T&C for Business

T&C for Business

T&C of Primo GmbH in business transactions with entrepreneurs, legal entities under public law and special funds under public law (e.g., municipalities, cities, federal states, federal government)

§ 1 General, scope of our Terms and Conditions

(1) These T&C apply to all business relationships of Primo GmbH (hereinafter referred to as Primo) with entrepreneurs pursuant to § 14 German Civil Code (BGB), legal entities under public law or special funds under public law (hereinafter referred to as customer). Unless otherwise agreed, the T&C in the version valid at the time of conclusion of the contract or in any case in the version last communicated to the customer in text form as a framework agreement shall also apply to similar future contracts, without Primo having to refer to them again in each individual case.

(2) These T&C apply exclusively. Deviating, conflicting or supplementary T&C of the customer shall only become part of the contract if and to the extent that Primo has expressly agreed to their application. This requirement of consent applies in all cases, for example even if Primo carries out the delivery to the customer without reservation in the knowledge of the customer’s T&C.

(3) Individual agreements made with the customer in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these T&C. Notwithstanding proof to the contrary, the content of such agreements shall be governed by a written contract or confirmation in text form by the managing director of Primo or an authorised representative of Primo in writing.

(4) Legally relevant declarations and notifications by the customer with regard to the contract (e.g., setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e., in written or text form (e.g., letter, email, fax). Statutory formal requirements and further evidence, in particular in case of doubt about the legitimacy of the declarant, shall remain unaffected.

(5) References to the applicability of statutory provisions shall be for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these T&C.

§ 2 Conclusion of contract

(1) Primo’s offers are non-binding. This also applies if Primo has provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which Primo reserves ownership and copyrights. This applies in particular with regard to images, prices, shape or colour. Primo reserves the right to make changes to the shape, colour or specification of the product, insofar as the change complies with the requirement of freedom from material defects as per § 434 (1) S. 2 no. 2 and S. 3 German Civil Code (BGB) and is reasonable for the customer. In case of doubt, Primo shall prove reasonableness.

(2) By placing an order for goods with Primo, irrespective of whether this is in written form, by post, by fax, by telephone or by email, the customer makes a binding declaration that they wish to purchase the goods ordered from Primo. The customer is bound to their offer for 7 days. The automatically sent acknowledgement of receipt of the customer’s order does not constitute a binding acceptance from Primo of the customer’s offer. Primo generally accepts the customer’s offer by implication by delivering the ordered goods within the acceptance period. Acceptance can also be made in text form. If the goods are out of stock, the customer will receive a separate notification (by email, by fax, by post or by telephone) of the acceptance or rejection of their offer within the acceptance period.

§ 3 Delivery, delivery default, acceptance default

(1) Correct and timely self-delivery is reserved. Primo is entitled to withdraw from the contract if, despite the conclusion of a corresponding purchase contract prior to the conclusion of the contract with the customer, the delivery item is not available to Primo. Non-availability of the performance exists, for example, in the event of non-timely self-supply by Primo’s supplier, if Primo has concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, for example due to force majeure, or if Primo is not obliged to procure in individual cases. Liability for intent or negligence is unaffected. Primo will inform the customer without undue delay of the unavailability of the delivery item and, if Primo wishes to withdraw, will exercise the right of withdrawal without undue delay. In the event of withdrawal, Primo will immediately reimburse the customer for any consideration already paid by the customer.

(2) The delivery times specified by Primo are non-binding approximate times, unless expressly declared as binding to the customer. The occurrence of Primo’s delay in delivery is determined in accordance with the statutory provisions. In any case, however, a reminder by the customer is required.

(3) Delivery shall be ex warehouse, which is also the place of performance for the delivery and any subsequent performance. Even if Primo pays the shipping costs, the shipment is made from the warehouse on behalf of the customer. At the customer’s request and expense, the goods will be shipped to another destination. Unless otherwise agreed, Primo is entitled to determine the manner of shipping (in particular transport company, shipping route, packaging).

(4) The risks of accidental loss or damage of the goods and the risk of default in the case of shipment purchase transfer to the customer pursuant to § 447 (1) German Civil Code (BGB).

(5) If the customer defaults on acceptance, fails to cooperate or if Primo’s delivery is delayed for other reasons for which the customer is responsible, Primo is entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). The same applies if Primo has set the customer a reasonable grace period for acceptance and withdraws from the contract after unsuccessful expiry of this deadline.

§ 4 Guarantee

(1) The customer shall inspect the received goods for transport damage on handover by the carrier/delivery agent, insofar as this is reasonable or possible, and shall immediately notify the carrier/delivery agent of any evident transport damage and shall have the complaint acknowledged by the carrier/delivery agent. If this was not reasonable or possible for the customer, they shall notify Primo of the transport damage immediately after its discovery and send any documentation (e.g., photos of the transport damage) to Primo. The processing of transport damage by Primo is done as a gesture of goodwill and does not alter the customer’s risk for the shipment purchase according to § 3 (3) and (4) of these T&C or according to the law (§ 447 German Civil Code (BGB)). Even if Primo voluntarily takes over the processing of transport damage for the customer, this does not establish any liability on the part of Primo for the transport damage.

(2) The customer must inspect the type and quantity of the goods delivered within 24 hours during the ordinary course of business and notify Primo immediately of any complaints. The customer must immediately inspect the quality of the goods for obvious defects and notify Primo immediately of any defects detected. If the customer is merchant in the sense of the T&C, their duties are as per §§ 377,378 German Commercial Code (HGB). Defects that are not obvious but are detected later must also be reported to Primo immediately after their discovery (notification of defect).

(3) The risk that the notification of defects is received in good time and in full shall be borne by the customer. If the customer fails to properly inspect the goods and/or give notification of defects, Primo’s liability for said defect-not-reported or not reported in time or not-reported-properly shall be excluded in accordance with the statutory provisions. This does not apply in cases of unconditional liability pursuant to § 8 of these T&C.

(4) The duty of inspection also applies to the technical inspection of fitness for function, to the extent that this is reasonable for the customer. If the customer cannot reasonably be expected to inspect the technical functionality immediately after receipt, they must perform the inspection before processing, mixing, installing or converting the goods. In the case of building materials and other goods intended for installation or other further processing, an inspection and test must in any case be carried out immediately before processing or installation. If the customer fails to properly inspect the goods and/or give notification of defects, Primo’s liability for said defect-not-reported or not reported in time or not-reported-properly shall be excluded in accordance with the statutory provisions. In the case of goods intended for incorporation, attachment or installation, this also applies if the defect became apparent as a result of the breach of one of these obligations only after the corresponding processing; in this case, in particular, the customer shall not be entitled to reimbursement of corresponding costs (“removal and installation costs”).

(5) After a notification of defects, Primo is entitled to inspect the goods. The customer shall enable Primo to perform the inspection and shall cooperate in the inspection at Primo’s request. Violation on the part of the customer of its duty to cooperate in the inspection of defects may lead to an exclusion or limitation of liability, taking into account contributory negligence on the part of the customer, in accordance with the statutory provisions.

(6) If delivered goods are defective, Primo is entitled, at its own discretion, to remedy the defect by repair or replacement. If the type of supplementary performance chosen by Primo is unreasonable for the customer in an individual case, the customer may reject it. Primo’s right to refuse subsequent performance under the statutory requirements remains unaffected. Subsequent performance shall be deemed to have failed if it has been attempted twice without success. If subsequent performance is unsuccessful, the customer is entitled, at its discretion, to demand a reduction in price or cancellation of the contract with Primo. The right of withdrawal is excluded in the case of minor contractual disruptions, in particular in the case of minor defects. If the customer withdraws from the contract due to failed subsequent fulfilment, Primo is entitled to claim the defective goods. Further claims for damages against Primo are excluded. This does not apply in cases of unconditional liability as regulated in §8.

(7) Primo shall be entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a part of the purchase price that is reasonable in relation to the defect.

(8) Subsequent performance does not include the removal or deinstallation of the defective item or the incorporation, attachment or installation of a defect-free item if Primo was not originally obliged to provide these services; claims by the customer for reimbursement of corresponding costs (“removal and installation costs”) remain unaffected.

(9) Primo shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions and these T&C, if there is actually a defect. Otherwise, Primo shall be entitled to claim reimbursement from the customer for the costs incurred as a result of the unjustified request to remedy the defect if the customer knew or could have recognised that there was actually no defect.

(10) Claims by the customer for reimbursement of expenses pursuant to § 445a (1) German Civil Code (BGB) are excluded, unless the last contract in the supply chain is a contract for the sale of consumer goods (§ 478, 474 German Civil Code (BGB)) or a consumer contract for the provision of digital products (§ 445c S.2, 327 (5), 327u German Civil Code (BGB)). Claims of the customer for damages or reimbursement of futile expenses (§ 284 (German Civil Code (BGB)) exist even in the case of defects in the goods only in accordance with § 8 of these T&C.

(11) Only product descriptions advertised as assured characteristics by Primo itself in the Primo catalogue or in printed or electronically transmitted Primo advertising mailings apply to assured characteristics and the condition of the goods. Advertisements, statements or claims made by manufacturers or commercial agents, insofar as they are not acting on behalf of Primo, or by suppliers are not guaranteed characteristics of Primo for which Primo is liable. The customer’s statutory warranty rights against Primo in accordance with these T&C remain unaffected. Manufacturer’s warranties are passed on to the customer unchanged and do not oblige Primo to assume liability for them.

(12) In the event of defective installation instructions, Primo is obliged only to provide defect-free instructions and even then, only in the event that defective assembly instructions prevent correct and proper assembly.

(13) In the case of goods with digital elements or other digital content, Primo shall only be obliged to provide and, if necessary, update the digital content if this is expressly stated in a quality agreement. Primo assumes no liability for public statements made by the manufacturer or other third parties in this respect.

§ 5 Possible exchange / voluntary return of goods which are free of defects

(1) After separate agreement and consultation with an authorised representative of Primo, the customer may agree to exchange or take back goods that have been delivered and received free of defects.

(2) An exchange or a return in these cases shall only come about if the entrepreneur bears the associated transport costs and agrees to a handling fee of 20% of the net invoice amount.

(3) An exchange will only take place once the goods to be exchanged have been received by Primo and Primo has determined that they are free of defects. If the goods are damaged, Primo is not obliged to exchange the goods despite prior agreement. In these cases, too, the customer is obliged to retrieve the goods or have them collected at their own expense and to settle the amount of the claim from the invoice for the goods in question. This does not apply if the defect was present at the point of transfer to the customer. In this case § 4 of these conditions applies.

(4) Likewise, in the case of a return, Primo is not obliged to accept damaged or defective goods unless a warranty case pursuant to § 4 of these T&C exists. In these cases, too, the customer is obliged to retrieve the goods or have them collected at their own expense and to settle the amount of the claim from the invoice for the goods in question.

(5) In the event of a proper exchange of goods, the customer shall not be entitled to a refund of the purchase price or to set-off against other claims. In this case, the customer shall receive a credit note for the invoice amount of the returned goods less the processing fee specified in (2).

§ 6 Return concept for electrical equipment

(1) The customer is responsible for the return of electrical equipment and also for the associated shipping costs.

(2) The customer is obliged to contact Primo’s customer service for instructions and information on the returns process before returning electrical equipment.

(3) Electrical equipment must be returned to Primo in appropriate packaging and in compliance with the applicable rules and regulations governing the dispatch of electrical equipment.

(4) Primo reserves the right to charge a reasonable processing fee for the administrative expenditure associated with the return of electrical equipment. Primo shall inform the customer in advance of this fee.

(5) The return of electrical equipment shall be carried out in accordance with the applicable legal provisions. Primo reserves the right not to accept certain devices due to restrictions or requirements imposed by the competent authorities or recycling partners.

§ 7 Payment

(1) Invoices are payable within 14 days without discount.

(2) Primo has no obligation to accept cheques or bills of exchange. If these are accepted in individual cases, all resulting bank charges and fees shall be borne by the customer.

(3) The customer shall have the right of set-off or retention only if counterclaims have been legally established or accepted by Primo. A right of retention may be exercised only if the counterclaim is based on the same contractual relationship.

(4) In case of delayed payment, Primo is entitled to exclude the customer from further deliveries, including deliveries already confirmed, and to exercise a right of retention. If, in the case of confirmed but retained goods, the customer credibly demonstrates to Primo that it is in urgent need of the retained goods, Primo may, in individual cases, at its discretion, deliver the goods by prepayment.

§ 8 Reservation of title

(1) Primo retains title to the delivered goods (reserved goods) until the customer has settled all claims arising from the purchase contract for this delivery (e.g., purchase price, value added tax, transport costs, storage costs, etc.) (simple retention of title).

(2) If the customer behaves in breach of contract, in particular if it is in default with the payment of the remuneration owed, Primo has the right to withdraw from the contract after Primo has set a reasonable deadline for performance. If Primo reclaims the reserved goods in case of a delay in payment, this already constitutes a rescission of the contract. The customer shall bear the transport costs arising from the return. It also constitutes a withdrawal from the contract if Primo seizes reserved goods. Reserved goods taken back by Primo may be re-used by Primo. The proceeds of the re-use shall be set off against the amounts owed by the customer to Primo after Primo has deducted a reasonable amount for the costs of the re-use.

(3) The customer must handle reserved goods with due care. They must insure the goods at their own cost against damage by fire, water and theft at replacement value.

(4) In the event of seizure of reserved goods or other interventions by third parties, the customer must point out Primo’s ownership and must notify Primo in writing without delay so that Primo can enforce its ownership rights. The customer shall be liable for the judicial or extrajudicial costs incurred in this connection if the third party is unable to reimburse Primo.

(5) The customer undertakes to resell, process or inseparably mix or combine the reserved goods with third-party property only in the ordinary course of business. If ownership is transferred to a third party as a result of such a transaction, Primo shall acquire rights of claim to the third party’s consideration, which the third party has to pay to the customer for this purpose, in the amount of the outstanding purchase price including VAT and other outstanding ancillary claims from the underlying purchase contract (extended reservation of title). The customer hereby assigns these future rights of claim to Primo. Primo accepts the assignment. The customer may collect these claims assigned to Primo on its account in its own name on behalf of Primo unless Primo revokes this authorisation. The right of Primo to collect these claims itself is not affected hereby. However, Primo will not assert the claims itself and will not revoke the direct debit authorisation as long as the customer duly meets its payment obligations. However, if the customer acts in breach of contract – in particular if the customer delays payment of a claim for payment – Primo may demand that the customer discloses the assigned claims and the respective debtors, notifies the respective debtors of the assignment and hands over to Primo all documents and provides all information that Primo requires in order to assert the claims.

§ 9 Other liability

(1) Unless otherwise provided for in these T&C, including the following provisions, Primo shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

(2) Primo shall be liable for damages – regardless of the legal basis – within the scope of tortious liability in the case of intent and gross negligence. In the event of simple negligence, Primo shall only be liable, subject to statutory limitations of liability (e.g. due diligence in its own affairs; insignificant breach of duty):

a) for damage resulting from injury to life, limb or health,

b) for damages resulting from the breach of an essential contractual obligation (an obligation, the fulfilment of which is essential for the proper performance of the contract in the first place and on the observance of which the contracting party regularly relies and may rely); in this case, however, Primo’s liability shall be limited to compensation for the foreseeable, typically occurring damage.

(3) The limitations of liability resulting from paragraph (2) shall also apply to third parties as well as to breaches of duty by persons (including for their benefit) for whose fault Primo bears responsibility in accordance with statutory provisions. They shall not apply if a defect has been fraudulently concealed or if a guarantee has been assumed for the quality of the goods and for claims of the customer under the Product Liability Act.

(4) The customer can only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if Primo is responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 650 and 648 German Civil Code (BGB)) is excluded. In all other respects, the legal requirements and legal consequences apply.

§ 10 Statute of limitations

(1) In deviation from § 438 (1) no. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title is one year from delivery. Insofar as an acceptance has been agreed, the statute of limitations begins with the acceptance.

(2) If the goods are a building or an object that has been used for a building in accordance with its normal usage and has caused its defectiveness (building material), the limitation period is 5 years from delivery in accordance with the statutory regulation (§ 438 (1) no. 2 German Civil Code (BGB)). Other special statutory provisions governing the statute of limitations (in particular § 438 (1) no. 1, 76 (3), §§ 444, 445b German Civil Code (BGB)) are also unaffected.

(3) The above limitation periods of the law on the sale of goods shall also apply to contractual and non-contractual claims for damages by the customer that are based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 German Civil Code (BGB)) would lead to a shorter limitation period in the individual case. Claims for damages by the customer in accordance with § 8 (2) S. 1 and S. 2(a) of these T&C as well as in accordance with the Product Liability Act shall become statute-barred exclusively according to the statutory limitation periods.

§ 11 Final provisions

(1) The place of performance for all obligations arising from the contractual relationship and the legal venue in business relationships with merchants, legal entities under public law or special funds under public law, entrepreneurs without a place of jurisdiction in Germany or entrepreneurs whose place of residence and usual abode is unknown at the time the action is taken shall be the registered office of Primo. Overriding statutory provisions, in particular those relating to exclusive competences, remain unaffected.

(2) All contracts concluded with Primo shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the CISG, UN Convention on Contracts for the International Sale of Goods.

Valid as of November 2023

Primo GmbH, Wernher-von-Braun-Str. 2 84544 Aschau am Inn (Germany)