// Terms of Sale, Delivery and Payment
1.1 All business transactions are subject to the following Terms of Sale, Delivery and Payment. They also apply if no specific reference is made to them in later transactions. They override conditions referred to by the Customer.
1.2 Only these Terms of Sale, Delivery and Payment apply; terms of any business partner that are contrary to or deviate from them - especially terms of procurement - are not recognized by PRO ACTIV unless and only insofar as PRO ACTIV has expressly consented in writing that they shall apply. The Terms of PRO ACTIV shall even apply if PRO ACTIV has carried out a delivery to a business partner without reservation even though PRO ACTIV knew its business partner used terms that were contrary to or deviated from the Terms of PRO ACTIV.
2. Orders, minimum quantities
2.1 Our quotations are not binding.
2.2 Orders are only accepted by us following written confirmation of order or billing.
2.3 Requests for amendment after an order has been placed are additional orders, which we are not under any obligation to accept. These requests for amendment shall be separately paid for in the event of acceptance, in accordance with the confirmation of order issued by us.
2.4 The minimum quantity for individual orders shall amount to € 25.00 net. We charge a separate processing fee of € 5.00 on supply of replacement parts which have an order value of less than € 25.00 net.
3.1 PRO ACTIV is bound by agreements on price for 4 months following conclusion of the contract if delivery is to be made within this period. Otherwise, PRO ACTIV reserves the right to demand a payment in addition to the agreed prices if and to the extent that increases in wages, shipment costs and taxation as well as price increases from subsuppliers arise after conclusion of the contract.
3.2 Prices apply ex works excluding packaging and loading at the factory, in the absence of separate agreement. Value-added tax at the statutory rate current at the time of conclusion of contract or delivery, if this is made later than 4 months after conclusion of contract, is payable in addition to the prices.
4.1 The risk including the risk of confiscation passes on dispatch with presentation to the haulage contractor or carrier. This also applies if part deliveries are made or PRO ACTIV has accepted transport charges or delivery.
4.2 Risk passes to the customer from the day of readiness for dispatch, if dispatch is delayed by reason of circumstances for which the Customer is responsible.
4.3 The choice of route and means of transport shall be made by PRO ACTIV to the best of its knowledge without liability if there shall be cheaper or speedier shipment, if there shall be no particular instructions from the customer.
5.1 A discount of 4% is granted if no invoices due for payment are outstanding and direct debits are honoured when due, where payment is made by agreement by debit transfer order for collection by PRO ACTIV.
5.2 Payment shall be made within 10 days with a discount of 2% or within 21 days following the date of the invoice net, if debit transfer order for collection shall not be agreed.
5.3 AOther discount deductions require agreement in writing.
5.4 Discount and expenses are charged without responsibility for presentation and protesting in due time, if payment is made by bill of exchange or cheque which PRO ACTIV shall not be under any obligation to accept. This payment is made on account not in lieu of performance.
5.5 The purchaser shall be in arrear after due payment date with service of a reminder letter, but at the latest 30 days following due payment date and receipt of an invoice. We may make a charge of € 2.50 for each reminder letter. All our claims against the purchaser arising from the business relationship shall become immediately due for payment if the purchaser shall become in arrears with payment of an invoice. We shall only be under an obligation to make further deliveries against cash in advance.
6. Set-off and right of retention
6.1 Only uncontested or judicially determined debts shall entitle the purchaser to set-off or retention. The exclusion of the right of retention shall not apply if the counterclaim is based upon the same contractual relationship.
6.2 The customer shall not be entitle d to either the procedural defence of non-performance of contract pursuant to section 320 BGB [German Civil Code] nor a right of retention pursuant to section 273 BGB on account of any counterclaims in as far as he is a registered trader.
7. Delivery period
7.1 Delivery periods stated are not binding and failure to observe them shall not entitle the customer to cancel the contract. The purchaser may cancel the contract if PRO ACTIV shall not make delivery on the due date, if PRO ACTIV shall fail to deliver contrary to a final deadline reasonably set after due delivery date.
7.2 PRO ACTIV may make part deliveries and charge for these separately.
7.3 Delivery shall be taken of off-the-shelf orders within 6 months of conclusion of the contract without the necessity for a request to take delivery or service of notice of default by PRO ACTIV. PRO ACTIV may at its own choice either charge for the goods or claim compensation for non-performance, if this set period shall have expired.
7.4 PRO ACTIV may cancel the contract and/or claim compensation if the purchaser shall declare no wish to take delivery or allow the additional period for taking delivery set for him to expire to no avail.
7.5 PRO ACTIV may claim 25% of the purchase price without deductions as compensation. The right of the purchaser to show that damage to us has not arisen or is substantially lower than the lump sum payment, remains reserved to him. A claim for a higher amount of damages remains reserved for PRO ACTIV.
8. Reservation of ownership
8.1 PRO ACTIV reserves ownership in the goods delivered until receipt of all payments due under the contract.
8.2 The following provisions 8.3 - 8.9 apply additionally to the reservation of ownership where the customer is a trader 8.3 - 8.9.
8.3 PRO ACTIV reserves ownership in the goods delivered until payment of all claims arising under the business relationship, if the customer is a registered trader.
8.4 The customer may dispose of the goods subject to the reservation of ownership in normal business dealings unless a prohibition of assignment has been agreed between him, us and his customer in respect of the trade accounts receivable.
8.5 The reservation of ownership also extends to the full value, to the products resulting from processing, mixing or joining the goods by PRO ACTIV whereby PRO ACTIV is deemed to be the manufacturer. PRO ACTIV shall acquire joint ownership in the ratio of the invoice values of these processed goods, if a right of ownership of a third party remains existing in goods on a processing, mixing or joining.
8.6 The customer assigns even now claims against third parties arising from re-sale as a whole or in the amount of our possible joint share (sub-section 8.4) as security. He is authorised to collect these on our account until revocation or suspension of his payments to us. For assignment of these debts, the customer is also not authorised for the purposes of collection of debts by means of factoring, unless simultaneously the liability of the factor is established to bring about the counter-performance in the amount of the share of claim of PRO ACTIV for so long directly to PRO ACTIV as claims by PRO ACTIV still exist against the customer.8.7 The customer undertakes neither to encumber the goods subject to the reservation of ownership with third parties rights, nor pass title to a third party for security prior to complete payment of all debts due to PRO ACTIV. He undertakes to notify PRO ACTIV immediately if the goods are encumbered for third parties or other rights are claimed in them. The customer shall give information to PRO ACTIV which is necessary for safeguarding its rights and surrender his documentation in trust. The customer shall bear all intervention expenditure.
8.8 The customer shall on demand notify the addresses of his customers and the amount of the claims with copies of invoices. PRO ACTIV may disclose the assignment to the buyer.
8.9 PRO ACTIV shall on demand release securities of its own choice in the amount of the excess value if the value of the security shall exceed the value of the debts to be secured by more than 20 %.
9. Liability for defects
9.1 The customer may at first only demand subsequent performance, namely, elimination of the defect (subsequent improvement), or delivery of goods free of defects (replacement delivery) at the option of the customer, if a defect shall exist for which PRO ACTIV shall be responsible. PRO ACTIV may refuse the form of subsequent performance chosen by the customer if this is only possible for PRO ACTIV with disproportionate expenditure, in particular, by reason of the value of the goods in flawless condition, the gravity of the defect and/or the question whether recourse can be made to each of the other types of subsequent performance without significant disadvantages for the customer. The customer shall be limited in this event to the other respective form of the claim to subsequent performance. PRO ACTIV may also raise the defence of disproportionate cost for this type of claim to subsequent performance.
9.2 PRO ACTIV may set the customer a reasonable period to exercise his right of choice relating to the type of subsequent performance, if the customer shall notify a defect to PRO ACTIV and not exercise his right of choice in the notification, and carry out the subsequent performance after its unavailing expiry, at the option of PRO ACTIV.
9.3 Notifications of defects and complaints require written form to be effective. The right is reserved for the customer at his option to cancel the contract or reduce the purchase price. The right of the customer to demand compensation shall not be affected, subject to the terms of section 10 hereto, in the event of failure of the subsequent performance.
9.4 Our guaranty is excluded if patent defects are not notified to us within 14 days of receipt of the goods. The same applies if, on delivery to a trader, it does not notify in writing defects discernible on proper examination within 2 weeks following receipt of the goods.
9.5 The guaranty undertaken by PRO ACTIV or if applicable, given to the first user of the rehabilitation means, is not affected by these provisions.
10.1 The liability of PRO ACTIV for slight negligence in the event of breach of a primary obligation by PRO ACTIV is limited to foreseeable damage typical of contract.
10.2 The liability of PRO ACTIV is additionally limited to one half of the total of the order without value-added tax in the case of sub-section 10.1.
10.3 Liability is excluded in the case of breach of an ancillary obligation by PRO ACTIV by reason of slight negligence. This does not apply to the extent that this breach of obligation relates to proper fulfilment of duties, the proper performance of which only enables performance of the contract and on the observance of which the customer has placed and ought to place his trust.
10.4 Sub-sections 10.1 to 10.3 hereto do not apply in the case of damage arising from death, personal injury or impairment of health which is based on a negligent breach of duty by PRO ACTIV, or a wilful or negligent breach of duty by a legal representative or subcontractors of PRO ACTIV.
10.5 The right of the customer to cancel the contract is excluded in the case of breach of an ancillary obligation for which PRO ACTIV shall not be responsible. This shall not apply to breaches of ancillary obligations which exist in the delivery of newly manufactured goods free of defects.
11. Liability for design modifications
11.1 More stringent statutory provisions apply to items made to special order. Design modifications of PRO ACTIV articles by, or on behalf of the customer are only permissible if the technical safety specifications are observed and are approved by PRO ACTIV in writing. A modified model together with design drawings shall be made available to PRO ACTIV for grant of this approval. The customer shall indemnify PRO ACTIV for and against all claims by third parties, if the approval is not observed and damage arises to third parties by reason of the modifications for which PRO ACTIV accepts liability.
12. Use of original parts
12.1 Only use of PRO ACTIV original parts ensures safe and trouble-free functioning of our products. We can guaranty our products only on proper installation and conversion of such original parts. We give no guaranty on installation of non-original parts, and we also accept no liability based on product liability legislation.
13.1 Return of finished end products or parts of them is excluded unless the customer has the right to cancel the contract.
13.2The following shall apply in as far as PRO ACTIV in individual cases shall make another decision, in particular, for therapeutic reasons, modified specifications or cases of death:
a) 90% of the contract price will be refunded for unused, practically new parts, delivery of which was at most 1 month previously;
b) 70% of the contract price will be refunded on taking back up to 3 months following delivery date.
13.3 Items made to special order and articles below a sale price of € 50.00 are excluded from return. Older consignments including if they remain as unused goods will not be taken back. A copy of the delivery note or the invoice shall serve as proof of the age of the consignment.
14. Place of performance / place of jurisdiction
14.1 The place of fulfilment is 72359 Dotternhausen, Germany, and the place of jurisdiction is that of the courts with jurisdiction over 72359 Dotternhausen, Germany, insofar as the business partner is a merchant, a legal entity of public law or a special fund under public law. Moreover, the place of jurisdiction for legal actions against the business partner is that of the courts with jurisdiction over 72359 Dotternhausen, Germany, if the business partner has moved its domicile or usual place of residence outside of Germany after the contract was concluded or if its domicile or usual place of residence is not known when the legal action is commenced.
14.2 The law of the Federal Republic of Germany shall apply exclusively.