General Terms And Conditions
General Terms and Conditions of PROMADENT UG
(as of 09/2021)
- These General Terms and Conditions ("GTC") apply to all business relations between PROMADENT UG, Im Nordfeld 13, 29336 Nienhagen (hereinafter: "PROMADENT") and you as a customer (hereinafter: "Buyer", whereby this term is to be understood as gender-neutral).
- The business relations between PROMADENT and the Buyer shall be governed exclusively by the following GTC in the version valid at the time of the order. Any deviating terms and conditions of the Buyer shall not be accepted. Even if PROMADENT refers to a letter containing or referring to the terms and conditions of the Buyer or a third party, this shall not be deemed to be an agreement to the validity of those terms and conditions. These shall only apply if they have been confirmed in writing by PROMADENT.
- These General Terms and Conditions shall only apply if the Buyer is an entrepreneur (§ 14 BGB (German Civil Code)).
- Individual contractual agreements take precedence over General Terms and Conditions. This also applies to offers which deviate from the General Terms and Conditions.
- For the purchase of a software license, the PROMADENT Software End User License Terms shall also apply in the version valid at the time of the conclusion of the contract.
Conclusion of contract
- Our offers in the online shop are always subject to change and non-binding. By placing an order in the online shop, the buyer makes a binding offer to purchase the product concerned. We can accept the offer until the end of the (third) working day following the day of the offer. We will send the Buyer a confirmation of receipt of the offer immediately after receipt of the offer, which does not constitute an acceptance of the offer. The offer shall only be deemed to have been accepted by us as soon as we declare acceptance to the Buyer (by e-mail) or dispatch the goods. The purchase contract with the buyer is only concluded when we ship the ordered product to you and confirm the shipment with an e-mail to you (shipping confirmation).
- Individual offers outside the online shop can be made by PROMADENT in writing or in text form (e.g. by e-mail). The offer shall be valid for 4 weeks ("offer period"), unless expressly agreed otherwise in writing. The purchase contract shall be concluded if the Buyer accepts PROMADENT's offer within the Offer Period by a clear and binding declaration in writing or text form and announces it by the expiry of the offer period or places an order subject to payment in the online shop. PROMADENT shall then immediately confirm the purchase to the Buyer by e-mail to the e-mail address provided by the Buyer.
- Order processing and contacting usually takes place via e-mail and automated order processing. Buyer shall ensure that the e-mail address provided by Buyer for order processing is correct and that the e-mails sent by PROMADENT to Buyer can be received at this address. If SPAM filters are used, the Buyer shall ensure that all e-mails sent by PROMADENT can be delivered.
- Ordering in the online shop includes the following steps:
- Selection of an offered article (offer) in desired specification (e.g. colour, size, quantity)
- Adding the item to the basket and displaying the basket
- Confirmation of the button "Proceed to checkout”
- Creation of a customer account by registration or login with the login data
- Selection of the billing and delivery address
- Selection of shipping method and payment method
- If applicable, payment via external payment provider
- Confirmation of the GTC
- Confirmation of the EULA (SOFTWARE END USER LICENSE TERMS AND CONDITIONS)
- Check the entries and order via the button: "Buy now".
- E-mail to the Buyer confirming the receipt of the order.
E-mail confirming the shipment of the products ordered by the Buyer. With this confirmation e-mail, the purchase contract is concluded.
- Conclusions of contracts and other agreements, in particular also verbal subsidiary agreements and assurances by employees or representatives shall only become binding upon confirmation by PROMADENT in written or electronic form. Illustrations in catalogues, brochures and the online shop are not binding. We reserve the right to make changes in design and material.
- Obvious errors, typing, printing or calculation errors are not binding for PROMADENT. In the event of a calculation error, PROMADENT is entitled to correct the prices stated by PROMADENT. In this case, the Buyer is entitled to withdraw from the contract by notifying PROMADENT in writing or electronically within one week of being informed of this. Other claims are excluded.
- If financing of the purchase price by third parties is planned, PROMADENT is entitled to demand proof of financing before delivery.
Quantities and dimensions
- All quantities in orders placed by the Buyer are based on information provided by the Buyer.
- If deviations subsequently become apparent, any additional costs resulting therefrom shall be borne by the Buyer, unless PROMADENT is responsible for the deviations.
- The purchase price is generally based on the prices stated by PROMADENT in the online shop. If PROMADENT has submitted an individual offer, the price of this offer shall take precedence.
- The prices do not include the statutory value added tax and any freight or delivery costs. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
Payments and clearing
- Unless otherwise agreed in writing, payment of the purchase price shall be made immediately upon maturity and receipt of the invoice, but no later than within 14 days without deduction.
- Upon expiry of the aforementioned payment deadline, the buyer shall be in default. We are entitled to withdraw from the contract after the unsuccessful expiry of a further reasonable period set by us (usually 14 days).
- For contracts with an order volume of more than EUR 20,000 (net), the Buyer shall, unless otherwise agreed, make a pro rata payment in advance, which shall amount to at least fifty percent (50%) of the total order amount. Without payment of the agreed price, PROMADENT shall only be obliged to deliver if the Buyer submits suitable documents to PROMADENT showing that the financing and payment of the delivery item is guaranteed.
- If the payment deadline is exceeded, PROMADENT is entitled to charge interest at a rate of at least 9 percentage points above the base interest rate as defined in § 247 BGB (German Civil Code). PROMADENT reserves the right to assert further damage caused by default.
- PROMADENT shall be entitled to demand reminder fees in the amount of EUR 2.50 per reminder from the second reminder onwards; the Buyer shall be entitled to prove that the actual reminder fees were not incurred or were significantly lower. This expressly does not constitute an obligation to issue a second reminder.
- If, after the conclusion of the contract, the financial circumstances of the Buyer deteriorate significantly and PROMADENT's claim to counter-performance is at risk, PROMADENT may refuse its performance, even if it is obliged to perform in advance, until the Buyer’s contractual performance has been provided or security for it has been provided to PROMADENT. If the purchaser is neither willing to concurrent performance nor to the provision of security despite being requested to do so within a reasonable period of time, PROMADENT shall be entitled to withdraw from the contract. The legal rights to withdraw from the contract according to §§ 323, 324 BGB (German Civil Code) as well as to claim damages according to § 325 BGB (German Civil Code) remain unaffected.
- The Buyer may only set off claims of PROMADENT against acknowledged, undisputed or legally established claims or claims arising from the same contractual relationship. The same applies to the assertion of a right of retention. Statutory warranty rights remain unaffected by this.
- Accepted payment methods are PayPal, payment by credit card and bank transfer, unless expressly agreed otherwise in writing.
Delivery times and dates
- The delivery periods and dates stated in the online shop (delivery time) or - if no delivery time is stated there - the delivery time stated in the order confirmation shall apply, unless a deviating individual delivery time has been expressly agreed in text form. If no or no deviating delivery times are specified for the respective goods in our online shop or in the order confirmation, or if no fixed period or date has been agreed otherwise, our deliveries and services shall take place within a period of
- approx. 5 working days for software products
- approx. 7 working days for other products shown as "in stock”
- approx. 10 working days for other products shown as "not in stock" or "out of stock”.
Deadlines and dates for deliveries and services promised by PROMADENT are always only approximate, unless the Parties have expressly agreed to a fixed deadline or date , or a binding date has been designated in the online shop. The delivery period begins
- for orders in the online shop on the day of the order confirmation ,
- for an individual order on the day of conclusion of the contract or the agreed start date; or
- if payment is to be made in advance, on the day of payment of the amount to be paid in advance, but not before clarification of all technical and commercial details. Clause 5 of these GTC remains unaffected.
- We are entitled to sell off the goods at any time (also insofar as they are marked as "in stock" on the order form in the online shop) if the delivery is made against advance payment and the payment is not received by us within a period of (five) working days after our acceptance of the offer. In this case, shipment within the agreed period or the period specified by us shall only take place while stocks last; otherwise, a period of (three) weeks shall apply.
- In the event that our supplier does not deliver goods to us on time which are indicated in the online shop as "not in stock" or which have been sold out in accordance with clause 6.2, the relevant delivery period shall be extended until delivery by our supplier plus a period of three working days, however, by a maximum period of three weeks in total, provided in each case,
- we are not responsible for the delay in delivery by our supplier and
we have reordered the goods prior to the conclusion of the purchase contract (or in the case of item 6.2. the time of the sale) in such a timely manner that under normal circumstances a timely delivery could be expected.
- In the event of the occurrence of unforeseen events, force majeure or non-delivery through no fault of the upstream suppliers, the purchaser is entitled to withdraw from the contract if the delivery deadline is exceeded after setting a reasonable period of grace with the warning of refusal.
- PROMADENT shall be entitled to make partial deliveries and render partial services if
- the partial delivery is usable for the buyer within the scope of the contractual intended purpose,
- the delivery of the remaining ordered goods/services is ensured and
- the Buyer does not incur any significant additional expenses or costs as a result (unless PROMADENT agrees to bear such costs).
Such partial deliveries or partial services cannot be rejected by the Buyer.
- If PROMADENT is in default with the contractual performance, the Buyer may set PROMADENT a reasonable grace period in written or electronic form and combine it with the declaration that it will refuse to accept the performance after the expiry of the grace period. After expiration of this grace period, the Buyer shall be entitled to claim damages for non-performance and/or to withdraw from the contract if performance has not been effected in due time. The setting of a deadline is dispensable in the cases of § 323 para. 2 BGB (German Civil Code). The statutory right of the Buyer to withdraw from the contract pursuant to § 324 BGB (German Civil Code) shall remain unaffected.
The claim for performance is excluded in case of declaration of withdrawal or assertion of a claim for damages instead of performance. If the performance is partially not effected by the expiry of the period referred to in the first sentence above, the Buyer shall only be entitled to claim damages for non-performance of the entire obligation in accordance with §§ 280 para. 3, 281 BGB (German Civil Code) and/or to withdraw from the entire contract if he has no interest in the partial performance of the contract. Withdrawal and claim for damages shall be excluded if the Buyer is solely or predominantly responsible for the non-performance or poor performance or is in default of acceptance of the delivery. Withdrawal is also excluded if the defect in performance is insignificant.
- The following applies to software products: Unless expressly agreed otherwise, the Buyer is responsible for verifying the functionality of the purchased item under its individual conditions of use on the basis of the service description and the system requirements. The Buyer is responsible for the installation, configuration and operation of the system environment.
- For products that are not software products, the following shall apply: If preliminary work or preparations by the Buyer (e.g. for the installation of a system) are necessary for the performance of PROMADENT's obligations, PROMADENT shall refer to these when submitting the offer, provided it has sufficient information on this from Buyer at that time. The advance performances shall also become part of the contract. If Buyer has not complied with the obligatory preparations at the time of delivery or has intentionally or negligently failed to provide PROMADENT with sufficient information on the relevant circumstances despite being requested to do so by PROMADENT, or has provided false information which would have changed the advance performance/preparation requirement, PROMADENT may charge the Buyer its expenses in accordance with the currently applicable prices for the services provided.
Place of performance, acceptance, dispatch and transfer of risk
- The place of performance for all obligations arising from the contractual relationship shall be the registered office of PROMADENT, unless otherwise determined. If PROMADENT is also responsible for the installation, the place of performance shall be the place where the installation has to take place.
- The method of shipment and the packaging are subject to the dutiful discretion of PROMADENT. PROMADENT will only insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Buyer and at the Buyer's expense.
- The risk shall pass to the Buyer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or PROMADENT has performed other services (e.g. shipment or installation). If shipment or handover is delayed due to a circumstance caused by Buyer, the risk shall pass to the Buyer from the day on which the delivery item is ready for shipment and PROMADENT has notified Buyer thereof.
- If acceptance does not take place, does not take place in time or if the purchaser waives acceptance, PROMADENT is entitled to send the goods to the purchaser without acceptance or to store them at the purchaser's expense and risk. Otherwise, PROMADENT shall be entitled to withdraw from the contract in the event that the deadline is exceeded.
Retention of title
- The following agreed reservation of title serves as security for all current and future claims of PROMADENT against the Buyer arising from the contractual relationship between the contracting parties.
- The delivery item remains the property of PROMADENT until full payment of all secured claims, irrespective of the legal basis, even if payments have been made for specifically designated claims. In the case of a current account, the reserved property shall be deemed to secure the balance of the account. The goods as well as the goods covered by the reservation of title taking their place in accordance with the following provisions are hereinafter referred to as "goods subject to reservation of title".
- The Buyer shall store the goods subject to reservation of title free of charge for PROMADENT.
- The Buyer is entitled to process the goods subject to reservation of title within the scope of proper business management until the event of exploitation and to sell the processed goods, provided that the purchaser is not in default of payment, the processed property is transferred to PROMADENT upon its creation as security for our claims and the claim from a resale is assigned to PROMADENT in accordance with clause 8.6. The Buyer is not entitled to any other dispositions, pledges or transfers by way of security of the goods subject to reservation of title. The use of the goods subject to reservation of title for the performance of other service contracts or contracts for work and materials by the Buyer shall be deemed equivalent to resale of the goods subject to reservation of title.
- If the goods subject to reservation of title are processed by the Buyer, it is agreed that the processing shall be carried out in the name and for the account of PROMADENT as manufacturer and that PROMADENT shall acquire direct ownership or - if the processing is carried out with materials of several owners or the value of the processed item is higher than the value of the goods subject to reservation of title - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the goods subject to reservation of title to the value of the newly created item. In the event that PROMADENT does not acquire such ownership, the Buyer hereby assigns its future ownership or - in the above-mentioned proportion - co-ownership of the newly created item to PROMADENT as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, PROMADENT shall, insofar as the main item belongs to PROMADENT, transfer pro rata co-ownership of the uniform item in the ratio stated in Sentence 1 to the Buyer.
- In the event of resale of the goods subject to reservation of title, the Buyer hereby assigns to PROMADENT the resulting claim against the purchaser as security - in the event of co-ownership of PROMADENT of the goods subject to reservation of title, in proportion to the co-ownership share. The same shall apply to other claims which take the place of the goods subject to reservation of title or otherwise arise with regard to the goods subject to reservation of title, such as insurance claims or claims in tort in case of loss or destruction. PROMADENT revocably authorizes the Buyer to collect the claims assigned to PROMADENT in its own name as long as the Buyer is not in default vis-à-vis PROMADENT. Upon our request, which is admissible at any time, the Buyer is obliged to inform his customers immediately of the assignment to PROMADENT and to provide PROMADENT with the necessary information for collection. PROMADENT may only revoke this direct debit authorisation in the event of exploitation.
- If third parties seize the goods subject to retention of title, in particular by way of pledge, the Buyer shall immediately notify them of PROMADENT's ownership and inform PROMADENT thereof in order to enable PROMADENT to enforce its ownership rights. If the third party is not in a position to reimburse PROMADENT the court or out-of-court costs incurred in this context, the Buyer shall be liable to PROMADENT for such costs.
- If PROMADENT withdraws from the contract due to default of payment or due to other behaviour contrary to the contract, the Buyer is obliged to surrender the goods subject to reservation of title upon request (case of exploitation).
- The Buyer shall immediately notify PROMADENT of any seizure or other impairment of the reserved goods by third parties.
- If the realisable value of the securities existing for PROMADENT exceeds the claims of PROMADENT not only temporarily by a total of more than 20%, PROMADENT shall release securities of its own choice in the corresponding amount at the Buyer's request. The selection of the items to be released thereafter shall be at PROMADENT's discretion.
Claims for defects and warranty
- The delivered items shall be carefully inspected immediately after delivery to the Buyer or to the third party designated by the Buyer. With respect to obvious defects or other defects that would have been apparent upon immediate, careful inspection, they shall be deemed to have been approved by Buyer if PROMADENT does not receive a written notice of defect without undue delay (generally within seven working days) after delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Buyer if the notice of defect is not received by PROMADENET immediately (generally within seven working days) after the point in time at which the defect became apparent; however, if the defect was already apparent at an earlier point in time during normal use, this earlier point in time shall be decisive for the commencement of the period for giving notice of defect.
- Upon PROMADENT's request, a rejected delivery item shall be returned to PROMADENT carriage paid. In the event of a justified notice of defect, PROMADENT shall reimburse the costs of the most favourable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
- In the event of a material defect of the delivery item, PROMADENT shall first be entitled to subsequent performance within a reasonable period of time. Subsequent performance shall be effected, at our option, either by remedying the defect or by replacement delivery of a defect-free object of purchase at our expense against return of the defective object of purchase. The purchaser's right to a reduction of the purchase price and withdrawal from the contract shall be preserved in the event that subsequent performance fails. A right of withdrawal does not exist in the case of insignificant defects.
- Any delivery of used items agreed in individual cases shall be made to the exclusion of any warranty for material defects.
- Damage caused by improper handling is not subject to our warranty obligation.
- In the event of defects in components of other manufacturers, which PROMADENT cannot remedy for licensing or factual reasons, PROMADENT shall, at its option, assert its warranty claims against the manufacturers and suppliers for the account of the Buyer or assign them to the Buyer. Warranty claims against PROMADENT shall exist in the case of such defects under the other conditions and in accordance with these General Terms and Conditions only if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. due to insolvency. For the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the Buyer against PROMADENT shall be suspended.
- The warranty shall not apply if the purchaser modifies the delivery item or has it modified by a third party without PROMADENT's consent and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the Buyer shall bear the additional costs of remedying the defect resulting from the modification. Other or further warranty claims are excluded. The rights of the Buyer arising from a guarantee of quality or durability granted by PROMADENT shall remain unaffected by this.
- The warranty period is one year from delivery. This period shall not apply to claims for damages of the Buyer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by PROMADENT or its vicarious agents, which shall each lapse in accordance with the statutory provisions. The provisions for merchants according to the German Commercial Code (HGB) shall apply with priority.
- Excluded from this warranty period according to No. 9.8. of the General Terms and Conditions are warranty claims which are based on a right in rem of a third party to the delivery item. Insofar as the delivery item was delivered by the sub-supplier with a longer warranty period, this shall also apply between PROMADENT and the Buyer, including the start and end of the period agreed in the relationship with the sub-supplier.
General limitation of liability and statute of limitations
- Subject to the following provisions, PROMADENT 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 that were not foreseeable at the time the contract was concluded (e.g. interruption of operations of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, pandemics, difficulties in procuring the necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which PROMADENT is not responsible. If such events make it considerably more difficult or impossible for PROMADENT to deliver or perform and the hindrance is not only of temporary duration, PROMADENT is entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If the Buyer cannot reasonably be expected to accept the goods as a result of the delay, he may withdraw from the contract by immediately notifying PROMADENT in writing.
- PROMADENT shall be liable without limitation in accordance with the statutory provisions in the case of intent and gross negligence as well as for damages resulting from injury to life, body or health and in the case of liability under the Product Liability Act.
- In the event of slight negligence, PROMADENT shall only be liable for the breach of an essential contractual obligation (cardinal obligation), the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the Reseller may regularly rely. In this case, the liability is limited to the amount of the foreseeable damage, the occurrence of which must typically be expected. PROMADENT shall not be liable in the event of slight negligence.
- The above provisions shall also apply in favour of PROMADENT's legal representatives and vicarious agents.
- The invoice will be sent in electronic form by e-mail in PDF format or in paper form at the discretion of PROMADENT.
- If the invoice recipient does not have the possibility of receiving or archiving invoices in electronic format, he may insist on being issued with a paper invoice.
- Invoices shall be issued in the name of the recipient of the service specified in the order in accordance with the required information pursuant to § 14 UstG paragraph 4. Subsequent change requests that are not based on incorrect address transfer cannot be taken into account. Therefore a transfer to another invoice recipient is not possible.
- The exclusive place of jurisdiction for all disputes arising from and in connection with this contract is the registered office of PROMADENT, unless an exclusive place of jurisdiction is established by law. PROMADENT is furthermore entitled to sue the Buyer at any other legally permissible place of jurisdiction.
- The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) as well as the exclusion of the regulations referring to the law of other countries.
- Amendments and supplements to these provisions must be made in writing. This formal requirement can only be changed by written agreement.
- In the event that there is a regulatory gap, the contracting parties undertake to replace the missing provision with a contractual provision that corresponds to the consensual will of the parties. The same applies if a regulatory gap arises because a provision is invalid or void and no statutory provision is available to fill the regulatory gap.