§ 1 General/area of validity
§ 5 Transfer of risk and place of performance
- These terms of trade apply to all business transactions between the contractual parties at present and in the future.
- Consumers in the sense of these terms of trade are natural persons who conduct business transactions with Promodoro, yet to whom no commercial or self-employed profession can be ascribed. Traders in the sense of these terms of trade are natural persons or legal entities or legally capable private companies who conduct business transactions with Promodoro and exercise a commercial or self-employed profession in doing so. Customers in the sense of these terms of trade are both consumers and traders. As Promodoro does not supply end consumers, thus consumers in the sense of the newly applicable debt law, no special regulations for consumers are made below. The descriptions of the nature of consumers, traders and customers given above serve insofar solely to legally differentiate between the groups of persons named in the act governing the new debt law.
- Deviating, contradictory or supplementary general terms of trade are not part of the contract, even if such are known, unless their application has been expressly agreed in writing.
- The offers made by Promodoro are non-binding. Declarations of acceptance, orders and other legal declarations must be confirmed by Promodoro in writing or by fax to be valid. The same applies to supplements, amendments or auxiliary agreements. Confirmation can be replaced by delivery of the goods ordered.
- Drawings, figures, dimensions, weights or other performance data are not binding unless this has been expressly agreed in writing. Changes to form, colour and / or weight within the bounds of reason are reserved.
- Promodoro's sales staff are not authorised to make verbal, auxiliary agreements or to give verbal assurances.
- If customers order goods by electronic means, the contractual text is stored by Promodoro. Customers can also inspect these conditions on Promodoro's homepage, under the header "General Terms of Trade", via which the order is made.
- Provided nothing is arranged to the contrary, Promodoro is bound by the prices quoted in its offers for 30 days after their date of issue. The prices which apply are those quoted by Promodoro in its confirmation of order, plus value-added tax at the prevailing rate. Additional deliveries and services shall be invoiced separately.
- Unless agreed otherwise, the prices are EX-stores including normal packaging.
- Customers incur no added charges when ordering by means of remote communication.
- Delivery dates or deadlines are not regarded as agreed unless the agreement is made in writing.
- Promodoro is not responsible for delays to deliveries and services due to acts of God, or to events which make the delivery considerably more difficult or impossible for the seller (in particular strikes, lockouts, official decrees), even if deadlines or dates have been bindingly agreed. The same applies if such an event occurs at suppliers of Promodoro or their upstream suppliers. In such cases, Promodoro is entitled to extend the delivery or service period by the time taken for the hindrance to be removed, plus a reasonable start-up time, or to withdraw in part or in full from that part of the contract which has not yet been fulfilled.
- Contracts are concluded under the reservation that Promodoro receives correct and punctual deliveries from its suppliers. This only applies to cases in which Promodoro is not culpable for the non-delivery, in particular if a congruent coverage transaction is concluded with the supplier. The customer will be informed of the non-availability of performance without delay.
- Should the hindrance last longer than three months, then after setting a reasonable period of grace, the buyer is entitled to withdraw from that part of the contract which has not yet been fulfilled. If the delivery period is extended or if Promodoro is released from its obligation, the customer cannot derive any claims to damages from this. Promodoro is nevertheless obliged to inform the buyer of the occurrence of such events within a period of ten days from the time they become known.
- If Promodoro is responsible for non-compliance with dates or deadlines confirmed as binding in writing, or is in default, the buyer then has a claim to recompense amounting to half a percent for each completed week of default, although limited in total to five per cent, of the net value of the invoice for the delivery concerned by the default. Further-going claims on the part of the customer are excluded, unless the default is due at least gross negligence or malice aforethought on Promodoro's part.
- Promodoro is entitled to make part-deliveries at any time. A pre-condition for Promodoro observing its obligations of delivery and service is that the customer fulfils its obligations in good time and in a proper manner.
- If the customer is in default of acceptance, Promodoro is then entitled to demand compensation for the damage it incurs.
§ 5 Transfer of risk and place of performance
- If the buyer is a trader, the risk of accidental loss and accidental deterioration of the goods is transferred to the buyer upon handover, or in case of forwarding transactions, when the goods are handed over to the carrier, freight-forwarder or to any other person charged with executing the shipment.
- If the buyer is a consumer, the risk of accidental loss and accidental deterioration of the purchased object, including forwarding transactions, is first transferred to the buyer upon handover of the object.
- It is on an equal footing with handover if the buyer is in default of acceptance.
- If dispatch becomes impossible for reasons outside Promodoro's control, or if the trader requests that dispatch be delayed, risk is then transferred to the trader when readiness to dispatch is reported. The place of performance is Dsseldorf, including cases of refunds due to a mutually agreed rescission of the purchase contract or due to withdrawal or partial withdrawal from the purchase contract, insofar as the justification for withdrawal is undisputed or has been established by law. The transport costs incurred for return shipments are borne by the trader, unless Promodoro has agreed to pay the transport costs beforehand in writing.
- If the buyer is a trader, it must then inspect the goods supplied for defects, correctness and completeness without delay after their receipt. This applies in particular if it is intended to change, re-process or re-sell the goods supplied. Warranty claims against Promodoro are excluded if the trader does not comply with this obligation.
- If the buyer is a trader, Promodoro shall initially, at its discretion, rectify defects in the goods by rework or by making a replacement delivery. Promodoro gives no warranty that the goods supplied are free from intangible, legal claims of third parties (intellectual property) and/or do not infringe the intellectual property of third parties in another way, unless Promodoro is insofar culpable of malice aforethought or gross negligence. This applies in particular in regard to the design and designation of the goods, including the brand rights, copyrights, registered samples, prints, labels and patents of third parties, whereby this listing is not conclusive.
- If the buyer is a consumer, then in consideration of Promodoro's economic interests, the following procedure is agreed to rectify a defect in the goods: In case of products with a value lower than 500 Euro, Promodoro can, at its own discretion, initially arrange for a replacement delivery or perform rework within a reasonable period of grace. If the value of the object of purchase exceeds 500 Euro, Promodoro is initially entitled to attempt rework within a reasonable period of grace. A deadline of 20 work days is regarded as reasonable for rework. If the rework cannot be justified financially, subsequent fulfilment is made by making a replacement delivery.
- Should subsequent fulfilment fail, the customer can in principle demand, at its discretion, lower remuneration (reduction) or rescission of contract (withdrawal). The customer has no right of withdrawal, however, if the infringement of contract is only minor, in particular concerning solely minor defects.
- If the buyer is a trader, it must notify recognisable defects in writing within two weeks from receipt of the goods. Otherwise no warranty claims will be entertained. On-time shipment suffices for complying with the deadline. The trader is nevertheless responsible for the full burden of proof for all prerequisites for claims, in particular for the defect itself, for the point in time that the defect was found and for promptly lodging a complaint of the defect.
- Consumers must inform Promodoro of obvious defects in writing within two months from the time at which the goods were found to be in a state contrary to contract. The date Promodoro receives the notification is decisive in judging compliance with this deadline. Should the consumer fail to give this notification, warranty rights expire two months after the defect has been found. This does not apply to malice on the part of the seller. The burden for proving the time at which the defect was established lies with the consumer. If the consumer was moved to purchase the object by inaccurate manufacturer statements, it bears the burden for proving that these swayed its decision to purchase.
- If the customer chooses to withdraw from the contract on account of a legal or material defect after subsequent fulfilment has failed, it has no claim to damages on account of the defect. If the customer chooses restitution after subsequent fulfilment has failed, the goods remain with the customer unless this is unreasonable. The restitution is limited to the difference between the purchase price and the value of the defective goods. This does not apply if Promodoro is culpable of maliciously concealing the infringement of contract.
- The warranty period for traders is one year from delivery of the goods. The warranty for consumers expires by limitation two years from delivery of the goods. This does not apply if the customer has not informed Promodoro promptly of a defect as per 6 items 5 and 6.
- If the buyer is a trader, then in principle, solely the manufacturer's product description is regarded as agreed for the quality of the goods. In contrast, the manufacturer's public statements, recommendations or advertising do not represent a contractually stated quality for the goods.
- The customer receives no guarantees from Promodoro in the legal sense. Manufacturer guarantees are not affected by this.
- In the case of infringements involving slight negligence, Promodoro's liability is restricted to the direct, average damages typical of such contracts and foreseeable for the type of goods involved. This also applies to cases of infringements involving slight negligence on the part of legal representatives or vicarious agents of Promodoro. Promodoro is not liable to traders for insignificant infringements of contract involving slight negligence.
- The restrictions on liability stated above do not concern the customer's claims from product liability.
- The customer's claims to damages due to a defect expire by limitation of time one year from delivery of the goods. This does not apply if Promodoro is culpable of malice.
- In the case of contracts with consumers, Promodoro reserves ownership of the goods until the purchase price has been paid in full.
- In the case of contracts with traders, Promodoro reserves ownership of the goods until all claims from an on-going business relationship have been settled in full.
- The customer is obliged to treat the goods with care.
- The customer is obliged to inform Promodoro without delay of third party access to the goods, in case of seizure, for example, or of any damage or destruction to the goods. The customer shall notify Promodoro without delay if the goods change possession or if the customer changes its place of residence or business. Should the goods be damaged or destroyed or stolen, then in order to secure the claims of Promodoro, the customer shall assign to Promodoro any claims to damages against parties who caused the damage or insurers. Promodoro accepts the assignment.
- In case the customer is guilty of conduct contrary to contract, in particular default of payment or infringement of a duty under items 2 and 3 of this provision, Promodoro is entitled to withdraw from the contract and to demand the return of the goods. In such a case, the buyer is obliged to return the goods without delay at its own cost. This also applies in particular if bankruptcy or settlement proceedings are opened against the customer's assets, or the customer issues an affirmation in lieu of oath or third parties access the goods by way of seizure.
- The trader is entitled to resell the goods in regular business transactions. It even now assigns to Promodoro all claims to the amount of the sum invoiced which accrue to it against third parties because of making a resale. Promodoro accepts the assignment. After making the assignment, the trader is authorised to collect the claim. Promodoro reserves the right to collect the claim itself as soon as the trader does not properly fulfil its obligations of payment and is in default of payment.
- Insofar as nothing else has been agreed in writing, Promodoro's invoices are payable within 10 days from receipt of the goods at 2% discount, and within 30 days from receipt of the goods without deductions pure net cash. Once this deadline has expired, the customer is in default of payment. A consumer in default shall pay interest on the monetary debt at 5% above the basic rate of interest. A trader in default shall pay interest on the monetary debt at 8% above the basic rate of interest, plus value-added tax at the prevailing rate, currently 16%. Promodoro reserves the right to demonstrate higher default damages and claim these from the trader.
- Providing nothing has been agreed individually to the contrary in writing, Promodoro shall not make any refunds of any nature whatsoever.
- Even if contradicted by the buyer's provisions, Promodoro is entitled to initially offset the buyer's payments against its older debts. In such a case, Promodoro can also offset the buyer's payments against costs and interest charges already incurred from the same transaction or from earlier transactions. Promodoro shall inform the customer each time offsetting is applied.
- Payment is not regarded as having been made until Promodoro can dispose over the sum in question. In case of cheques, bills of exchange, direct debits or bank transfers, payment is not regarded as having been made until the cheque, bill of exchange, direct debit or bank transfer has been cashed and the sum irrevocably credited to Promodoro's account.
- Should the customer and Promodoro agree payment by bill of exchange, the costs of the bill and discount charges are then borne by the customer.
- If Promodoro becomes aware of circumstances which place the customer's creditworthiness in doubt, Promodoro is entitled, even if payment targets have been agreed, to declare the total remaining debt to be due. This applies in particular if the buyer's cheques or bills of exchange are not cashed, or the buyer suspends its payments, issues an affirmation in lieu of oath or legal settlement or bankruptcy proceedings are opened against its assets.
- The customer is not entitled to offset or hold back payment of claims unless these have been established by law or are undisputed. The customer cannot exercise the right of retention unless the counter-claim is based on the same contractual relationship.
- German law shall prevail. The provisions of UN commercial law do not apply.
- Düsseldorf is agreed as the place of jurisdiction for all disputes arising from this contract and for all legal relationships between Promodoro and the customer, in particular if the customer is a trader and a general merchant. Promodoro can nevertheless, at its discretion, pursue its claims at the court responsible for the customer's residence or headquarters. The same applies if the customer maintains no business premises in Germany, or if its normal residence or its headquarters are unknown at the time the action is initiated.
- Should individual provisions in this contract with the customer, including the general terms of trade, be or become partly or fully ineffective or null-and-void, this does not affect the validity of the remaining provisions. In such a case, the partly or fully ineffective or null-and-void regulation shall be replaced by a regulation, the financial outcome of which comes closest to the ineffective or null-and-void clause.