General Terms and Conditions of Sale of PanTrac GmbH
(hereinafter referred to as: PanTrac)
(hereinafter referred to as: PanTrac)
1) The following General Terms and Conditions of Sale apply to all sales of PanTrac to companies within the meaning of §14 of the German Civil Code (BGG).
2) Sales from PanTrac take place only on the basis of the following conditions, unless otherwise agreed in writing. We expressly object here to the General Terms and Conditions or Conditions of Purchase of the buyer. In order for the rejection of these conflicting conditions to be effective, we do not need another express declaration at or after the conclusion of the contract.
Orders, written form requirement
Orders of PanTrac are only valid and binding if they are made in writing. Verbal agreements require our written confirmation to be effective. Subsidiary agreements or other agreements before, during or after the conclusion of the contract must be in writing to be effective. This also applies to any waiver of the written form requirement.
Scope of deliveries
1) The mutual written declarations are decisive for the type and the scope of the deliveries. If a contract has been concluded, without such mutual declarations being available, then the written order confirmation from PanTrac shall be authoritative, unless the buyer immediately objects to it.
2) PanTrac is entitled to withdraw from the contract with regard to the outstanding deliveries, if PanTrac does not receive the individual parts for the production of the delivery item despite the prior conclusion of a corresponding purchase contract; the responsibility of PanTrac for intent and negligence remains unaffected. PanTrac will inform the buyer immediately about the untimely availability of the delivery item and, if PanTrac wants to withdraw,exercise the right of withdrawal immediately; PanTrac will immediately refund any consideration already paid by the buyer.
Prices and terms of payment
1) Unless otherwise expressly agreed, the fees to be paid by PanTrac to the seller are always understood to be net prices plus applicable statutory value-added tax.
2) Invoices from PanTrac are due for payment immediately without deduction. If the buyer is in default of payment, interest at the statutory rate will be charged, subject to assertion of further claims for damages.
3) From the second reminder, PanTrac is entitled to charge reminder fees of EUR 5.00 per reminder.
4) If PanTrac grants a cash discount, the prerequisite for the corresponding deduction is that all previous PanTrac invoices have been paid by the buyer.
5) The buyer is only entitled to set-off rights, if its counterclaims have been legally established, are undisputed and have been recognized by PanTrac.
1) The mutual written declarations are decisive with regard to the deadline for deliveries from PanTrac. Adherence to the deadline requires timely receipt of all documents to be supplied by the buyer, necessary approvals, releases, compliance with agreed payment terms and other obligations. If these requirements are not met in good time, the deadline will be extended appropriately. If the delivery is delayed for reasons, for which the buyer is responsible, the deadline is deemed to have been met, if the notification of readiness for delivery or the possibility of collection is given within the agreed deadline. Acceptance dates are binding for the buyer. If the seller does not provide its service on time, then PanTrac is entitled to statutory rights.
2) If non-compliance with the deadline can be proven to be due to mobilization, war, riots, strikes, lockouts or the occurrence of unforeseeable obstacles, the deadline will be extended appropriately.
3) PanTrac is liable for delays in cases of intent and of gross negligence according to the statutory provisions. In other cases of delay in performance, PanTrac’s liability for damages in addition to performance is limited to 5% of the value of the delivery.
4) The right of the buyer to withdraw from the contract after the fruitless expiry of a period of grace granted to PanTrac remains unaffected.
5) The buyer is obligated to notify PanTrac immediately if circumstances arise or are foreseeable for the buyer, from which it follows that the buyer will not be able to meet the agreed acceptance dates.
Retention of title
1) The retention of title agreed below serves to secure all existing current and future claims of PanTrac against the buyer from the supply relationship existing between the contract partners (including balance claims from a current account relationship limited to this supply relationship).
2) The goods delivered by PanTrac remain the property of PanTrac until all secured claims have been paid in full. The goods as well as the goods covered by this retention of title that take their place according to this clause are hereinafter referred to as reserved goods.
3) The buyer shall store the reserved goods for PanTrac free of charge.
4) The buyer is entitled to process and to sell the reserved goods in the ordinary course of business until the occurrence of the enforcement event (Paragraph 9). Pledges and transfers of ownership by way of security are not permissible.
5) If the reserved goods are processed by the buyer, it is agreed that the processing is carried out in the name and for the account of PanTrac as the manufacturer and PanTrac has direct ownership or, if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods, acquires co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur at PanTrac, the buyer already now transfers its future ownership, in the aforementioned ratio, or co-ownership of the newly created item as security to Pantrac. If the reserved goods are combined with other items for form a uniform item or are inseparably mixed and one of the other items is to be regarded as the main item, PanTrac shall, insofar as the main item belongs to PanTrac, transfer co-ownership of the uniform item to the buyer proportionately in the ratio specified in Clause 1.
6) In the event of the resale of the reserved goods, the buyer hereby assigns the resulting claim against the purchaser to PanTrac by way of security, in case of co-ownership of PanTrac of the reserved goods, proportionally according to the co-ownership share. The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims from tort in the event of loss or destruction. PanTrac revocably authorizes the buyer to collect the claims assigned to PanTrac in its own name. PanTrac may only revoke this direct debit authorization in an enforcement event.
7) If third parties access the reserved goods, in particular by seizure, the buyer will immediately point out to them the ownership of PanTrac and inform PanTrac about this in order to enable it to enforce its property rights. If the third party is not able to reimburse PanTrac for the judicial or extrajudicial costs incurred in this connection, the buyer shall be liable to PanTrac for these.
8) PanTrac will release the reserved goods and items or claims taking their place at its discretion upon request, insofar as their value exceeds the amount of the secured claim by more than 20%.
9) If PanTrac withdraws from the contract in the event of breach of contract by the buyer, in particular default in payment (case of enforcement), it is entitled to demand the return of the goods subject to retention of title.
Receipt, obligations to give notice of defects
1) The buyer must immediately examine the goods for their contractual quality. Complaints about obvious defects must be asserted immediately. Defects, that are not discovered within this period after careful examination can be reported to PanTrac immediately after their discovery.
2) The rejection of the defective delivery that has been properly reported does not expressly entitle the buyer also to reject subsequent deliveries. A rejection by the buyer also requires a proper complaint and proof of the defectiveness of the specific delivery in the case of subsequent deliveries.
Warranty and liability of the seller
1) A defect can only exist, if the goods do not have the quality properties mutually agreed upon and laid down in writing in order confirmations from PanTrac. PanTrac assumes no liability for an unspecified use, further processing or use of the goods that does not follow the rules of technology, nor for the suitability of the goods for a specific intended purpose. Claims for defects do not exist in the case of only insignificant deviations from the agreed quality and/or only insignificant impairment of usability.
2) For defects, which also include warranty cases within the meaning of § 434 para. 1 German Civil Code (BGB), PanTrac is liable as follows:
a) PanTrac has the right to choose between removal of defects and new performance in any case. If the buyer wants to claim damages instead of performance or to carry out the repair itself, the subsequent improvement is only deemed to have failed after the second unsuccessful attempt.
b) The buyer must comply with the contractual obligations incumbent on it, in particular, the agreed terms of payment In the event of complaints of defects, payments of the buyer may be withheld to an extent that is appropriate in proportion to the material defects that have occurred. However, if the contract is part of the operation of a commercial enterprise, the buyer can only withhold payments, if a complaint of defects is asserted and no doubt can exist about the justification thereof.
c) The buyer must grant the supplier the time and opportunity required at reasonable discretion to remedy the defect. If it refuses this, the supplier is released from liability for defects. If the supplier allows a reasonable period of grace set for it to elapse without remedying the defect, the buyer can demand cancellation of the contract or a decrease of the remuneration (reduction).
d) The right of the buyer to assert claims for defects expires in all cases twelve months from the time of the complaint.
Liability of PanTrac
1) PanTrac is liable in cases of intent and of gross negligence according to the statutory provisions. A liability for simple negligence is excluded. Deviating from Clauses 1 and 2, PanTrac is liable according to the statutory provisions for loss of life, bodily injury or damage to health or for culpable violation of essential contractual obligations. However, the claim for damages in the event of a negligent violation of essential contractual obligations is limited to foreseeable damages typical for the contract. The same applies in the cases of Clause 1 in the event of grossly negligent violations, if none of the exceptional cases mentioned in Clause 3 are present.
2) Claims of the seller against PanTrac are subject to a one-year limitation period.
1) Should one or more of the above provisions be or become invalid, this shall not affect the validity of the remaining provisions. In the absence of a statutory provision, the invalid provision shall be replaced by a valid provision which, as far as possible, achieves the economic purpose pursued by the invalid provision. The same procedure is to be followed, if a gap becomes apparent during implementation.
2) The place of performance for all deliveries to PanTrac is the PanTrac headquarters in Berlin.
3) The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Berlin.
4) German law applies to the contractual relationship. UN sales law does not apply. For the interpretation of delivery clauses the Incoterms of the International Chamber of Commerce Germany additionally apply in the current version in each case.