Terms and conditions
General Terms and Conditions of ProTech GmbH (as of 01.2022)
(1) Our offers, deliveries and services are expressly made on the basis of the following terms and conditions. These shall also apply to all future business relations, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted at the latest upon receipt of the goods or services. Counter-confirmations of the buyer with reference to his terms and conditions are hereby expressly rejected. Deviations from our terms and conditions shall only be effective if confirmed by us in writing. 2.
(2) we point out that we process data of the buyer which concern the business transactions with him in the sense of the Federal Data Protection Act.
(3)we are entitled to assign the claims arising from our terms and conditions.
II Offer and conclusion of contract
(1) Unless expressly stated otherwise, our offers are subject to change without notice. Samples and specimens are non-binding framework specifications. Contracts and agreements shall only become binding upon our written order confirmation or upon our delivery, whereby in the latter case the invoice shall replace the order confirmation.
(2) our advice regarding the application or use of our products – verbally and/or in writing – is non-binding – also with regard to any third-party industrial property rights – and does not release the buyer from his own examination of our products for their suitability for the intended processes and purposes.
III Data and documents
(1) Technical documents such as drawings, descriptions, illustrations, any specifications of dimensions, properties or weights as well as references to standards are for information purposes and do not include any warranties of properties. ProTech reserves the right to make corresponding changes where it appears appropriate in the sense of technical progress. The same applies to corresponding information in documents, price lists and advertising brochures, etc. (2) All technical documents remain the intellectual property of ProTech and may only be used for the purposes agreed upon or specified by ProTech.
Our prices are ex works plus freight and value added tax, insurance and other ancillary costs unless otherwise agreed. The prices valid on the day of dispatch shall be decisive. If these have increased compared to the time of the conclusion of the contract, the buyer is entitled to withdraw from the order within 14 days after notification of the price increase; the right of withdrawal does not exist if the price increase is based on a change in the value added tax.
(2) Unless expressly stated otherwise, prices are subject to change and are based on current cost factors. If changes in the cost factors occur up to the delivery date, e.g. due to price increases for raw materials or wage increases, we reserve the right to adjust our prices accordingly. 3.
For orders for which no prices have been agreed, our prices valid on the day of delivery shall apply. 4.
4. the sales prices, as well as all offers and calculations, are in EUR, unless expressly agreed otherwise.
IV. Terms of payment
1. unless otherwise agreed in individual contracts concerning the method of payment, the following shall apply: Payment within 10 days with 2% discount, within 30 days net cash after date of invoice. A cash discount shall only be granted on condition that all payment obligations from previous deliveries have been met in full. Payment shall be made irrespective of any notices of defects. 2.
2. offsetting by the buyer with counterclaims is excluded unless the counterclaims are undisputed or have been legally established. The assertion of a right of retention by the buyer is excluded unless it is based on the same contractual relationship or the counterclaims are undisputed or legally established. 3.
If the payment deadline is exceeded, default shall occur without prior reminder. The buyer shall also be deemed to be in default if he fails to pay in response to a reminder sent after the purchase price has become due. As damage caused by default – from the first day of default – interest on arrears can be calculated in accordance with § 288 BGB and asserted accordingly. ProTech GmbH expressly reserves the right to claim further damages. 4.
In the event of default in payment, all outstanding invoices or bill amounts shall be immediately due and enforceable. In the event of non-compliance with the terms of payment or in the event of circumstances which are likely to reduce the creditworthiness of the buyer, we shall be entitled to demand immediate payment of all our claims, irrespective of the term of bills of exchange accepted and not yet due. Furthermore, we are entitled to carry out outstanding deliveries only against advance payment or provision of security. If advance payments or securities are not provided even after setting a reasonable deadline, we shall be entitled to withdraw from the contract with regard to services not yet performed, with the consequence that all claims of the buyer with regard to the deliveries not yet performed shall expire. 5.
5. we are entitled to set off all our claims against the buyer against all claims which the buyer has against us by virtue of delivery or for other legal reasons.
6. in the case of tool orders, it shall also apply that 50% of the total order value shall already be paid when the order is placed and the remaining 50% at the latest when the sample is approved.
V. Retention of title and further securities
(1) The delivered goods shall remain our property until payment of all claims arising from the business relationship. The retention of title shall also remain in force if our claims are included in a current account or the balance is struck and recognised. 2.
The buyer is entitled to dispose of the goods which are our property in the ordinary course of business as long as he fulfils his obligations from the business relationship with us in good time. Pledges or transfers of ownership by way of security are not permitted. 3.
If our goods are processed by the buyer, we shall be deemed to be the manufacturer and shall acquire ownership of the newly created goods. If the processing is carried out together with other materials, we shall acquire co-ownership in the ratio of the invoice value of our goods to that of the other materials. 4.
4. if, in the event of our goods being combined or mixed with an item belonging to the buyer, the latter is to be regarded as the main item, co-ownership of the item shall pass to us in the ratio of the invoice value of our goods to the invoice value – or in the absence of such – to the market value of the main item. In such cases, the buyer shall be deemed to be the custodian. 5.
In the event of conduct by the buyer in breach of contract – in particular default of payment – we shall be entitled to take back the goods subject to retention of title or, if applicable, to demand the assignment of the buyer’s claims for return against third parties. Our taking back or seizure of the goods subject to retention of title does not constitute a withdrawal from the contract. 6.
6. all claims arising from the sale of goods to which we are entitled to ownership rights are hereby assigned to us by the buyer by way of security to the extent of our ownership share in the sold goods.
At our request, the buyer shall provide us with all necessary information on the stock of goods owned by us and on the stock of all claims assigned to us from the sale of goods to which we are entitled to ownership rights, as well as inform his customers of the assignment. If the value of the securities exceeds our claims by more than 20%, we shall release securities of our choice at the request of the buyer. 8.
8. the buyer shall adequately insure the goods subject to retention of title against fire and theft. Claims against the insurance company arising from a case of damage are already now assigned to us in the amount of the value of the goods subject to retention of title.
VI Delivery time, delay in delivery
Binding delivery dates require our express agreement. We are entitled to make partial deliveries and render partial services at any time. We may issue partial invoices for the corresponding deliveries or services. 2.
2. compliance with our delivery and performance obligations requires the timely and proper fulfilment of the buyer’s obligations. 3. unforeseen operating expenses shall be borne by the buyer.
3. unforeseen operational disruptions, delivery delays or delivery failures on the part of our suppliers, shortages of labour, energy or raw materials, strikes, lockouts, difficulties in procuring means of transport, traffic disruptions, official decrees and cases of force majeure shall release us from the obligation to deliver for the duration of their effects. We shall inform the buyer immediately of the occurrence of such a case. If delivery is delayed by more than one month as a result, the buyer shall be entitled to withdraw from the contract with regard to the quantity affected by the disruption in delivery, to the exclusion of all further claims. 4.
4. our obligation to deliver shall be suspended as long as the buyer is in default with a due payment. If the goods are to be accepted gradually within a certain period of time, the acceptance shall be distributed evenly over the entire period. There shall be no claim to subsequent delivery of such quantities for which the buyer is more than 14 days in arrears with the call-off or acceptance. The same shall apply to quantities which we have not delivered due to arrears in payment by the buyer. Our other rights are not affected by this. 5.
In the event that the delivery period is culpably exceeded, the buyer may, to the exclusion of further rights, withdraw from the contract or claim damages after the expiry of a reasonable period of grace to be set by him in writing. However, claims for damages by the buyer due to delay and/or non-performance shall be limited in amount to the invoice value of the quantity of goods not delivered or not delivered on time, unless we have unlimited liability due to intent or gross negligence in accordance with mandatory statutory provisions. 6.
6. goods notified as ready for dispatch must be called off immediately after expiry of the delivery period; if this does not happen, we shall be entitled to dispatch them at our discretion or to store them at the buyer’s expense and risk; the same shall apply if dispatch cannot be effected for reasons for which we are not responsible. Upon notification of readiness for dispatch, the goods shall be deemed to have been delivered and may be invoiced. 7.
The type of transport, the means of transport, the transport route as well as the type and scope of the required means of protection and the selection of the forwarding agent or carrier as well as the packaging shall be left to our choice unless expressly agreed otherwise in writing. This shall be done at our discretion and with due diligence, excluding any liability. The goods shall only be insured at the express request of the buyer, and at the buyer’s expense. 8.
8. partial deliveries are permissible. We shall be entitled to over- and under-deliver by 10 % in terms of quantity, and by 20 % in the case of custom-made products, against payment.
VII Transfer of risk
(1) Unless otherwise agreed, the risk shall in any case pass to the buyer upon handover to the forwarder or carrier, but no later than upon leaving the factory or the warehouse.
Complaints about incomplete, defective or incorrect deliveries must be made in writing without delay and at the latest within 10 days of receipt of the goods, with reference to the obligation to notify us of defects. Otherwise the deliveries shall be deemed to have been approved.
VIII. Claims for defects
For material defects and defects of title in the delivery, we provide a warranty as follows, to the exclusion of further claims – subject to Section IX:
1. material defects
a. All parts or services which show a material defect within the limitation period shall be repaired or replaced free of charge at our discretion, provided that the cause of the defect already existed at the time of the transfer of risk. Recognisable defects must be reported upon arrival of the goods at the agreed unloading point, but no later than 5 days after receipt of our goods. Complaints received later cannot be accepted. In the event of notices of defects, payments by the buyer may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The buyer may only withhold payments if a notice of defect is asserted about whose justification there can be no doubt. If the notice of defect is unjustified, we shall be entitled to demand reimbursement of the expenses incurred by us from the buyer itself.
b. We shall first be given the opportunity to remedy the defect within a reasonable period of time. If the subsequent performance fails, the purchaser may – without prejudice to any claims for damages pursuant to Section IX – withdraw from the contract or reduce the remuneration.
c. Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain or unsuitable operating materials. We are entitled to reject complaints if the buyer has not presented the defective part to us within 4 weeks of being requested to do so; this does not apply if the presentation of the part should not be possible due to its nature or the way in which it is fitted, etc.
d. Claims by the buyer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses are increased because the object of the delivery was subsequently brought to a location other than the buyer’s branch office, unless the transfer corresponds to its intended use.
e. The buyer’s right of recourse against us pursuant to § 478 of the German Civil Code (recourse of the entrepreneur) shall only exist insofar as the buyer has not entered into an agreement with its customer which goes beyond the statutory claims for defects. The above shall apply accordingly to the scope of the right of recourse against us pursuant to § 478 para. 2 BGB.
2. defects of title
a. If we have to deliver according to drawings, models, samples or by using parts provided by the buyer, the buyer shall be responsible for ensuring that industrial property rights of third parties in the country of destination of the goods are not infringed thereby. We shall inform the buyer of any rights known to us. The buyer shall indemnify us against claims of third parties and pay compensation for the damage incurred. If we are prohibited from manufacturing or delivering by a third party with reference to an industrial property right belonging to him, we shall be entitled – without examining the legal position – to stop work until the legal position has been clarified by the buyer and the third party. Should the continuation of the order no longer be reasonable for us due to the delay, we shall be entitled to withdraw from the contract.
b. Unless otherwise agreed, we are obliged to make the delivery free of industrial property rights and copyrights of third parties only in the country of the place of delivery. If the use of the delivery item leads to the infringement of industrial property rights or copyrights, we shall in principle procure the right to further use for the buyer at our expense or modify the delivery item in a manner that is reasonable for the buyer in such a way that the infringement of property rights no longer exists.
c. If this is not possible under economically reasonable conditions or within a reasonable period of time, the buyer shall be entitled to withdraw from the contract. Under the aforementioned conditions, we shall also be entitled to withdraw from the contract.
d. Furthermore, we shall indemnify the buyer against undisputed or legally established claims of the owners of the property rights concerned.
e. The obligations of us mentioned in paragraph d. are, subject to section IX, conclusive for the case of infringement of industrial property rights or copyrights. They shall only exist if
– the buyer informs us immediately of any asserted infringements of industrial property rights or copyrights,
– the buyer supports us to a reasonable extent in the defence against the asserted claims or enables us to carry out the modification measures in accordance with paragraph b, all defence measures including out-of-court settlements remain reserved to us,
– the defect of title is not based on an instruction or special specification of the buyer
– the infringement of rights was not caused by the fact that the buyer modified the delivery item without authorisation or used it in a manner not in accordance with the contract or is otherwise responsible for the infringement of property rights.
IX. Copyrights and industrial property rights, moulds and tools
1. we reserve all property rights and copyrights to drawings, samples and similar information; they may only be made accessible to third parties with our prior consent.
2. we claim the right of exclusive production for the corresponding articles in any case for designs, drawings and tools produced by us. Passing on and copying of these documents as well as the tools, exploitation and communication of their contents are not permitted unless expressly granted. Any infringement shall give rise to an obligation to pay damages. All rights are reserved in the event of patents being granted and for utility model registrations. The buyer shall guarantee that the manufacture and delivery of items produced according to his specifications do not infringe the industrial property rights of third parties. Moulds, templates and other devices remain our sole property, unless otherwise agreed, even if costs are charged to the purchaser. 3.
Insofar as we manufacture or procure models, moulds, tools and other moulding equipment on behalf of the customer, we shall invoice part of the costs for this separately. Since these proportionate costs do not cover our expenses for design, construction, running-in or know-how and maintenance, the models and moulds as well as tools including accessories remain our property. The same applies to modifications as well as to replacement models and tools and subsequent moulds. Tooling, mould costs, etc. are payable plus the statutory value added tax upon invoicing. If 5 years have elapsed since the last delivery of the articles manufactured from them, we shall not be obliged to store them any longer.
X. Data protection according to DSGVO
1 ProTech processes the personal data concerning you for the fulfilment of the contract or for the implementation of pre-contractual measures as well as for consulting, information and marketing purposes. Without this data, ProTech cannot conclude or fulfil the contract with you and cannot pass on its claim of high service quality to you.
2. in order to fulfil the above-mentioned purposes, it is necessary to pass on your personal data to internal and external service providers (authorities and public bodies, banks, insurance companies, transport and delivery services). The aforementioned third parties are commissioned by ProTech as order processors within the meaning of Art. 28 DSGVO and are obliged to guarantee data security in accordance with Art. 24 and 32 DSGVO.
Your data will only be processed within the EU. 4.
4. proTech stores the personal data concerning you exclusively within the scope of legal obligations.
5. every customer who discloses personal data to ProTech has a right to information according to Art. 12/13 DSGVO, information according to Art. 15 DSGVO as well as to correction or deletion of personal data and restriction of processing according to DSGVO. In the event of a complaint, you can contact the competent authority. To satisfy your data subject rights, please use the following e-mail address: firstname.lastname@example.org
XI. Place of jurisdiction and miscellaneous
1. the place of jurisdiction for all claims and liabilities of the parties, including claims based on bills of exchange and cheques, irrespective of the place of payment, shall be, at our discretion, the registered office of the company or Munich, irrespective of the amount in dispute.
2. if the contracting party ceases payment or if insolvency proceedings are instituted against its assets or out-of-court composition proceedings are applied for, ProTech shall be entitled to withdraw from the contract for the non-fulfilled part.
The contractual relationship shall be governed exclusively by German law, in particular by the German Civil Code and the German Commercial Code. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 is excluded.
© 2022 ProTech GmbH.
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Am Ziegelplatz 14
T. +49 781 96510
F. +49 781 965151