The GSTC of PROPV GmbH (hereinafter referred also as “we”, “us” or “our”) are also available in a print version:
Art. 1 Fields of application
1.1 Insofar as no other arrangement is expressly agreed in writing, these general service terms and conditions apply exclusively to all contracts relating to our deliveries and services concluded by PROPV with a customer and to related pre-contractual obligations. Other business or purchasing conditions shall not become part of the contract. This also applies if, in full awareness of conflicting or differing terms and conditions, PROPV render services for the customer without reservation or reference to these conditions in individual correspondence.
1.2 Even if not expressly referred to when similar contracts are concluded in on-going business relations, our general service terms and conditions shall apply exclusively in the version which can be downloaded at www.propv.eu upon placement of an order by the customer, unless another agreement has been concluded in writing between the contractual partners. On request, the customer shall also be provided free of charge with the current version of the general service terms and conditions in a printed form.
1.3 These general service terms and conditions do not apply to consumers as defined in § 13 BGB (German Civil Code).
Art. 2 Conclusion and validity of the contracts
2.1 PROPV offers are non-binding and subject to change without notice, unless the offer is expressly declared as binding in writing. The customer shall be bound for two weeks to declarations concerning the conclusion of contracts (contract offers).
2.2 A legal obligation only comes into existence as a result of an official offer signed by the customer in case of any offers sent per e-mail, or as a consequence of an order confirmation generated by the sourcing platform platform following the customer validation made on its personal user account, or upon commencement of rendering of service on our part in accordance with the contract. PROPV is entitled to demand written confirmation of verbal acceptance of a contract by the customer.
2.3 PROPV reserves rights of ownership and copyright to illustrations, drawings, calculations, tools and other documents. This also applies to those written documents designated as “confidential”. The customer requires PROPV express written permission prior to their transfer to or use for third parties.
2.4 The contractual partners pledge to return or destroy all documents and information received in the context of the cooperation and all copies produced on request.
Art. 3 Scope and contract modifications
3.1 The scope, type and quality of deliveries and services shall be determined by the official offer signed by the customer for any order requests made per email, or as a consequence of an order confirmation generated by the sourcing platform platform following the customer validation made on its personal user account. Additional specifications or requirements shall only become part of the agreement if the contractual partners agree to such in writing or PROPV confirmed them in writing. Any subsequent changes to the scope of service require mutual written agreement or PROPV express written confirmation.
3.2 Product descriptions, illustrations and technical data are specifications of services, but do not constitute guarantees. Any guarantee must be expressly declared to be such in writing. Where guarantees are specified in offers, these are exclusively manufacturer guarantees which can only be concluded with the respective manufacturer. Drawings, illustrations, dimensions, weights or other performance data are only binding when this is expressly agreed in writing.
3.3 PROPV reserves the right to make minor modifications to services, insofar as these modifications are of an insignificant nature which can be reasonably imposed on the customer. Commercially customary deviations in quality, quantity, weight or other deviations in particular shall be accepted by the customer, even if he refers to brochures, drawings or illustrations when placing his order, unless such characteristics have been explicitly agreed upon as binding. Moreover, PROPV wish to point out that technical deviations in service data can occur, particularly with regard to color differences and the frame height and size of modules.
Art. 4 Delivery period and place of performance
4.1 Any information with regard to time of delivery and performance is non-binding unless otherwise declared binding by PROPV in writing. All delivery and performance deadlines are subject to proper and timely delivery on the part of PROPV suppliers. Delivery deadlines begin with the dispatch of the order confirmation by PROPV, but not before all commercial and technical questions have been clarified and the customer has fulfilled all duties incumbent upon him (e.g. provision of all necessary official authorizations or the fulfillment of agreed advance payments).
4.2 Delivery and performance deadlines shall be extended by the period of time in which the customer is in default of payment under the terms of the contract and as long as circumstances for which we are not responsible prevent us from rendering delivery or service, and they shall be extended by a reasonable time subsequent to the end of the delay. These circumstances include force majeure, shortages of raw materials on relevant commodity markets, delays caused by our suppliers and industrial disputes. Deadlines shall also be considered as extended by any such time in which the customer breaches the contract by not meeting his obligation to cooperate (e.g. by not providing an item of information, not supplying a provision or failing to provide staff).
4.3 In the event of the contractual partners subsequently agreeing to perform different or additional services which affect the agreed deadlines, these deadlines shall be prolonged by a reasonable period of time.
4.4 Should, on the request of the customer, a postponement of delivery or service performance deadlines be agreed, PROPV is entitled to demand remuneration at the time at which it would have been due without the postponement. Agreement on the postponement of such deadlines requires the written form.
4.5 Any outstanding payment reminders and deadlines on the part of the customer must be in the written form to be considered effective. A period of grace granted must be of an appropriate nature. A period of less than two weeks shall only be deemed appropriate in cases of special urgency.
4.6 PROPV is entitled to make partial deliveries, and reserve the right to deliver excess or reduced deliveries of up to 5% of the scope of delivery.
4.7 Agreed delivery deadlines shall be binding only once the goods have been handed over to the transportation carrier on the agreed date of delivery, or as soon as we have been formally informed of their date for shipment.
4.8 In the event of a (definitive) failure to deliver to us on the part of our supplier, despite careful selection of the said supplier on our part and the order complying with the requirements of our delivery obligation, PROPV shall be entitled to full or partial withdrawal vis-à-vis the customer if we indicate our non-delivery to the customer and, insofar as this is admissible, offer to assign the claims we are entitled to enforce against the supplier to the customer. We shall not bear any liability for slight negligence in our selection procedure when it comes to choosing our suppliers.
4.9 Our place of business is the performance location, provided no other location is stipulated or agreed.
Art. 5 Shipping conditions, transfer of risk and freight insurance
5.1 Our deliveries shall be packed in a customary style and according to commercial usage at the expense of the customer.
5.2 Risk is transferred to the customer as soon as the product has left our factory or shipping warehouse. This also applies to partial deliveries, subsequent deliveries and further services performed by us, particularly forwarding charges or delivery to the customer’s premises. In the case of the existence of a work contract which requires acceptance, risk is transferred on acceptance.
5.3 The mode of shipping and the carrier and transportation route shall be selected by us, provided we have not received other written specifications from the customer. With regard to this selection, we shall only be held liable in case of intent or gross negligence.
5.4 A freight insurance policy shall be concluded for the shipment at the expense of the customer, provided no other arrangements have been agreed.
Art 6 Prices
6.1 All prices are valid ex works unless otherwise agreed by the contractual partners. All prices and remunerations are in Euro plus statutory value added tax and other applicable duties in the country of delivery, plus transportation costs, expenses, packaging, shipping and, if applicable, insurance of goods in transit.
6.2 Subject to Paragraph 6, payment of the respective contractually agreed prices shall be due. Services are invoiced according to expenditure.
6.3 Shipping of our products occurs exclusively against prepayment by bank transfer or any other payment methods which have been validated on the sourcing platform platform. In case of a customer credit line approval, payments shall, in the absence of any other agreement between the contractual partners, be due immediately following performance of service and receipt of invoice by the customer and shall be payable without deduction within 14 days.
6.4 In the absence of a special agreement, we shall only accept non-cash payments (i.e. bank transfers of payments to the bank account stipulated in the contractual documents). Bills of exchange and cheques shall, as a matter of principle, not be accepted, and if at all, then only by way of payment. The customer shall pay any charges for bills of exchange, discount fees and collection charges. These are due with immediate effect. We shall bear no liability for timely collection or timely protest, insofar as we are only guilty of slight negligence in this respect.
6.5 If the customer is in default of payment, he shall be required to pay interest of seven percentage points above the currently applicable basic interest rate. This does not affect the right to enforce claims for other damage above and beyond this caused by the delay.
6.6 If the customer is in default of payment for longer than 30 calendar days, bills of exchange or cheques are protested or if insolvency proceedings or comparable proceedings under other legal systems are filed against the customer’s assets, we shall be entitled to demand immediate payment of all accounts receivable against the customer, to withhold all deliveries and services and to assert all reservations of proprietary rights.
6.7 Set-off entitlements may only be accorded the customer if his counterclaims are not contested or recognized as legally valid by us. Apart from § 354 a HGB (German Commercial Code), the customer may only assign rights from this contract to a third party with our prior written agreement. The customer shall only be entitled to exercise a right of retention or plead the defense of non-fulfilment of contract within the respective contractual relationship.
6.8 Circumstances occurring after conclusion of the contract which significantly influence the calculation basis in an unforeseeable manner and which lie outside our sphere of influence entitle us to adjust the agreed price to alevel exclusively designed to address these circumstances. This applies in particular to changes in legislation, official measures, price increases on the part of our upstream suppliers and currency fluctuations. The price adjusted on this basis is based on the same calculation basis as that originally agreed and shall not serve to contribute to an increase in profit.
6.9 In the event of us receiving unfavorable information concerning the financial circumstances or creditworthiness of the customer following conclusion of the contract, we are, if advance payment is not due in any case, entitled to make performance and delivery dependent on an appropriate advance payment on the part of the customer or the provision of security in the form of a deposit or bank guarantee.
Art. 7 Reservation of ownership
7.1 PROPV services and products remain our property until full payment of all accounts receivable arising from the business relationship with the customer has been received. These also include receivables from cheques and bills of exchange and receivables from current accounts.
7.2 The customer is obliged to handle the goods which are subject to retention of title with care for the duration of the retention of title and to have necessary maintenance work or inspections realized by specialized people at his own expenses. In particular, the customer shall be obliged to insure the goods adequately at his own expenses at replacement value against damage caused by fire, water and theft. The customer agrees to assign any claims for damages arising from this insurance to us with immediate effect. We hereby accept the assignment. If the assignment is not possible, the customer shall hereby irrevocably instruct his insurance company to effect any payments solely to PROPV. Any further claims that we may have remain unaffected. The customer shall be obliged to prove conclusion of the insurance policy to us on request.
7.3 The customer shall only be permitted to sell the goods subject to retention of title in the course of ordinary business activities. The customer is not entitled to pledge the goods subject to retention of title, to transfer them by way of security or make other arrangements that endanger our property. In the event of seizure or other third party interventions, the customer shall inform us immediately in writing and provide all necessary information, inform the third party about our rights of ownership and assist us in the measures taken by us to protect the goods subject to retention of title. The customer shall bear any costs incurred by him in attempts to cancel the seizure of the goods or to replace the goods, insofar as these costs cannot be recovered from a third party.
7.4 The processing or alteration of the goods subject to reservation of ownership by the customer shall in all cases be realized for us. The customer’s expectant right to the goods subject to retention of title shall be extended to the processed or altered item. If the item is processed, combined or mixed with other items not owned by us, we thereby become joint owners of the new item based on the ratio of the value of the delivered item relative to the other processed items at the time of processing. The customer shall keep the new items safe for us at no charge. Moreover, the item originating from processing, alteration or combination is subject to the same regulations as the goods subject to retention of title.
7. 5 If goods are delivered to different legal jurisdictions in which the regulations governing retention of title pursuant to this paragraph do not guarantee the same degree of security as in the Federal Republic of Germany, the customer shall herewith grant us a corresponding security right. If further declarations or actions are necessary in this respect, the customer shall provide these declarations and take action accordingly. The customer shall participate in all measures necessary for and beneficial to the efficacy and enforceability of these security rights.
Art. 8 Revocation of contract
8.1 In case of a breach of obligation on our part, only the following reasons shall, in addition to the legal requirements, entitle the customer to prematurely terminate the exchange of services ahead of time, regardless of the legal reasons involved (e.g. in the event of withdrawal from the contract, damage claims instead of the service, termination for an important reason):
a) The breach of contract shall be specifically protested in written form. The correction of the violation shall be requested within a stipulated time period. In addition, a threat should be made to the effect that, should this period expire without positive results, no further services relating to the protested violation will be accepted and, consequently, the exchange of services shall be terminated partially or completely.
b) The period for remedying the violation must be adequate. A period of less than two weeks shall only be deemed appropriate in cases of special urgency. The fixing of a deadline can be dispensed with in case of serious and final refusal of performance or under other legal conditions (§ 323 Subparagraph 2 BGB (German Civil Code)).
c) Termination of the exchange of services (partially or completely) due to the inability to remedy the violation can only be declared within three weeks following expiry of this period. The period is delayed for the duration of negotiations.
8.2 The customer can only demand the termination of the contract due to a delay in performance if we are exclusively or predominantly responsible for the delay, unless after weighing up different interests, adherence to the contract cannot be reasonably expected of the customer due to the delay.
8.3 Any declarations made in this context require the written form to be considered effective.
8.4 Notice of termination pursuant to § 649 BGB remains valid in accordance with legal regulations.
8.5 We are entitled to terminate the contractual relationship with immediate effect if the customer has provided incorrect information regarding his creditworthiness or definitively discontinued payments, or if proceedings have been filed against him for affirmation in lieu of an oath, if insolvency proceedings have been filed against the customer’s assets or comparable proceedings under a different legal system have commenced, or if an application to commence proceedings of this nature has been filed, unless the customer pays in advance without delay. Moreover, we are entitled to terminate the contractual relationship with immediate effect if the customer is obliged to make prepayment and is in default in this respect by at least 14 days.
Art. 9 General duties of the customer
9.1 According to § 1 Subparagraph 1, the customer is obliged to have all of our services checked by a competent employee either immediately after delivery or performance or upon accessibility according to commercial law regulations (§ 377 HGB) and to immediately lodge a complaint in writing regarding recognizable and/or identified defects, including a detailed description of the fault.
9.2 The customer acknowledges that we are dependent on his comprehensive support in order to provide the deliveries and services due from us in a successful and timely manner. The customer is therefore obliged to provide all information required to render services appropriately in a timely and thorough manner.
9.3 The customer is obliged to test our deliveries and services thoroughly to ascertain their suitability for use in the specific situation and subject them to a functional test prior to installation or further delivery, etc. This also applies to delivery items which the customer receives free of charge or under the terms of the guarantee.
Art. 10 Defects
10.1 Our services have the agreed properties and conditions and are suitable for the contractually agreed use or, where no agreement exists, are fit for normal use. Without explicit further agreement, an exclusive guarantee is only given concerning freedom from defects reflecting state-of-the-art technological standards. The customer bears sole responsibility for the suitability and safety of our services for a customer application. No consideration is given to an insignificant reduction in quality.
10.2 Claims under the guarantee are excluded:
The burden of proof and responsibility for proving that these exclusion criteria do not apply lies with the customer.
10.3 In case of material defects, we reserve the right to remedy said defects first. Remedying of the defect shall be realized according to our choice by correction of the defect, by delivery of goods and/or services which are free of the defect or by us indicating options for avoiding the effects of the defect. At least two attempts to remedy a defect must be accepted. The customer shall accept an equivalent new or earlier version of the product which is free of the defect as a remedy if this can be considered reasonable for the customer.
10.4 The customer shall support us with regard to the analysis and remedying of defects by, in particular, accurately describing problems which occur, informing us comprehensively and granting us the necessary time and opportunity to remedy problems.
10.5 We can demand payment if additional costs are incurred by us due to our products or services being altered or incorrectly operated. We can demand reimbursement of expenses if no defect is found. The burden of proof lies with the customer. § 254 BGB shall apply correspondingly.
If expenses, particularly transport, travel, work and material costs, increase during the attempt to remedy the defect, we are not obliged to bear these costs if expenses increase due to the fact that the delivery item was subsequently transported by the customer to a location other than the delivery address, unless this transport complies with its contractual and intended use. Human resources and material costs which the customer claims due to deficiencies relating to our services must be charged on the basis of net cost prices.
10.6 Faulty goods may only be returned to us for the purpose of subsequent performance following prior written consent in compliance with our existing rules for this purpose. The risk of accidental destruction or deterioration of the goods is only transferred at the time of acceptance by us at our registered business address. We are entitled to reject returned goods without prior consultation.
10.7 If we definitively refuse to remedy the defects, or if the remedy definitively fails or is unreasonable for the customer, the customer is entitled to either withdraw from the contract in the context of legal regulations conforming to art. 8 or reduce remuneration appropriately and, additionally, claim damages and reimbursement of expenses in accordance with art. 11. Claims lapse in accordance with art. 12. The regulations of §§ 478, 479 BGB remain unaffected if the UN Sales Convention (CISG) is not pertinent.
Art. 11 Liability
11.1 We shall only pay damages or compensation for (i) failure to fulfill our obligations under the Agreement, (ii) breach of our warranty obligations, (iii) gross negligence or any other reason.
11.2We can only be held responsible for alternative compensation, which means compensation for the defective
a) additional compensation in any form whatsoever;
b) indirect damage;
c) consequential damages;
d) damages for lost profits;
e) delay damages;
f) damage as a result of provision of poor cooperation (e.g. wrong information of the materials from the customer
11.3 Subject to art. 11.1, in case of the liability caused by defects, the compensation will be limited to the corresponding invoice amount actually paid buy the customer.
11.4 The right of the customer compensation arises only if the customer after its occurrence as provided in these Terms and Conditions as soon as reasonably possible the damage in writing to PROPV has reported.
11.5Any claim for compensation of damages shall expire after:
a) one year from delivery of the goods for claims arising from purchasing price repayment and withdrawal or reduction; provided, however, that these claims are based on the proper lodging of a complaint concerning deficiencies not subject to statutory limitations, but no less than three months after presentation of valid notice of withdrawal or reduction in the case of the proper lodging of a complaint concerning deficiencies;
b) one year in case of other claims concerning material defects;
c) one year in case of claims concerning defects of title. If the defect of title is a right in rem of a third party on the basis of which the item can be reclaimed, the legal periods of limitation of actions shall apply;
d) in case of other claims for damages or replacement of futile expenditure, one year starting from the point in time at which the customer became aware of the circumstances claims are based upon, or would have become aware of said without gross negligence.
Limitation of actions shall begin with the expiration of the maximum statutory period at the latest (§ 199 Subparagraph 3, Subparagraph 4 BGB).
11.6 The right to contest claims of contributory negligence shall remain open to us.
Art. 12 Written form
All changes and addendums to the contract require the written form to be considered effective. The contractual partners shall comply with this requirement by transmitting documents in text form, particularly by e-mail, unless other requirements exist for individual declarations. The written form requirement itself may only be revoked in writing.
Art. 13 Effect of invalid or unenforceable provisions
In the event of any provision of these general service terms and conditions being or proving ineffective, or in the event of these general service terms and conditions being incomplete, the validity of the other provisions shall remain unaffected by this. The contractual partners shall replace the ineffective provision with a provision which comes closest to the intent and purpose of the ineffective provision in a legally effective sense. The same applies to loopholes in the contract.
Art. 14 Applicable law
The law of the Federal Republic of Germany shall apply, including the UN Sales Convention (CISG) as part of German law.
Art. 15 Place of jurisdiction
The place of jurisdiction for all disputes arising from and in connection with this contract is Berlin (Germany), insofar as the customer is a businessperson, a legal entity under public law or a special fund under public law, or where his status is equivalent to such or if his registered business office or subsidiary is outside Germany. We are also entitled to take legal action at the customer's commercial address or any other valid place of jurisdiction.
Status: May 2016
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