General Terms & Conditions
of PROMEGA Handelsgesellschaft mbH
1. Unless explicitly made binding by a deadline, the price, quality, delivery date and product availability of our offers are subject to change and require our written confirmation. Other than our own Terms of Sale, and terms specified by the buyer in particular, shall apply only if accepted by us in writing. We hereby reject any and all Terms of Purchase made known to us.
2. The contractual obligations of either party shall be subject to our written order confirmation (acceptance) only. Supplementary agreements require our written confirmation. If any of the agreed terms proves or will prove to be void, this shall not affect the validity of all other terms.
3. The parties agree to accept the factory we choose to manufacture the goods as the place of performance. All risks will be transferred to the buyer even if we dispatch the goods from the place of performance.
4. The prices agreed apply to goods of average quality and customary trade characteristics. Notwithstanding the buyer’s purchase commitment, if an unexpected increase in costs affecting the final price occurs after signing the contract either at our or the dispatching site, we shall be entitled to an equivalent price increase. Discounts of any kind constitute a dissolving condition for the buyer’s property if and when insolvency proceedings are initiated.
5. Delivery dates are confirmed under the reservation that own stocks are filled in due time. Delivery times are retarded by force majeure events (including strikes and lock-outs) affecting the production, processing or transport of the goods. Once deliveries are no longer retarded, we shall resign from or perform the contract to our sole discretion. The purchase is granted no claims for damages or right of resignation. Delivery times will extend without further ado if the purchaser fails to supply us with full-scale specifications in due time.
6. We shall be generally allowed to make part deliveries. If part deliveries of a total quantity have been agreed within a certain period, the purchase shall have to obey the specified delivery dates. In case the purchaser fails to provide a required specification in due time ahead of the delivery date, the purchaser will be considered in default without further warning. If dates of part deliveries on call order have been agreed, we may set the dates of regular part quantity shipments in case the purchaser fails to accept at least 35 % of the total quantity after half of the on-call period.
7. In case the buyer fails to order a scheduled quantity or to duly pay for an earlier shipment by the end of the purchasing term, we may withdraw from the contract regarding the failed quantity without granting a grace period.
Force majeure events allow us to delay a shipment by the period of retardation or to partly or entirely withdraw from the contract. Force majeure events such as war, interference by official control actions, closed roads, short material shortages, business interruptions, long-lasting strikes etc., are situations which significantly hinder or make a shipment impossible.
8. Notices of defects received later than 8 or more days after the receipt of goods and/or after discovering a hidden defect, lead to considering the goods as accepted – even in cases of non-conformity with the order.
The buyer must take customary efforts to comprehensibly show both the identity of the objected goods and that it has been examined in due time. If a claimed defect is justified, we may choose, at our sole discretion, to make subsequent deliveries (freight paid), to reduce the purchase price or to withdraw, excluding all other warranty claims. Any warranty expires three months after receipt of the goods at the latest. If the buyer can show that the goods supplied are damaged due to a defect in quality and that we are liable for such damage, the parties agree on the purchase price of the material consumed or processed as the maximum amount to be reimbursed. Raising a claim for defects does not release the buyer from its duty to pay.
9. We reserve the title in the goods supplied until their purchase price has been paid in full. The buyer may use and handle the goods by way of ordinary business. However, the buyer must not give our goods in pawn or transfer title to them by way of security. We shall be informed immediately if other creditors seize our goods. The reservation of title also applies to the products made by processing. If our goods are processed, connected to or mixed with other materials, we shall gain partial ownership in the ensuing product up to the share of our goods compared to that of the other material. In the case, the buyer is considered the depositary. The buyer agrees to assign to us as a security any and all receivables from goods we have partial ownership in; the assigned sum potentially amounts to the share of our partial ownership. Both any subsequent buyer and our company must be informed of this clause. In case the secured value exceeds our receivables by more than 25%, we shall have to release such extra amount upon the buyer’s request.
10. Payment of the purchase price is due when the goods (or a partial delivery) are (is) ready for dispatch as made known to the purchaser by a (partial) invoice made out to that effect; payment shall be made in cash without deduction within the term specified on our order confirmation. Setting off any sums against receivables from deliveries made or exercising any right of retention is excluded. If a payment is overdue, the purchaser is considered in default without a particular reminder or period of grace. Starting from the due date, we may raise interest on arrears up to the customary interest rate for overdraft facilities (at least 8% annually). We reserve the right to claim further damages for delays. Bills of exchange will be accepted as payment if agreed separately and provided your credit worthiness has been shown.
Credit notes by bills of exchange or cheques will be accepted, provided that they are honoured and validated on the date we can use the nominal value. We are disclaiming any liability for damages caused by a bill of exchange or cheque not being presented in due time or for not protesting against a bill of exchange of cheque. If the buyer’s solvency is doubted during the life of the contract, we may call in all our receivables, withdraw from all open supply contracts or request advance payment of all contracts unperformed as yet. Moreover, we may request equivalent securities. The buyer agrees to using securities it bestows on us for paying our receivables. If we choose to exercise any of these rights, all invoice amounts not paid at that time will become due immediately.
11. The place of venue for all disputes is Feldkirch.