Terms and Conditions
General terms and conditions of sale and delivery of PROFLEXIS GmbH (as per 01.06.2022)
1. These General Sales and Supply Terms and Conditions („Terms and Conditions“) shall regulate the relationships between PROFLEXIS GmbH („PROFLEXIS“) and the respective business partners of PROFLEXIS who issue an order („Customer“). The Terms and Conditions shall constitute an essential component of all agreements which are concluded between PROFLEXIS and the Customer. Furthermore, they shall be valid for all future deliveries, services and offers which are provided to the Customer–even if they have not once again been explicitly agreed.
2. These Terms and Conditions shall be valid for all companies as well as all juridical persons and special funds in accordance with public law pursuant to Paragraph 310 (1) BGB [German Civil Code] (Bürgerliches Gesetzbuch).
3. PROFLEXIS shall be entitled at any time to modify or amend these Terms and Conditions. The Customer shall have the right to object to any such modifications or changes. If the Customer does not object to such modifications or changes within a timeframe of six weeks after the receipt of the corresponding notification, then these modifications or changes shall be binding. PROFLEXIS must notify the Customer of its right of objection when the notification of changes is sent.
4. The term “Delivery(ies)” shall encompass all sales of replacement parts and physical equipment as well as any rendering of services (“Rendering of Services”) which is covered by an order which was issued by the respective Customer (“Order”).
5. The Terms and Conditions may be supplemented or modified through the special Terms and Conditions which are indicated in detail in the supply offer issued by PROFLEXIS and on its schedules (“Offer”), its order confirmation and the invoice.
6. The issuance of an Order shall constitute the complete acceptance of these Terms and Conditions. Any deviating purchasing terms and conditions of the Customer or of a third party shall not be applicable even if PROFLEXIS fails to expressly reject these terms and conditions in the individual case. Even in the case of a reference by PROFLEXIS to a written document which contains the terms and conditions of the Customer or of a third party, or in which reference is made to the same, this shall constitute no consent to these terms and conditions. Thus, any terms and conditions which oppose these Terms and Conditions or are not prescribed herein shall not be legally binding for PROFLEXIS unless PROFLEXIS has expressly approved them in writing. The fact that PROFLEXIS does not make reference to a paragraph of these Terms and Conditions shall constitute no waiver upon the part of PROFLEXIS to refer to the same at a later point in time.
7. No oral agreements or ancillary agreements have been concluded.
1. For all Offers, we reserve the right to make changes if this encompasses non-binding Offers unless they have been expressly designated to be binding or they prescribe a specific timeframe for acceptance. This also encompasses cost estimates for repairs. PROFLEXIS may accept Orders or Order-based work within fourteen days after receipt thereof.
2. An “Agreement” shall be considered to have been concluded at the date that the Order confirmation is drafted by PROFLEXIS or, in the absence of the same, if PROFLEXIS begins to render the services. All Orders shall be considered to be valid and irrevocable. Any oral agreements shall not be binding for PROFLEXIS unless PROFLEXIS confirms them in writing.
3. The Customer may not cancel an Order, neither in whole nor in part, if PROFLEXIS has not approved this in writing in advance and no compensation has been paid. The amount of the compensation less any payments that have already been made shall be determined as follows in PROFLEXIS’s fair discretion:
a) Either it shall correspond to the amount of the overall damages which PROFLEXIS has suffered through the cancellation or
b) It shall correspond to a lump-sum amount which is set at
(i) 20% of the Order’s value excluding taxes if the cancellation has been requested within 15 calendar days after the date that the Order was issued; or
(ii) 70% of the Order’s value excluding taxes if the cancellation has been requested later than 15 calendar days after the date that the Order was issued.
The Customer shall be entitled to document that the damages, which are created from such a non-authorised cancellation of the Order, either were not created or are substantially lower than the compensatory amount.
The Customer may not change an Order (particularly with regards to the specifications, quantities and delivery timeframes) after the Agreement has been concluded if PROFLEXIS has not granted its prior written approval in this regard and the original financial terms and conditions of the Agreement have not been renegotiated in order to eliminate the entire damages suffered by PROFLEXIS as the result of this change. If the Customer should fail in reaching agreement on new applicable Terms and Conditions, then the prior Terms and Conditions of the Agreement shall be prevailing.
III. PRICES AND PAYMENT TERMS AND CONDITIONS
1. The prices shall be valid for the delivery and service scope stated on the order confirmation. Any supplemental or special work (additional services) shall be separately billed.
2. We shall be entitled to assign the claims from our business relationship.
3. Payments towards assigned payment claims may be made with a debt-discharging effect only to S-Factoring GmbH, Markt 7, 04109 Leipzig. Any notification regarding whether an invoice has been assigned shall be correspondingly indicated on our invoice.
4. The prices shall be stated in the currency specified in the Offer and shall be paid–or in the absence of such data–in euro. The prices shall be understood to be net excluding taxes and ex works from PROFLEXIS’s company premises (EXW, Incoterms ICC 2010). If PROFLEXIS approves the delivery of the goods to another location, then the Customer shall assume any additional costs for the transport, the packaging and the insurance as well as any customs duties, fees or other public levies in the case of an export.
5. The prices shall be valid for the timeframe stated in the Offer or–in the absence of such data–for a timeframe of two weeks after the Offer’s date. If no specific price has been offered in the individual case, then the price shall be considered to be the price which is stated on the publicly-available price list(s) of the respective original manufacturer and which is valid at the time that the Order is issued.
6. Insofar as nothing to the contrary has been agreed in writing, all invoices shall become payable to PROFLEXIS’s account within 14 days after the invoicing date without any discounts. The timeliness of the payment shall be based upon when PROFLEXIS has received the payment; as a rule, as soon as the amount is credited to PROFLEXIS’s account. Checks shall only then be effective after their redemption as a valid payment.
7. In the case of a default or a delay which is not PROFLEXIS’s fault, or in the case of an event which justifies the invoicing of the entire or a portion of the delivery’s price, PROFLEXIS may invoice this price on the date which was originally agreed for the completion of the event in question so that the payment is made within the aforementioned timeframe.
8. The Customer shall not be entitled to withhold payments or to offset them with counterclaims unless these counterclaims are undisputed or have been properly acknowledged by means of a definitive court ruling.
9. Any essential failure upon the part of the Customer to make a complete payment by the payment due date shall result in the following to PROFLEXIS’s benefit: (i) Immediate advance payment (without a letter demanding payment) of any payable amounts–including bills of exchange–for any reason, and (ii) immediate discontinuation of the implementation of all running Orders and services without any formal notification–particularly with regards to a warranty, and (iii) imposition of monetary penalties through the application of the interest rate which is charged by the European Central Bank for its latest lending transactions plus 9 percentage points per year, and (iv) payment of a lump-sum amount of 40 euro for debt collection fees. The possibility of demanding a higher interest rate or higher damage compensation in the case of a default shall remain unaffected. This paragraph shall not be valid if the failure to make the entire payment by the payment due date is not the Customer’s fault.
IV. DELIVERY AND TRANSFER OF RISK
1. Based upon the type of delivery, the delivery shall encompass i) the surrendering of the replacement parts and the physical equipment to the transport company on PROFLEXIS’s company premises–even if PROFLEXIS assumes responsibility for the transport, or ii) the rendering of the services.
2. The delivery date shall be considered to be the date stated on the order confirmation or–in the absence of such information–the date stated in the Offer. The delivery shall begin with the following based upon which occurs later: i) With the order confirmation or ii) with the payment of the advance payment or iii) with the fulfilment of any tasks or obligations by the Customer which are required for the delivery.
3. PROFLEXIS shall be considered to have fulfilled the agreed delivery timeframe if the goods to be delivered have promptly left PROFLEXIS’s company premises or the readiness for delivery has been properly announced. If a delivery acceptance is required and this is not refused owing to justified reasons, then the date of the delivery acceptance, or alternatively the date of the notification that the goods and/or services are ready for acceptance, shall be prevailing.
4. Risk shall be transferred to the Customer as soon as the goods have left PROFLEXIS’s company premises and indeed regardless of whether the delivery is made in one or multiple shipments or whether PROFLEXIS has assumed responsibility for other services, e.g. shipping costs or delivery and installation or other services. The delivery timeframe shall be stated in bank working days (thus each weekday on which the banks are open in Celle, Germany) and transport timeframes and working hours if hours are applicable. The delivery timeframe shall be considered to be an approximate timeframe and may be changed by PROFLEXIS if circumstances arise which are out of PROFLEXIS’s reasonable control.
V. RESERVATION OF OWNERSHIP
1. The deliveries shall remain PROFLEXIS’s property until all payment claims have been settled by the Customer in conjunction with the business transaction–regardless of the legal basis for it. The same shall be valid particularly if any payments are made for specially-designated payment claims. In the case of a current account, the payment claims must be regarded as being the security for the balance payment claim held by PROFLEXIS. Both the deliveries as well as all other goods which supplant these goods in accordance with this paragraph and which are likewise subject to a reservation of ownership shall be referred to in the following as “Reserved Goods”.
2. The consumer shall be revocably authorised to resell the goods; however, any payment claims created from the resale shall hereby be assigned to us towards the payment of the purchase price.
3. If the Reserved Goods are processed, combined or mixed with other goods which are not owned by PROFLEXIS, then it shall be agreed that PROFLEXIS is entitled to co-ownership to the new products or equipment and indeed in an equivalent proportion to the value of the supplied goods to the overall value of the new product or the new equipment. The Customer must warehouse these goods upon a free-of-charge basis if PROFLEXIS requests this.
4. If the Customer’s essential financial collapse occurs or is looming which puts at risk the fulfilment of the Agreement by the Customer, then PROFLEXIS shall be entitled to rescind the Agreement and demand the immediate return of the supplied goods. Any looming occurrence of an essential financial collapse may appropriately then be assumed by no later than when the Customer is late with a payment for a timeframe of one month or if the Customer commits an essential violation including, but nonetheless not restricted to, a non-payment which (a) is not rectified within five working days after the receipt of a letter by the Customer who has violated the Agreement, or (b) which cannot be rectified at all. PROFLEXIS shall be entitled to use the Reserved Goods if it takes possession of them again. After the deduction of an appropriate amount for the usage costs, the benefit from this usage must be deducted from the amounts which the Customer owes to PROFLEXIS.
1. All parts or services for which a flaw arises during the statute of limitations period must (notwithstanding the useful life and based upon PROFLEXIS’s fair discretion) be repaired, exchanged or rendered anew upon a free-of-charge basis provided that the cause of the flaw already existed at the time risk was transferred in accordance with Paragraph IV.4.
2. Any claims for defects with regards to quality or legal defects shall become statute-barred after the passage of twelve months after the delivery of the goods or, insofar as acceptance is required, after the acceptance of the goods. The timeframe shall begin to run on the date that the goods are handed over to the Customer or upon acceptance–regardless of whether the Customer has knowledge of any such defects or not. Legal defects shall likewise lapse after twelve months. This shall not be valid if the applicable law prescribes longer warranty timeframes as well as in cases of the loss of life, physical injury or damage to health as well as in the cases of intentional wrongdoing or gross negligence upon the part of PROFLEXIS as well as in the case of a malicious concealment of a defect. The statutory guidelines with regards to the suspension of timeframes and the suspension and commencement anew of timeframes shall remain unaffected.
3. In the case of defects, the Customer must notify PROFLEXIS in writing of such defects (and not merely a representative; this would not be legally valid). Any recognisable or obvious defects, i.e. visible defects or other defects which are visible during the course of an immediate, careful inspection must be reported within seven days after the receipt of the goods or otherwise within seven days after the detection of the defects or at any time when the defects can be detected by the Customer during the course of the normal usage of the goods without any more precise inspection.
4. The Customer alone shall be responsible for documenting that all warranty criteria have been fulfilled–including the points in time when the defects were detected and prompt notification thereof was made to PROFLEXIS.
5. If PROFLEXIS demands this, the Customer must grant PROFLEXIS the opportunity to inspect the goods, which are the object of a complaint, in the condition in which they were found when the defect was discovered in order to find out whether the goods are truly defective. The Customer must grant PROFLEXIS an appropriate opportunity to eliminate the defects and render subsequent performance. If the Customer fails to fulfil these requirements, then all warranty claims shall be forfeited for damages which arise from this violation.
6. PROFLEXIS shall be entitled to two chances to eliminate this defect. If this subsequent performance fails, is not appropriately acceptable or is rejected by PROFLEXIS, or in the case of a situation in accordance with BGB Paragraph 281 (2) or BGB Paragraph 323 (2), the Customer shall be entitled to reduce the fee in accordance with the applicable valid guidelines or to rescind the Agreement.
7. PROFLEXIS shall be liable for all outlays which are incurred in conjunction with subsequent performance–including particularly, but not limited to, any transport, travel, labour and materials costs–but nonetheless always subject to the proviso that an increase in these costs has not been caused through the relocation of the supplied goods from the place of performance to another location unless this relocation corresponds to a proper usage of the goods.
8. If the Customer is entitled to demand either a delivery, a specific subsequent performance or to rescind the Agreement or, in lieu of the (entire) specific performance and/or a reimbursement of expenditures, asserts a damage compensation claim, then PROFLEXIS shall have the right to demand that the Customer exercise its rights within an appropriate timeframe.
9. If the Customer fails to exercise its rights within this designated timeframe, then it shall not be entitled to assert a claim for damage compensation in lieu of performance and/or to rescind the Agreement until an additional appropriate extension period set by the Customer has lapsed.
10. In the case of minor deviations from the agreed quality standards or a minor restriction of usability, customary wear-and-tear or damage which has been caused after the transfer of risk owing to improper or unprofessional handling, excessive workloads, flawed servicing, flawed processing or owing to any other extraordinary external factors which have not been taken into consideration in the Agreement or which are not based upon non-reproducible software defects or if the defect has been created owing to the physical, electronic or computer environment of the delivery or in the case that parts or services, which are required for the fulfilment of the warranty, are not available on the market, no warranty claims shall be valid. If the Customer or a third party makes improper modifications or maintenance, then no warranty claim shall be valid for this work or the related consequences.
11. PROFLEXIS shall not be obliged to eliminate defects as long as the Customer has not fulfilled its payment obligations. This provision shall be valid notwithstanding any rights to reduce the fee.
VII. LIABILITY, REVOCATION AND RESCISSION
1. PROFLEXIS’s liability shall be regulated exclusively by these Terms and Conditions. Subject to ParagraphVIIClause 5 below, all claims which are not expressly granted herein–including any claims of the Customer to damage compensation or the reimbursement of expenditures (hereafter, “ Damage Compensation Claims“) independent of the legal basis in the case of a violation of a minor obligation–shall be excluded if claims are asserted against PROFLEXIS, its representatives or agents owing to simple negligence.
2. Furthermore, in the case that an essential or required contractual obligation (cardinal obligation) is violated, PROFLEXIS shall also be liable for simple negligence. Essential contractual obligations shall encompass the obligation to make timely delivery and to install goods and services which have no essential defects and to fulfil any consulting, protective, retention and due care obligations in order to enable the Customer to use the supplied goods in the contractually-prescribed manner or which intend to protect the life and the health of the personnel of the Customer or third parties or to protect the Customer’s property from essential damage.
3. If PROFLEXIS is obliged in principle to pay compensation in accordance with Paragraph VIIClause 2, then this obligation shall be strictly restricted to compensation for such damages which are characteristic and foreseeable for the respective type of agreement when the Agreement was signed or the violation occurred. Subject to Paragraph VIIClause5 below, any indirect damages or consequential damages, which arise from defects in the goods, may be compensated or eliminated only provided that these damages encompass such damages which are customarily expected if the goods are used for their designated purpose. Subject to Paragraph VIIClause 5 below, PROFLEXIS shall not be obliged to provide compensation for immaterial damages, collateral damages or operational losses, lost profits, data losses, image losses, missed business opportunities or lost income.
4. If PROFLEXIS, its representatives, agents or vicarious agents have not committed intentional wrongdoing or gross negligence, and subject to Paragraph VIIClause 5 below, the Customer’s right to demand damage compensation shall be forfeited within one year’s time after such claim is created.
5. Nothing in these Terms and Conditions shall restrict the liability for the loss of life, physical injury or damage to health or in cases in which PROFLEXIS has promised or guaranteed a specific quality or maliciously concealed a defect, or in the case of intentional wrongdoing or gross negligence. PROFLEXIS’s liability in accordance with the valid product liability laws shall remain unaffected.
If an event should occur which is out of PROFLEXIS’s control and which puts at risk the Agreement’s harmony to such an extent that the fulfilment of PROFLEXIS’s obligations becomes impossible or substantially more expensive, then the parties shall in good faith negotiate in order to reach agreement on a change to the Agreement. This shall apply particularly to fluctuations in the prices for raw materials or the foreign currency exchange rates or the circumstance that hardware or software resources are not available on the market. If the parties should not succeed in reaching agreement on such a contractual change, then PROFLEXIS may terminate the Agreement by providing 30 days’ notice without being required to pay damage compensation.
In the case that the Customer fails to fulfil any of its obligations, PROFLEXIS may terminate the agreement subject to the granting of an appropriate notice period of 30 days via registered letter with return receipt.
X. PLACE OF PERFORMANCE, LEGAL VENUE, APPLICABLE LAW
1. The exclusive place of performance for both parties shall be Celle.
2. These Terms and Conditions and all agreements concluded between PROFLEXIS and the Customer shall be regulated exclusively by the laws of the Federal Republic of Germany subject to the exclusion of the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
3. The exclusive legal venue for all disputes which arise from or in conjunction with these Terms and Conditions or an agreement concluded between PROFLEXIS and the Customer–including any disputes with regards to bills of exchange and checks–shall be Celle.
4. If a provision of these Terms and Conditions is or becomes invalid or unenforceable in whole or in part, the rest of the provisions shall continue to remain completely valid. Each invalid provision must be replaced by a valid, enforceable provision which, insofar as this is possible, most closely corresponds to the original contractual purpose and which appropriately protects the interests of both parties.
5. The Customer grants its consent that PROFLEXIS may store the required data with regards to the business relationship in accordance with Paragraph 28 of the German Data Protection Act for the purpose of data processing and that it may pass on these data to third parties (e.g. insurance companies) in the scope which is required for the fulfilment of the Agreement.