Terms and conditions of use

General Terms and Conditions of Sale and Delivery of Prodways Materials GmbH (hereinafter “PM“) - Version: 08/2018

1. Scope of Application: These Terms and Conditions of Sale shall apply exclusively to our deliveries and services and the applicable legal provisions shall apply as a supplement. Any conditions deviating herefrom - in particular, the buyer’s terms and conditions of purchase - shall not be binding for us, unless we confirmed them in writing. Any delivery of goods, the rendering of services or the receipt of payments on our part shall not be deemed as an acceptance of deviating provisions.

2. Offers, contracts: Our offers are non-binding; an agreement will only be deemed to be concluded if we confirm the order in writing or if we have performed the purchase orders. Offers on the internet portal are non-binding. Orders will be placed by entering the inquired information in the order form and sending the purchase order to the internet portal. The buyer will initially receive a confirmation that their purchase order has been received. PM will verify the information sent by the buyer. In case of a positive result of this verification, PM will accept the purchase order and send a written order confirmation to the buyer.

3. Form Requirement:
3.1 The term “written“ as used in these Terms and Conditions of Sale means text form (email, fax, letters or telegrams prepared electronically). Any amendments or supplements of these Terms and Conditions of Sale, including of this Art. 3.1, as well as any termination or the cancellation of any contract by amicable agreement shall be made in writing to be effective.
3.2 Other declarations or notifications by the buyer shall be made in writing to be effective.

4. Prices: Our prices are quoted ex works, unless otherwise provided for in writing; costs for packaging are not included. Insofar as value added tax arises, it shall be paid, in addition, at the legal rate prevailing on the day of invoicing.

5. Payment, Set-off:
5.1 The buyer shall pay the price to us not later than 30 days after delivery or rendering of the service, unless otherwise provided for in writing.
5.2 If purchase orders are placed through the internet portal, the buyer shall make a pre-payment for the rendering of the service. If we have not received the complete payment within 15 days after the purchase order, the purchase order shall be deemed cancelled and no products will be delivered.
5.3 The buyer may only set off with claims which are undisputed or have been found to be legally effective by a court.

6. Place of Fulfilment, Shipment:
6.1 Place of fulfilment for the delivery or service shall be the place of our factory or warehouse.
6.2 Insofar as it has been agreed to send the goods, we will send the goods at the buyer’s risk; we will determine the type of shipment, the dispatch route and the freight carrier.

7. Partial Deliveries, Partial Services: Partial deliveries and partial services shall be permitted to an adequate extent.

8. Delivery Dates, Delay:
8.1 If an agreed date of delivery or service is exceeded or if we fail to comply in due time with any other contractual obligation, the buyer shall inform us, in writing, and grant an adequate grace period of at least 3 weeks.
8.2 General information on delivery periods and delivery deadlines set out on the internet portal shall not be deemed as an assurance of periods and deadlines.
8.3 If the delivery or service is not made until the expiry of the grace period and if the buyer thus wishes to exercise their right of withdrawal, they shall be obliged to notify us beforehand thereof by requesting the delivery or service, in writing, and shall grant us an adequate additional grace period. The buyer shall, at our request, be obliged to declare in writing and within an adequate period of time, whether they will withdraw from the agreement due to the delay or whether they insist on the delivery / service.

9. Transport Insurance: We are authorized to take out an adequate transport insurance, on behalf and at the expense of the buyer, at least in the amount of the invoice value.

10. Retention of Title:
10.1 Sold goods shall remain our property until any and all claims arising from the business relationship have been fulfilled.
10.2 If the buyer machines or processes the goods subject to retention of title, our retention of title shall extent to the entire new product. In case the buyer processes, combines or mixes the goods with external objects, we acquire a co-ownership in the new product to the fraction which corresponds to the ratio of the invoice value of our goods under retention of title to the other objects used by the buyer at the time of processing, combining or mixing.
10.3 If the goods subject to retention of title are combined or mixed with a main object of the buyer or of third parties, the buyer transfers to us, in addition and already as of now, their rights in the new product. If the buyer combines or mixes the goods subject to retention of title with a main object of third parties, for a charge, they assign to us, hereby and already as of now, their claims for remuneration against the third party.
10.4 The buyer shall be authorised to resell the goods subject to retention of title or the new product in the course of their orderly business operation. If the buyer sells the goods subject to retention of title or any new product, without having received the full purchase price in advance or concurrently against transfer of the goods subject to retention of title or of the new product, they shall agree on a retention of title with their customer which corresponds to the conditions set out herein. The buyer assigns to us, already as of now, their claims from this re-sale as well as the rights arising from the retention of title agreed by them. At our request, they shall be obliged to notify the purchasers of the assignment and to give us the information and to hand out the documents necessary to assert our rights against the purchasers. The buyer shall only be authorised to collect the claims from the re-sale, despite the assignment, insofar as they properly fulfil their liabilities toward us.
10.5 If the value of the securities provided to us exceeds our claims, we shall be obliged to release the securities, at the buyer’s request, according to our choice. The assertion of the retention of title by us shall only be deemed to be a withdrawal, if we declare such in writing.

11. Force Majeure: We shall be released of our duty to make deliveries and render services in case of force majeure. The same shall apply in case of a scarcity of energy or raw materials, labour disputes, orders from authorities, disruptions of traffic or operational disruptions. It shall also apply if sub-suppliers or companies affiliated with us pursuant to Sections 15 et seq. of the AktG [German Stock Corporation Act] are affected by one of the above events.

12. Product Information: The contractually owed quality of the goods will exclusively be specified in the product specifications which apply from time to time, unless otherwise provided for in writing. Information on quality, shelf life and other data shall only constitute guarantees if they have been agreed and designated as such in writing. Other information which we provide, in writing, on products, devices, systems, applications, processes and procedural instructions are based on research work and experience in application technology. We provide such information to the best of our knowledge, subject to changes and further developments, however without any binding character. This information will not release the buyer from their duty to verify our goods for their application and their own use. That shall also apply with regard to the protection of third party property rights.

13. Complaints: We must have received all complaints, in particular, notices on defects and deficient quantities in writing, immediately, however not later than within 10 days after delivery (in case of hidden defects not later than within 5 days after such were discovered or the time at which they should have been discovered in case of a reasonable inspection). Insofar as the buyer fails to report complaints in due time or in the agreed form, our delivery or service shall be deemed to be in compliance with the agreement in view of the complaint which has not been made in due time or in the required form. If the buyer accepts our delivery or service in full awareness of a defect, they shall only be entitled to the rights derived from the defectiveness, if they reserve their rights regarding this defect upon delivery, in writing.

14. Rights of the Buyer in Case of Defects:
14.1 The buyer may not derive any rights from the defectiveness of our delivery or service, insofar as the contractually agreed quality is only insignificantly impaired. Insofar as our delivery or service is defective and, accordingly, if the buyer complained about it for justified reasons, we will either make a subsequent delivery or perform a repair (cure). We shall be given the option to do so within an adequate period of time. If the cure fails and if we waive our right to make more attempts for a cure, the buyer may withdraw from the agreement or may adequately reduce the remuneration.
14.2 Furthermore, the buyer may request damages and reimbursement for the expenses necessary for the cure, under the legal provisions. Art. 15 shall otherwise apply to damages and reimbursement of expenses.

15. Damages:
15.1 Buyer’s claims for damages and reimbursement of expenses, regardless of the legal reason, in particular due to a violation of duties arising from the debt relationship and/or from tort, which they assert against us, our legal representatives, employees and vicarious agents shall apply only insofar as we, our legal representatives, employees or our vicarious agents acted with intent or gross negligence or if the violated duty is of significant importance for achieving the purpose of the agreement and if the buyer relies or may regularly rely on the compliance with such.
15.2 Regardless of the stated reason, PM shall, under no circumstances, be obliged to compensate for indirect damage, in particular, operational disruptions or lost profits, indirect losses or subsequent damages of any type which the buyer or third parties suffer. PM’s liability for each order can only be restricted to the direct property damage and exclusively to the purchase price of the products they complained about. If third parties assert claims for liability against PM, the buyer shall be obliged to release PM insofar as this liability exceeds the limits specified in this paragraph and covers the reasonable expenses which PM incurs to defend itself against such claims.
15.3 Claims for damages for gross negligence or culpable intent are excluded in the legal provisions. The limitation period commences according to the legal provisions. PM shall, under no circumstances, be liable toward the buyer for damage resulting from an illegal and/or fraudulent use of the products by the buyer, third parties or final users.
15.4 The exclusion of liability or the restriction of liability shall not apply, insofar as we are liable in cases of injury of life, body or health or if we are liable mandatorily under the product liability act or if we are liable mandatorily for other reasons.

16. Limitation: Claims of warranty, damages and reimbursement of expenses on the part of the buyer shall become statute barred within 1 year after the commencement of the legal limitation period. The above mentioned limitation periods shall not apply, insofar as we acted with intent or insofar as we are liable, in case of an injury of life, body or health or if we are mandatorily liable under the product liability act or if we are mandatorily liable for other reasons.

17. Legal Provisions, Foreign Trade Law and Customs Law, Release, Withdrawal:
17.1 The buyer shall be responsible for observing the statutory and regulatory provisions on import, transport, storage, warehousing, use, resale and export of the goods, unless otherwise agreed with the buyer, in writing, in an individual case. The buyer undertakes, in particular, to not use the goods for the purpose of developing or manufacturing biological, chemical or nuclear weapons; for the purpose of illegally producing drugs; they shall not sell or deliver them to third parties or use them personally by violating embargos; by violating statutory registration or information duties or without any approvals necessary under the applicable statutory provisions. The buyer will reimburse to us all losses and damage and will release us of all claims under civil laws, administrative laws and criminal laws which arise from a violation of the above mentioned obligations on their part.
17.2 If a statutory or regulatory duty of approval applies to the export of our delivery / service at the time of delivery / service and if the approval for export which has been applied for is not granted, we shall be authorised to withdraw from this agreement. In case the authorities issue this approval with a delay, no claim for damages shall apply.
17.3 We shall, additionally, be entitled to withdraw from the agreement, if a trade ban existing at the time of delivery / service prohibits such delivery / service or if, in case a product registration duty applies, no registration has been applied for or granted at the time of delivery / service.
17.4 If facilitations under preferential rights can be granted for goods, we reserve the right to issue a declaration on the preferential status (supplier declaration, declaration of origin on the invoice) in an automated manner without a separate signature, if the legal preconditions applicable to such have been met. We confirm that the declaration of preference is prepared in accordance with our obligation under Art. 5(3) of the Regulation (EC) no. 1207/2001.

18. Data Protection: PM will collect your data if processing is necessary for the performance of a contract or in order to take steps prior to entering into a contract. Data collection and processing are necessary for the performance of the contract and are based on Article 6(1) point b) of the GDPR. Data will be erased where they are no longer necessary in relation to the purposes for which they are processed. In addition, you are entitled to access the data stored by us about you and to request that inaccurate data are rectified or deleted in case the data were stored unlawfully. You may contact our Data Protection Officer at Datenschutzverantwortlicher (Data Protection Officer) c/o Prodways Materials GmbH, Raiffeisenstr. 8a, 61169 Friedberg, Germany. In addition, you have the right to lodge a complaint with the supervisory authority at poststelle@datenschutz.hessen.de.

19. Place of Jurisdiction: The place of jurisdiction is at the registered office of our company.

20. Applicable Law: The substantive laws of the Federal Republic of Germany shall apply to all legal relationships between the buyer and us, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

21. Commercial Terms: Insofar as commercial terms have been agreed upon according to the International Commercial Terms (INCOTERMS), the INCOTERMS 2010 shall apply to their application and interpretation.

22. Severability: If individual provisions of these Terms and Conditions of Sale are ineffective, in full or in part, the other provisions shall remain in full force and effect.