General Sales and Delivery Terms and Conditions
1. Validity of the conditions
1.1. Deliveries, services and offers of proHeq are made exclusively on the basis of these General Terms and Conditions of Sale and Delivery (GTCS). These GTCS are deemed to be accepted at the latest upon receipt of the goods or services. Any general terms and conditions of the buyer that conflict with or deviate from the proHeq GTCS will not be recognised by proHeq unless proHeq has expressly agreed to their validity. The proHeq GTCS also apply if proHeq carries out the delivery to the buyer without reservation in the knowledge that the buyer's general terms and conditions contradict or deviate from the proHeq GTCS.
1.2. These GTCS of proHeq only apply to entrepreneurs in the exercise of their commercial or independent professional activity and to legal persons under public law and, unless otherwise agreed, also apply to all future transactions with proHeq, even if they are not mentioned.
1.3. They apply accordingly to work services and other services. Reception of the delivered products shall be replaced by approval in the case of work performances and by acceptance of the service in the case of services.
2. Offer and conclusion of contract
2.1. The offers of proHeq are subject to change and non-binding unless proHeq informs otherwise.
2.2. Orders become binding for proHeq through their written or express confirmation (also invoice or delivery note) or when proHeq executes the order, in particular when proHeq fulfils the order by sending the products. An order confirmation created with the help of automatic equipment, which lacks a signature and name reproduction, is deemed to be in writing. If the order confirmation contains obvious errors, spelling mistakes or miscalculations, it is not binding for proHeq. In all other respects, all agreements require the written confirmation of proHeq. The same applies to supplements, amendments and ancillary agreements.
2.3. proHeq reserves all property rights, copyrights and other industrial property rights to all offer documents. Such documents may not be made accessible to third parties. The buyer shall return all offer documents to proHeq immediately upon proHeq's request if they are no longer required in the ordinary course of business. The same applies in particular to all other documents, drafts, samples, specimens and models.
3. Prices, terms of payment
3.1. Our prices are net ex works exclusive the applicable VAT rate and including packaging.
3.2. In the absence of a special agreement, invoices from proHeq are payable 30 days after receipt without any deduction. If this payment deadline is exceeded, proHeq is entitled to demand interest in the amount of 9 percentage points above the applicable base interest rate without a reminder, subject to the assertion of higher damages for default. A service fee of EUR 30 will be charged for internal or external debt collection measures up to a goods value of EUR 500. Further claims of proHeq remain unaffected.
3.3. Cheques are only accepted on account of payment. Cash payments are excluded.
3.4. proHeq reserves the right to use payments to settle the oldest invoice items plus the default interest and costs accrued thereon, in the order: costs, interest, principal claim.
3.5. The buyer is only entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been accepted by proHeq. The buyer can only assert a right of retention if its counterclaim is based on the same contractual relationship.
3.6. If, after the conclusion of the contract, proHeq becomes aware of facts about a significant deterioration in the financial circumstances of the buyer which, according to dutiful discretion, are suitable to jeopardise its claim to counter-performance, proHeq can demand suitable security within a reasonable period of time or advance payments or performance upon counter-performance until the time of its performance. proHeq is also entitled to revoke payment terms that have been granted. If the buyer does not comply with proHeq's justified demand or does not do so in time, proHeq can withdraw from the contract or demand compensation instead of performance. If the buyer is in arrears with a partial performance, proHeq can make the entire remaining claim due immediately and, in the case of a delay in performance caused by a significant deterioration in the financial situation, withdraw from the contract without setting a grace period or demand compensation instead of performance. In the event of a delay in performance that is not due to a deterioration in assets, proHeq can withdraw from the contract after the fruitless expiry of a reasonable period of grace.
3.7. In the case of foreign transactions, payment shall be made prior to delivery, notwithstanding clause 3.2, unless otherwise agreed in writing in advance.
4. Condition and delivery
4.1. The condition of the products is determined by the agreed performance characteristics (in particular type, quantity, quality, functionality, compatibility, interoperability and other characteristics of the products). Insofar as proHeq and the buyer have agreed on a quality, a purpose, certain accessories or certain instructions, only this quality, the suitability for this purpose, these accessories and these instructions are owed. In this respect, in particular, the usual use of the products or the condition of the products, the accessories or the instructions which the buyer can expect without agreement shall not be relevant. This does not apply insofar as a consumer goods purchase (end customer is a consumer) takes place at the end of the supply chain.
4.2. Delivery periods are non-binding unless otherwise expressly agreed. Partial deliveries are permissible. If a fixed delivery date has been agreed, the buyer must set a reasonable grace period in the event of a delay on the part of proHeq. If the delivery is not made by the end of the grace period, the buyer has the right to withdraw from the contract.
4.3. The delivery period shall commence on the date of dispatch of the order confirmation and shall be deemed to have been complied with if the goods have left the factory/warehouse by the end of the delivery period or, in the event that dispatch is impossible, notification has been given that the goods are ready for dispatch. If subsequent amendments to the contract are agreed, the delivery date or the delivery period shall be agreed anew. Compliance with the delivery period is subject to proper, in particular timely, self-delivery by proHeq, unless proHeq is responsible for the reason for the improper self-delivery. proHeq is entitled to withdraw from the contract in the event of improper self-delivery. proHeq will inform the buyer immediately if proHeq exercises its right to withdraw and will refund any advance payments made by the buyer.
4.4. Compliance with agreed deadlines for deliveries requires the timely receipt of all documents to be provided by the buyer, necessary approvals and releases, in particular of plans, as well as compliance with the agreed payment terms and other contractual obligations by the buyer. If these prerequisites are not fulfilled in time, the deadlines shall be extended appropriately; this shall not apply if proHeq is responsible for the delay.
4.5. If the non-observance of the deadlines is due to force majeure - regardless of whether it occurred in the works of proHeq or at its sub-suppliers - this includes in particular official interventions, operational disruptions, industrial disputes, pandemics, delays in the delivery of essential raw and auxiliary materials - or similar events, e.g. strike or lockout, the deadlines are extended appropriately. If the delivery or performance becomes impossible due to the aforementioned events, proHeq is released from the delivery obligation without the buyer being able to claim damages. If the performance is no longer of interest to the buyer due to the delay, the buyer can withdraw from the contract after setting a reasonable grace period. If the aforementioned obstacles occur at the buyer, the same legal consequences also apply to the buyer's acceptance obligation if the buyer informs proHeq in writing in good time before the order is processed. The contractual partners are obliged to inform the other party of obstacles of the aforementioned type without delay.
4.6. Insofar as unforeseeable events within the meaning of clause 4.5 significantly change the economic significance or the content of the delivery or have a significant effect on proHeq's operations, the contract will be adjusted appropriately in good faith. If this is not economically justifiable, proHeq has the right to withdraw from the contract. If proHeq wants to make use of this right of withdrawal, it must inform the buyer immediately after recognising the consequences of the event, even if an extension of the delivery period was initially agreed with the buyer.
4.7. If the buyer does not accept the goods, proHeq is entitled to withdraw from the contract after setting a reasonable grace period or to demand compensation instead of performance. In the latter case, proHeq is entitled to demand either compensation for the damage actually incurred or 20% of the purchase price without proof of damage. The buyer expressly reserves the right to prove that proHeq has incurred lower damages or no damages at all.
4.8. If and to the extent that the goods to be delivered are not listed in the proHeq catalogue or are customised (special production), proHeq will fulfil its contractual obligations even if proHeq delivers up to 10% too little or too much of the agreed delivery quantity. In this case, the buyer does not have the right to demand subsequent delivery or to withdraw from the contract. The invoice amount to be paid by the buyer will be reduced or increased according to the quantity of goods actually delivered.
4.9. In the case of cross-border deliveries, the Buyer shall make all declarations and perform all acts necessary for export from Germany and import into the country of destination in good time vis-à-vis the competent authorities, in particular procure the documents necessary for customs clearance and comply with the requirements for any export controls or other restrictions on marketability. The deliveries are subject to the proviso that there are no obstacles to fulfilment due to national or international regulations, in particular export control regulations as well as embargoes or other sanctions. Delays due to export controls shall extend delivery times accordingly; delivery dates shall be postponed accordingly.
5. Transfer of risk
5.1. The risk of accidental loss and accidental deterioration shall pass to the buyer as follows, even in the case of carriage paid delivery:
- for deliveries, as soon as the goods have been handed over to the shipping agent. Shipment is ex works or warehouse at the risk of the buyer. proHeq is not liable for damage and loss during transport. This also applies if the delivery is made in parts or if proHeq has assumed further services, such as the transport costs or the assembly of the products at the buyer's premises. Unless otherwise agreed, proHeq chooses the dispatch and packaging at its own discretion. proHeq does not assume any insurance obligation. However, at the written request of the buyer, the goods will be insured against transport damage and other damage;
- in the case of self-collection and own-account transport, with the notification of readiness for collection.
5.2. In the event of a delay in acceptance by the buyer, proHeq can demand compensation for the damage incurred as well as compensation for any additional expenses, unless the buyer is not responsible for the non-acceptance of the products.
6. Claims for defects
proHeq is liable for material defects as follows:
6.1. All those products or services that show a material defect within the limitation period pursuant to clause 6.2 shall be repaired or provided again free of charge at the discretion of proHeq, provided that the cause of the material defect already existed at the time of the transfer of risk.
6.2. Claims for material defects shall become statute-barred after 12 months, unless a consumer goods purchase (end customer is a consumer) takes place at the end of the supply chain. The period begins with delivery or, in the case of work services, with acceptance. The limitation period of one year shall also apply to claims in tort based on a defect in the products or work performance. The limitation period of one year does not apply to the unlimited liability of proHeq for damages from the breach of a guarantee or from injury to life, body or health, for intent and gross negligence and for product defects or insofar as proHeq has assumed a procurement risk. A statement by proHeq regarding a claim for defects asserted by the buyer is not to be regarded as entering into negotiations regarding the claim or the circumstances giving rise to the claim, insofar as the claim for defects is rejected by proHeq in its entirety.
6.3. The statutory limitation periods for recourse claims of the buyer against proHeq due to a defect of a sold product based on supplier recourse (§ 445b BGB) remain unaffected. The limitation of these recourse claims occurs at the earliest two months after the time at which the buyer has fulfilled the claims of its buyer. This suspension of the statute of limitations ends at the latest five years after the time at which proHeq delivered the product to the buyer. This does not apply if a consumer goods purchase takes place at the end of the supply chain.
6.4. The buyer must notify proHeq in writing of obvious material defects without delay, at the latest two weeks after delivery of the goods, and of hidden defects without delay, at the latest after their detection. Hidden defects must be reported to proHeq in writing immediately after their discovery. The buyer must describe the defects in writing when notifying proHeq.
6.5. In the event of notices of defects, payments by the buyer may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. If the notice of defects is unjustified, proHeq is entitled to demand compensation from the buyer for the expenses it has incurred.
6.6. First of all, proHeq must always be given the opportunity through subsequent performance in accordance with clause 6.1 within a reasonable period of time. The buyer must provide proHeq with the rejected item or samples thereof. Replaced parts become the property of proHeq and must be returned to proHeq.
6.7. If proHeq is not willing or able to provide supplementary performance or if the supplementary performance fails twice, the buyer can choose to withdraw from the contract or reduce the purchase price without prejudice to any claims for damages or reimbursement of expenses. The same applies if the subsequent performance fails, is unreasonable for the buyer or is delayed beyond reasonable time limits for reasons for which proHeq is responsible.
6.8. The buyer's right of withdrawal is excluded if it is unable to return the performance received and this is not due to the fact that the return is impossible due to the nature of the performance received, is the responsibility of proHeq or the defect only became apparent during the processing or transformation of the products. The right of withdrawal is further excluded if proHeq is not responsible for the defect and if the buyer has to pay compensation instead of the return.
6.9. Articles designed for private use or use in private households are marked accordingly in the catalogue and brochures. Commercial use is possible for these articles, provided that the commercial use is comparable in type and scope to private use.
6.10. No warranty is given by proHeq:
- for defects, insofar as they are not the fault of proHeq, which are due to the effects of weather, chemical, physical, electrochemical or electrical influences;
- in the event of use beyond the scope specified in Clause 6.9.
6.11. In all other respects, Clause 8 shall apply to claims for damages.
6.12. proHeq does not assume any guarantees, in particular no quality or durability guarantees, unless otherwise agreed in writing in individual cases.
7. Product returns
7.1. The return of products requires the prior written consent of proHeq after an examination of the reason for the return. If such consent is not given, proHeq may refuse to return the products at its own discretion and will not bear the costs of the return.
7.2. When returning the products, the quantity and designation of the products must match those indicated on the return note. The agreement of proHeq regarding the return of individual products does not give the buyer any right of return regarding other, even similar products.
7.3. In the event that proHeq consents to the return of products, this shall be subject to the following provisions:
- The products must be part of the proHeq product catalogue valid at the time of the return request
- The return shipment will only take place after prior consent at the expense of proHeq, unless the parties have agreed otherwise. In the first case, the transport will be carried out by a carrier selected by proHeq;
- The return shipment will be made to a location selected by proHeq;
- The products and their respective accessories must be returned in perfect condition and in the original packaging; and
- The return of the products entitles the buyer to the issue of a credit note by proHeq;
- proHeq is entitled to charge a restocking fee in the amount of 25% of the order value, but at least € 75, insofar as no factual warranty case exists.
8. Product liability
8.1. The buyer will not modify the products, in particular he will not modify or remove existing warnings about dangers in case of improper use of the products. In the event of a breach of this obligation, the buyer shall indemnify proHeq internally against product liability claims by third parties, unless the buyer is not responsible for the modification of the products.
8.2. If proHeq is prompted to issue a product recall or warning due to a product defect in the products, the buyer shall cooperate to the best of its ability in the measures that proHeq deems necessary and expedient and support proHeq in this, in particular in determining the necessary customer data. The buyer is obliged to bear the costs of the product recall or warning unless it is not responsible for the product defect according to product liability law principles. Further claims of proHeq remain unaffected.
8.3. The buyer will inform proHeq in writing without delay of any risks in the use of the products and possible product defects of which it becomes aware.
9. Liability of proHeq
9.1. proHeq shall be liable without limitation for damages arising from the breach of a guarantee or from injury to life, body or health. The same applies to intent and gross negligence or insofar as proHeq has assumed a procurement risk. proHeq is only liable for slight negligence if essential obligations are breached which arise from the nature of the contract and which are of particular importance for achieving the purpose of the contract. In the event of a breach of such obligations, default and impossibility, proHeq's liability is limited to such damages as can typically be expected to occur within the scope of this contract. Mandatory statutory liability for product defects remains unaffected.
9.2. Insofar as proHeq's liability is excluded or limited, this also applies to the personal liability of proHeq's employees, representatives and vicarious agents.
10. Retention of title
10.1. The delivered goods remain the property of proHeq until the fulfilment of all claims to which proHeq is entitled from the current and future business relationship with the buyer (reserved goods). The buyer is obliged to treat the products subject to retention of title with care for the duration of the retention of title.
10.2. If the buyer is not the end user but a reseller, it is entitled to resell the goods subject to retention of title in the ordinary course of business. Otherwise, the buyer is not entitled to pledge the products subject to retention of title, to assign them by way of security or to make other dispositions that endanger proHeq's ownership. In the event of seizures or other interventions by third parties, the buyer must immediately notify proHeq in writing and provide all necessary information, inform the third party of proHeq's ownership rights and cooperate in proHeq's measures to protect the products subject to retention of title. Insofar as the third party is not able to reimburse proHeq for the judicial and extrajudicial costs for the enforcement of proHeq's property rights, the buyer is obliged to compensate proHeq for the resulting loss, unless the buyer is not responsible for the breach of duty.
10.3. The buyer hereby assigns to proHeq all claims in the amount of the final invoice amount of the proHeq claim that accrue to it from the resale against its customers or third parties, irrespective of whether the goods subject to retention of title have been resold without or after processing. proHeq hereby accepts this assignment. If an assignment is not permissible, the buyer hereby instructs the third-party debtor to make any payments only to proHeq. The buyer is revocably authorised to collect the claims assigned to proHeq in trust for proHeq in its own name. The collected amounts must be paid to proHeq immediately. proHeq can revoke the buyer's collection authorisation as well as the buyer's authorisation to resell for good cause, in particular if the buyer does not properly fulfil its payment obligations to proHeq, is in default of payment, stops its payments or if the opening of insolvency proceedings or comparable proceedings for the settlement of debts over the buyer's assets is applied for by the buyer or the justified application of a third party for the opening of insolvency proceedings or comparable proceedings for the settlement of debts over the buyer's assets is rejected due to lack of assets. In the event of revocation, proHeq can demand that the buyer informs proHeq of the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and informs the debtors (third parties) of the assignment. In the event of a blanket assignment by the buyer, the claims assigned to proHeq are to be expressly excluded.
10.4. The processing or transformation of the products subject to retention of title by the buyer is always carried out for proHeq. The buyer's expectant right to the products subject to retention of title continues to apply to the processed or transformed item. If the products are processed or transformed with other items that do not belong to proHeq, proHeq acquires co-ownership of the new item in proportion to the value of the delivered products to the other processed items at the time of processing or transformation. The same applies if the products are combined or mixed with other items that do not belong to proHeq in such a way that proHeq loses its full ownership. The buyer keeps the new items for proHeq. For the rest, the same provisions apply to the object created by processing or transformation as well as combination or mixing as to the products subject to retention of title.
10.5. If the value of all security interests to which proHeq is entitled exceeds the amount of all secured claims by more than 10%, proHeq will release a corresponding part of the security interests at the request of the buyer. The valuation must be based on the invoice value of the products subject to retention of title and the nominal value in the case of receivables. The selection of the items to be released is the responsibility of proHeq in detail.
10.6. In the event of breaches of duty by the buyer, in particular in the event of default in payment, proHeq is entitled to withdraw from the contract after the expiry of a reasonable grace period set by proHeq for the performance of the contract, without prejudice to its other rights. The buyer is immediately obliged to surrender the purchased goods. After giving appropriate notice in due time, proHeq may otherwise realise the products subject to retention of title in order to satisfy its due claims against the buyer.
10.7. In the case of deliveries to other legal systems in which this retention of title provision does not have the same security effect as in the Federal Republic of Germany, the buyer hereby grants proHeq a corresponding security interest. If further measures are required for this purpose, the buyer will do everything possible to grant proHeq such a security interest without delay. The buyer will cooperate in all measures that are necessary and conducive to the effectiveness and enforceability of such security interests.
11. Data protection
11.1. In order to process the contract concluded with the buyer, it is necessary to process personal data of the employees of proHeq GmbH. For this purpose, proHeq GmbH, as the responsible party (within the meaning of Article 4 (7) in conjunction with Article 24 of the GDPR), transmits the name data and e-mail contact data of its employees to the buyer, who in turn carries out the processing under its own responsibility (within the meaning of Article 4 (7) in conjunction with Article 24 of the GDPR). The basis for the processing is the contract concluded between the parties (Art. 6 para. 1 b) EU GDPR).
11.2. proHeq GmbH informs the buyer promptly about changes in the processing of personal data, e.g. if an employee leaves the company or takes on other tasks within the company.
11.3. Due to the necessary processing of personal data by data controllers, they are obliged to comply with the legal regulations on data protection and to provide sufficient guarantees that appropriate technical and organisational measures (pursuant to Article 32 of the GDPR) are implemented in such a way that the processing is carried out in accordance with the requirements of the GDPR and ensures the protection of the rights of the data subject.
12. Prohibition of assignment
An assignment of claims against proHeq from contracts concluded between proHeq and the buyer is excluded without the express written consent of proHeq.
13. Place of jurisdiction, place of performance, applicable law
13.1. Unless otherwise stated in the order confirmation, the place of performance is the registered office of proHeq.
13.2. If the buyer is a merchant, the exclusive place of jurisdiction is the registered office of proHeq; however, proHeq is also entitled to sue the buyer at the court of its place of residence. Arbitration clauses are objected to.
13.3. The contractual relations shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
13.4. Should any of the above provisions be invalid or should a loophole be found, the invalid provision or the loophole shall be replaced by a valid provision which comes as close as possible to the economic purpose intended by the parties.
D-75217 Birkenfeld, Germany
Phone +49 (0) 72 31 / 4885 500
Fax +49 (0) 72 31 / 4885 590
Management: Carsten Kulcke
Registered office of the company: Birkenfeld
Local Court Mannheim HRB 500228
VAT ID No./VAT/TVA DE811 123 585