Terms and Conditions
of Promex GmbH, Macairestraße 13, 78467 Konstanz/Germany (hereinafter "Promex")
§ 1 Applicability
- These general terms and conditions of business (hereinafter the "Terms and Conditions"), as amended at the time of the purchaser order by the Customer, apply to the business relationships between Promex and persons ordering goods from Promex ("Customer").
- The Customer assures that he is of full age and has unlimited legal capacity and that the Customer, where he acts as an agent, has the relevant authority.
- These Terms and Conditions apply exclusively. Any terms and conditions of the Customer that conflict with, or deviate from, these Terms and Conditions do not apply, even if Promex has not expressly objected to them.
§ 2 Conclusion of Contracts
- The details contained in prospectuses and advertisements and on Internet sites are without obligation and do not constitute an offer or warranty of quality by Promex. Any purchase orders by the Customer shall only be binding on Promex if they are accepted by Promex or complied with by sending the goods.
- The purchase order by the Customer constitutes an offer to Promex for the conclusion of a sale and purchase agreement. If the Customer places his order through the Internet or by email, the Customer will be sent an email by Promex confirming receipt of the purchase order and stating particulars regarding the purchase order (order confirmation). Such order confirmation as such shall not constitute an acceptance of the Customer's offer; rather, it merely constitutes a notification to the Customer that his order has been received by Promex.
- The Customer shall be bound by his purchase order for a period of 14 days from receipt of his purchase order by Promex.
- A sale and purchase agreement between Promex and the Customer shall not come into existence until Promex sends the ordered goods to the Customer or accepts the offer by sending another email or fax or a letter to the Customer (declaration of acceptance). Promex reserves the right to accept the offer for part of the ordered goods only. No sale and purchase agreement shall come into existence in respect of goods that are not delivered to the Customer or are not specified in the declaration of acceptance.
§ 3 Delivery; Reserved Delivery
- Unless otherwise agreed, deliveries shall be made ex warehouse of Promex to the address advised by the Customer in his purchase order. Any statements regarding delivery dates shall be without obligation, unless Promex shall have warranted the delivery date in a binding manner in an exceptional case. Any agreed delivery dates will be deemed complied with if the goods were surrendered to the carrier as at the agreed delivery date.
- Promex may render partial deliveries and partial performances.
- Promex shall charge freight charges depending on the weight, size, and destination; the amount of those shipping charges is set out in an individual quotation or the price lists regarding freight charges and delivery costs of Promex from time to time, which can be retrieved at www.crossed-flag-pins.com/freight-charges.php
- Promex may rescind the contract if Promex does not obtain the goods despite a relevant sale and purchase agreement having been concluded before. Promex shall inform the Customer without undue delay of the non-availability of the goods in good time and shall exercise the right of rescission without undue delay, should Promex wish to rescind the contract. In the event of a rescission, Promex shall refund to the Customer the corresponding consideration without undue delay.
- Deliveries will be made by Promex subject to availability.
§ 4 Remuneration; Payment Terms
- The current prices in euro from time to time as stated in catalogues, advertisements and/or on the website of Promex apply, plus shipping charges. Unless otherwise stated, the prices - subject to errors and typos or misprints - relate to the products as shown in the catalogues, advertisements and on the website of Promex as per the respective specifications.
- All claims shall fall due upon receipt of the invoice and shall be payable without any deductions. Invoices will normally be issued together with the delivery. Payments shall be made either against cash in advance or against an invoice; in the event of payment against an invoice, Promex reserves the right to carry out a credit investigation. Cheques will only be accepted on account of performance; a payment will not be deemed made until Promex can dispose of the relevant amount. The cost of the money transfer shall be borne by the Customer. In the case of deliveries to another country, the Customer shall be responsible for the settlement of the export into his country and shall bear all costs, taxes, charges, and customs duties.
- Promex reserves the right to make deliveries only against cash on delivery or cash in advance and to exclude specific payment methods in an individual case.
- The Customer shall be in default without any additional declaration by Promex being required, if the Customer fails to make a payment within 30 days from receipt of the invoice and maturity.
- The Customer may only make a set-off if his counterclaim is undisputed or has become final and conclusive. The Customer may only assert a right of retention if his counterclaim is based on the same contractual relationship.
§ 5 Warranty
- Promex warrants that the goods are in all material respects as stated in the relevant documentation and are free of defects in quality and product defects. Promex does not assume any warranty for technical details or the suitability of the goods for a specific purpose. Promex does not assume any warranty for ordinary wear and tear caused by weather conditions, improper use, or incorrect care. Any immaterial deviations in colour, structure or size customary in the trade caused by technical matters or the materials used do not constitute a defect.
- The Customer - provided that he is no businessman - shall report any obvious defects to Promex in writing within one month from receipt of the goods. If the Customer is a businessman, § 377 German Commercial Code shall apply. For the purposes of speeding up the rectification of any defects, the relevant defects shall be specified as detailed as the Customer is able to.
- The warranty period for consumers is 24 months from delivery. If the Customer is no consumer, the warranty period is 12 months from delivery.
- Promex may in a warranty case at its own option remedy defects of the goods by way of a rectification of the defect or a replacement (hereinafter "subsequent performance"). Promex shall have two attempts at carrying out a subsequent performance. If Promex shall not succeed in remedying the defect within a reasonable period of time, the Customer may reduce the purchase price or - if the defects are material - rescind the contract.
- The Customer shall have no claim for damages or a compensation for futile expenses within the scope of the warranty.
- Promex does not assume any warranty for the durability or quality of the goods.
§ 6 Liability
- Promex shall not be liable for any damage, delays, or impediments to performance, outside its sphere of responsibility.
- Promex shall not be liable for any damage attributable to an inappropriate or improper use of the goods or a use contrary to the specifications.
- Promex shall only be liable for any damage, regardless of the legal grounds, if such damage was caused with intent or gross negligence or was culpably caused by Promex in connection with a violation of life, body or health, or in the case of a culpable violation of a material contractual duty or cardinal duty or the failure to fulfil a guarantee, or if a defect was fraudulently concealed by Promex.
- In the event of a violation of a material contractual duty based on slight negligence, the liability of Promex shall be limited to the typically foreseeable damage.
- In the event of any damage based on gross negligence by a vicarious agent of Promex, the liability of Promex shall be limited to the typically foreseeable damage.
- Any additional liability by Promex shall be excluded. The liability under the German Product Liability Act shall remain unaffected by these Terms and Conditions.
§ 7 Retention of Title
- The Customer shall handle the goods with care and shall notify Promex without undue delay of any access to the goods by third parties (such as in the case of an attachment), as well as any damage to, or destruction of, the goods. This applies also in respect of a change of possession of the goods or a change of residence by the Customer.
- In the event of a default in payment by the Customer, Promex may rescind the contract and demand the return of the goods in accordance with the relevant statutory provisions.
§ 8 Prohibition of Assignment
The Customer may not assign or transfer its claims against Promex without the prior written consent of Promex.
§ 9 Applicable Law
The contractual relationship between the parties, as well as all disputes arising thereunder or in connection therewith, are governed by the laws of the Federal Republic of Germany, to the exclusion of the UN Sales Convention (CISG).
§ 10 Place of Jurisdiction
If the Customer is a businessman or a public-law legal entity, or constitutes special assets under public law, or if the Customer has no domestic general place of jurisdiction, relocates his residence or habitual abode to another country following the conclusion of the contract, or if the Customer's residence or habitual abode is unknown at the time an action is brought, the exclusive place of jurisdiction for all disputes out or in connection with these Terms and Conditions shall be the corporate seat of Promex.
§ 11 Severability
Should any of the provisions of these Terms and Conditions be or become ineffective in whole or in part, or should there be a gap in these Terms and Conditions, the validity of the remaining provisions hereof shall not be affected.