, in these cases 90% of the purchase price shall fall due for immediate payment. The contract partner shall compensate us for all costs that arise due to its postponement of the delivery deadline or its default of acceptance (e.g. for storage, etc.).
5.1 Unless otherwise agreed our invoices shall be due for payment immediately and no later than within 14 days from the invoice date, without any deductions. If payment is not made within that time limit, we shall have the right to demand for the subsequent period interest in the amount of nine percentage points over the respective base interest rate of the ECB. We reserve the right to claim further losses in the event of payment default.
5.2 If our contract partner rescinds the contract (cancellation), without us having given it cause to do so, or if we declare rescission or termination of the contract for reasons for which the contract partner is responsible, our contract partner shall have to pay us our already incurred costs as well as lost profits at a flat rate of 25% of the contractual order value, unless the contract partner provides proof of lower losses or we provide proof of higher losses.
5.3 Our contract partner may only assert a right of retention if it is based on the same contractual relationship. It shall only have the right to set off if we have recognised the counterclaim or it has been established with legally binding effect.
6. Retention of ownership
6.1 The subjects of the deliveries (goods subject to retention of title) shall remain our property until all claims to which we are entitled against our contract partner that stem from the business relationship have been settled. This shall also apply if the purchase price has been paid for specifically designated goods deliveries. Insofar as the value of all security rights to which we are entitled exceeds the amount of all secured claims by more than 10% (if a utilisation risk exists by more than 50%), at our contract partner’s request we shall release a corresponding portion of our security rights, according to our choice.
6.2 During the existence of the retention of ownership the contract partner shall be prohibited from pledging or assigning as security and shall only be permitted to resell the goods in the normal course of business and only subject to the condition that until payment has been made in full the contract partner shall deliver the goods to its customer only subject to effectively agreed retention of ownership.
6.3 For the event the contract partner resells goods subject to retention of title, it assigns to us as security already now its future receivables from the resale against its customers with all ancillary rights, including any balance claims. We hereby accept that assignment. For the event the goods subject to retention of title are resold together with other items, without an individual price having been agreed for the goods subject to retention of title, the contract partner assigns to us the portion of the total price claim that corresponds to the price of the goods subject to retention of title invoiced by us, with priority over the remainder of the claim.
6.4 Our contract partner shall promptly notify us in the event of attachments, seizures or other disposals or interventions of third parties.
6.5 In the event of a breach of obligation by our contract partner, particularly in the event of a delay in making payment, after the ineffective lapse of a reasonable additional time limit set by us, we shall have the right to rescind the contract and take back the goods. Our contract partner shall be obliged to surrender them.
6.6 In the event the goods are processed/connected/combined with other goods that do not belong to us by our contract partner, the provisions of Articles 947, 948 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) shall apply, with the consequence that our co-ownership share in the new item shall now be deemed goods subject to retention of title in the meaning of this provision.
7.1 Claims for defects of the contract partner shall be subject to the precondition that it has properly fulfilled its inspection and complaint obligations under Article 377 of the German Commercial Code (Handelsgesetzbuch – HGB).
7.2 Insofar as there is a defect in the purchased goods, according to our choice we shall have the right to either render a supplementary performance in the form of elimination of the defect or deliver a new defect-free item. In the event of the elimination of defects, we shall be obliged to bear all expenses necessary for the purpose thereof, particularly transport, travel, labour and material costs, provided that they do not increase due to the purchased goods being relocated to a location other than the place of performance.
7.3 If the supplementary performance fails, the contract partner shall have the right, according to its choice, to either rescind the contract or demand a price reduction.
7.4 We shall be liable in accordance with the provisions of law insofar as the contract partner asserts claims for compensation for losses based on wilful misconduct or gross negligence, including wilful misconduct or gross negligence of our representatives or vicarious agents. Insofar as we are not accused of an intentional breach of contract, the liability for compensation for losses shall be limited to the foreseeable losses that typically occur.
7.5 We shall be liable in accordance with the provisions of law insofar as we culpably breach a key contractual obligation. Key obligations are, in particular, obligations whose fulfilment enables the correct performance of the contract, upon whose fulfilment the contract partner therefore relies and can rely. However, in the event of a violation of a key obligation, the liability for compensation for losses shall be limited to the foreseeable, typically occurring losses.
7.6 Insofar as the contract partner is entitled to compensation for losses in lieu of the performance, our liability shall also be limited within the framework of section 7.3 to compensation for the foreseeable, typically occurring losses.
7.7 The liability due to culpable loss of life or injury to the body or health remains unaffected. This also applies for the mandatory liability under the German Product Liability Act (Produkthaftungsgesetz).
7.8 Unless provided otherwise in 7.4 to 7.7 above, liability is excluded.
7.9 Claims for defects (except for claims for compensation for losses) for new delivered goodsshall expire by time limitation in 12 months. This shall not apply if the provisions of law prescribe longer time limitation periods under Article 479.1 (recourse claim). Unless otherwise agreed in an individual case, claims of the contract partner due to material defects in used goods delivered to it are excluded.
7.10 Claims for defects shall not exist in the event of an insignificant deviation from the agreed quality/characteristics, in the event of only an insignificant impairment of usability, in the event of natural wear and tear/deterioration or damage that occurs after the transfer of risk as a result of incorrect or negligent treatment, excessive strain, incorrect installation/commissioning, unsuitable operating equipment or extraordinary external influences which are not assumed under the contract, insofar as the damage is not attributable to intentional or grossly negligent conduct on our part. If inappropriate changes or repairs are carried out by our contract partner or third parties, no claims for defects shall exist for them and the resulting consequences either. A further precondition for claims for defects is that the subject of the delivery be properly maintained, in accordance with the regulations or our operating instructions, and correctly operated by our contract partner.
7.11 Statutory recourse claims of our contract partner against us shall only exist insofar as our contract partner has not made any arrangements with its customer that go beyond the statutory claims for defects and promptly notifies us of the assertion of the claim in writing. The recourse claim shall be forfeit if the contract partner makes acknowledgements with respect to its customer or concludes settlements without being explicitly authorised by us in writing to do so. For the handling of our contract partner’s recourse claim against us, section 7.2 also applies accordingly.
8. Total liability
8.1 Any further liability for compensation for losses beyond that provided for in section 7 is excluded, irrespective of the legal status of the asserted claim. This particularly applies for claims for compensation for losses due to culpability upon the conclusion of the contract, due to other breaches of obligation or due to tortious claims to compensation for property damage in accordance with Article 823 BGB.
8.2 The limitation under paragraph 1 also applies insofar as the contract partner demands compensation for needless expenses in lieu of the performance instead of asserting a claim for compensation for the losses.
8.3 Insofar as liability for compensation for losses is excluded or limited, this shall also apply with respect to the personal liability for compensation for losses of our employees, workers, representatives and vicarious agents.
8.4 Insofar as the contract partner is entitled to claims for compensation, they shall expire by time limitation in accordance with the provisions of law.
9. Place of jurisdiction and applicable law
9.1 The place of jurisdiction for all disputes between the parties that indirectly or direct arise from the contractual relationship is the location of the company’s registered office. However, we shall also have the right to take legal action at the location of our contract partner’s registered office.
9.2 The place of performance is Elmshorn, unless stated otherwise in the order confirmation.
9.3 German substantive law applies for the legal relationships in connection with this contract. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
9.4 We advise our contract partner that we will store its personal and company data in accordance with the provisions of the General Data Protection Regulation.
10. Final provisions
Should a provision of these General Terms and Conditions of Business be or become void, ineffective or unenforceable, the effectiveness of the other provisions hereof shall not be affected.