General Terms and Conditions
I. General provisions
(1) The General Conditions of Sale provided here apply to Premosys GmbH. These general conditions of sale of Premosys apply to entrepreneurs (§14 German Civil Code). (2) Regarding the scope of deliveries or services (in the following referred to as "deliveries") the reciprocal written declarations apply. Premosys exclusively performs supplies or services based on the present General Conditions of Sale. Deviating, conflicting or supplementary General Terms and Conditions of the customer shall only become part of the contract in so far as we have given our express written consent to their application. (3) By concluding this contract the customer also agrees to receive electronic messages from Premosys such as emails for invitations to trade shows, to product presentations, etc. The customer is entitled at any time to revoke this service without stating a reason and without prior notice to Premosys.
Tenders/cost estimates are subject to confirmation. Orders shall only be deemed to be accepted by Premosys if they have been executed by Premosys or are confirmed in writing. (2) Tolerances of dimension, weight or performance, technical or design changes as well as deviations of brochures and other documents in the course of technical progress shall be reserved so long as they are not fundamental changes and are reasonable for the customer. (3) Partial deliveries are permitted so long as they are reasonable for the customer. If the partial delivery extends beyond two weeks, Premosys is entitled to issue partial invoices for the already delivered goods.
III. Prices and Payment Terms
(1) Prices are ex works (EXW in accordance with Incoterms) excluding packaging and plus the statutory sales tax applicable at the time. (2) If Premosys has assumed responsibility for the setup or assembly and nothing to the contrary has been stipulated the customer will bear, apart from the remuneration agreed, any necessary incidental expenses such as travelling costs or other travel expenses, expenses for the transport of tools and personal baggage as well as daily allowances. (3) Payment shall be effected free of charge to the accounts office of Premosys. Payment terms: 30 days net upon receipt of invoice or as agreed. (4) Customer shall only have the right to set-off claims that have become inal or are uncontested. The customer is authorized to exercise a right of retention in this respect only when his counterclaim is based on the same contractual relationship. (5) If the customer does not meet his payment obligations or if circumstances become known which place serious doubt about his ability to pay or his creditworthiness, Premosys is entitled to declare the remaining amount as due or to require an appropriate surety.
IV. Retention of Title
(1) Premosys reserves title to all goods supplied by us until Customer has paid all present and future claims from the business relationship. In proceedings for checks and bills, our retention of title shall also continue following payment of the check until our discharge from liability for bills. In case of a current account relationship (business relationship) Premosys retains title until receipt of all payments from the existing current account; the reservation applies to the acknowledged accounting balance; in these cases the provisions of this article apply accordingly. (2) In case of a breach of the contract by the Customer, in particular in case of a delay for, Premosys is entitled to request from the Customer the purchased objects back after fruitless elapse of a deadline. Mere repossession shall not be seen as rescission from the contract unless a reasonable deadline set by Premosys has expired without result and the rescission is explicitly declared. The costs incurred by Premosys by the repossession (incl. transport costs) shall be borne by the customer. Further, Premosys may prohibit the custome from reselling, processing, combining or integrating into other goods any goods delivered under retention of title and to revoke the authorization to collect (Number 5). The customer may demand the delivery of goods recovered without an express notice of rescission only once the purchase price and all costs have been fully paid. (3) The customer is required to treat the goods carefully (incl. required inspection and maintenance work). (4) Customer may neither pledge, nor assign as security, nor transfer the delivery object and the debts claims applicable for it. In case of attachments or any other interventions by third parties, the customer shall immediately notify such third party of our rights of retention, immediately inform us in writing and hand over all relevant information and documentation so that this suit can be filed in accordance with § 771 ZPO. The customer shall bear the costs of any residual costs in spite of winning a legal dispute in accordance with § 771 ZPO. (5) The customer has the right to resell, process or mix the purchase article in the ordinary course of business; however, he will thus now assign to us all claims resulting from resale, processing, mixing, combining or other causes in law related to the purchased item (in particular from insurance contracts or unlawful acts) in the amount of the mutually agreed final invoice total (incl. VAT). If the goods delivered are resold together with goods for which we have no title the accounts receivable of the buyer against his client are regarded as resigned to us at the value of the delivery price agreed between the buyer and us. Even after the assignment, customer shall remain entitled to collect these receivables, without affecting the right of Premosys to collect the receivables on our own. However, the Premosys undertakes not to collect the account receivable so long as the purchaser complies with his payment obligations arising out of the proceeds collected, is not in default of payment and in particular has not filed a petition for the opening of insolvency proceedings and payments have not been suspended. Should any of the aforementioned situations occur, however, the customer shall if requested disclose details of the claims and of the obligors, provide all the necessary details for enforcement of the claims, along with the relevant documentation, and notify the obligors (third parties) of the assignment. (6) Retention of title shall also apply to goods resulting from the processing, mixing or combining of our goods in their full amount. If the retention of title of third parties remains in existence during the processing or conversion with their goods, the customer shall grant Premosys co-ownership in relation to the objective value of these goods; it shall be agreed now already that the customer will carefully safeguard the goods for Premosys in this case. The same shall otherwise apply for goods resulting in this manner as for those delivered under retention of title. (7) To secure our claims against him, the customer assigns to us also such claims which arise against third parties due to the combination of goods subject to retention of title with real estate. (8) Securities to which Premosys is entitled shall not be accounted for so far as the value of our securities exceeds the nominal amount of claims to be secured by 50%; it will be the decision of Premosys which securities are released in this respect. (9) As far as the validity of the retention of title in the destination country is tied to special prerequisites or special requirements of form, the customer shall take care that they will be complied with.
V. Time for Supplies; Delay
(1) Times set for Supplies shall only be binding if all Documents to be furnished by the Purchaser, necessary permits and approvals, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser are fulfilled. If these conditions are not fulfilled in time, times set shall be extended reasonably; this shall not apply if Premosys is responsible for the delay. Otherwise, times named are only binding if they have been expressly confirmed in writing by Premosys. (2) Upon the onset of unforeseeable obstacles which are outside of our will and which we had been unable to avert - despite the diligence reasonably to be expected according to the circumstances of the case - regardless of whether they occur with us or with a subcontractor - such as force majeure (e.g. war and natural disasters), delays in the delivery of essential raw materials, etc. - Premosys shall be entitled to withdraw from the delivery contract entirely or in parts or extend the delivery period by the duration of the obstacles. Premosys reserves the same rights in the case of strikes or lockouts at Premosys or their primary suppliers. Premosys shall promptly inform the customer of such circumstances. Under these circumstances contractual penalties shall not be forfeited. In case of withdrawal by Premosys these already rendered considerations by the customer shall be reimbursed. (3) The right of a correct and timely self-supply is reserved. Delays shall be promptly communicated to the customer. Should Premosys not receive supplies correctly or in timely fashion from our suppliers and we are not at fault, the delivery time shall be extended by a corresponding period. Optionally Premosys may withdraw from the contract as a consequence of the undelivered materials. As far as allowed under competitive law, Premosys shall assign to the Customer his claims against the subcontractor for the non-contractual supply. Any contractual penalties agreed to between Premosys and the customer shall not be forfeited. Premosys shall promptly reimburse the customer for already rendered considerations. (4) In the event of arrears in delivery, Customer can withdraw from the contract following the fruitless expiry of a suitable period of grace; this right shall accrue to it without a period of grace in the event of impossibility of performance on our part. (5) The customer undertakes to notify Premosys within a reasonable time whether, due to delayed delivery, he intends to terminate the contract or whether he insists on delivery. (6) If shipment or delivery is delayed by request of the Customer by more than one month after indication of the readiness of shipment, storage charges can be debited to the customer for each commenced month in the amount of 0.5 % of the price of the objects of delivery, not exceeding, however, a total of 5 % of the total price. Premosys shall be free to prove higher damage or expenditures; the customer shall be free to prove that no damage or expenditures were incurred or only considerably lower damage or expenditures.
VI. Transfer of Risk
(1) The risk is transferred to the ordering party even if it has been stipulated that the goods will be dispatched carriage paid: a) for deliveries without setup or assembly if these have been shipped or collected. At the request and expense of the customer deliveries will be insured against the usual transport risks; b) for deliveries with setup or assembly on the day of acceptance in the customer’s own plant or, if so agreed, following faultless test operation. (2) If shipping is delayed or made impossible at no fault of Premosys, the risk is transferred to the customer upon him being informed that the goods are ready to ship. (3) If the customer delays acceptance of the goods, the risk is transferred to him.
VII. Installation and Mounting
Unless otherwise agreed in writing, the following regulations shall apply for installation and mounting: (1) The customer shall assume responsibility for and provide at his own expense: a) all earth works, construction work and other ancillary work including but not limited to any necessary specialists and auxiliary workers, building materials and tooling, b) the equipment and materials necessary for installation and mounting such as scaffolds, lifting equipment and other devices as well as fuels and lubricants, c) energy and water at the place of use, including connections, heating and lighting, d) sufficiently large, suitable, dry and lockable rooms at the installation location for the storage of machine parts, apparatus, materials, tooling etc. And appropriate work and break spaces for the installation personnel including sanitary facilities appropriate to the circumstances; furthermore the customer shall take measures for protecting the property of Premosys and the installation personnel on the job site to the same extent as he would his own property, e) protective clothing and equipment necessary due to the special circumstances at the assembly site. (2) Prior to assembly work the customer must provide the necessary information on the position of covered electricity, gas and water pipes or similar installations and the necessary structural information even if not requested. (3) Prior to the start of installation or mounting work the customer shall ensure that the materials and objects required for commencing work are in place at the installation or mounting location and all preparatory work is far enough along before beginning the setup that installation or mounting can be commenced as agreed upon and without interruption. Approaches and the installation or mounting location must be leveled and cleared. (4) If installation, mounting or startup is delayed by circumstances not the fault of Premosys, the customer shall bear the expenses for the waiting time in a reasonable amount along with any additionally required travel expenses of the installation personnel. (5) The customer shall document promptly on a weekly basis the duration of the work time of the installation personnel as well as completion of the setup, installation or startup. Premosys will notify the customer of the consequences of his silence with the request for acceptance.
VIII. Test Run/Test Version
(1) Provision of a sample can be arranged with Premosys. A testing device will be supplied to the customer for this purpose. Premosys expressly states that the testing devices are intended solely for the purpose of enabling testing of the function desired by the customer. Premosys assumes liability only for the technical data specified in the product documentation (in particular in the data sheet, in the tender, in the operating manual) under the prerequisite that the conditions set forth there are met. Premosys provides no guarantee that the testing devices are suitable for the customer’s desired purpose unless Premosys has expressly provided such guarantee. (2) It is the responsibility of the customer to perform the test run with the usual care and under actual conditions of use and to verify the suitability of the testing devices for his application and for his intended purpose. (3) If the Customer decides to purchase a product from Premosys, Premosys is not liable that the purpose/result (e.g. savings) occurs which is desired by the customer unless Premosys has confirmed this in writing and/or Premosys is liable for Customer's damage.
Premosys shall be liable as follows for material defects in the itemsdelivered, insofar as Customer is a registered business, but only as long as the latter has duly performed its obligations to inspect the goods and lodge a complaint (the complaint must be lodged in writing) as laid down in German Commercial Code Handelsgesetzbuch - HGB § 377: (1) The customer shall not refuse to receive supplies due to minor defects. (2) If the object of sale has a defect, Premosys shall have the right to choose between subsequent performance in the form of remedy of the defect or delivery of a new item free of defects. The prerequisite is that the defect be not minor. Should one or both of these ways of remedy be impossible or disproportionate, Premosys shall have the right to decline. (3) Should the subsequent performance indicated in paragraph 2 be impossible or should it fail, the Customer shall have the optional right to either reduce the purchase price accordingly or to rescind the contract according to the statutory provisions; this shall apply especially in case of culpable delay or refusal of subsequent performance, also if it is unsuccessful for a second time. (4) No warranty shall be accepted for damages due to the following reasons: Unsuitable or improper use; faulty mounting by the customer and/or third parties; natural wear; faulty or negligent handling by the customer and/or third parties; unsuitable operating materials; deficient construction work; unsuitable subsoil; substitute materials; chemical, electrochemical or electrical influences (as far as Premosys is not responsible for them); any modifications or repair work on the part of customer or third parties which are improper and have been carried out without prior approval by Premosys. (5) Any claims for defects shall be statute-barred in one year after delivery of the purchased goods. In the case of goods which have been used in accordance with their intended purpose for a building and have caused its defectiveness, the limitation period shall be 5 years. (6) Warranties and guarantees shall only be given effectively if Premosys grants them explicitly and in writing. In particular, Premosys is not liable that the purpose/result (e.g. savings) occurs which is desired by the Customer unless Premosys has confirmed this in writing.
X. Industrial Property Rights and Copyrights; Rights of Use
(1) We reserve the ownership of and copyright to cost estimates, drawings and other documents, without restrictions and for all countries. The documents may only be made accessible to third parties with prior written consent of Premosys, and if no order with Premosys materializes they are to be returned promptly to Premosys on request. This shall apply analogously for documents of the customer; however, they may be made accessible to those third parties to which Premosys admissibly transferred supplies. . (2) The rights of ownership of the contractual programs belong to Premosys or one of its business partners whom it has authorized for further distribution of the programs. The customer has the non-exclusive right to use the software/program with the agreed performance in unaltered form using the agreed devices (license). The customer is entitled to perform data backups according to the rules of the technology and to make the necessary backup copies. The customer is not entitled to modify or remove existing copyright notices. The license does not entitle the customer to edit or revise the program. (3) It is possible that contractual software or programs contains so-called Open Source software. Use of this Open Source software is subject to generally binding licensing rules (BSD License, Lesser General Public License (LGPL)). The customer shall be informed of this as part of the contract conclusion. The licensing terms for Open Source software can be found linked on our website at www.Premosys.de. The customer shall inform his customers of the included Open Source software and of the availability of the licensing terms. If the Open Source licensing terms provide for it, the customer shall upon written request receive or be informed of the download location of the source code of the Open Source software. A claim to the publication or transfer of the source code of the parts of the software or programs not related to Open Source software is excluded. (4) Insofar as not otherwise agreed Premosys undertakes to merely provide the delivery in the country of the place of delivery free of industrial property rights and copyrights of third parties (referred to hereinafter as property rights). If a third party asserts claims against the purchaser because of a breach of property rights or copyrights through the goods and services supplied by Premosys and as a result significantly interferes with or forbids its use of the products in accordance with the contract, Premosys will - at its option and its expense - either change or replace these products to the effect that they no longer breach the property right. (5) Customer's claims are excluded if he is solely responsible for the violation of the proprietary rights. (6) Claims of the customer are also excluded insofar as the infringement of property rights was caused by special fixed parameters of the customer, by an application that could not be foreseen by Premosys or by the fact that the delivery or service was changed by the customer and used together with products that were not supplied by Premosys.
(1) Premosys is liable for willful and grossly negligent breaches of duty and for minor negligence of major contractual duties (cardinal duties). In the latter case, liability is limited to the foreseeable damage upon conclusion of the contract. (2) Premosys is not liable for minor negligent violation of unessential contractual duties. (3) Legal liability for personal injury and in accordance with the Product Liability Act shall remain unaffected. Exclusions and limitations of liability on the part of Premosys also pertain to its legal representatives and vicarious agents. (4) Premosys is liable for the loss of data only, even if it had not been avoidable by reasonable measures of data backup and it is not caused by disturbances and influences of third parties.
XII. Place of Performance, Place of Jurisdiction, Applicable Law and Distribution of the Burden of Proof, Privacy of Data and AGG
(1) Place of performance is the place of dispatch (plant or inventory location). (2) When the customer is a business entity, the Premosys place of business is the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. Premosys also has the right to file suit at other permissible places of jurisdiction. (3) Legal relations existing in connection with this contract shall be governed by German substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). (4) Premosys will treat all customer data solely for purposes of conducting business and in accordance with the respective prevailing data protection provisions. All personal terms are to be read as gender-neutral.
XIII. Severability Clause
Should any part or provision of these General Conditions be held unenforceable or in conflict with the applicable law of any jurisdiction, the validity of the remaining parts or provisions shall not be affected thereby.
(Effective date 05/2015)