General Terms and Conditions of
Promedon GmbH Germany
Version: October 2023
1.Aplication Scope
(1) These General Terms and Conditions of Sale (GTCS) shall apply to all our business relations with our customers ("Buyer"). The GTCS shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GTCS shall apply in particular to contracts for the sale and/or delivery of movable goods ("Goods"). Unless otherwise agreed, the GTCS shall apply in the version valid at the time of the Buyer's order or, in any case, in the version last notified to the Buyer in text form. It shall also apply to similar future contracts without us having to refer to them again in each individual case.
(3) Our GTCS shall apply exclusively. Deviating, contradictory or supplementary general terms and conditions of the purchaser shall only become an integral part of the contract if and to the extent that we have expressly consented to their validity. This requirement of consent shall apply in any case, e.g. even if we deliver to the purchaser without reservation with knowledge of the delivery.
(4) Individual agreements concluded with the Buyer in individual cases (including side agreements, supplements and amendments) shall in any event prevail over these GTCS. In the absence of proof to the contrary, the written contract or our written confirmation shall be decisive for the content of such agreements.
2.Contract Conclusion
(1) Our offers are subject to change and they are non-binding.
(2) The order of the goods by the Buyer shall be deemed to be a binding offer of contract. Unless otherwise order, we are entitled to accept this offer of contract within 5 days of its receipt by us.
(3) Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.
3. Delivery time and delivery delay
(1) The delivery period shall be agreed individually or stated by us upon acceptance of the order. If this is not the case, the delivery period is approx. 5 working days from the conclusion of the contract.
(2) If we are unable to meet the binding delivery deadlines for reasons for which we are not responsible (non-availability of the goods), we shall inform the purchaser thereof without delay and at the same time inform them of the new planned delivery deadline. If the service also meets this delivery time, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the purchaser. A case of non-availability of the service in this respect, the failure of our supplier to deliver on time, shall be deemed a case of non-availability of the service in this respect. If we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or are not obliged to procure in the specific case.
4. Delivery
(1) Delivery shall be made ex warehouse, which is also the place of performance for the delivery and any subsequent supplementary performance. At the request and expense of the Buyer, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
5. Transfer of risk, acceptance and default of acceptance
(1) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest at the time of delivery. However, in case of sale by delivery at a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, shall pass to the buyer at the time of delivery of the goods to the carrier, the freight forwarder or any other person or institution appointed to carry out the shipment.
(2) If the purchaser is in default of acceptance, we shall be entitled to demand compensation for the including additional costs (e.g. storage costs). For this purpose, we shall charge a flat-rate compensation in the amount of EUR 25.00 per calendar day from the delivery date or - in the absence of a delivery date - upon notification that the goods are ready for delivery.
Proof of a higher damage and our legal claims (in particular, compensation for additional expenses, reasonable compensation, rescission) shall remain unaffected. The buyer shall be entitled to prove that we have not suffered any damage or that the damage is significantly less than the damage suffered.
6. Prices and payment conditions
(1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract, ex warehouse, plus the statutory value-added tax shall apply.
(2) In the event of sale by delivery to a place other than the place of performance, the buyer shall bear the costs of transport ex warehouse and the costs of any transport insurance requested by the buyer. All customs duties, taxes, duties, taxes and other public charges shall be borne by the purchaser.
(3) The purchase price shall become due and payable within 30 days after invoicing and delivery or acceptance of the goods. However, we are entitled at any time, also within the framework of an ongoing business relationship, to deliver in whole or in part only against advance payment.
We shall declare a corresponding reservation at the latest upon confirmation of the order.
(4) The Buyer shall only be entitled to rights of set-off or retention to the extent that its claim has been legally established or is undisputed.
7. Preservation of the property title
(1) Until all our present and future receivables arising from the purchase contract and from an ongoing business relationship (secured receivables), we retain ownership of the goods sold.
(2) Goods subject to retention of title may not be pledged to third parties or assigned as security prior to full payment of the secured claims. You must notify us in writing without delay if: the opening of insolvency proceedings is requested, if insolvency proceedings are opened or if third parties (e.g. attachments) have access to the goods belonging to us.
8. Warranty
(1) The statutory provisions shall apply to the purchaser's rights in the event of material defects and defects of title, unless otherwise stipulated below.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions and manufacturer's specifications which are the subject of the individual contract or which were publicly announced by us (in particular in catalogues or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods.
(3) Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether or not there is a defect (Section 434 (1) sentences 2 and 3 BGB).
(4) If the delivered item is defective, we may first choose whether to provide supplementary performance by remedying the defect (repair) or by delivering an item free of defects (replacement). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(5) We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in relation to the defect
9. Incoming goods inspection/notification of defects
(1) The purchaser's claims for defects presuppose that he has fulfilled his statutory obligations to inspect and notify defects (§§ 377, 381 HGB). The customer must notify us in writing or in text form of any recognizable material defects immediately, but no later than 7 calendar days after collection of the delivery from the factory or place of storage, or after delivery; hidden material defects must be notified within the same period after discovery, but no later than within the warranty period of 12 months from the day of transfer of risk.
If the purchaser fails to properly inspect the goods and/or fails to notify us of defects, we shall not be liable for a defect which has not been notified in time or which has not been duly notified in accordance with statutory provisions.
10. Other liability
(1) Insofar as nothing to the contrary arises from these GTCS including the following provisions, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We shall be liable for damages - irrespective of the legal grounds - within the scope of fault liability in the event of intent and gross negligence.
In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. due care in own affairs; insignificant breach of duty), only when:
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (the fulfillment of which is a prerequisite for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to the compensation of the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall also apply in the event of a breach of obligations by or in favor of persons for whose fault we are liable in accordance with statutory provisions. They shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods warranty for the quality of the goods and for claims of the purchaser in accordance with the Product Liability Act.
11. Limitation
(1) In deviation from § 438 paragraph 1 no. 3 BGB (German Civil Code), the general period of limitation for claims for material defects and defects of title shall be one year from delivery or transfer.
12. Choice of applicable law and jurisdiction
(1) These GTCS and the contractual relationship between us and the Buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction - including international jurisdiction - for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in 83059 Kolbermoor.
However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTCS or a prior individual agreement or at the general place of the purchaser. Mandatory statutory provisions, in particular those relating to exclusive jurisdiction, shall remain unaffected.