General Terms and Conditions
1. General
1.1 All transactions are subject to the following terms and conditions of sale, delivery and payment. They shall apply even if they are not expressly mentioned in subsequent transactions. They have precedence over conditions referenced by customers.
1.2 These terms and conditions of sale, delivery and payment shall apply exclusively. PRO ACTIV will not recognise contradictory terms and conditions, or terms and conditions of the business partner that deviate from these – especially terms and conditions of purchase – unless PRO ACTIV expressly consents to their validity in writing. PRO ACTIV’s terms and conditions shall also be applicable even if PRO ACTIV makes a delivery to the business partner without reservation in knowledge of conflicting or deviating conditions of the business partner.
2. Orders, minimum order volumes
2.1 Our offers are always subject to confirmation.
2.2 Orders shall only be deemed accepted by us after written order confirmation or invoicing.
2.3 Requests for changes after placement of an order are additional orders, which we are not obliged to accept. If we do accept them, these change requests must be paid separately as indicated in our order confirmation.
2.4 The minimum order volume for individual orders is € 25.00 net. For deliveries of spare parts with an order value of less than € 25.00 net, we will charge a separate processing fee of € 5.00.
3. Price agreement
3.1 PRO ACTIV is bound by price agreements for 3 months after conclusion of the contract, if the delivery is to be made within this period. Otherwise, PRO ACTIV reserves the right to demand a surcharge on the agreed prices if and to the extent to which there are increases in wages, freight and taxation after conclusion of the contract, and/or suppliers increase their prices.
3.2 Unless agreed otherwise, the prices shall be ex-works, excluding packaging and loading in the plant. The prices stated exclude value-added tax at the respective legal rate as valid on conclusion of the contract or on delivery if delivery is made more than 3 months after conclusion of the contract.
4. Dispatch
4.1 Upon shipping, the risk, including the risk of confiscation, is transferred to the freight carrier or forwarding agent. This also applies if partial deliveries are made or PRO ACTIV has agreed to bear the costs of shipping or delivery.
4.2 If dispatch is delayed as a result of circumstances caused by the business partner, then the risk passes to the business partner from the date of readiness for dispatch.
4.3 In the absence of specific instructions by the business partner, PRO ACTIV shall choose the transport route and means of transport to the best of its knowledge without liability for the chosen method being the cheapest or fastest form of shipping.
5. Prices and payment
5.1 Unless otherwise agreed in text form, our prices are ex works excluding packaging and freight and plus value added tax at the applicable rate. Costs of packaging and freight shall be invoiced separately.
5.2 Payment of the purchase price shall be made exclusively to the account stated on the invoice. The deduction of a discount is only permissible with a special written agreement.
5.3 Unless otherwise agreed, the purchase price shall be paid within 10 days of delivery. Interest on arrears shall be charged at a rate of 8% above the respective base rate p.a.. We reserve the right to claim higher damages for default.
5.4 Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries which take place 3 months or more after conclusion of the contract.
5.5 The Buyer shall be in default of payment by a reminder after the due date, but no later than 30 days after the due date and receipt of an invoice. We are entitled to charge EUR 5.00 for each reminder. If the buyer defaults on payment of an invoice, all our claims against the buyer arising from the business relationship shall become due for payment immediately. We shall only be obliged to make further deliveries against advance payment.
6. Offsetting and right of retention
6.1 Only undisputed claims, or claims determined to be legally valid entitle the buyer to offset or withhold claims. The exclusion of the right of retention does not apply if the counter-claim is based on the same contractual relationship.
6.2 If the business partner is a merchant, they have no recourse to the claim of unfulfilled contracts in accordance with Sect. 320 of the German Commercial Code (BGB), or to the right of retention in accordance with Sect. 273 of BGB due to any counter-claims.
7. Lead time
7.1 The lead time specified is non-binding. Missing the deadline does not entitle the business partner to withdraw from the contract. If PRO ACTIV does not deliver when fulfilment is due, the buyer can withdraw from the contract should PRO ACTIV fail to deliver within a period of grace granted after the due date.
7.2 PRO ACTIV is entitled to make partial deliveries and invoice them separately.
7.3 Call-off orders must be accepted within 6 months after conclusion of the contract, without requiring a call-off request or notice of default by PRO ACTIV. If this period expires, PRO ACTIV is entitled to either invoice the goods or demand compensation for damages arising from non-fulfilment.
7.4 If the buyer declares that they do not want to accept the purchased goods, or if they allow a period of grace to expire without accepting the goods, PRO ACTIV can withdraw from the contract and/or demand compensation for damages.
7.5 PRO ACTIV can charge 25% of the purchase price as compensation for damages without deductions. The buyer is entitled to demonstrate that we have not suffered any damages or suffered significantly lower damages than the lump-sum amount. PRO ACTIV reserves the right to claim higher damages.
8. Retention of title
8.1 PRO ACTIV reserves the title to the delivered items until such time as all payments from the contract have been received.
8.2 If the business partner is an entrepreneur, the following provisions 8.3 - 8.9 also apply for the retention of title.
8.3 If the business partner is a merchant, PRO ACTIV retains title to the delivered goods until all accounts receivable arising from the business relationship have been paid.
8.4 The customer is entitled to dispose of the goods subject to retention of title in orderly business transactions, unless they have agreed an exclusion of assignment with their customers with regard to the accounts receivable.
8.5 The retention of title shall also cover the full value of the products created through processing, mixing or joining the PRO ACTIV goods, whereby PRO ACTIV shall be considered the manufacturer. If, in the event of processing, mixing or joining with third-party goods, the ownership rights of these third parties remain applicable, PRO ACTIV shall acquire joint ownership in the ratio of the legal values of the goods processed.
8.6 The business partner hereby assigns the claims vis-à-vis third parties resulting from the onward sale in their full amount or in the amount of any joint ownership share acquired by us (Paragraph 8.4) to us as collateral. The business partner is entitled to collect these for our account until further notice or until they no longer make payments to us. The business partner is not entitled to assign these claims even for collection of receivables as part of factoring processes unless the factor is also obliged to pay compensation to the amount of PRO ACTIV’s share in the receivable directly to PRO ACTIV as long as PRO ACTIV continues to have claims against the business partner.
8.7 The business partner undertakes neither to encumber the goods subject to retention of title with third-party rights nor to assign them to third parties as collateral until all claims of PRO ACTIV have been satisfied. They undertake to notify PRO ACTIV immediately if the goods have been distrained for third parties or other rights to them have been asserted. The business partner must provide PRO ACTIV with the information required to assert its rights and entrust its documents to its safekeeping. The customer shall bear all costs of interventions.
8.8 On request, the business partner is obliged to disclose the addresses of its buyers and the amounts of accounts receivable with copies of the invoices. PRO ACTIV is entitled to reveal the assignment to the buyer.
8.9 If the value of the collateral exceeds the value of the claims to be secured by more than 20%, PRO ACTIV is obliged on request to release collateral of its choosing in the total of the excess value.
9. Liability and liability for defects
9.1 If there is a defect for which PRO ACTIV is responsible, the buyer is initially only entitled to demand subsequent performance of the buyer’s choosing, i.e. remedying the defect (rectification) or delivery of a non-defective item (replacement delivery). PRO ACTIV can reject the form of subsequent performance chosen by the buyer if PRO ACTIV would incur disproportionate costs, in particular due to the value of the item in a non-defective condition, the significance of the defect and/or the matter of whether the other form of subsequent performance can be chosen without material disadvantages for the buyer. In such cases, the buyer is limited to the respective other option for the subsequent performance claim. PRO ACTIV can also counter this form of claim to subsequent performance with the argument of disproportionate costs.
9.2 If the buyer reports a defect to PRO ACTIV and fails to exercise their right to choose the form of subsequent performance in this notification, PRO ACTIV is entitled to grant the buyer an appropriate period of grace to exercise their right to choose. If the buyer fails to do so within this period of grace, PRO ACTIV is entitled to provide the subsequent performance of its choosing. In the event of a subsequent betterment failing, the buyer reserves the right to choose either to withdraw from the contract or to reduce the purchase price. The right of the buyer to claim for damages remains unaffected in line with the provisions of clause 10.
9.3 Defect reports and complaints are only effective if made in writing.
9.4 If PRO ACTIVE is not informed of any obvious defects within 14 days of receipt, our warranty is excluded. The same shall apply for deliveries to entrepreneurs if they fail to report defects in the goods that would be apparent on diligent inspection within 2 weeks of receipt.
9.5 In the event of violations of a material duty by PRO ACTIV, PRO ACTIV’s liability shall be limited to foreseeable damages typical for such contracts in the event of slight negligence. In such cases, PRO ACTIV’s liability is also limited to half of the order total excl. VAT.
9.6 We are liable in accordance with statutory provisions if the customer asserts claims for damages based on intent or gross negligence including the intent or gross negligence of our representatives or vicarious agents. Insofar as the customer does not assert any wilful breach of contract on our part, our liability is limited to foreseeable, typically occurring damages.
9.7 We are liable in accordance with statutory provisions if we culpably infringe any essential contractual obligation. In this case, the liability for damages is also limited to foreseeable, typically occurring damages. An essential contractual obligation exists when the breach of duty relates to an obligation in whose fulfilment the customer trusted and was entitled to trust.
9.8 In the event of a secondary breach of duty, for which PRO ACTIV is not responsible, the customer is not entitled to withdraw from the contract. This is not applicable to violations of secondary obligations present in deliveries of non-defective, newly manufactured items. In the event that there is a minor breach of duty by PRO ACTIVE caused by slight negligence, liability is excluded. This does not apply if this breach of duty relates to the proper performance of duties which allow the proper performance of the contract's implementation and where the contractual partner could rely upon its compliance and also could be expected to rely upon its compliance.
9.9 The liability for a culpable injury to life, limb or health remains without prejudice. This also applies for the compulsory liability arising from the Product Liability Act (Produkthaftungsgesetz).
9.10 Unless otherwise agreed in the above, liability is excluded.
9.11 The guarantee provided by PRO ACTIV to the first user of the rehabilitation equipment, where applicable, is not affected by these provisions.
10. Joint and several liability
10.1 Any further liability for damages as provided in clause 9 – regardless of the legal nature of the asserted claim – is excluded. This applies in particular for indemnity claims due to faults when the contract was concluded, due to other violations of duty or due to tortuous claims for the replacement of damage in accordance with art. 823 German Civil Code (BGB).
10.2 The limitation according to clause 10.1 also applies if the customer claims reimbursement of useless expenditures in lieu of a claim for damages.
10.3 Insofar as our liability for damages is excluded or limited, this shall also apply to the personal liability of our salaried employees, wage earning staff, co-workers, representatives and vicarious agents.
11. Liability for design modifications
11.1 Custom products are subject to tighter legal regulations. Design modifications on PRO ACTIV products by or on behalf of the business partner are only permitted if the technical safety requirements are met and PRO ACTIV has consented in writing. PRO ACTIV must be provided with a modified model and a design drawing to obtain this consent. If the consent is not complied with, and if third parties suffer damages due to the modifications, for which PRO ACTIV is liable, the business partner is obliged to indemnify PRO ACTIV of all third-party claims.
12. Use of original parts
12.1 Only use of PRO ACTIV original parts guarantees that our products work safely and perfectly. We can only offer a warranty for our products if these original parts are installed or modified professionally. If non-original parts are installed, we no longer guarantee the product and are not liable under the German Product Liability Act (Produkthaftungsgesetz).
13. Product returns
13.1 Finished end products or parts thereof cannot be returned if the business partner does not have a right to withdraw from the contract.
13.2 If PRO ACTIV decides otherwise in individual cases, in
particular for therapeutic reasons, the following shall apply:
a) For unused, as-new parts, delivered no more than 1 month
previously, 90% of the delivery price will be reimbursed;
b) for returns up to 3 months after the delivery date, 70%
of the delivery price will be reimbursed.
13.3 Custom-made products and items with selling prices under € 50.00 cannot be returned. Returns of older deliveries will not be accepted, even if the goods have not been used. A copy of the delivery note or invoice serves as proof of the period since delivery.
14. Place of performance/jurisdiction
14.1 The place of performance is 72359 Dotternhausen and the court of jurisdiction is the court competent for 72359 Dotternhausen, provided the business partner is a merchant, a legal entity under public law or a special fund under public law. The jurisdiction for legal action against the business partner is 72359 Dotternhausen, if the business partner moves their domicile or usual place of residence to another country after conclusion of the contract, or the domicile or usual place of residence at the time the legal action is taken is not known.
14.2 Only the law of the Federal Republic of Germany shall apply, the UN Convention on Contracts for the International Sale of Goods is excluded.