General terms and conditions of sale (B2B)

  1. Scope
    1. The services and deliveries by Prodene GmbH (hereinafter the "SELLER") based on contracts for the sale of hygiene and disinfectant products for professional use in business transactions with entrepreneurs, legal entities under public law or special funds under public law (hereinafter the "BUYER") are exclusively subject to the following SELLER's General Terms and Conditions of Sale (hereinafter "TERMS AND CONDITIONS OF SALE").
    2. These TERMS AND CONDITIONS OF SALE shall also apply to future similar transactions between the SELLER and the BUYER.
    3. Any other, different or conflicting terms and conditions of the BUYER shall not apply. They also shall not become part of the contract if they have been referred to in an order, unless the SELLER has previously expressly agreed in writing to the validity of the BUYER'S General Terms and Conditions of Purchase.

  2. Contract conclusion
    The SELLER will make an offer to the BUYER. A contract is concluded after receipt of the BUYER'S order and the BUYER has received an order confirmation from the SELLER for the sale of the products designated therein (hereinafter the "PRODUCTS").

  3. Prices and terms of payment
    1. The SELLER's prices at the time of delivery are those in the SELLER's price list, plus the currently applicable VAT. Unless otherwise agreed, prices do not include carriage, insurance, customs charges or other costs and fees associated with the purchase of the Products. These will be invoiced separately to the BUYER, if any.
    2. The BUYER may pay the invoice amount, at his discretion, by transfer to the SELLER's account specified on the invoice, by providing the SELLER with a direct debit authorisation or by paying by credit card or PayPal. Any direct debit authorisation granted shall apply also to further orders until revoked. The SELLER reserves the right to make certain payment methods dependent on a credit check or a maximum order quantity.
    3. Unless otherwise agreed in writing, the invoice amount is due within 30 (in words: thirty) calendar days of receipt of the invoice without deductions. The BUYER must issue the payments so that they are received by the SELLER no later than the 31st (in words: thirty-first) calendar day from the invoice date. If payment is made within 10 (in words: ten) days of the invoice date a 2% (in words: two per cent) discount is granted and, in the case of a direct debit, a 3% (in words: three per cent) discount and, in the case of advance payment, a 4 % (in words: four per cent) discount. For partial deliveries, the SELLER is entitled to demand pro rata payment.
    4. Late interest is calculated at 9 (in words: nine) percentage points above the respective per annum base interest rate. The SELLER reserves the right to claim a higher amount in the event of actual damages as a result of any delay The BUYER is entitled to prove that the SELLER has suffered no or only minor damages as a result of the delay in payment.
    5. If the BUYER defaults on a payment, the SELLER is entitled to suspend further deliveries or to deliver them only subject to advance payment. From the 2nd (in words: second) reminder, a charge shall be made for each reminder amounting to EUR 3.00 (in words: three Euro). If greater damages can be proven, the SELLER shall be entitled to apply assert these. In the event a collection agency is instructed to collect the amounts due after a default in payment, the BUYER must bear the costs arising from this instruction, with the exception of the success-related fee. Any additional legal claims of the SELLER shall remain unaffected.

  4. Delivery, transfer of risk
    1. The delivery is "free carrier" (Incoterms® 2010 FCA).
    2. Delivery is at BUYER's risk. The BUYER is entitled to take out transport insurance.
    3. Unless otherwise agreed, the SELLER is entitled to make partial deliveries. If the SELLER makes a partial delivery, he shall bear any additional shipping costs incurred.
    4. When the order is sent to the BUYER or it is handed over to the carrier, the risk of accidental loss or accidental deterioration of the PRODUCTS is transferred to the BUYER. The transfer of risk takes place already upon notification of the readiness for dispatch by the SELLER, if the shipment cannot be delayed for reasons within the area of responsibility of the BUYER. The additional costs for further storage after the transfer of risk shall be borne by the BUYER.
    5. The place of performance is Frankfurt am Main.
    6. Delivery dates indicated by the SELLER are in principle non-binding as long as they have not been confirmed by the SELLER in writing as "binding". If a binding delivery date has been agreed, a timely delivery is deemed to have been made if the order is shipped on the agreed date.
    7. A prerequisite for compliance with any agreed delivery times is the timely and proper fulfilment of the obligations of the BUYER. These include, in particular, the provision of any relevant necessary documents and, if an advance payment has been agreed, its receipt by the SELLER.
    8. If a delivery date is not met for reasons for which the SELLER is responsible, then the BUYER must set the SELLER a reasonable period of grace in writing. This shall not apply if, exceptionally, the setting of a grace period is unnecessary.
    9. Should unforeseeable events (in particular force majeure, operational breakdowns, legal strikes or lockouts at the SELLER or a supplier) occur which are beyond the control of the SELLER and significantly affect the completion or delivery of the PRODUCTS, the delivery time shall be extended by the duration of the impediment. The BUYER has during this time no rights or claims against the SELLER due to default. The same applies with regard to a subcontractor. If the SELLER is in default at the time of occurrence of the event, this reason alone may not give rise to an assumption of culpability.
    10. Should the BUYER fail to accept a delivery or to cooperate, the risk of accidental loss or accidental deterioration of the goods shall be transferred to the BUYER at that moment. The SELLER shall be entitled to demand compensation for any resulting damages plus any additional expenses.
    11. If the SELLER defaults, then he shall be liable for damages suffered by the BUYER only in cases of intent and gross negligence. Any additional legal claims of the BUYER shall remain unaffected

  5. Offsetting, right of retention and assignment
    1. The BUYER may only offset legally established or undisputed SELLER's claims.
    2. The BUYER is entitled to exercise a right of retention only insofar as its counter-claim is based on the same contractual relationship.
    3. The BUYER is not authorised to assign his contractual rights to third parties without the SELLER's express written consent. Section 354a of the German Commercial Code remains unaffected.

  6. Retention of title
    1. Until all payments due under the contract have been paid in full, the SELLER shall retain the title to the delivered PRODUCTS in accordance with Section 449 para. 1 of the German Civil Code ("RESERVED PRODUCTS"). Should the BUYER act contrary to the provisions of the contract, the SELLER shall be entitled to reclaim the RESERVED PRODUCTS after a reasonable deadline. In such a case, the BUYER must return the Products. Repossession of the RESERVED PRODUCTS by the SELLER shall be deemed to constitute rescission of the contract.
    2. The BUYER is obliged to handle the RESERVED PRODUCTS with care for the duration of the retention of title and to insure them adequately at his own expense against all usual risks, in particular theft, fire and water damage.
    3. The BUYER is revocably entitled to resell the RESERVED PRODUCTS in the normal course of business. Already upon the conclusion of this contract, the BUYER shall assign to the SELLER his claims arising from the resale of the RESERVED PRODUCTS in the amount of the final invoice sum agreed with the SELLER, including value added tax. The SELLER hereby accepts the assignments. The BUYER remains authorised even after assignment to collect the receivables. The power of the SELLER to collect the receivables directly is not affected by this. The SELLER undertakes, as long as the BUYER satisfies his payment obligations and, in particular, no application for the opening of insolvency proceedings is lodged, not to notify the third party debtor of the assignment of claims and not to collect the receivables.
    4. The BUYER must notify the SELLER in writing in the event of the seizure of or other interventions by third parties with regard to the RESERVED PRODUCTS. The BUYER shall be liable to the SELLER for any loss incurred insofar as the third party is unable to reimburse the SELLER for any judicial and extrajudicial costs.
    5. Any processing or transformation of the RESERVED PRODUCTS by the BUYER shall always take place on behalf of the SELLER. If the RESERVED PRODUCTS are processed together with other items not owned by the SELLER, the SELLER shall acquire co-ownership of the new items produced by the processing or transformation in proportion to the value of the RESERVED PRODUCTS to the other processed items at the time of processing or transformation. Furthermore, the same applies to the items produced by processing or transformation as to the RESERVED PRODUCTS.
    6. If RESERVED PRODUCTS are inseparably combined or mixed with other items not owned by the SELLER, the SELLER shall acquire co-ownership of the new items in proportion to the value of the RESERVED PRODUCTS to the other linked or mixed items at the time of combining or mixing. If an item which is the property of the BUYER shall be regarded as the main item in the case of combining or mixing, then it is agreed that the BUYER transfers proportional co-ownership to the SELLER. The BUYER stores the sole ownership or co-ownership property of the SELLER for the SELLER.
    7. At the request of the BUYER, the SELLER shall release the securities due to him insofar as their value exceeds the claims to be secured and not yet settled by more than 20% (in words: twenty per cent).

  7. Right of return
    If indicated in the offer, the BUYER has a right of return during the first 3 (in words: three) months after delivery of the PRODUCT. Further details are set out in the offer, as well as in clauses 8.5 to 8.7. This shall not affect any claims arising under warranty liability and legislation.

  8. Obligation to assert claims, liability for defects
    1. Claims of the BUYER due to a material defect are conditional on the BUYER having fulfilled his obligation in accordance with Section 377 of the German Commercial Code regarding the immediate verification and notification of defects. Visible defects must be notified in writing by the BUYER to the SELLER within 14 (in words: fourteen) calendar days from receipt of the PRODUCTS and hidden defects immediately after detection. The postmark of the notification shall suffice for meeting the deadline.
    2. In the event of a defect notified in good time, which does not significantly reduce or limit the value or serviceability of the PRODUCTS, the SELLER may choose at first, at his discretion, supplementary performance by delivery of a replacement or subsequent improvement of the PRODUCTS supplied.
    3. If the subsequent performance has failed or the SELLER has refused, the BUYER may reduce the purchase price or withdraw from the contract. The right to assert damages remains unaffected.
    4. Claims for material defects are statute-barred after one year of the delivery of the PRODUCTS if the delivery of defective PRODUCTS does not constitute an intentional breach of duty.
    5. In order to return a PRODUCT, the BUYER should request a Returned Material Authorisation ("RMA") number and a Returned Material Form (RMA form) from the SELLER's Customer Service (for contact details, see clause 13.2). The returned products should be accompanied by the completed RMA form. The RMA number should be clearly visible on the packaging. The requested RMA number is valid for 30 (in words: thirty) calendar days. The costs of carriage, shipping insurance taken out, packaging materials and/or customs duties are initially borne by the BUYER. In the event of the legitimate return of the PRODUCT in question, these costs will be accepted by the SELLER. Damage to the PRODUCT, solely due to poor packaging when returning the PRODUCT, shall be the responsibility of the BUYER. In this context, prior damage and defects in the PRODUCT are taken into account.
    6. The SELLER shall not be responsible for any loss of quality or diminished effectiveness of the SELLER's PRODUCT if the PRODUCT was not properly handled by the BUYER, i.e. was not properly used, stored or transported, or was exposed to direct sunlight or has come into contact with water, fire or heat. The limitation of liability shall apply to the SELLER only to the extent that no deliberate or grossly negligent conduct existed on the part of the SELLER in accordance with the provisions of clause 9.
    7. Defect-free PRODUCTS are only taken back or exchanged after prior written agreement.

  9. Liability
    1. The SELLER shall be liable only in accordance with the statutory provisions for damages caused by the SELLER or his agents and vicarious agents with intent or due to gross negligence. This shall not apply in the event of a breach of key contractual obligations. In the event of a breach of key contractual obligations, the liability for slightly negligent conduct is limited to the foreseeable damages typical for the contract foreseeable at the time the contract was concluded or at the latest foreseeable when the breach of duty was committed.
    2. Claims for damages in accordance with the Product Liability Act, the Medical Devices Act and for loss of life, physical injury or damage to health remain unaffected.
    3. The SELLER shall not be liable for any damage resulting from the improper handling or use of the PRODUCTS supplied.

  10. Resale/issuance of goods/modification
    1. The SELLER's PRODUCTS may be offered, sold or issued only in the original packaging.
    2. The PRODUCT should always be handled with care, in compliance with applicable laws, ordinances or other regulations, as well as taking into account the information in the product description and any other agreed terms and conditions of use. The PRODUCT's serial number may not be removed or rendered illegible.
    3. Except as provided for in the Agreement, the PRODUCT may not be modified or disassembled without the prior written consent of the SELLER.

  11. Tailor-made items
    When producing tailor-made items according to the BUYER's specifications, the SELLER does not check compliance with any regulations. For printed matter, the following applies: Deliveries of up to more or less 10% (in words: ten percent) of the ordered print run may not be objected to. The quantity delivered shall be invoiced. The SELLER does not accept any liability if the execution of the tailor-made products according to the BUYER's specifications violates the rights and in particular the copyrights of third parties. The BUYER indemnifies the SELLER against all claims of third parties for such a violation. Films, stencils, lithographs, punching tools and digitalisations used by the SELLER for the manufacture of tailor-made items shall remain the property of the SELLER even if they are charged separately to the BUYER and will not be delivered to the BUYER. There is no obligation on the part of the SELLER to keep films and digitalisations for more than 6 (in words: six) months.

  12. Confidentiality
    1. Confidential information means all confidential and proprietary information and objects containing confidential information, i.e. information of a business or technical nature, as well as data or know-how provided in writing, verbally, visually or otherwise, which one party discloses to another party and is marked as "confidential" (CONFIDENTIAL INFORMATION).
    2. The BUYER and the SELLER agree that, for the duration of the transaction and for a period of 5 (in words: five) years after the termination of the contract concerned, the receiving party shall treat the CONFIDENTIAL INFORMATION confidentially, i.e. not disclose it directly or indirectly to third parties or use it for any purpose other than the subject matter of the contract.
    3. Excluded from the obligation not to use and to keep secret is: a) information which is freely available at the time of disclosure or which becomes freely accessible after disclosure through no fault of the receiving party; or b) information regarding which the receiving party can prove, by means of written documents, that it was already in the possession of the receiving party at the time of disclosure under the contract in question; or c) information regarding which the receiving party can prove, by written documents, that the receiving party has lawfully obtained it from a third party and, as far as the receiving party knows, may be disclosed by the third party to another without breach of a confidentiality obligation; or d) information regarding which the receiving party can prove by written documents that it has been independently developed by the receiving party, without reference to the CONFIDENTIAL INFORMATION disclosed to it under the contract in question.
    4. Notwithstanding the above obligations, the receiving party may disclose CONFIDENTIAL INFORMATION to the extent necessary to comply with the requirements of public authorities or relevant legislation or regulations, as long as the disclosing party is promptly notified thereof by the receiving party.

  13. Other provisions
    1. Personal data of, for example, the BUYER's contact persons, recorded by the SELLER, are collected and used exclusively for the execution of the respective contractual relationship. All such data are stored and processed on the server of the SELLER in accordance with the provisions of the Federal Data Protection Act. In this regard, reference is made to the SELLER's privacy statement.
    2. The contact details of the SELLER's customer service can be found on the website [tbc].
    3. Both contractual partners may advertise the business relationship only with the prior written consent of the other contractual partner, in particular in connection with the company name, company components and/or company logo of the other contractual party.
    4. These TERMS AND CONDITIONS OF SALE, the offer and the order confirmation of the SELLER constitute the entire and sole agreement between the BUYER and the SELLER in relation to the PRODUCT. Changes to these TERMS AND CONDITIONS OF SALE, the offer or the order confirmation of the SELLER shall come into effect and apply only if in writing and signed by the BUYER and the SELLER. This also applies to the waiver of this requirement of the written form.
    5. The BUYER shall comply with applicable US, European, German or other export laws.
    6. The laws of the Federal Republic of Germany alone shall apply to all legal relations between the SELLER and the BUYER in connection with this contract, to the exclusion of the UN Sales Convention.
    7. The district court in Frankfurt am Main shall be competent in regard to disputes in relation to these TERMS AND CONDITIONS OF SALE.
    8. Should one or more provisions of these TERMS AND CONDITIONS OF SALE be or become wholly or partially void, ineffective or unenforceable, this shall not affect the validity of these TERMS AND CONDITIONS OF SALE or any of its other provisions. The SELLER and the BUYER shall agree a provision or provisions to replace the void, ineffective or unenforceable provision or provisions, which most closely reflect the form, content, time and scope of the originally intended economic purpose and rationale of the void or ineffective provision. The same applies to any gaps in these TERMS AND CONDITIONS OF SALE.

Frankfurt, Januar 2017