General terms and conditions
The following terms and conditions shall apply exclusively to all sales and delivery transactions. The purchaser accepts these with the placement of the first purchase order.
If the order is based on an offer by the seller, these general terms and conditions of sale and delivery become part of the contract.
Deviating conditions are only valid if they have been specifically agreed to and confirmed by PROKOSCH in writing. Any alteration of individual terms and conditions shall not affect the remaining terms and conditions.
We shall not be bound by the Buyer’s terms and conditions of purchase, even if we do not expressly object to such separately. No rights nor obligations arising from the contract may be transferred to others without our express consent.
Until otherwise agreed, these terms and conditions shall apply to all present and future business transactions, even if no specific reference is made to these terms and conditions when an individual order is placed within the framework of an existing business relationship.
Any direct or indirect export to the United States and Canada, or to persons, enterprises or any entities or countries for which the European Union has imposed sanctions at the time of delivery requires our prior written consent.
Offers are without prejudice and subject to change. Also, an offer does not constitute any rights, priority or reservation for the goods offered to the offeree.
Weights, dimensions and illustrations in the catalogs are not binding. The prices quoted in the offers are bound to the offered type and quantity.
Orders shall be deemed to have been accepted only if they have been confirmed by us in writing. Should a delivery be made without prior confirmation, the invoice shall be deemed to be the order confirmation.
Prices are subject to change and are quoted ex works place of delivery. Postage, freight, other shipping charges, insurance, customs duties as well as the costs of any return shipments of the goods shall be borne by the buyer.
We reserve the right to adjust prices should the time between the agreed to delivery date and order confirmation exceed 4 months.
In the event of any increase in wages, raw materials, freight, taxes, customs duties, levies or other charges on which the price calculation is based upon during the execution of the contract, the Seller shall be entitled to increase the price appropriately in accordance with the increased cost. In such event, the Purchaser shall be entitled to withdraw from the contract only if the price increases exceed the increase in the general cost of living between the time of order and the time of delivery by more than an insignificant amount. If the purchaser is a merchant, price changes are permissible in accordance with the aforementioned regulation if there are more than 6 weeks between the conclusion of the contract and the agreed delivery date.
The agreement on delivery time for each individual order is reserved. The delivery time is considered to be met with the timely notification of readiness for dispatch if dispatch is impossible through no fault of our own.
Specified delivery times are not binding. In particular, force majeure, strikes, lockouts, shortages of raw materials and energy, accidents, transport, manufacturing and operational disruptions, whether in our own operations or those of our suppliers, shall entitle us to extend the delivery period in accordance with the duration of such measures and obstacles. In important cases, we shall inform the customer as soon as possible of the beginning and end of such hindrances. Claims for damages due to non-performance or delay are excluded, unless we are guilty of willful intent or gross negligence. The Seller shall be entitled, but not obliged, to make a subsequent delivery of the failed quantity of goods.
The risk is transferred to the buyer upon handover to the carrier by the seller or upon notification of readiness for shipment, even in the case of franko delivery and despite retention of title.
In the absence of special instructions, the choice of transport route and means of transport shall be made at the seller’s best discretion without liability for the cheapest and fastest delivery. Unless otherwise agreed, packaging shall be at our discretion. Call-off orders are concluded with a term of max. 12 months. Otherwise we are entitled either to deliver the goods, to withdraw from the contract or to claim damages. Partial deliveries may not be rejected by the customer, provided that this does not result in disadvantages for use. Over- and under-deliveries of up to 10% of the ordered quantity are permissible.
In case of returned goods due to circumstances for which we are not responsible, we charge 20% of the invoiced value of the goods for the inspection and restocking of the goods. Credit notes and returns will only be issued for offsetting against deliveries. Deliveries of special customized goods are expressly excluded from return.
Warranty claims of the purchaser due to obvious defects of goods or deviations in weight and quantity shall only be accepted if the purchaser inspects the goods immediately upon receipt. Complaints are considered only if they are reported to us in writing immediately after discovery, but no later than 2 weeks after receipt of the goods at the place of delivery. Defects which are not reported to us within this period shall be deemed to have been approved.
7. Liability for defects
The Seller undertakes to replace defective parts with suitable parts free of charge. If we are unable to rectify defects subject to our warranty obligation or if further attempts at rectification are unreasonable for the Purchaser, the Purchaser may cancellation the contract or agree to a reduction of the order value instead of further rectification.
The defective parts shall be returned to the Seller free of charge upon request. They shall become our property insofar as they are replaced by suitable parts.
In case of liability claims beyond our warranty obligations as set out herein, we shall only ne held liable in cases of wilful intent or gross negligence. In all other respects such liability is excluded. This does not apply in the case of fraudulent concealment of the defect. The Seller shall only be liable for third-party products supplied with the goods up to the amount and type as its suppliers.
The return of the goods requires our prior approval and must be made freight prepaid. The repair of defects by the purchaser may only be carried out with the approval of the seller.
We shall not be liable for any repair work carried out on the goods by the Buyer or by third parties if such work was carried out without our approval.
No liability shall be assumed for delivered parts that, due to their material properties in combination with their handling, storage or use are subject to premature deterioration, wear or consumption. The warranty begins on the day of delivery and ends no later than 12 months from delivery . It presupposes proper use and proper handling of our goods during loading, transport and storage.
The installation and maintenance instructions must be observed. The devices may only be commissioned by qualified personnel.
Any billable repairs to goods and porudcts delivered by us shall be subject to our general terms and conditions for repairs.
9. Retention of Title
Title to the goods deliverd shall remain vested in PROKOSCH and shall not pass to the purchaser until the purchase price for goods deliverd has been paid in full and received by PROKOSCH. Until title to the goods deliverd passes PROKOSCH shall have authority to retake, sell or otherwise deal with and/or dispose of all or any part of the goods. In case the goods are lost or no longer in the Purchasers posession or they are damaged the purchaser shall be obligated to reimburse PROKOSCH for the cost of repairs or replacement at full value.
Irrespective of whether title to to the goods remains vested in PROKOSCH, risk in the Goods shall pass to the Purchaser upon delivery.
Payments are to be made at the expense of the purchaser without delay nor deduction per the payment terms of our invoice. However, the purchase price shall become due immediately if the Buyer is in default with any payment on our other invoices, or if we become aware of the uncertainty of his financial situation as a result of bankruptcy filing, judicial or extrajudicial petition for composition, bill of exchange or check protest, foreclosure or default of a guarantor or other events pursuant to §231 BGB (German Civil Code). In this case we are entitled to make outstanding deliveries only against advance payment or to withdraw from the contract.
If payment is made within 10 days of the invoice date, a 2% discount will be granted. Discount deduction will only be accepted if the buyer has no older liabilities towards us. Incoming payments, as far as several claims are open, will be credited to the oldest claim without consideration of the buyer’s statements.
Bills of exchange of any kind shall only be accepted by agreement and subject to reservation. Checks or bills of exchange will always be accepted on account of payment only and all costs will be charged. We shall not be liable for the timely presentation and forwarding of bill protests. If the payment term is exceeded, default shall occur without prior reminder and default interest in the amount of the usual bank interest for overdrafts must be paid. In this case, deliveries are made exclusively against prepayment or cash on delivery.
The purchaser is not entitled to withhold payments on account of any counterclaims or to set them off against such counterclaims, insofar as the purchaser is a merchant.
11. Drawings and Documents
Drawings, documents and drafts received from us may not be disclosed by the recipient to any third parties. Infringements shall result in full compensation for damages.
If an order does not materialize, drawings and documents provided are to be returned by the recipient without being requested to do so.
12. Place of performance and jurisdiction
The law of the Federal Republic of Germany shall apply exclusively. Place of performance for all obligations arising from the contract is the registered office of the seller. The place of jurisdiction is 76646 Bruchsal, Germany, if the buyer is a merchant, even if we assert our rights in dunning proceedings.
The purchase or delivery contract as well as these terms and conditions shall remain binding in their usual parts even if individual provisions are legally invalid.