Section 1 Scope of application
1.1 The following General Terms and Conditions of Sale apply to all business relationships between prometho GmbH, Management: Ruth Hoffmann, Jens Christoph Hoffmann, Beim Weissen Stein 13, 56579 Bonefeld, Germany (hereinafter: the “Supplier”), and the Customer for all services provided by the Supplier exclusively, in each case in the version valid at the time.
1.2 Customers within the meaning of these terms and conditions are only business persons. The Supplier’s offers are aimed exclusively at customers who have reached the age of 18 and deemed to be business persons, i.e. in particular in industry, commerce, handcraft and trade.
These GTCs are aimed at business persons within the meaning of Section 14 of the German Civil Code (BGB), i.e. any natural or legal person, or a partnership with legal capacity that acts in the exercise of its commercial or independent professional activity when concluding a legal transaction.
1.4 General terms and conditions or other terms and conditions of the Customer shall not become part of the contract unless otherwise agreed in individual cases.
1.5 These Terms and Conditions shall also apply to all future business relations even if they are not expressly agreed again. The Supplier shall inform the Customer immediately of any changes to these conditions.
1.6 Individual agreements made with the Customer in specific cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTCs. The content of such agreements shall be governed by a written contract or written confirmation by the Supplier.
1.7 The goods and services offered by the Supplier can be found in the corresponding offers/directories in the respective current version.
1.8 The contractual language is exclusively German.

Section 2 Conclusion of contract
2.1 The Supplier’s offers do not constitute a binding offer to conclude a contract. Rather, they are a non-binding invitation to the Customer to submit an offer.
2.2 The conclusion of a contract between the Supplier and the Customer requires that the offer and acceptance are made at least in text form (e.g. by email).
2.3 The contract shall be concluded when an order confirmation is sent or when the Supplier fulfils the order. Depending on the type of product sold or service provided, the contract shall include in particular the technical information and safety sheets individually prepared and enclosed by the Supplier, in particular the safety data sheet and the technical data sheet. The Customer is obliged to observe and comply with the instructions given in these.
2.4 The Supplier and the Customer may only invoke subsequent amendments or additions that deviate from the agreement originally concluded if these have also been made at least in text form (e.g. by email).
2.5 The Supplier may accept the Customer’s contract offer within three (3) days. If the Supplier does not accept the offer within this period, this shall be deemed to be a rejection of the offer. In this case, the Customer is no longer bound by his declaration of intent.
2.6 Deviations in dimensions, weights and/or quantities within customary tolerances are permissible.

Section 3 Prices
3.1 The individual prices stated in the contract are definitive. All prices quoted by the Supplier are net prices, i.e. they do not include statutory VAT or other price components. Nor do they include any shipping costs.
3.2 In the case of an initial business relationship (first purchase by the Customer), delivery – regardless of the quantity – shall only be made against prior payment of the agreed price.
3.3 No discounts shall be granted unless otherwise agreed in writing with the Customer. The statutory regulations regarding the consequences of default in payment shall apply.
3.4 For self-contained parts of the service, the Supplier may demand an instalment payment in the amount of the value of the service provided.
3.5 The services provided by the Supplier are generally invoiced on the basis of individually agreed flat rates or hourly rates.

Section 4 Terms of payment; default
4.1 The (partial) claims invoiced by the Supplier shall be payable in accordance with the individual payment details contained in the invoice, but no later than fourteen (14) days after receipt of the invoice. The Supplier is entitled, despite any provisions of the Customer to the contrary, to first offset payments against older debts owed by the customer. If costs and interest have already been incurred, these must first be offset against the payment.
4.2 If the Customer does not fulfil his payment obligation, or does not do so on time, the Supplier is entitled to charge interest at a rate of eight percentage points (8%) above the respective base rate from the time of default. In addition, the Supplier is entitled to payment of a lump sum of forty (40) euros. We expressly reserve the right to assert further claims for damages.
4.3 The Customer shall only be entitled to exercise a right of retention if the counterclaims on which he bases his right of retention are based on the same legal relationship.
4.4 The Customer is only entitled to set-off if the counterclaims on which he bases his right to set-off have been legally established or recognised by us.
4.5 If it becomes apparent after conclusion of the contract that the Supplier’s claim to the price is jeopardised by the Customer’s inability to pay (e.g. by an application to open insolvency proceedings), the Supplier is entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract. In the case of contracts for the manufacture of non-fungible goods (customised products), the Supplier may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.

Section 5 Delivery; retention of title
5.1 Delivery dates and delivery periods are only binding if they are agreed or confirmed by the supplier at least in text form (e.g. by email) after conclusion of the contract. Compliance with agreed delivery periods and deadlines also presupposes the timely and proper fulfilment of the Customer’s obligations. The defence of non-performance of the contract remains reserved.
5.2 Delivery periods and dates agreed or confirmed by the Supplier shall become non-binding if the Customer agrees additions and/or changes to the subject matter of the contract with the Supplier after conclusion of the contract. In such cases, the Supplier is obliged to provide the customer with a new delivery date.
5.3 The goods ordered shall be delivered at the Customer’s expense by a transport company selected and commissioned by the Supplier, in accordance with FCA (INCOTERMS 2020). Goods declared as dangerous goods shall be transported at the Customer’s expense by a dangerous goods transport company selected and commissioned by the Supplier. The transport costs incurred shall be shown in the Supplier’s offer.
5.4 The goods shall be delivered in standard containers with standard labelling. This includes the product name, the quantity contained, the shelf life and the hazardous substance labelling. No additional details shall be included in the purchase price. If the Customer requests changes to the container or label (e.g. additional information or a different type of container), these can be ordered for an additional charge.
5.5 Delays in delivery and performance for which the Supplier is not responsible, in particular in the form of force majeure, difficulties in the procurement of materials and operational disruptions for which the Supplier is not responsible and which do not extend beyond a period of three (3) months, shall entitle the Supplier to postpone delivery and performance for the duration of the hindrance. In these cases, claims by the Customer for cancellation of the contract or default are excluded. This shall also apply if the delay has occurred due to the fact that suppliers of the Supplier are late in fulfilling orders that were submitted on time and the Supplier is prevented from fulfilling their order on time as a result. If the hindrance lasts longer than three (3) months, the Customer may, after setting a grace period to no avail, withdraw from the contract with regard to the part not yet fulfilled or – if there is a demonstrable lack of interest in the partial performance – withdraw from the entire contract. In such cases, the Customer shall not be entitled to claim damages.
5.6 The Supplier is expressly entitled, but not obliged, to make partial deliveries.
5.7 If the Customer is in default of acceptance, fails to co-operate, or if the delivery is delayed for other reasons for which the Customer is responsible, the Supplier is entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this, the supplier shall charge a flat-rate compensation of one per cent (1%) of the price per calendar week, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for dispatch, up to a maximum total of ten per cent (10%) of the price in the event of final non-acceptance. Proof of higher damages and statutory claims by the Supplier (in particular reimbursement of additional expenses, reasonable compensation, cancellation) shall remain unaffected; however, the flat rate shall be offset against further monetary claims. The Customer shall be entitled to prove that the Supplier has suffered no loss at all or only a significantly lower loss than the above flat rate.
5.8 The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer upon handover at the latest. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Customer upon delivery of the goods to the forwarding agent, carrier or other person or organisation designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. If the Customer is in default of acceptance, this shall be deemed equivalent to handover.
5.9 The Supplier shall retain full title to the goods until all claims arising from the current business relationship have been settled in full. Prior to the transfer of ownership of the reserved goods, pledging or transfer by way of security is not permitted.
5.10 The Customer may resell the goods in the ordinary course of business. In this case, the Customer shall assign all claims in the amount of the invoice amount arising from the resale to the Supplier, who shall in turn accept the assignment. However, the Customer is authorised to collect the claims. If the Customer does not properly fulfil his payment obligations, the Supplier reserves the right to collect claims themself.
5.11 If the goods subject to retention of title are combined and mixed, the Supplier shall acquire co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the other processed items at the time of processing.
5.12 If items subject to retention of title are installed as essential components in the property/building of the Customer or of a third party, the Customer shall assign to the Supplier any claims arising from the sale of property or property rights in the amount of the invoice value of the items, subject to retention of title, including all ancillary rights, and the Supplier shall accept this assignment.
5.13 If the delivery item is damaged or destroyed by a third party, the Customer shall, in the event of existing default in payment, assign his claims against the third party in full to the Supplier, who shall in turn accept the assignment.
5.14 The Customer is entitled to collect the claims assigned to the Supplier. The Supplier’s right to collect the claims himself remains unaffected by this. However, the Supplier undertakes not to collect the claims as long as the Customer fulfils his payment obligations, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed, and payments have not been suspended. However, if this is the case, the Supplier is entitled to demand that the Customer disclose the debtors of the assigned claims and provide all information necessary for the collection of the claims. In this case, the Customer is obliged to hand over all documents relating to the assigned claim and to disclose the assignment to the debtor (third party).
5.15 If the value of the securities granted to the Supplier by the Customer on the basis of the above paragraphs exceeds the claim to be secured by more than ten per cent (10%), the Supplier shall, at the Customer’s request, release securities of the Supplier’s choice.

Section 6 Warranty
Unless expressly agreed otherwise, the Customer’s warranty claims shall be governed by the statutory provisions with the following modifications:
The basis of the Supplier’s liability for defects is primarily the agreement reached on the quality of the goods. The product descriptions (including those of the manufacturer or the sales partner) which were provided to the Customer prior to his order, or which were included in the contract in the same manner as these terms and conditions, shall be deemed to be an agreement on the quality of the goods, but public promotions, statements and other advertising shall not be deemed to be such an agreement.
– The Customer is obliged to inspect the goods for deviations in quality and quantity with due care, and to notify the Supplier of obvious defects immediately after receipt of the goods; the notification is deemed to be immediate if it is made within two (2) weeks, whereby the timely dispatch of the notification is sufficient to meet the deadline. This also applies to hidden defects discovered at a later date. In addition, the Customer is obliged to observe the safety instructions (safety data sheet or technical data sheet) provided to him. In the event of a breach of the obligation to inspect and to report defects, the assertion of warranty claims is excluded.
– In the event of defects, the Supplier shall, at their discretion, provide warranty by repair or replacement (subsequent fulfilment). In the event of rectification, the Supplier shall not be required to bear the increased costs arising from the transfer of the goods to a location other than the place of fulfilment, provided that the transfer does not correspond to the intended use of the goods.
– The Supplier is entitled to refuse subsequent fulfilment as long as the Customer does not fulfil his payment obligation towards the Supplier to an extent that corresponds to the defect-free part of the service provided.
– If the subsequent fulfilment fails twice (2x), the Customer may, at his discretion, demand a reduction in price or withdraw from the contract, provided that the Supplier is not unreasonably disadvantaged by this choice.
– In urgent cases, e.g. if operational safety is jeopardised or to prevent disproportionate damage, the Customer has the right to rectify the defect himself and to demand compensation from the Supplier for the expenses objectively necessary for this. If the Customer carries out his own rectifications the Supplier must be informed immediately, if possible in advance. The Customer has no right to carry out his own rectifications if the Supplier would be entitled to refuse a corresponding subsequent fulfilment in accordance with the statutory provisions.
– If the subsequent fulfilment has failed, or a reasonable deadline to be set by the Customer for the subsequent fulfilment has expired unsuccessfully, or is unnecessary according to the statutory provisions, the Customer may withdraw from the contract or reduce the price. However, there is no right of cancellation in the event of an insignificant defect.
– Claims for material defects (including compensation for damages) in new goods shall lapse one (1) year after delivery of the goods. This does not apply if the law prescribes longer periods in individual cases, or in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty by the Supplier, or in the event of fraudulent concealment of a defect. The provisions on the suspension of expiry, the recommencement of time limits and the liability of the Supplier under product liability law remain unaffected. The statutory limitation periods for the right of recourse in accordance with Section 478 BGB also remain unaffected.
– Any warranty for used items is completely excluded.
– The aforementioned limitations of liability also do not apply if the Supplier has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods.
The Customer may only withdraw from or cancel the contract due to a breach of duty that does not consist of a defect if the Supplier is responsible for the breach of duty. A free right of cancellation by the Customer (in particular in accordance with Sections 651, 649a BGB) is excluded. In all other respects, the statutory requirements and legal consequences apply.
– Defects that are not due to faulty material or faulty manufacture, formulation or drafting, but to faulty application, storage, addition of material additives, deviation from instructions or other behaviour for which the Customer is responsible are not covered by the warranty obligation.

Section 7 Liability
7.1 The Seller shall be liable without limitation for intent and gross negligence and in accordance with the Product Liability Act. He shall be liable for slight negligence in the event of injury to life, limb and health of persons.
7.2 Otherwise, the following limited liability applies: in the case of slight negligence, the Seller shall only be liable in the event of a breach of a material contractual obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which you may regularly rely (cardinal obligation). Liability for slight negligence is limited to the amount of damages foreseeable at the time of conclusion of the contract, the occurrence of which must typically be expected. This limitation of liability also applies in favour of our vicarious agents.
7.3 The Supplier shall not be liable for damages if the damage is not due to a defect existing at the time of the transfer of risk, but to improper use of the goods, in particular to a failure to observe the safety instructions provided to the Customer (safety data sheet or technical data sheet).
7.4 The Customer shall not receive any guarantees in the legal sense from the Supplier.
7.5 Where the goods have been manufactured to the Customer’s specification or design, the Customer shall indemnify and hold the Supplier harmless from and against all losses, liabilities, costs, claims, demands, expenses and charges (including but not limited to legal and other professional fees), actions, proceedings, judgements and damages incurred by the Supplier arising out of or in connection with the infringement of any intellectual property rights of any third party where such liability arises as a consequence of the specification supplied by the Customer or any change to the specification. The Customer can exempt himself from liability if he can prove that the Supplier is at least partly responsible for the aforementioned costs.

Section 8 Intellectual property
8.1 The Supplier has the sole copyright to all goods provided by the Supplier and to the content of the customised safety data sheets and technical data sheets.
8.2 By purchasing goods, the Customer shall not acquire any rights to any existing or future intellectual property in or relating to the goods, including (without limitation) any trade marks, copyright, patents or rights in designs and models and, to the extent that such intellectual property is registrable, whether registered or not. In particular, by purchasing the Supplier’s finished products the Customer shall not acquire any rights to the underlying formulas or the formulas of the semi-finished products used. Even in cases where the Supplier adapts the formula of the products ordered to the individual requirements of the Customer, the Customer shall not acquire any rights to the finished formula. Instead, the Customer shall receive rights of use or, in the case of customised developments, exclusive rights of use for the respective application.
8.3 The Customer may not use the Supplier’s name, logo or other identifying marks for advertising or publicity purposes without the prior written consent of the Supplier.
8.4 Where the goods have been manufactured to the Customer’s specification or design, the Customer shall indemnify and hold harmless the Supplier against all losses, liabilities, costs, claims, demands, expenses and charges (including but not limited to legal and other professional fees), actions, proceedings, judgements and damages incurred by the Supplier arising out of or in connection with the infringement of any third-party intellectual property rights if such liability arises as a result of the specification supplied by the Customer or any change to the specification. The Customer can (partially) exempt himself from liability by proving that the Supplier is (partially) responsible for the aforementioned costs.

Section 9 Services; cooperation services
9.1 The Supplier can provide various services at the customer’s request, such as feasibility or viability studies, patent research, product development or the performance of printing, application, functional and suitability tests. The performances commissioned by the Customer shall be provided by the Supplier in the form of services, so that no specific outcome is owed.
9.2 The Customer shall support the Supplier – where necessary – in the fulfilment of the contractually owed performances. This includes in particular the timely provision of information, materials or data, insofar as this is required by the Customer’s cooperation services.
9.3 If the Customer recognises that his own details, requirements or content are incorrect, incomplete, ambiguous or impracticable, he must inform the Supplier of this and the consequences they recognise immediately in text form (e.g. by email).
9.4 Cooperation services which are owed by the Customer within the scope of the contract shall be provided without special remuneration, unless expressly agreed otherwise.

Section 10 Final provisions
10.1 Should one or more provisions of these Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions.
10.2 Contracts between the Supplier and the Customer shall be governed exclusively by German law to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG, “UN Sales Convention”).
10.3 The exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of the Supplier. However, the latter shall be entitled to bring an action at the Customer’s general place of jurisdiction.