General Terms and Conditions of Supply and Payment
Our indivisible quotation is always submitted subject to confirmation and as hereinafter provided. These Terms and Conditions shall apply to all current and future business, even if we do not make reference to them in a particular case. At the latest at the time of taking delivery of the goods, our Terms and Conditions shall be deemed to be accepted. The conditions of purchase of the purchaser shall not be binding on us. Deviations from the Terms and Conditions in a particular case shall require our confirmation in writing to be valid. Business mail written by means of data processing systems shall be binding even if not signed. The conclusion of the contract shall take place with the proviso that we obtain ourselves correct and timely delivery from our suppliers. This shall only apply in the event of us not being responsible for the non-delivery, in particular if a congruent cover business with our suppliers is signed. The contract terms apply if the purchaser is acting for purposes relating to his business according to § 14 BGB (German Civil Code).
When ordering agreement for the purchase only when ProSmart Industries GmbH confirmed the order through an order confirmation by e-mail. We included only deal with adults (18 years).
All false orders sent to us, we will track. ProSmart Industries GmbH reserves the right to cancel a purchase if fraud is suspected. Any attempt at fraud will be reported to the police.
Conclusions of sales – also those made at fairs or by our employees, travelling salesmen and commercial representatives – shall become binding on us pursuant to our acknowledgment of order in writing only, and only at the time it is received by the purchaser. The same shall apply to any supplements, modifications or subsidiary agreements. Our indications in the acknowledgment of order regarding the kind, dimension and quality of the goods to be supplied shall be binding if this was expressly agreed in writing. Any divergences must be advised in writing by the purchaser within 5 days from the receipt of the acknowledgment of order. This time limit having elapsed, or the order already has been shipped out we can no longer be held responsible for diverging goods supplied. Rush orders and orders dispatched directly ex warehouse are deemed acknowledged pursuant to these present Terms and Conditions as soon as shipped ex works; if such orders were placed verbally or by telephone, the purchaser shall bear the risk of any errors in communication.
ProSmart Industries GmbH reserves the right to end the sale and that the parts may be removed from the range. We can not guarantee that all pictures accurately reflect the true appearance. We reserve for typographical errors on this website, adds, folders and brochures.
Our prices apply to deliveries ex works (unless specified otherwise in the acknowledgment of order) and are based on the labour cost and the cost of materials valid at the time of entering into the contract. They are to be understood in each case plus the legal turnover tax owed. If, during the time between the signing of the contract and the delivery, changes in the bases of calculation occur owing to higher labour and materials cost, turnover tax burdens or any other circumstances, in particular costing changes for technological reasons, we shall be entitled to a change in price which is reasonable and proportional to the change occurred in the basis of calculation. In the event of a reasonable price increase the purchaser shall not be entitled to rescission of contract. An unreasonable price increase shall entitle the purchaser to rescission of contract within a time limit of two weeks following its notification. Unless expressly agreed otherwise at the time of entering into the contract, this shall also apply to contract conclusion orders or call orders. All incidental expenses, fees, public charges, taxes (in particular, value-added tax) and customs duties, freights, consular fees, commissioning costs and insurance premiums which, directly or indirectly, relate to the delivery and raise its price shall be for the customer's account.
Discounts and price reductions on our generally announced prices will be allowed by us in accordance with the respective delivery volumes; in the event of the aforementioned volumes not being attained, we shall be entitled to charge subsequently. A supplement of up to 25% may be charged for orders remaining below the minimum ordering quantities specified in our quotation.
4. Delivery and Delivery Dates
Delivery is effected ex factory for the account and at the risk of the purchaser. Special pricings agreed upon shall remain without any influence on the place of performance and the passage of risk.
We meet our supply commitment by making the goods available at our works for collection or for shipment. If collection was agreed and is not carried out within 8 days from request for collection, the goods will be shipped by us by DPD or any other mode of shipment which is the most advantageous one for us in the particular case. The risk as well as all transport costs, including the packing, will be for purchaser's account. This shall not apply if shipment and loading take place for the purpose of subsequent performance.
The delivery dates con-firmed by us are approximate dates and dates of dispatch. In the event of default of delivery the purchaser shall set a reasonable time limit of at least 3 weeks. In the event of the goods not having left our works at the expiration of this additional time limit, the purchaser shall be entitled to rescission of contract. In the case of call orders or standing orders for which no duration, manufacture, batch sizes and delivery were agreed, we shall be entitled to request, at the latest 3 months from the acknowledgment of order, a binding statement on the said data. In the event of the purchaser not complying with this request within 3 weeks, we shall be entitled to set an additional time limit of two weeks and, upon the expiration of the said time limit, to rescind the contract or to refuse delivery and claim damages.
We shall be entitled to deliver already before the agreed date.
The period of delivery is extended for a reasonable time in case of industrial actions during labour disputes, especially strikes and lockouts, as well as in case of unforeseen obstacles, e.g. mobilization, war, riots etc notwithstanding the fact that these occurred while delivery was already delayed. This also applies if our suppliers are faced with such circumstances. The period of delivery is also extended for a reasonable time if official declarations or statements necessary for delivery are not received in time or in case of subsequent changes of the order. Unforeseen impediments to performance which we are not responsible for and which is not of a temporary nature only shall entitle us to rescission of contract. The purchaser will be informed immediately on the occurrence of the impediment to performance. The purchaser shall be entitled to request a statement from us indicating whether we wish to rescind the contract or effect delivery within a reasonable period of time. If our statement is not made at the expiration of 4 weeks at the latest the purchaser shall be entitled to rescission of contract.
We reserve the right to exclude us from any compensation to the customer for delivery delays.
5. Part Shipments
We shall be entitled to handle orders by way of part shipments. Such shipments shall be paid separately to the extent this is not unreasonable for the purchaser.
6. Reservation of the Right to Rescind the Contract
The absolute credit worthiness of the purchaser is a prerequisite for our supply commitment. If circum-stances resulting in the credit unworthiness of the purchaser originate after the contract was signed, we shall, by modification of the agreed terms of payment, be entitled to request partial payment in advance, full payment in advance or a security, or to rescind the contract. In particular, delay in and suspension of payment, the request to institute court composition or insolvency proceedings, transfer by way of security of current assets, information indicative of credit unworthiness provided by banking or credit institutes shall be deemed circumstances of the kind referred to above. We shall be entitled to charge to the purchaser the losses we incurred owing to the rescission of contract.
Furthermore, we shall be entitled to rescind the contract without replacement if the purchaser does not meet essential obligations due to us or a third party without giving justifying reasons, if the purchaser makes incorrect statements on his credit standing, if through no fault of our own we ourselves are not supplied or not supplied in time or if for other reasons the fulfillment of our duties of performance is no longer possible to us with the help of means which are reasonable considering our own interests and the justified interests of the purchaser identifiable at the time of the contract been made and considering, in particular, the agreed counter-performance.
7. Passage of Risk, Warranty, Customer's Formal Complaint
Independently of whether a conveyance is affected by us, the purchaser or a third party, the risk will pass to the purchaser, even in the event of the goods not being identified unequivocally, as soon as loading is started or the purchaser does not meet his obligation to call the goods.
Unless the order acknowledgment in writing expressly makes a statement to the contrary, we shall in particular not be responsible that the goods are suited for a use other than the customary use or that they fulfill greater expectations of the purchaser.
Before assembling parts, always check that the product is suitable as it intended. We are not responsible for consequential damages in the assembly of faulty or incorrect goods.
In follow-up business transactions too, any guaranties or undertakings desired by the purchaser must always be expressly included as such in the written order acknowledgment. In particular, buzzword-type indications, the reference to generally accepted standards, the use of trademarks or quality labels or the submission of samples or specimens taken individually shall not substantiate the acceptance of guarantees or undertakings. Neither our employees nor our commercial representatives or other marketing intermediaries are entitled to declare guarantees or undertakings or to make statements on the special usability or the economic efficiency of the goods. The customer is obliged to inform us in writing of faults, either immediately or at the latest within one week after receipt of goods / performance of services. We must be informed in writing of faults, which cannot be detected within this period by careful examination, immediately after detecting the faults. Damage caused by shipment must be documented within 24 hours upon delivery and the haulage company must be informed. All notices of defects must be sufficiently specified and set down in writing. This warranty does not include faults and damage we are not responsible for, especially faults and damage caused by inexpert treatment or maintenance, unauthorized changes to the goods and other disturbances caused by the customer, force majeure or natural wear and tear, unless the customer proofs that this was not responsible for the fault. In respect of products and all other articles of our make, tolerances of selection, color, weight, etc. customary in trade or slight variances as compared with the data given in our printed publications shall not entitle the purchaser to complain about the delivery. We do not give any guarantee for color fastness. If the customer does not grant us the opportunity of satisfying ourselves that the defect in fact exists and if, in particular, he does not make the goods complained about or samples of the said goods available to us immediately upon our request, all claims based on defects shall be cancelled. If the goods delivered by us are defective we will at our option furnish warranty either by rectification of defects or by substitute delivery. At the latest at the time the subsequent performance has failed for the second time the purchaser may basically and at his option request a reduction of payment (reduction of purchase price) or annulment (rescission) of the contract. If defects are minor and easy to remedy we shall also be entitled to refer the purchaser to the maximum amount we are prepared to pay for the defect rectification work carried out by the purchaser himself. If following a failed subsequent performance the purchaser opts for damages, the goods shall remain with the purchaser if this can be reasonably expected of him. Damages shall be restricted to the difference between the purchase price and the value of the defective physical object. If after a failed subsequent performance the purchaser opts for a rescission of the contract owing to a defect of title or a redhibitory defect, he shall not be entitled to any additional damages owing to the defect.
We are only liable for the breach of substantial contractual obligations. In case of slight negligence liability is limited to typically foreseeable damage. The a foregoing provisions relating to our liability shall also apply to the purchaser’s legal claims for the compensation of futile expenses as well as to the personal liability of our employees, jobholders, staff members, representatives and persons employed in performing an obligation. The preceding clause does not apply, if we hid the fault from the customer maliciously or made a guarantee for the quality of the goods, to damage of life, physical injury, health, to claims of the customer based on the “Produkthaftungsgesetz” (German Product Liability Act) and to claims for other damage caused by intentional or grossly negligent breach of the contractual obligations by us. The right of the customer to have recourse according to § 478 BGB (German Civil Code) because of claims of his buyers with respect to supply of us is not affected. If the goods are not defective the ordering party is only entitled to return the goods to ProSmart Industries GmbH if ProSmart Industries GmbH agrees thereto. In this event the ordering party shall pay an amount of 30% of the value of the goods. If the ordering party has already paid the full value of the goods we shall reimburse this party the amount which is in excess of 30% of the value of the goods. The ordering party shall bear the cost of returning the goods
8. Retention of Title to Ownership
Until payment in full of all outstanding debts, including subsidiary claims, claims for damages, claims accruing in the future and encashments of checks and bills of exchange, the seller shall retain title to the goods. The buyer shall be entitled to process and sell the goods, taking the following provisions into account:
a) The authority of the buyer to process conditional goods in the course of ordinary business activity shall end, notwithstanding the cancellation by the seller permissible at any time, at the time of suspension of payments by the buyer or when a petition for institution of insolvency proceedings or composition proceedings for avoidance of insolvency is filed in respect of his assets. b) The processing or transformation shall be done at no charge for the seller as manufacturer, however without any commitment for him. The buyer does not acquire ownership of the new corporeal thing pursuant to Section 950 BGB (German Civil Code). If the conditional goods are processed along with other objects or mixed or mingled with them, the seller shall acquire the co-ownership of the new corporeal thing at the ratio of the invoice value of his conditional goods to the invoice value of the other processed objects. c) The buyer hereby assigns to the seller the claim including all ancillary rights arising from the resale of the conditional goods, namely also prorated to the extent the goods are processed, mixed or mingled and the seller has acquired co-ownership of the said goods in the amount of the invoice value. In respect of this assignment of claim, the seller shall be entitled to the fraction of the purchase money claim including value-added tax in question corresponding to the ratio existing between the invoice value of his conditional goods and the invoice value of the object. If the buyer has sold this claim within the framework of no recourse factoring, he shall assign to the seller the claim towards the factor replacing the aforesaid claim. The seller shall accept this assignment of claim. If payment is made by bank transfer to the purchaser’s credit institution, the purchaser shall herewith irrevocably assign to us the claims towards his credit institution he is thereby entitled to. If the purchaser is given bills of exchange in settlement of claims towards third parties, he shall herewith irrevocably assign to us the claims towards his credit institution he is entitled to in the event of a discounting of the bills of exchange. d) As long as the buyer meets his payments, the seller will not collect the assigned claim. The buyer is, however, obligated to furnish to the seller, upon the latter's request, a precise breakdown of the claims due to the seller indicating the names and addresses or the purchasers, the amounts of the individual claims, invoice dates etc., to give his purchasers notice of the assignment of claim and to provide the seller with all information required for the collection of the assigned claims. He shall be entitled to collect the claims himself as long as not instructed otherwise by the seller. The buyer authorizes the seller to give notice of this assignment to the purchasers and to collect the claim himself as soon as the buyer is in default with one payment or if his financial circumstances deteriorate substantially. In this case the seller may demand that permission be granted to his mandatory to audit the situation of the assigned claims on the basis of the buyer's accounting documents. Amounts received from assigned claims have to be shown separately on the books. e) The retention of title to ownership shall continue to exist even if individual claims of the seller are included in a current account and if the balance is stricken and acknowledged. The seller shall be entitled to the retention of title to ownership not only for the acknowledged and abstract final balance but also for the causal balance. f) The seller here and now releases deliveries after payment in full if the security existing owing to the re tention of title to ownership exceeds by 20% the claim for which security has to be provided.
g) Neither the pledging of the conditional goods and/or of the assigned claims nor their transfer by way of security nor any factoring is permissible. In the event of attachments by third parties of the conditional goods the buyer shall point out the ownership of the seller and inform the latter immediately indicating the attaching creditor, namely by sending him a copy of the minutes of attachment as well as all other documents required to file an objection against the attachment accompanied by an affidavit stating that the attached property is identical with the conditional goods. h) The buyer is obligated to submit to the seller, as soon as he has suspended payment and immediately after notification of suspension of payments, a breakdown of the goods under retention of title of property still available with him, also if and to the extent they have been processed, as well as a breakdown of the outstanding debts from third-party debtors along with invoice copies.
i) In the event of a rescission of contract, the buyer by accepting the General Terms and Conditions irrevocably authorizes the seller here and now to enter the plant, take possession of all goods delivered and make the best possible use of them by direct offering so as to credit them against outstanding debts after deduction of costs incurred. j) The buyer shall keep the conditional goods in custody for the seller at no charge. He shall insure them against the risks of fire, theft and water damage. The buyer hereby assigns to the seller, in the amount of the latter's claims, his claims for compensation he is entitled to assert towards insurers or other entities liable for compensation for damages of the kind referred to in Clause 2 above. k) Rights from the retention of title of ownership and all special forms of it determined in these provisions shall apply until complete indemnity against contingent liabilities the seller incurred in the buyer's interest is achieved. l) Upon our request the purchaser shall, at his own expense, store the goods under retention of title to ownership separately or demarcate them in an appropriate way, clearly and distinctly identify them as our property and take all action called for to comprehensively secure the retention of title to ownership.
9. Terms of Payment
We grant the time allowed for payment indicated in our quotation. Late payment shall entitle us to charge interest on arrears amounting to 8% above the base interest rate. We reserve the right to prove and assert a higher damage caused by delayed performance. Payments shall be deemed effected at the receipt of the cash amount or at the time our bank account are credited with the respective amounts. All bank charges from payment transactions shall be for purchaser's account.
Any cash discounts shall only be granted provided that the granting of cash discounts was offered by us in the written order acknowledgment and that all payment commitments from earlier deliveries have been met in full. Our travelling salesmen and commercial representatives are not authorized to collect.
The seller shall be entitled, even if otherwise provided by the buyer, to first credit payments against the latter's earlier debts, and he will inform the buyer about the way setting-off took place. If costs and interest have accrued already, the seller shall be entitled to credit the payment first against the costs, then against the interest and finally against the principal claim. If a delay in delivery is caused by the purchaser, payments shall become due from the date of readiness for shipment. The custody of the goods shall in this case take place at the purchaser's sole risk and expense. Times allowed for payment shall become void and outstanding claims shall immediately fall due for payment if the opening of an insolvency proceeding is filed for against the purchaser's assets, if the purchaser does not meet essential obligations due to us or a third party without giving justifying reasons, or if the purchaser made incorrect statements on his credit standing.
Any setoff and the exercise of a right of retention and/or the defense of non-performance of the contract by the purchaser shall be excluded unless the counterclaims have been declared with final and binding effect or are expressly not contested by us. The assignment of claims against us shall only be permissible with our consent in writing and after a term of notice of one month.
10. Design Modifications
The seller reserves the right to make at any time modifications in particular of the specification. He shall not be obligated to carry out such modifications also on products already delivered.
Unless expressly agreed otherwise in writing, the information submitted to the seller in connection with orders shall not be deemed confidential.
12. Industrial Property Rights
The purchaser acknowledges any industrial property rights we are entitled to in connection with the goods supplied and promises to respect such rights and defend them against infringements by third parties. In addition, he warrants that the manufacture and supply of items produced at his instigation do not infringe the industrial property rights of third parties and indemnifies us from all claims to the contrary. The disclosure of our drawings, designs, samples, calculations, our software and other patterns to third parties is not permitted. All titles to ownership, copyrights and other industrial property rights thereof shall remain with us.
Molds, jigs, tools or other fixtures manufactured by us or on our behalf shall remain our property even if costs are charged to the customer; they will be kept by us with due care unless no follow-up orders are placed with us within 2 years from the last delivery.
Any restriction of use or obligation to restore shall only exist if specially agreed. If there is no written agreement about different regulations, the purchaser is only allowed to promote, offer and distribute the products with their individual product name of ProSmart Industries GmbH.
13. Product liability and warranty
ProSmart Industries GmbH is not responsible for damage that delivered products caused to persons or other property. Most of our products are for show or competition use and therefore not approved for street use.
Guarantees do not apply to products intended for race or tuning, as these are exposed to very tough conditions that very depending on driving style, cooling, power, etc.
Errors that occur due to improper installation is not covered by warranty or right to return.
ProSmart Industries GmbH is not responsible for customer assembly or costs for repair in any case. All the tuning is done at your own risk.
This shall not apply if we can be blamed for intent, gross negligence or the slightly negligent infringement of an essential contractual obligation, as well as in the event of bodily injuries and injuries to health attributable to us, or in the event of loss of life of the purchaser.
14. Place of Performance and Place of Jurisdiction
Uelsen shall be the place of performance for delivery and payment. Orsnabruck shall be the place of jurisdiction. We shall be entitled to file a lawsuit at the purchaser's place of jurisdiction abroad. All legal relations between the purchaser and us shall be governed exclusively by the Law of the Federal Republic of Germany. The provisions of the UN Sales Convention shall not apply.
15. Modifications and Partial Invalidity
Modifications or restrictions of these present provisions shall require our confirmation in writing to take effect. In the event of individual provisions of the contract signed with the purchaser including these Terms and Conditions of Supply and Payment being or becoming fully or in part invalid, this shall not affect the validity of the remaining provisions. The provision which is in part or fully invalid should be replaced by a provision approximating as much as possible the invalid one in its economic results.