General Terms and Conditions
- These general terms and conditions Prosan apply, unless otherwise stated, to all purchase and work and materials contracts as well as other orders (Order) between Prosan and customers who are consumers in accordance with Consumer Protection Act (ZVPot), Personal Data Protection Act (ZVOP-1) and Electronic Communications Act (ZEKom-1). (Buyer). Differing general terms and conditions of the buyer are not recognised even if they are not expressly contradicted.
- The general terms and conditions also apply for future business relations with the same buyer even if they are not expressly agreed again. Unless otherwise stipulated, the general terms and conditions are valid as amended at the time the buyer places the order or also in the version published most recently in text form.
II. Contract closing
- The offers of Prosan are subject to change unless they are expressly identified as binding in the offer text. The order placed by the buyer is considered a binding contractual offer that remains valid for at least 8 days in the absence of a deviating provision. The contract only comes into effect if Prosan provides the buyer with written (including text form) confirmation in relation to the order.
- Prosan only assumes a guarantee to end consumers in accordance with a separate guarantee declaration that is designated as such.
- The documents such as figures and drawings provided by Prosan as part of the contract negotiation stage as well as the technical information and specifications made by Prosan are binding. Technical, constructional or other changes to the order or work are permitted if and to the extent that they are reasonable for the buyer.
- Individual agreements including trade terms have priority over the general terms and conditions. A written contract or the written confirmation of Prosan is essential for the content of these agree-ments.
III. Scope and place of delivery, transport and transfer of risk
- A delivery ex works or a delivery to another shipping location of Prosan disclosed to the buyer is generally agreed and this location is the place of performance of the delivery and any supplementary performance. The risk is transferred to the buyer at the latest upon the product being dispatched. If the delivery is delayed due to the behaviour of the buyer or as a result of a circumstance beyond Prosan’s control, the risk is transferred to the buyer upon receiving notification that the products are ready for shipment.
- Unless otherwise stipulated, the buyer must take out travel insurance at his/her own expense and cost based on standard transport insurance conditions that covers the risk of transporting the product that is part of the order from the shipping location to the agreed destination. The buyer bears the transport costs in accordance with Point V.5.
- In the event that an agreement is reached on trade terms, the latest version of Incoterms shall apply.
- Prosan is entitled to partial deliveries and invoices at an acceptable level prior to the expiry of the delivery period.
- If the delivery or shipment of the delivered item is delayed at the request of the buyer or as a result of circumstances that the buyer bears the risk and responsibility for, the buyer must refund Prosan the costs incurred as a result of storing the item and the accrued interest on the capital deployed for the delivered item. In the case of storage by Prosan, the entitlement amounts to at least 0.5% of the still outstanding invoice amount for each outstanding month, starting with the month after notice has been given that the products are ready for shipment. The customer still retains the right to prove that no damage or substantially less damage has occurred. However, after having set a commensurate subsequent delivery term and after the unsuccessful expiry of this term, Prosan is entitled to use the delivered item for another purpose and to deliver a replacement item to the buyer subject to a reasonably extended deadline or to withdraw from the agreement.
- Prosan will procure that the products shipped by Prosan to the buyer comply with the laws and regulations of the country / countries designated by the buyer. In case the buyer – after receipt of the products – exports the products to third countries it is the obligation of the buyer to make sure that the products comply with the applicable local laws and regulations of such countries with regard to the products. If, however, the buyer chooses to export products to third countries, the buyer is solely responsible for any and all liability resulting from any non-compliance of the products.
IV. Delivery term and operational disruptions
- Delivery terms start to apply at the earliest once all documentation which is required for determining the content of the order has been received if the buyer has to obtain this documentation according to the agreement and upon receipt of the down-payment. A delivery term is complied with if the shipment is dispatched within the deadline and the buyer has been notified that the products are ready for shipment.
- Delivery terms are extended in the event of circumstances occurring which Prosan or its suppliers are not responsible for and which do not have a substantial influence on the production or delivery of the product (e.g. labour disputes, force majeure and other operational breakdowns that are beyond a party’s control) for the duration of the operational disruption. Prosan is obligated to inform the buyer of the anticipated duration of the operational disruption and to state a new delivery date. If the product can also not be delivered within the new delivery period, both parties are entitled to withdraw from the agreement in whole or in part; any payment already made by the buyer is immediately refunded. Rights to demand compensation in lieu of performance in accordance with Point X. and the statutory rights of Prosan, especially if a party is no longer obligated to perform its obligations (e.g. due to impossibility), remain unaffected.
- The conditions for the delay in delivery are based on the statutory provisions irrespective of the existing regulations. Deviating from this however, a written warning is required from the buyer in all cases.
V. Prices and subsidiary expenses
- Deliveries are made at current prices when the contract is concluded in accordance with the order confirmation from Prosan. All prices apply ex works / dispatch location. All prices are quoted in euros unless otherwise stated and other additional expenses (e.g. installation and instruction costs), statutory value added tax and other statutory fees (e.g. duties, fees) are disclosed at the currently prevailing rate.
- Prosan reserves the right to increase fixed prices for a period of more than 4 months if cost increases, especially those owing to collective wage agreements, marketable cost prices or material price increases occur after the conclusion of the agreement. These prices are demonstrated to the customer on request.
- Prosan calculates a minimum quantity surcharge of EUR 10 for an order value of below EUR 50. Purchase quantities that are smaller than the stipulated packaging units are processed at a surcharge of 10% on the net product value.
- If the delivery is made to a third party, a surcharge of 10% on the net product value is calculated.
- Orders with a net product value exceeding EUR 750 are dispatched carriage paid, while the freight costs for a net product value below EUR 750 are charged to the customer in the invoice. Express costs and fees for posted goods shipments are always charged to the customer.
VI. Payment and default
- As stipulated in the invoice, payments must be made without any deduction immediately after receiving said invoice and delivering the product to Prosan. Prosan is however authorised to carry out the delivery in question in whole or in part at any time against prepayment. A proviso to this effect is asserted at the latest at the time the order is confirmed. Prosan expressly reserves the right to accept cheques. Cheques are only accepted on account of payment and only apply as a payment when honoured. All payments shall be made free of charge. The buyer bears the discount, collection and other bank charges for cheques without express agreement. Payments are initially set off against costs, then against interest and then used to settle the oldest principal debt.
- In the event of a default, default interest at the statutory rate, at least 9% per year, is calculated; it remains possible to provide proof of less damage at the level of the statutory interest rate.
- The buyer shall only be entitled to offset claims or retention rights in relation to the claims of Prosan if the counterclaim is uncontested or a final decision has been reached. This does not apply if the counterclaim relates directly to the main obligation of Prosan from the same agree-ment.
- The assignment of claims is subject to approval from Prosan.
- If it becomes evident after concluding the agreement or delivering the product that the buyer is not or is no longer creditworthy, e.g. enforcement measures are being initiated against him/her, due invoices are not being paid despite receiving a reminder or any other capital deterioration occurs, Prosan can immediately assert claims which are not yet due or such claims for which a cheque has been provided. In these instances, Prosan can request an advance payment, a collateral security or a delivery that will only be carried out based on cash on delivery for the product that has yet to be delivered. If the buyer fails to comply with the request within the statutory deadline that it has been set, Prosan is entitled to withdraw from the agreement.
VII. Title retention
- Prosan retains ownership of the delivered product until all claims resulting from the business relationship with the buyer at the time the agreement is concluded are settled including all claims from follow-up contracts, repeat orders or spare parts orders occurring at this time. If the value of all security rights to which Prosan is entitled exceeds the value of all secured claims by more than 10%, Prosan shall release a corresponding proportion of the security rights at the request of the buyer.
- If the buyer acts in a way contrary to the contractual obligations, especially in the event of a default in payment, Prosan is entitled to take back the reserved product. In the event that Prosan takes back or seizes the reserved product, it is not possible to withdraw from the agreement unless Prosan expressly confirms this in writing. Prosan is authorised to sell the product and the sales proceeds must be taken into account for the liabilities of the buyer less utilisation costs accrued. The buyer is obligated to handle the reserved product with care and to store it separately from other products. It is also obligated to insure this product sufficiently at its own expense against damage resulting from fire, water, storm, robbery and theft at the new value. Any security claims that arise in the event of a loss are to be assigned to Prosan. If maintenance and inspection work is required, the buyer must carry out this work on time and at its own expense.
- The buyer may neither pledge the reserved product nor transfer it by way of security. In the event of seizures or other encroachments by third parties, the buyer must inform Prosan immediately in writing and provide Prosan with all information and documentation which are required for pre-serving the rights of Prosan. Enforcement officers or third parties are to be informed of Prosan’s ownership. If a third party is unable to refund Prosan the judicial and extra-judicial costs of third party proceedings, the buyer is liable to Prosan for the loss incurred subject to the assertion of further claims due to damage, change or destruction to the item itself.
- The buyer may sell and/or process the reserved product in the course of ordinary business operations provided that Prosan does not assert any rights arising from the retention of title against the buyer. The buyer shall assign to Prosan all claims up to the final invoice amount including value added tax which it has accrued from the resale to its customers or third parties irrespective of whether the item has been resold with or without further processing. Prosan accepts the assignment. In the event of a current account relationship between the buyer and its customer, the claim assigned to Prosan by the buyer in advance also applies to any acknowledged outstanding balance and, in the event of the customer becoming bankrupt, it applies to the “causal” balance which exists at the time. The buyer may even collect the receivables after the assignment. This does not affect the entitlement of Prosan to collect the claim itself. Prosan will not collect the claim itself if the buyer meets its payment obligations resulting from the proceeds collected, is not overdue with its payments and there is no application for opening insolvency proceedings.
- The buyer is obligated to provide Prosan with a precise list of claims to which it is entitled with the name and address of the customer, the amount of the individual claims, invoice data, etc., to give Prosan all the information required for asserting the assigned claim, to allow this information to be assessed and to disclose the assignment to the customers.
- The buyer now declares its consent that the persons commissioned with the task of collecting the reserved product may enter the property or the building where the reserved product is located on foot or in a vehicle in order to pick up said reserved product.
- The buyer always processes or transforms the delivery item for Prosan. If the item is processed with other objects that do not belong to Prosan, Prosan shall become co-owner of the new item in the ratio of the value of the delivered item to the other processed objects at the time of pro-cessing. The same rules shall apply to the item produced through processing as for the delivered item subject to retention of title. If the item is processed, mixed or combined in a way that the buyer’s item is to be considered as the main item, it is considered as agreed that the buyer assigns proportional co-ownership to Prosan. The buyer shall assign the sole ownership or co-ownership resulting therefrom to Prosan.
VIII. Claims for defects – period of limitation
- The statutory regulations shall apply for the rights of the buyer in the event of material defects and defects of title unless otherwise determined below. The special statutory regulations for final deliver-ies of products to a consumer shall remain unaffected (supplier recourse in accordance with Consumer Protection Act (ZVPot)); however the regulations in Point X shall apply for compensating damages in the event of supplier recourse.
The buyer may only make claims for defects if it duly meets the statutory inspection and complaint obligations.
- If a delivery item is defective, the buyer has the following rights:
- a) Prosan is obligated to rectify the fault and will do this at its own discretion by eliminating the defect through repair work or by delivering an item that is free from defects.
b) If the rectification of defects is unsuccessful, the buyer is entitled to withdraw from the agree-ment or reduce the purchase price. A rescission shall be ruled out if the breach of duty on the part of Prosan is only minor in nature. The buyer shall also be entitled to claim compensa-tion or reimbursement of expenses incurred in vain in the event of defects solely in accordance with the provisions of Point X.
c) Rectifying the fault involves neither enhancing the defective product nor incorporating a new or repaired product unless Prosan was initially already obligated to incorporate a new or re-paired product.
d) Prosan shall bear the expenses incurred for examining and rectifying the defect, especially labour and material costs (not: expansion and integration costs as well as costs for transporting the product to the place where the fault is to be rectified) if a defect has actually occurred. Prosan may otherwise request compensation from the buyer for the costs (especially examination and transportation costs) resulting from the unjustified request to rectify a fault unless the lack of a defect was not evident to the buyer.
e) The buyer must inform Prosan of the time and facilities it requires for carrying out the repair work and replacement deliveries required by Prosan. Prosan is otherwise exempt from any liability for the resulting consequences. If the buyer requires the express deployment of a technician or for work to be carried out outside normal working hours for operational reasons which involve additional costs for Prosan, it must bear the extra costs incurred as a result of this (e.g. overtime surcharges, travelling longer distances).
f) A warranty is provided for replacements and improvements to the same extent as for the original delivery item, however with a time limit until the end of the warranty period of the original delivery item.
- The buyer is solely responsible for damage resulting from natural wear and tear, inappropriate or improper use, incorrect assembly or commissioning by the buyer or third party, incorrect or negligent handling, excessive use, unsuitable operating equipment or chemical, electrochemical or electrical influences provided that Prosan is not culpable for this.
- Products delivered by Prosan are not taken back as a rule unless the buyer is entitled to compensation (e.g. due to rescission in the event of a failed subsequent delivery).
- If Prosan is prepared to make an exception and take the product back, an appropriate fee (usually 25% of the net product value) is charged for this as part of an appropriate agreement. The transport risk and transportation costs are borne by the buyer.
X. Liability for compensation
- Prosan is liable for compensation in accordance with the statutory provisions unless otherwise stated below. In the event of breaches of duty – regardless of the legal reason – Prosan shall be responsible for intent and gross negligence. Prosan is only liable in the event of simple negligence
a) for damages resulting from loss of life, physical injury or damage to health an
b) for damages resulting from the substantial infringement of important contractual obligations (obligations which must be fulfilled before the contract is executed properly and which the contractual partner may, as a matter of routine, trust that they shall be met); the liability in this case is however restricted to compensation for the typically foreseeable damage.
- The above limitations of liability also apply in favour of the employers, employees, representatives and assistants of Prosan. Only the statutory regulations apply for claims in accordance with the Slovenian Product Liability Act.
- Exclusions or limitations of liability do not apply in so far as Prosan has failed to disclose a fault with fraudulent intent or has provided a guarantee for the condition of an item.
XI. Rescission of the purchase agreement
- If the purchase agreement is rescinded (e.g. due to one of the contractual parties withdrawing), the buyer is obligated to return the delivery item to Prosan in advance regardless of any other development in accordance with the following clauses. Prosan is entitled to collect the delivery item from the buyer’s premises.
- Prosan may also request a reasonable payment from the buyer for the deterioration or destruction of the delivered item or for the delivered item, which is the risk and responsibility of the buyer, not being returned.
- Prosan may also request payment for the use of the delivered item if the value of the delivered item has reduced between the completion of its installation and its direct repossession in full by Prosan. This decrease in value is calculated from the difference between the total price specified in the order and the present value as calculated from the sales proceeds or if a sale is not possible from the estimate of a sworn authorised expert.
The assignment of rights and / or the transfer of the buyer’s obligations stated in the agreement are not permitted without the written approval of Prosan. .
XIII. Export control regulations
- The delivery items may be subject to the export control regulations of the Republic of Slovenia, the European Union, the United States of America or other states.
- If the delivered item is exported abroad at a later date, the buyer is responsible for complying with the statutory provisions.
XIV. Competent court and applicable law
- The law of the Republic of Slovenia shall apply to these general terms and conditions and the contractual relationship between the parties excluding international common law, especially UN Purchasing Law. The choice of law also applies to non-contractual obligations that are closely linked to this agreement. The scope and scale also determine the choice of law in accordance with statutory provisions.
- Maribor (Slovenia) is agreed as the exclusive competent court for agreements with buyers who have their head office in a member state in the European Union. The place of arbitration is Madrid, Slovenia. The procedural law of this place shall apply if the arbitration regulations do not contain any corresponding provisions. The arbitration proceedings are conducted in Slovenian. The court of arbitration may also decide on the validity of this arbitration agreement.