Terms & Conditions
General Terms and Conditions
Area of application
These terms and conditions apply to companies, legal persons under public law, and public special estates. (Germany)
I. General
1. With respect to the manner and scale of deliveries and services, the order confirmation of the contractor – Prowerb GmbH – is definitive.
2. For each contract of employment and service concluded with us, our terms and conditions alone will apply. The customer’s terms and conditions of purchase and business are not an integral part of the contract. Silence on our part with respect to the customer’s terms and conditions of business and purchasing should not be regarded as approval. With repeated business dealings, these terms and conditions will also apply without direct reference to future business. They are also available to the customer in their current wording at http://www.prowerb.de.
3. Any terms and conditions of the customer at variance with these general terms and conditions of delivery and business as well as any verbal side agreements will only apply if we have declared our approval in writing. Agreed deviations will not apply to future orders.
4. Subsequent alterations resulting from incomplete documents, details, or measurements on the part of the customer or third parties will be invoiced separately.
5. The wages are calculated on the basis of a weekly working time of 39.5 hours. Any overtime, nights, Sundays, or holiday hours accruing will be settled separately.
6. It is incumbent on the customer to comply with the statutory and administrative regulations.
II. Electronic data exchange
1. The contracting parties are entitled to issue, communicate and exchange statements and messages through electronic channels. The communicating party must be recognizable. The latter bears the risk for the loss and the accuracy of the data communicated.
2. If the contractor should set up a common interface linking the two data systems, the customer will reimburse him for the expenditure required. Each party is under obligation to implement the customary security and control measures in order to protect the electronic data exchange from third-party access and to prevent the modification, loss, or destruction of electronically communicated data.
3. For the receipt of information, statements, and inquiries pertaining to the implementation of the contract, each party will designate one or more contacts and communicate the names and contact addresses to the other party. If a contact person is not designated, the person who has concluded the contract will be deemed the person to contact.
4. Electronically or digitally produced documents are equivalent to written documents.
III. Confidentiality
1. Each party is under obligation to treat as confidential any data and information that is not publicly accessible and to use it solely for its intended purpose. Data and information may only be forwarded to third parties provided that this is required in connection with performing the contract. The same principles apply to the confidentiality of electronic data and information.
2. Data and information that must be disclosed to third parties, especially authorities, as a result of legal obligations will be exempt from the confidentiality obligation.
IV. Customer’s duty to cooperate
1. The customer is under obligation to provide the objects, information, and rights required for the contractual execution and to perform any acts if cooperation, in particular to provide special products and materials, informing the contractor about specific peculiarities of the goods and procedures and any associated statutory, official, or professional conditions.
2. These advance services and acts of cooperation must be rendered on time and completely.
V. Adaptation of contract
1. Agreements on prices and services only relate to the services specified by name and to an essentially unchanged volume of goods, orders, and quantities. They assume unchanged data processing requirements, quality agreements, and procedural instructions on the one hand and unchanged energy and payroll costs on the other.
2. If the conditions described under 1 should change, either contracting party may request negotiations with a view to adapting the contract with effect from the first day of the month following the adaptation request, unless the changes were already known to the requesting party at the time when the contract was concluded. The adaptation of contract must be oriented toward the identifiable changes.
VI. Prices
1. The prices stated in our quotation will remain valid for 6 weeks from the date of issue and are understood to be ex works Kleve plus VAT at the current statutory rate. Our pricing assumes that all the services offered are performed and that uninterrupted production is guaranteed. Any notification of our prices to third parties is not permitted.
2. The prices include free storage of the goods and materials entrusted to us for processing for 3 days until the start of production. Long periods of storage will be invoiced separately.
3. Any additional work not previously agreed will be calculated by basing the actual labor and machine hours incurred on our company’s hourly rates.
VII. Payments
1. The payment of the invoice total will be due immediately without deduction for job and service orders, to the exclusion of setoff and retention, and should be remitted to one of the specified bank accounts.
2. Rediscountable bills of exchange will only be accepted as payment in exceptional circumstances after prior agreement, as will checks. Discount charges will be borne by the customer and must be paid immediately, whereby the granting of discount is precluded. With extraordinary material, postage, and freight volumes, the contractor will be entitled to demand appropriate advance payment.
3. If the invoice is not paid within the period stipulated, the contractor will reserve the right to charge from the due date interest on arrears to the amount of 4% above the ECB bank rate.
4. The sustained non-compliance with our payment terms or the revelation of circumstances that cast serious doubt on the customer’s creditworthiness will result in our accounts receivable becoming instantly due. In addition, we will be entitled in this instance to make outstanding deliveries and services dependent on advance payment or the provision of appropriate securities.
VIII. Terms of delivery
1. Though we make every effort to observe the production and delivery deadlines specified in the confirmation of order, we are unable to accept warranty in this matter. Part deliveries will be permissible and be deemed a separate transaction.
2. The term for delivery will commence with the day on which the agreement on the order between the customer and ourselves exists in writing. Compliance with the term for delivery assumes that all the documents or materials required from the customer are received on time. If these conditions are not met as contractually agreed, the term for delivery will be extended appropriately.
3. If we are prevented from meeting our delivery obligation by force majeure, industrial disputes, or other unforeseeable circumstances, the term for delivery will be extended appropriately if the delivery or service does not become impossible. The exceeding of the deadline will not entitle the customer to cancel the order. Any claim for damages will be out of the question.
IX. Palletization
1. The contractor or a third-party commissioned by him will keep a pallet account of the pallets and cover plates in his possession on behalf of the customer. This will provide information about the stock of pallets and any changes to it. The customer will receive a statement of the pallet account upon request for balance reconciliation purposes. The account records will be maintained on the basis of shipping documents. The customer must acknowledge the pallets received on each occasion.
2. With every delivery of palletized goods, the customer must return to the contractor as a condition precedent the same number of equivalent pallets that he has received. Pallets not returned or damaged will be invoiced.
X. Lien and right of retention, reservation of title
1. With respect to any accounts receivable, due or not due from the customer, the contractor will be entitled to a lien and right of retention over the goods or other tangibles found in his power of disposal. The customer will be entitled to prohibit the exercise of the lien if he grants the contractor an equivalent means of security.
2. The goods manufactured and processed by the contractor will remain in his possession until any claims against the customer arising from the current business relationship are satisfied.
3. The customer will be entitled to sell on the goods to third parties in the course of normal business. The customer will hereby assign in advance the purchase price claim against the third party to the amount of the invoice total due to the contractor. He will be authorized to collect the assigned claim as long as he meets his contractual payment obligation.
3. Attachment and confiscation of the reserved goods by a third party must be reported to the contractor immediately. Any intervention costs thereby incurred will be borne by the customer.
XI. Coverage of risks
1. With respect to the goods or materials surrendered to us for handling or processing or storage, we promise to exercise due diligence and care, although we assume that the customer will have insurance covering breakage, return transport, theft, storm, water and fire damage. At the customer’s request, this type of insurance may also be covered by us. The costs will be borne by the customer.
2. The goods or materials surrendered to us can only be checked with respect to their completeness from the number of pallets or packages supplied. Damage or shortfalls within the individual boxes will be communicated to our customer upon becoming known, at the earliest when the boxes are unpacked for processing. Any damage and/or shortfalls determined will not be charged to our account. Shipment will occur at the customer’s risk. The choice of transport will be at our discretion.
3. With the loading of the goods onto private vehicles or surrendering them to a forwarding agent or other freight carrier, the risk of damage or ruination of the goods will devolve to the customer. Our service will be deemed to have been approved if the bill of lading on which the invoiced is based is not queried in writing within 8 days.
4. While the contractor will comply with the forwarding instructions, he will not accept liability for the most favorable manner of shipment.
XII. Contractor’s right of immunity
The customer must release the contractor and his vicarious agents from all claims of third parties under the Product Liability Act and other third-party protection provisions, unless the contractor or his vicarious agents have brought about the third-party claim through reckless or willful behavior.
XIII. Warranty, liability
1. The contractor guarantees that the objects manufactured by him are free from all defects in accordance with the current state of the art – which guarantee is limited for packing orders to the service rendered by him – and will undertake to either re-supply these at no extra cost or to repair them, as he sees fit, if they have been proven to be unusable or seriously impaired in their usefulness as a result of his negligence.
2. The warranty does not extend to outside products. Hence the contractor will not be liable for material defects which were determined before, during, or after the handling or processing. Likewise he will not be liable for damage that might arise on the basis of incomplete or inexact details from the customer about the properties and quality of the processed materials or finished products. Damage due to force majeure and all events not open to the contractor’s influence are excluded from the warranty.
3. With other legitimate defects recognized by us, we are under obligation to rectify them, reduce the purchase price, or provide a replacement with non-defective merchandise. All further claims on the part of the customer, in particular claims for damages, will in any event be expressly precluded. The remedying of defects will be denied until the obligation arising from the contract of sale is met.
XIV. Place of performance and jurisdiction
1. Place of performance for deliveries and payments is Kleve.
2. Jurisdiction is Kleve.
XV. Effectiveness of the contract
1. The ineffectiveness of individual contractual items will not affect the continuing validity of the remaining
contractual provisions.
Status: December 2006