GENRAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF PRONORM EINBAUKÜCHEN GMBH

for exclu­sive use in rela­tion to com­pa­nies, legal enti­ties under pub­lic law and spe­cial funds under pub­lic law.

I. Gen­er­al information 

1. These gen­er­al sales and deliv­ery con­di­tions (GTC) apply to all our deliv­er­ies, ser­vices and offers. These GTC are an inte­gral part of all con­tracts we con­clude with our cus­tomer for our deliv­er­ies and services.
2. These GTC also apply to all future deliv­er­ies, ser­vices and offers to the cus­tomer, even if they are not agreed upon again separately.
3. Uni­lat­er­al adap­ta­tions of these GTC by us shall be noti­fied to the cus­tomer in text form with­in the frame­work of exist­ing con­tracts. They shall be deemed to have been approved if the cus­tomer does not object in text form. The objec­tion must be received by us with­in six weeks after the cus­tomer has received the noti­fi­ca­tion of adaptation.
4. Any terms and con­di­tions of the cus­tomer or third par­ties which devi­ate from or sup­ple­ment these GTC shall not apply and shall only become part of the con­tract if and inso­far as we have agreed to their valid­i­ty in text form. This also applies if we car­ry out deliv­er­ies and ser­vices with­out reser­va­tion in the knowl­edge of con­flict­ing or devi­at­ing terms and con­di­tions of the cus­tomer or third par­ties or refer to let­ters from the cus­tomer which con­tain or refer to terms and con­di­tions of the cus­tomer or third parties.
5. Sup­ple­ments and/or amend­ments to the con­tracts con­clud­ed between us and the cus­tomer on the basis of these GTC as well as these GTC them­selves must be in text form to be effec­tive. With the excep­tion of man­ag­ing direc­tors and autho­rised sig­na­to­ries, our employ­ees are not enti­tled to make oral agree­ments devi­at­ing from this.
6. Legal­ly rel­e­vant dec­la­ra­tions and noti­fi­ca­tions made or to be made to us by the cus­tomer after con­clu­sion of the con­tract require text form to be valid.
7. Promis­es made oral­ly by us pri­or to the con­clu­sion of the con­tract and/or agree­ments made by the par­ties pri­or to the con­clu­sion of the con­tract shall be replaced by the agree­ment made on the basis of these GTC, unless they express­ly state that they shall con­tin­ue to be bind­ing in any case.

II. Con­clu­sion of contract

1. Our offers are sub­ject to change and non-binding.
2. Orders of the cus­tomer are bind­ing and the cus­tomer is bound to his offer for a peri­od of 14 days from receipt of the order by us. Dur­ing this peri­od we can accept the customer’s order by con­firm­ing the order in text form or by deliv­er­ing the goods.
3. Our prod­uct descrip­tions, draw­ings and rep­re­sen­ta­tions of the goods and prod­ucts, infor­ma­tion on tech­ni­cal data and oth­er infor­ma­tion pro­vid­ed by us on the goods or on prod­ucts and ser­vices are only approx­i­mate val­ues and approx­i­mate­ly deci­sive, unless the usabil­i­ty of the goods or ser­vices for the pur­pose of the con­tract requires exact con­for­mi­ty. These details and rep­re­sen­ta­tions are descrip­tions of the goods or ser­vices, but not war­rant­ed char­ac­ter­is­tics. Inso­far as this does not impair the con­trac­tu­al­ly intend­ed usabil­i­ty of the goods or ser­vices, cus­tom­ary devi­a­tions and devi­a­tions due to legal reg­u­la­tions or tech­ni­cal improve­ments are per­mis­si­ble. The replace­ment of cer­tain com­po­nents by oth­er, equiv­a­lent parts is also permitted.
4. We reserve all prop­er­ty rights, indus­tri­al prop­er­ty rights and copy­rights to all sam­ples, cal­cu­la­tions, mod­els, offers, cost esti­mates and sim­i­lar infor­ma­tion of a phys­i­cal and non-phys­i­cal nature — also in elec­tron­ic form. The cus­tomer is not enti­tled to make this infor­ma­tion avail­able to third par­ties with­out our pri­or con­sent in text form and must return it to us free of charge or, at our dis­cre­tion, destroy it if the con­tract is not concluded.

III. Pay­ment

1. Unless oth­er­wise agreed, our prices are ex works plus val­ue added tax, in case of deliv­ery plus pack­ag­ing, trans­port, freight. Any cus­toms duties and/or oth­er charges shall be borne by the customer.
2. Unless oth­er­wise agreed, pay­ments are due with­in 14 days of receipt of our invoice by the cus­tomer and deliv­ery or accep­tance of the goods or oth­er con­trac­tu­al due dates.
3. The uncon­di­tion­al cred­it­ing to our bank account is deci­sive for the time­li­ness of payment.
4. The cus­tomer shall be in default upon expiry of the pay­ment peri­od described above. Dur­ing the peri­od of default, the invoice amount affect­ed by the default shall be sub­ject to inter­est at the statu­to­ry default inter­est rate. How­ev­er, we reserve the right to assert fur­ther dam­ages caused by delay, also the claim for inter­est on due date accord­ing to § 353 HGB remains unaffected.
5. We are enti­tled to make a deliv­ery whol­ly or part­ly depen­dent on pay­ment in advance; if we do so, we will declare the cor­re­spond­ing reser­va­tion at the lat­est with our order confirmation.
6. The cus­tomer is only enti­tled to rights of reten­tion and set-off inso­far as his coun­ter­claims are undis­put­ed or have been legal­ly established.
7. We are enti­tled to charge rea­son­able advance pay­ments for com­plet­ed par­tial ser­vices. If the cus­tomer does not pay or does not pay on time on an advance invoice, we are enti­tled to make fur­ther ful­fil­ment of the con­tract depen­dent on pay­ment of the advance. If the cus­tomer does not pay or does not pay on time on an instal­ment invoice, we are also enti­tled to with­draw from the con­tract if we have pre­vi­ous­ly request­ed the cus­tomer to pay in text form with­in a rea­son­able peri­od of time. The asser­tion of claims for expens­es and dam­ages remains unaffected.

IV. Ship­ment

1. Our deliv­er­ies are ex works, unless oth­er­wise agreed.
2. If we spec­i­fy peri­ods or dead­lines for deliv­ery, these are non-bind­ing approx­i­mate val­ues unless these peri­ods or dead­lines are express­ly des­ig­nat­ed as bind­ing or agreed as binding.
3. If dis­patch of the goods to the cus­tomer has been agreed, the time of han­dover of the goods to the for­ward­ing agent, car­ri­er or oth­er third par­ty com­mis­sioned with the trans­port is deci­sive for com­pli­ance with the deliv­ery peri­ods or deliv­ery dates. Oth­er­wise, the point in time at which we have noti­fied the cus­tomer that the goods are ready for dis­patch shall be deci­sive for com­pli­ance with deliv­ery peri­ods or deliv­ery dates; if accep­tance is required, this shall be the point in time at which we noti­fy the cus­tomer that the goods are ready for acceptance.
4. All deliv­ery dates and deliv­ery peri­ods are sub­ject to prop­er and time­ly sup­ply to our­selves, pro­vid­ed that we are not respon­si­ble for the delay or incor­rect sup­ply to our­selves. We shall inform the cus­tomer imme­di­ate­ly if there is a threat of delays in deliv­ery dates or deliv­ery peri­ods due to incor­rect or untime­ly sup­ply to ourselves.
5. We are enti­tled to make par­tial deliv­er­ies, pro­vid­ed this is rea­son­able for the cus­tomer, the par­tial deliv­ery does not cause him any con­sid­er­able addi­tion­al work or addi­tion­al costs which we do not assume, the deliv­ery of the remain­ing part of the goods is ensured and a par­tial deliv­ery can be used by the cus­tomer tak­ing into account the pur­pose of the contract.
6. We shall not be liable for delays in deliv­ery or the impos­si­bil­i­ty of deliv­ery caused by force majeure or oth­er events which were not fore­see­able by us at the time the con­tract was con­clud­ed and for which we are not respon­si­ble (e.g. labour dis­putes, short­age of raw mate­ri­als, oper­a­tional dis­rup­tions through no fault of our own). If the deliv­ery becomes impos­si­ble for us due to such events or due to force majeure or if it becomes unrea­son­ably dif­fi­cult, tak­ing into account the val­ue of the goods, we are enti­tled to with­draw from the con­tract. If we are only tem­porar­i­ly pre­vent­ed from deliv­er­ing as a result of such events or force majeure, the deliv­ery dates or deliv­ery peri­ods shall be post­poned by the peri­od dur­ing which the imped­i­ment to per­for­mance exists, but plus a start-up peri­od of one week. In this case, the cus­tomer is enti­tled to with­draw from the con­tract if he can­not rea­son­ably be expect­ed to accept the delayed deliv­ery and if he informs us imme­di­ate­ly in text form after we have informed him of the imped­i­ment to per­for­mance, which we are oblig­ed to do imme­di­ate­ly after the imped­i­ment to per­for­mance becomes appar­ent. The right of the cus­tomer to with­draw from the con­tract in the event of impos­si­bil­i­ty of per­for­mance under the statu­to­ry con­di­tions remains unaffected.
7. The statu­to­ry pro­vi­sions shall apply to the exis­tence of a delay in deliv­ery on our part, how­ev­er, a reminder from the cus­tomer in text form is required in any case for the occur­rence of a delay in deliv­ery, unless we have seri­ous­ly and final­ly refused delivery.
8. If our deliv­ery is delayed for rea­sons for which the cus­tomer is respon­si­ble (e.g. if the cus­tomer fails to per­form an act of coop­er­a­tion owed by him or per­forms it late) or if the cus­tomer is in default of accep­tance, we shall be enti­tled to demand com­pen­sa­tion from the cus­tomer for expens­es and/or dam­ages incurred by us as a result. We are there­fore enti­tled to demand a flat-rate com­pen­sa­tion from the cus­tomer in the amount of 0.25% of the val­ue of the goods per cal­en­dar day, begin­ning on the day after the agreed deliv­ery date or the noti­fi­ca­tion of readi­ness for dis­patch or accep­tance by us, if no deliv­ery date has been agreed, but not exceed­ing a total of 5% of the val­ue of the goods. How­ev­er, this flat-rate com­pen­sa­tion shall not apply if the cus­tomer proves that we have actu­al­ly suf­fered a sub­stan­tial­ly low­er loss or no loss at all. Our fur­ther legal rights and the proof of high­er dam­ages remain unaf­fect­ed. In any case, the lump-sum com­pen­sa­tion shall be set off against our fur­ther claims.
9. The risk of acci­den­tal loss and/or acci­den­tal dete­ri­o­ra­tion of the goods shall pass to the cus­tomer upon exe­cu­tion of the deliv­ery or ser­vice, unless oth­er­wise agreed. If the dis­patch of the goods has been agreed, the risk of acci­den­tal loss and/or acci­den­tal dete­ri­o­ra­tion shall pass to the cus­tomer upon han­dover of the goods to the for­warder, car­ri­er or oth­er per­son des­ig­nat­ed to car­ry out the dis­patch. This shall also apply if par­tial deliv­er­ies are made or we owe fur­ther ser­vices (such as com­mis­sion­ing or installation).
10. We are enti­tled to com­mis­sion sub­con­trac­tors to ful­fil our exist­ing con­trac­tu­al oblig­a­tions towards the customer.

V. Reten­tion of title 

1.  The goods shall remain our prop­er­ty until all claims we are enti­tled to against the cus­tomer under the con­tract on which the deliv­ery is based have been ful­filled in full.
2. The cus­tomer is oblig­ed to treat the goods deliv­ered to him under reten­tion of title with care and to insure them at his expense against fire and water dam­age and against theft at replace­ment value.
3. The cus­tomer may not pledge the goods deliv­ered under reten­tion of title to third par­ties or assign them as secu­ri­ty as long as our claim secured by the reten­tion of title has not been set­tled. If third par­ties seize the goods deliv­ered under reten­tion of title or if oth­er access to these goods is made by third par­ties, the cus­tomer is oblig­ed to inform these third par­ties of our own­er­ship and to inform us imme­di­ate­ly in text form. Nec­es­sary costs which we have to bear with­in the scope of the extra­ju­di­cial and judi­cial asser­tion of our prop­er­ty rights against the third par­ty shall be reim­bursed to us by the cus­tomer, unless they are reim­bursed by the third party.
4. We are enti­tled to take back the goods deliv­ered under reser­va­tion of title after we have set the cus­tomer a rea­son­able dead­line for per­for­mance and this dead­line has expired fruit­less­ly if the cus­tomer fails to meet due pay­ment oblig­a­tions or fails to meet them on time. In this case the cus­tomer shall bear the trans­port costs incurred for the return. If we take back goods deliv­ered under reten­tion of title, this shall con­sti­tute a with­draw­al from the con­tract; this shall also apply if we seize the goods deliv­ered under reten­tion of title.
5. The cus­tomer may use, resell and/or process the goods deliv­ered under reten­tion of title in the ordi­nary course of busi­ness. Regard­ing this, the fol­low­ing applies in addition:

-      The cus­tomer already now assigns to us the claims result­ing from the resale of the goods deliv­ered under reten­tion of title as well as those claims in rela­tion to the goods deliv­ered under reten­tion of title which he is enti­tled to or will be enti­tled to in the future against his cus­tomer or oth­er third par­ties for oth­er rea­sons (e.g. claims from insur­ance ben­e­fits or tort); we accept this assignment.

-      The cus­tomer him­self remains autho­rised to col­lect the above-men­tioned claims and we under­take not to col­lect these claims our­selves as long as the cus­tomer ful­fils his con­trac­tu­al oblig­a­tions towards us, in par­tic­u­lar is not in default of pay­ment, no appli­ca­tion is made for the open­ing of insol­ven­cy pro­ceed­ings against the customer’s assets and there are no oth­er defects in his abil­i­ty to pay which jeop­ar­dise our claim to remu­ner­a­tion. If such a case occurs, how­ev­er, the cus­tomer is oblig­ed to inform his debtors of the assign­ment and to name his debtors to us as well as to pro­vide all infor­ma­tion nec­es­sary for the col­lec­tion of these assigned claims and to hand over to us the cor­re­spond­ing documents.

-      Any pro­cess­ing or trans­for­ma­tion of the goods deliv­ered to the cus­tomer under reser­va­tion of title shall always be car­ried out for us. If the goods deliv­ered under reten­tion of title are processed with items that are not our prop­er­ty, we shall acquire co-own­er­ship of the new­ly cre­at­ed item in the ratio of the val­ue of the goods deliv­ered to the cus­tomer under reten­tion of title (invoice amount includ­ing VAT) to the oth­er processed items at the time of pro­cess­ing. The same applies to the new object cre­at­ed as a result of pro­cess­ing as to the goods deliv­ered to the cus­tomer under reten­tion of title.

-      In the event of insep­a­ra­ble con­nec­tion or mix­ing of the goods deliv­ered to the cus­tomer under reser­va­tion of title with items that are not our prop­er­ty, we shall acquire co-own­er­ship of the new item cre­at­ed by con­nec­tion or mix­ing in the ratio of the val­ue of the goods deliv­ered under reser­va­tion of title (invoice amount includ­ing VAT) to the oth­er con­nect­ed or mixed items at the time of con­nec­tion or mix­ing. If the com­bi­na­tion or mix­ing is car­ried out in such a way that the item not owned by us is to be regard­ed as the main item, the cus­tomer here­by assigns to us the pro­por­tion­al co-own­er­ship of the new­ly cre­at­ed item and we accept this assignment.

-      Inso­far as we acquire co- or sole own­er­ship of a new­ly cre­at­ed object, the cus­tomer shall hold this in safe­keep­ing for us. At the customer’s request, we shall release secu­ri­ties of our choice if the real­is­able val­ue of the secu­ri­ties exceeds our claims by more than 10%.

VI. War­ran­ty

1. The cus­tomer is oblig­ed to care­ful­ly inspect the goods imme­di­ate­ly after deliv­ery and to report defects in writ­ing imme­di­ate­ly after their dis­cov­ery. With regard to obvi­ous defects or such defects that would have been recog­nis­able with imme­di­ate, care­ful exam­i­na­tion, the goods shall be deemed to have been approved by the cus­tomer if he does not give us writ­ten notice of these defects with­in 7 work­ing days of the trans­fer of risk. With regard to oth­er defects, the goods shall be deemed to have been approved by the cus­tomer if the cus­tomer does not noti­fy us of the defect in text form with­in 7 work­ing days after dis­cov­ery of the defect. How­ev­er, if the defect was already recog­nis­able to the cus­tomer at an ear­li­er point in time dur­ing nor­mal use of the goods, this ear­li­er point in time shall be deci­sive for the start of the peri­od for lodg­ing a complaint.
2. If the goods or ser­vices are defec­tive, we may choose the type of sub­se­quent per­for­mance. The right to refuse sub­se­quent per­for­mance in accor­dance with the legal require­ments remains unaf­fect­ed. The sub­se­quent per­for­mance owed by us does not include the removal of the defec­tive item and the rein­stal­la­tion of a defect-free item, if we were not orig­i­nal­ly oblig­ed to install it.
3. We are enti­tled to make sub­se­quent per­for­mance depen­dent on the pay­ment of the pur­chase price. How­ev­er, the cus­tomer is enti­tled to retain a rea­son­able part of the price in rela­tion to the defect.
4. If the goods or ser­vices are defec­tive, we shall bear the costs of sub­se­quent per­for­mance. If the customer’s demand for the removal of defects turns out to be unjus­ti­fied in ret­ro­spect, we can demand com­pen­sa­tion from the cus­tomer for the costs incurred due to the unjus­ti­fied demand for the removal of defects.
5. If and inso­far as the cus­tomer mod­i­fies the goods or has them mod­i­fied by third par­ties with­out our con­sent and if this makes it impos­si­ble or unrea­son­ably dif­fi­cult for us to rec­ti­fy the defect, the customer’s war­ran­ty rights shall lapse. If such changes to the goods result in addi­tion­al costs for the removal of the defect, the cus­tomer shall reim­burse us for these addi­tion­al costs.
6. If the defec­tive­ness of a com­po­nent of anoth­er man­u­fac­tur­er used by us leads to the defec­tive­ness of our goods or ser­vices and if we can­not rem­e­dy this defec­tive­ness for legal and/or fac­tu­al rea­sons, we can assign to the cus­tomer the claims for defects to which we are enti­tled on our side against the third man­u­fac­tur­er; in this case, war­ran­ty claims of the cus­tomer against us exist only and only to the extent that the legal enforce­ment of the claims for defects against the third man­u­fac­tur­er assigned to the cus­tomer was unsuc­cess­ful or is futile. For the dura­tion of the customer’s claim against the third par­ty man­u­fac­tur­er, the lim­i­ta­tion of the customer’s war­ran­ty claims against us is suspended.
7. The cus­tomer is oblig­ed to inform us imme­di­ate­ly if third par­ties assert claims against him in rela­tion to our goods or ser­vices on account of the infringe­ment of indus­tri­al prop­er­ty rights or copy­rights. If the goods vio­late an indus­tri­al prop­er­ty right or copy­right of a third par­ty and the respon­si­bil­i­ty for this does not lie with the cus­tomer (exam­ple for cus­tomers’ respon­si­bil­i­ty: the goods have been man­u­fac­tured accord­ing to his spec­i­fi­ca­tions), we shall, at our dis­cre­tion, either mod­i­fy or exchange the goods in such a way that the rights of third par­ties are no longer vio­lat­ed, but the goods nev­er­the­less con­tin­ue to com­ply with the con­trac­tu­al­ly agreed qual­i­ty, or pro­cure the right of use for the cus­tomer. If we do not suc­ceed in doing so with­in a rea­son­able peri­od of time, both the cus­tomer and we shall be enti­tled to with­draw from the contract.
8. If the prod­ucts are man­u­fac­tured accord­ing to the customer’s draw­ing, we shall only be liable for com­pli­ance with the drawing.
9. Oth­er­wise, the customer’s war­ran­ty claims shall be deter­mined in accor­dance with the statu­to­ry provisions.
10. If the goods are free of defects in the rela­tion­ship between us and our cus­tomer, we shall not be liable for defects in the rela­tion­ship between our cus­tomer and his cus­tomer due to a devi­a­tion of the prod­uct from the objec­tive require­ments. Our cus­tomer shall deter­mine qual­i­ty agree­ments between him and us, which may lead to a devi­a­tion of the prod­uct from the objec­tive require­ments in the rela­tion­ship with his cus-tomer, by inde­pen­dent and sep­a­rate agree­ment with his customer.

VII.  Lia­bil­i­ty

1. We shall only be liable for dam­ages — irre­spec­tive of the legal grounds — in the event of intent and gross neg­li­gence. In the case of sim­ple neg­li­gence, we shall only be liable

-      for dam­ages result­ing from injury to life, body or health,

-      for dam­ages result­ing from the breach of an essen­tial con­trac­tu­al oblig­a­tion (oblig­a­tions the ful­fil­ment of which makes the prop­er exe­cu­tion of the con­tract pos­si­ble at all and on whose ful­fil­ment the cus­tomer reg­u­lar­ly relies on and may rely on), where­by the lia­bil­i­ty in this case is lim­it­ed to the replace­ment of the fore­see­able, typ­i­cal­ly occur­ring damage

2. The above lim­i­ta­tion of lia­bil­i­ty shall not apply to claims of the cus­tomer under the Prod­uct Lia­bil­i­ty Act and to the extent that we are legal­ly com­pul­so­ri­ly liable or have fraud­u­lent­ly con­cealed a defect or have assumed a guar­an­tee for the qual­i­ty of the goods.

3. A free right of ter­mi­na­tion by the cus­tomer (espe­cial­ly accord­ing to §§ 651, 649 BGB) is exclud­ed. The cus­tomer may only with­draw or ter­mi­nate due to a breach of duty on our part which does not con­sist of a defect if we are respon­si­ble for this breach of duty.

VIII. Applic­a­ble law and place of jurisdiction

1.  The legal rela­tions between us and the cus­tomer are sub­ject to the law of the Fed­er­al Repub­lic of Ger­many, which applies to the legal rela­tions between domes­tic con­trac­tu­al part­ners with­in the Fed­er­al Repub­lic of Ger­many. The Con­ven­tion on the Inter­na­tion­al Sale of Goods (UN Sales Con­ven­tion) is excluded.
2. The exclu­sive place of juris­dic­tion for all dis­putes aris­ing from or in con­nec­tion with the con­trac­tu­al rela­tion­ship between us and the cus­tomer is our reg­is­tered office in Vlotho (Biele­feld dis­trict court). Manda­to­ry statu­to­ry pro­vi­sions on exclu­sive places of juris­dic­tion shall remain unaffected.

Last update: July 2020

pronorm Ein­bauküchen GmbH
Höfer­feld 5–7
32602 Vlotho