Terms and Conditions


Applicability
The conditions herein mentioned are applicable to companies, legal entities under public law and federal special fund under public law.

I. General provisions
1. The order confirmation of the contractor – PROWERB Ltd. – is decisive for the nature and the scope of deliveries and services. 

2. Our terms and conditions shall apply exclusively to all work and service agreements concluded with us. The customer’s purchase conditions and standard terms and conditions shall not be integral part of the contract. Not reacting to the customer’s purchase conditions and standard terms and conditions shall not constitute our acknowledgement. 
These terms and conditions shall apply to any repeated business relations without direct reference for future business transactions. The customer has access to the current version under www.prowerb.de.
3. Any conditions set by the customer contrary to these general delivery and payment conditions as well as any additional oral agreements shall only apply upon our express written confirmation. Any agreed deviations shall not apply to future contracts.
4. Subsequent changes due to incomplete documents, details or measurements of the customer or any other third person shall be charged separately.
5. The wages shall be calculated on the basis of a working time of 39.5 hours per week. Overtime, shifts at night, on Sundays or holidays shall be calculated separately.
6. The customer shall be responsible for the compliance with legal and administrative rules and provisions.

II. Electronic data exchange
1. The contracting parties shall be entitled to produce, transmit and exchange declarations and messages electronically. The identity of the sending party must be recognizable. The sending party shall bear the risk of loss and accuracy of the transmitted data.
2. If it is necessary for the contractor to install a common IT-interface for the connection of both data systems, the customer shall bear any resulting costs. Each party shall execute the usual security and control measures in order to protect the electronic data exchange from unauthorized access by third parties as well as prevent any change, loss or destruction of electronically transmitted data.
3. Each party shall determine one or several contact persons for the receipt of information, declarations and inquiries regarding the contract fulfillment and shall inform the other party about their names and contact addresses. If the parties fail to name a contact person, the one concluding the contract shall function as contact person.
4. Documents generated electronically or digitally shall be equivalent to written documents.

III. Confidentiality
1. Each party shall be required to treat all non-publicly available data and information confidentially and use it exclusively for the purpose stipulated in the contract. Data and information may only be transferred to third parties if necessary in connection with the fulfillment of the contract. The same principles shall apply to the confidentiality of electronic data and information. 

2. This confidentiality agreement excludes data and information which must be transferred to third parties, especially administrative bodies, due to legal requirements.

IV. Customer’s duties of cooperation
1. It is the customer’s duty to provide the items, information and rights necessary for the fulfillment and perform any acts of cooperation, in particular provide products and materials, as well as inform the contractor about specific characteristics of the goods and procedures and related legal, administrative and trade association rules.
2. These advance performances must be carried out timely and completely.

V. Adaptation of contract
1. Agreements concerning prices and services shall only refer to services expressly listed in the contract and to an essentially unchanged goods and order volume or quantity structure. On the one hand, they require unchanged data processing standards, quality agreements and process instructions and on the other hand unchanged energy and personnel costs as well as publicly available data.
2. In case any of the conditions described under 1. are changed, both contracting parties shall have the right to demand negotiations about an adaptation of contract with effect from the first day of the month following the adaptation request, unless the party requesting the adaptation knew about the changes when the contract was concluded. The adaptation of the contract must be based on the confirmed changes.

VI. Prices
1. The prices stated in our offer shall be valid for 6 weeks from the day of issue and are ex works Kleve plus relevant statutory VAT. Our pricing assumes that all offered services shall actually be performed and uninterrupted production shall be guaranteed. Forwarding information about our prices to third parties shall be prohibited.
2. Prices contain free storage for 3 days until commencement of production of goods and materials left with us for further processing. Long-term storage will be charged separately.
3. Additional works that were initially not agreed upon shall be invoiced based on the actually arisen labour and machine costs to our company’s regular hourly rates.

VII. Payments
1. Payment of the invoice amount for subcontracts and service agreements are due immediately and without discount and made payable to one of the given bank accounts, without possibility of set-off and retention. Re-discountable bills of exchange or checks are only accepted as payment in exceptional cases by prior arrangement. Discount charges are to be paid immediately by the customer, discounts shall not be given.
2. Exceptional volumes of materials, postal and cargo charges entitle the contractor to demand an appropriate advance payment.
3. If the customer fails to settle the invoice within the payment period, the contractor retains the right to charge an interest in the amount of 4% above the respective bank rate of the ECB as of the due date.
4. If the customer still fails to comply with our payment conditions or any circumstances transpire that call the customer’s creditworthiness into question, payment shall be due immediately.
In such cases we may also opt to execute outstanding deliveries or services only on advance payments or subject to adequate securities.

VIII. Delivery dates and delivery periods
1. We do our best to meet the production and delivery dates as stated in the order confirmation. However, we cannot guarantee that this will always be the case.
2. The delivery period shall commence upon receipt of the written confirmation of the business transaction between PROWERB and the customer. Delivery dates can only be met if the customer guarantees the timely provision of all necessary documents and materials. If these requirements are not met according to the agreement, the delivery period will be extended accordingly.
3. If vis major, strikes or other unforeseeable circumstances prevent us from complying with our delivery obligations, the delivery period shall be extended appropriately, provided that delivery or service are not rendered impossible. Failure to meet the delivery dates does not entitle the customer to cancel the agreement. Any damage claims shall be excluded. 


IX. Palletizing
1. The contractor or any commissioned third party shall keep an account of his own pallets and cover plates for the customer. 
This shall provide the customer with information about the number of pallets as well as any change of number. If required, the customer shall receive a statement of the pallet account for his balance reconciliation. The account records shall be kept by means of shipping documents. The customer shall confirm all received pallets.
2. Upon every delivery of palletized goods the customer shall step by step return the same number of equivalent pallets to the contractor. Missing or damaged pallets shall be invoiced to the customer.

X. Right of lien and retention, retention of title
1. The contractor shall have a right of lien and retention to all goods and other values in his possession until all due and not due receivables have been paid by the customer. The customer is authorized to prevent the contractor from executing his right of lien if the contractor is provided with an equivalent security by the customer.
2. The goods produced and processed by the contractor shall remain the property of the contractor until complete payment of all receivables under the business relationship with the customer.
3. The customer is authorized to resell the goods to third parties in the ordinary course of their business. In such cases the customer shall in advance assign the purchase price claims against the third party to the contractor in the amount due in the invoice.
4. Attachments or seizures of conditional goods by third parties have to be indicated to the contractor immediately. Arising intervention costs will be charged to the customer.

XI. Security provisions
1. We guarantee careful supervision and handling of the goods and materials left with us for processing or storage. At the same time we expect customers to insure their goods and materials adequately against breakage, burglary, and transport, storm, water, or fire damage. If required by the customer, such insurance can also be provided by us. The costs for the insurances shall be charged to the customer.
2. The correct number of goods and materials left with us can only be checked in terms of the number of delivered pallets and containers. Damage or incorrect number inside individual boxes shall be reported to the customers when this becomes known – at the earliest when goods are unpacked for processing. Apparent damages and/or incorrect numbers shall not be charged to the contractor. Shipping is carried out at the customer’s risk. The choice of transportation shall be at the contractor’s discretion.
3. If the customer ships the goods with his own vehicles or orders transporting with other shipping or freight companies, the risk of damage or destruction of the goods shall pass to the customer. Our service shall be considered as accepted unless the customer within 8 days objects in writing to the delivery note attached to the invoice.
4. The contractor shall observe the shipping regulations, but shall assume no liability for the least costly shipping mode. 


XII. Contractor’s right of recourse
The customer shall release the contractor from any third-party claims due to product liability laws and other regulations protecting third parties, unless the contractor or his vicarious agents have caused the third-party claim by gross negligence or intentional breach of duty.

XIII. Warranty, liability
1. The contractor shall warrant the production of flawless goods produced on the current state of technology – in case of packing orders this is limited to the contractor’s rendered services – and shall commit himself to redeliver free of charge or repair at his discretion, if at the contractor’s fault the goods have been rendered unusable or their utility has been impaired materially.
2. The warranty shall not extend to external products. This means that the contractor shall not be held liable for defective materials detected before, during or after the processing. Likewise the contractor shall not be held liable for damages caused by the customer’s incomplete or imprecise information about the properties and the nature of the materials or finished products that are to be processed. Damages caused by vis major and events outside the contractor’s influence are exempt from the warranty.
3. Other justified and acknowledged quality defects shall commit the contractor to improvement, reduction or replacement by faultless goods at the contractor’s discretion. Any additional claims of the customer, in particular damage claims, shall be explicitly excluded in all cases. The rectification of defects shall be rejected as long as the obligation from the purchase agreement has not been fulfilled.

XIV. Place of performance and legal venue
1. Place of deliveries and payments shall be Kleve.
2. Legal venue shall be Kleve.

XV. Validity of the contract
1. If any contractual provision proves legally ineffective, the remainder of the agreement shall nevertheless remain binding.

Version of June 2011