General Terms and Conditions of Delivery of PREMA-SERVICE GmbH

§ 1 Scope

1. All deliveries, services and offers provided by the Seller are made exclusively on the basis of these General Terms and Conditions. These form an integral part of all contracts which the Seller concludes with its contractual partners (hereinafter also referred to as the ‘Client’) in respect of the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or offers to the Client, even if they are not agreed separately again.
2. These General Terms and Conditions apply exclusively to businesses within the meaning of § 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law. Contracts with consumers within the meaning of § 13 of the German Civil Code (BGB) shall not be concluded on the basis of these terms.
3. The Client’s terms and conditions or those of third parties shall not apply, even if the Seller does not specifically object to their validity in individual cases. Even if the Seller refers to a letter containing or referring to the client’s or a third party’s terms and conditions, this does not constitute agreement to the validity of those terms and conditions.

§ 2 Offer and Conclusion of Contract

1. All offers made by the Seller are subject to change and non-binding, unless they are expressly marked as binding or specify a particular acceptance period. The Seller may accept orders or contracts within fourteen days of receipt.
2. The concluded sales contract or order, including these General Terms and Conditions, shall be the sole basis for the legal relationship between the seller and the client. This contract fully sets out all agreements between the contracting parties regarding the subject matter of the contract. Any verbal undertakings made by the Seller prior to the conclusion of this contract are not legally binding, and any verbal agreements between the contracting parties are superseded by the contract, unless it is expressly stated in each case that they remain binding.
3. Any additions to or amendments of the agreements made, including these General Terms and Conditions, must be in writing to be valid (Section 126b of the German Civil Code (BGB)). With the exception of managing directors or authorised signatories, the Seller’s employees are not authorised to enter into any verbal agreements that deviate from these terms. Transmission by telecommunications, in particular by email, shall be deemed to satisfy the written form requirement. Prior individual agreements (Section 305b of the German Civil Code (BGB)) remain unaffected.
4. Information provided by the Seller regarding the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data), as well as our representations thereof (e.g. drawings and illustrations), are only approximate, unless usability for the contractually intended purpose requires exact conformity. They do not constitute guaranteed characteristics, but rather descriptions or specifications of the goods or services. Deviations customary in the trade and deviations resulting from legal provisions or constituting technical improvements, as well as the replacement of components with equivalent parts, are permissible provided they do not impair the suitability for the contractually intended purpose.
5. The seller reserves title to or copyright in all offers and quotations submitted by it, as well as in any drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the client. The customer may not, without the seller’s express consent, make these items available to third parties—either in their original form or in terms of their content—disclose them, use them themselves or through third parties, or reproduce them. Upon the seller’s request, the client must return these items to the seller in full and destroy any copies made, if they are no longer required by the client in the ordinary course of business or if negotiations do not result in the conclusion of a contract. This does not apply to the storage of data made available electronically for the purposes of standard data backup.

§ 3 Prices and Payment

1. The prices apply to the scope of services and deliveries specified in the order confirmations. Additional or special services shall be invoiced separately. Prices are quoted in euros ex works, plus packaging, statutory value-added tax, and, in the case of export deliveries, customs duties, fees and other public levies.
2. Where the agreed prices are based on the Seller’s list prices and delivery is not due to take place until more than four months after the conclusion of the contract, the Seller’s list prices valid at the time of delivery shall apply (in each case less any agreed percentage or fixed discount).
3. Invoice amounts are payable within thirty days without any deduction, unless otherwise agreed in writing. The date of payment shall be determined by the date of receipt by the seller. Payment by cheque is excluded, unless specifically agreed in individual cases. If the client fails to pay by the due date, interest at a rate of 5% per annum shall be charged on the outstanding amounts from the due date (Sections 352, 353 of the German Commercial Code (HGB)); in the event of default, the statutory default interest under Section 288 of the German Civil Code (BGB) shall apply. This does not affect the right to claim higher interest and further damages in the event of default.
4. Set-off against counter-claims by the client or the withholding of payments on account of such claims is only permitted insofar as the counter-claims are undisputed, have been established by a final and binding judgement, or arise from the same contractual relationship.
5. The seller is entitled to carry out or provide any outstanding deliveries or services only against advance payment or the provision of security, if, after the conclusion of the contract, the seller becomes aware of circumstances which are likely to significantly impair the client’s creditworthiness and which jeopardise the client’s payment of the seller’s outstanding claims arising from the relevant contractual relationship (including from other individual orders covered by the same framework contract) is jeopardised.

§ 4 Delivery and Delivery Time

1. Deliveries are made ex works.
2. Any timeframes and dates for deliveries and services indicated by the seller are always approximate only, unless a fixed timeframe or date has been expressly promised or agreed. Where shipment has been agreed, delivery periods and dates refer to the time of handover to the forwarding agent, carrier or any other third party commissioned with the transport.
3. The Seller may – without prejudice to its rights arising from the Customer’s default – require the Customer to extend delivery and performance periods or to postpone delivery and performance dates by the period during which the Customer fails to fulfil its contractual obligations towards the Seller.
4. The seller shall not be liable for the impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time the contract was concluded (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official authorisations, official measures, epidemics and pandemics, or failure by suppliers to deliver, or to deliver correctly or on time), for which the Seller is not responsible. Where such events make delivery or performance substantially more difficult or impossible for the Seller and the hindrance is not merely of a temporary nature, the Seller shall be entitled to withdraw from the contract. In the event of impediments of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the duration of the impediment plus a reasonable start-up period. Where, as a result of the delay, the client cannot reasonably be expected to accept the delivery or service, they may withdraw from the contract by giving the seller immediate notice in writing.
5. The seller is only entitled to make partial deliveries if
6. the partial delivery is usable by the Client for the contractual purpose,
7. the delivery of the remaining goods ordered is guaranteed, and
8. this does not result in any significant additional effort or costs for the customer (unless the seller agrees to bear these costs).
9. If the seller falls into default with a delivery or service, or if a delivery or service becomes impossible for the seller for any reason whatsoever, the seller’s liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions.

§ 5 Place of Performance, Dispatch, Packaging, Transfer of Risk, Acceptance

1. Unless otherwise specified, the place of performance for all obligations arising from the contractual relationship shall be the Seller’s registered office. Where the Seller is also responsible for installation, the place of performance shall be the location at which the installation is to take place.
2. The method of dispatch and the packaging shall be at the Seller’s discretion, exercised in good faith.
3. Risk shall pass to the customer at the latest upon handover of the goods (with the start of the loading process being decisive) to the forwarding agent, carrier or any other third party designated to carry out the dispatch. This shall also apply in the event of partial deliveries or where the seller has undertaken to provide other services (e.g. dispatch or installation). If dispatch or handover is delayed due to circumstances for which the client is responsible, the risk shall pass to the client from the day on which the goods are ready for dispatch and the seller has notified the client accordingly.
4. Storage costs following the transfer of risk shall be borne by the customer. Where storage is arranged by the seller, the storage costs shall amount to 0.25% of the invoice value of the goods to be stored for each week elapsed. The seller reserves the right to claim and provide evidence of higher or lower storage costs.
5. The consignment shall be insured by the seller against theft, breakage, transport damage, fire and water damage or other insurable risks only at the express request of the customer and at the customer’s expense.
6. Where acceptance is required, the goods shall be deemed to have been accepted once
7. delivery and, where the seller is also responsible for installation, the installation have been completed,
8. the seller has notified the client of this, referring to the deemed acceptance under this Section 5(6), and has requested acceptance,
9. twelve working days have elapsed since delivery or installation, or the customer has commenced use of the goods (e.g. has put the delivered system into operation) and, in this case, six working days have elapsed since delivery or installation, and
10. the customer has failed to accept the goods within this period for a reason other than a defect notified to the seller which renders the use of the goods impossible or significantly impairs it.

§ 6 Warranty, Material Defects

1. The warranty period shall be one year from the date of delivery or, where acceptance is required, from the date of acceptance. This period does not apply to the client’s claims for damages arising from injury to life, limb or health, or from intentional or grossly negligent breaches of duty by the seller or its vicarious agents, nor does it apply to recourse claims under Sections 445a, 445b of the German Civil Code (BGB), which are subject to the statutory limitation periods.
2. The quality of the goods shall be determined exclusively in accordance with the specifications and product descriptions agreed between the contracting parties. Liability for fitness for a particular purpose going beyond the agreed quality shall only be accepted insofar as this has been expressly agreed. Public statements, promotional claims or advertising do not, moreover, constitute a contractual description of the goods’ quality.
3. The goods delivered must be carefully inspected immediately upon delivery to the customer or to a third party designated by the customer (Section 377 of the German Commercial Code (HGB)). They shall be deemed to have been accepted by the buyer with regard to obvious defects or other defects that would have been detectable upon immediate and careful inspection, unless the seller receives a written notice of defects within seven working days of delivery. With regard to other defects, the goods shall be deemed to have been accepted by the buyer if the notice of defect is not received by the seller within seven working days of the time at which the defect became apparent; if the defect was already recognisable to the buyer at an earlier point in time under normal use, that earlier point in time shall be decisive for the start of the notice period. At the seller’s request, a delivery item subject to a complaint must be returned to the seller carriage paid. In the event of a justified complaint, the seller shall reimburse the costs of the cheapest method of dispatch; this shall not apply if the costs are increased because the goods are located at a place other than the place of intended use.
4. In the event of material defects in the delivered goods, the seller shall, at its discretion to be exercised within a reasonable period, be obliged and entitled to either repair the goods or provide a replacement. In the event of failure, i.e. where rectification or replacement is impossible, unreasonable, refused or unduly delayed, the customer may withdraw from the contract or reduce the purchase price by a reasonable amount.
5. If a defect is attributable to the seller’s fault, the client may claim damages subject to the conditions set out in § 8.
6. In the event of defects in components from other manufacturers which the seller is unable to remedy for reasons of licensing or factual circumstances, the seller shall, at its discretion, either assert its warranty claims against the manufacturers and suppliers on behalf of the customer or assign such claims to the customer. Warranty claims against the seller in respect of such defects shall only arise, subject to the other conditions and in accordance with these General Terms and Conditions, if the judicial enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or, for example due to insolvency, is futile. For the duration of the legal proceedings, the limitation period for the Client’s relevant warranty claims against the Seller shall be suspended.
7. The warranty shall lapse if the customer modifies the delivered goods or has them modified by third parties without the seller’s consent, and this renders the rectification of defects impossible or unreasonably difficult. In any event, the customer shall bear the additional costs of rectifying the defects arising from the modification.
8. Any delivery of second-hand goods agreed with the customer on a case-by-case basis shall be made to the exclusion of any warranty for material defects.

§ 7 Industrial Property Rights

1. Subject to the provisions of this § 7, the seller warrants that the goods are free from third-party industrial property rights or copyright. Each contracting party shall notify the other contracting party immediately in writing if claims are asserted against it for the infringement of such rights.
2. In the event that the goods to be supplied infringe a third party’s industrial property right or copyright, the seller shall, at its discretion and at its own expense, either modify or replace the goods to such an extent that no third-party rights are infringed, whilst ensuring that the goods continue to fulfil the contractually agreed functions, or secure the right of use for the customer by entering into a licence agreement. If the Seller fails to do so within a reasonable period, the Client shall be entitled to withdraw from the contract or to reduce the purchase price by a reasonable amount. Any claims for damages by the Client shall be subject to the limitations set out in Clause 8 of these General Terms and Conditions.
3. In the event of infringements caused by products from other manufacturers supplied by the Seller, the Seller shall, at its discretion, either assert its claims against the manufacturers and upstream suppliers on behalf of the Client or assign such claims to the Client. In such cases, claims against the seller shall only arise in accordance with this § 7 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers has been unsuccessful or, for example due to insolvency, is futile.

§ 8 Liability for Damages Arising from Fault

1. The Seller’s liability for damages, regardless of the legal basis, in particular arising from impossibility of performance, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, is limited in accordance with this Section 8, insofar as fault is a determining factor in each case.
2. The Seller shall not be liable in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents, provided that this does not constitute a breach of obligations essential to the contract. Essential contractual obligations (cardinal obligations) are those obligations the fulfilment of which is indispensable for the proper performance of the contract and on the observance of which the client may regularly rely; these include, in particular, the obligation to deliver and install the goods on time, to ensure they are free from legal defects and from material defects that impair their functionality or fitness for purpose to more than a negligible extent, as well as duties of advice, protection and care intended to enable the Client to use the goods in accordance with the contract, or aimed at protecting the life or physical integrity of the Client’s personnel or safeguarding the Client’s property against significant damage.
3. Insofar as the seller is liable for damages in substance pursuant to § 8(2), such liability shall be limited to the damage which the seller foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract, or which the seller ought to have foreseen had they exercised the care customary in the trade (damage typical of the contract and foreseeable). Indirect and consequential damages resulting from defects in the goods supplied shall, furthermore, only be compensable to the extent that such damages are typically to be expected when the goods are used for their intended purpose.
4. The above limitation to damage typical of the contract and foreseeable also applies in the event of a breach of essential contractual obligations (cardinal obligations) due to simple negligence. A maximum limit on the amount of compensation may be agreed separately in individual cases; it must cover the foreseeable damage typical for the contract.
5. The above exclusions and limitations of liability shall apply to the same extent in favour of the Seller’s organs, legal representatives, employees and other vicarious agents.
6. Where the Seller provides technical information or acts in an advisory capacity, and such information or advice does not form part of the contractually agreed scope of services owed by the Seller, this shall be provided free of charge and to the exclusion of any liability.
7. The limitations set out in this Section 8 shall not apply to the Seller’s liability arising from wilful misconduct or gross negligence, in respect of guaranteed characteristics, in respect of defects fraudulently concealed, in respect of injury to life, limb or health, or under the Product Liability Act. In such cases, the Seller shall be liable in accordance with the statutory provisions.

§ 9 Retention of title

1. The delivered goods shall remain the property of the seller, pro rata to their value, even in a processed state, until all claims arising from the business relationship have been settled. The customer is entitled to sell, process or incorporate the goods in the course of its normal business operations. Any processing of the goods subject to retention of title shall always be carried out on behalf of the seller.
2. If the goods are resold by the customer, including in a processed state or when incorporated into other items, the customer hereby assigns to the seller, in full or, in the case of processing or combination, in proportion to the value of the delivered goods, all future claims arising from the purchase price against its customers. The customer is permitted to collect the assigned claim in the ordinary course of business. The customer is obliged to disclose the address of the third party to the seller upon request. The seller is entitled to notify the third-party debtor of the assignment of the claim.
3. If the value of the security held by the Seller exceeds its claim by more than 20 per cent, the Seller shall, at the Client’s request, be obliged to release security to that extent, at the Seller’s discretion. Goods subject to retention of title shall be held by the Client on behalf of the Seller free of charge and with the care of a prudent businessman.

§ 10 Final Provisions

1. If the client is a trader, a legal entity under public law or a special fund under public law, or if the client has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Seller and the Customer shall be, at the Seller’s discretion, either Bad Homburg or the Customer’s registered office. However, in such cases, Bad Homburg shall be the exclusive place of jurisdiction for actions brought against the seller. Mandatory statutory provisions regarding exclusive places of jurisdiction remain unaffected by this provision.
2. The relationship between the Seller and the Client shall be governed exclusively by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
3. Should individual provisions of the contract or these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Insofar as the contract or these General Terms and Conditions contain any omissions, the legally valid provisions shall be deemed to have been agreed to fill such omissions, which the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions had they been aware of the omission.
4. Note on data protection: The Customer acknowledges that the Seller processes personal data arising from the contractual relationship in accordance with the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG). The processing is carried out for the purpose of performing the contractual relationship (Article 6(1)(b) of the GDPR). The Seller is entitled to transfer personal data to third parties (e.g. insurance companies, transport providers and credit institutions) insofar as this is necessary for the performance of the contract or where there is a legitimate interest (Article 6(1)(f) of the GDPR). Further information on the processing of personal data and the rights of the data subject can be found in the Seller’s privacy policy.