General Terms and Conditions
of PanTrac GmbH (hereinafter: PanTrac) for contracts with companies
These General Terms and Conditions apply in addition to our offers or our order confirmations. Deviating terms and conditions of purchase of the customer are expressly objected to; they do not apply to Pantrac.
I. Precontractual services, offer and acceptance
- Initial cost estimates including the sketches and schematic illustrations required to explain them are provided free of charge. If, at your request, further documents (drafts, plans, drawings, strength calculations, etc.) are prepared in addition to the first offer and PanTrac does not receive the order, PanTrac is entitled to charge a reasonable fee corresponding to the special workload requested.
- It is agreed between PanTrac and you, that all information, drawings, data, etc. provided within the scope of the collaboration are mutually entrusted within the meaning of § 18 Act against Unfair Competition (UWG) and may be used exclusively within the scope of the collaboration. Any other use, in particular, transfer to third parties, is strictly prohibited.
- Offers are valid for 4 weeks from the date of issue. Verbal agreements or promises are only binding for PanTrac after written confirmation.
- Technical data and descriptions in PanTrac’s product information, leaflets, etc., are only reference points, insofar as wear parts are concerned. The are based on technical findings in laboratory tests and various practical applications. They are therefore under no circumstances to be regarded as guaranteed properties or quality or durability guarantees within the meaning of § 443 German Civil Code (BGB) for specific cases of application.
II. Prices and terms of payment
- For material deliveries, the prices are understood to be net ex works excluding packaging, freight, insurance, value-added tax and, if applicable, without customs duties. In the case of assembly services to be provided, the prices for work to be performed are based on the statutory or collectively agreed working hours applicable to PanTrac. If you are asked to work overtime, at night, on Sundays or public holidays, the collectively agreed and statutory surcharges will also be taken into account. If in addition to the agreed prices for the hourly rates, which are net, the costs for the outward and return trip of PanTrac employees, the remuneration for travel hours and the tariff triggering are to be remunerated at the currently valid rates.
- PanTrac reserves the right to carry out deliveries even if only 90% can be provided of the contractually agreed quantity, provided this would not place the contractual partner at an unreasonably disadvantage. If the prices of PanTrac increase in the period between the order and the delivery, the price applicable on the day of delivery shall be used for the claim for remuneration, provided that this is not more than 10% higher than the price that was applicable at the time of the order.
- Invoices are payable no later than 30 days after the receipt of invoice without deduction. Offsetting against PanTrac claims or a right of retention can only be exercised, if the counterclaim is undisputed or has been legally established. All costs of payment transactions are at your expense. PanTrac reserves the right to assign claims from the business relationship.
III. Retention of title
- PanTrac retains ownership of the delivered goods to secure all claims, to which PanTrac is entitled from the current and future business relationship. The ownership also extends to the new products created by processing the reserved goods. If processed, combined or mixed with other items that do not belong to PanTrac, PanTrac acquires co-ownership of the new item in the ratio of the invoice value of the reserved goods to the value of the other materials used. In the event of breaches of duty by the contractual partner, in particular in the event of default in payment, PanTrac is entitled to demand the return of the delivery item and/or to withdraw from the contract without setting a deadline. In these cases, the contractual partner is obliged to hand them over. The request for return of the delivery item by PanTrac does not constitute a declaration of withdrawal, unless this is expressly declared.
- Monetary claims arising from the sale of the materials still in PanTrac ownership or co-ownership against your customers are deemed to have been assigned to PanTrac in advance at the time of sale. The scope of the advance assignment is limited by the amount of PanTrac’s claim against you. However, until revocation by PanTrac, you are entitled to collect the claim in your own name and to transfer it to PanTrac.
- If justified doubts about your solvency arise before or during the delivery/work execution, PanTrac can demand sufficient securities to secure your payment obligations and to withhold the provision of deliveries and services until such securities have been provided. If you are unable to provide the required securities, PanTrac is entitled to withdraw from the contract.
- If the value of the securities to which PanTrac is entitled exceeds the claims to be secured by more than 10%, these will be released accordingly at your request.
IV. Export control, self-delivery reservation
- If the delivery and/or assembly of the material is prohibited or made significantly more difficult due to domestic or foreign import or export restrictions, the resulting delivery delays or obstacles to delivery can only be the basis of a claim for damages against PanTrac, if the delay or obstacle can be attributed to an intentional or grossly negligent conduct of PanTrac.
- In the case of shipments at your request, you are obliged to provide import and export permits that may be required before the shipment is made by PanTrac.
- PanTrac is entitled to withdraw from the contract, 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 in accordance with the regulations under Sections VI. and VII. PanTrac will inform you immediately if the delivery item is not available on time and, if PanTrac wants to withdraw, exercise the right of withdrawal immediately; in the event of withdrawal PanTrac will immediately reimburse you for any consideration you have already paid.
V. Place of performance and acceptance
In the case of material delivery, the place of performance is the delivering factory. In the case of deliveries with assembly, the place of performance is the place of the assembling of the work. Acceptance is deemed to have taken place, if you do not issue it within 14 working days after completion. At the beginning of the period, PanTrac undertakes to point out the significance of the omitted acceptance with reference to the fictitious acceptance. This does not apply if there are reasons preventing acceptance that are within the sphere of responsibility of PanTrac.
Agreed delivery dates refer to the shipping date of the goods or in the case of deliveries with assembly to the time of the completion of the work. If the delivery deadline is culpably exceeded, you can assert your rights you are entitled to under the law after a reasonable period of grace to be set in writing. The amount of liability is limited to the value of the order.
VII. Liability for defects
- Obvious defects must be reported in writing in accordance with §§ 377 HGB (German Commercial Code). Otherwise the assertion of claims for defects is excluded. Timely dispatch of the complaint suffices for meeting the deadline.
- The limitation period for claims for defects is limited to 12 months from the start of the statutory limitation period, unless PanTrac is liable due to intent or gross negligence or due to loss of life, bodily injury or damage to health. The limitation of liability does not apply if PanTrac has delivered an item that has been used for a building in accordance with its normal use and has caused its defectiveness. If you claim a defect after more than 6 months have elapsed, you have to prove that you have not been aware of the defect for a long time and you have stopped using the contractual item immediately after discovering the defect. If you continue to use the item despite being aware of a defect for which PanTrac is responsible and the defect increases as a result, your claims for subsequent performance will be void.
- If the notice of defects was not justified, you are obligated towards PanTrac to reimburse PanTrac for the expenses incurred for the inspection and examination of the notice of defects against invoicing.
VIII. Other legal liabilities
- PanTrac is liable for personal injuries for which it is responsible and for all actions based on intent or gross negligence, in accordance with the statutory provisions. Further claims for damages, for whatever legal reason, in particular also due to breach of contractual secondary obligations, are excluded to the extent permitted by law or unless expressly permitted under these conditions.
- Liability for damages, which did not occur directly to the goods themselves, is excluded. Liability for consequential damages, such as in particular loss of production, business interruption, lost profits and loss of information and data is excluded insofar as PanTrac as the policy holder is not covered within the scope of the insurance taken out for the extended product liability risk.
IX. Applicable law and place of jurisdiction
- The contractual relationship is subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The most recent version of the Incoterms is decisive for the interpretation of delivery clauses.
- The agreed place of jurisdiction is Berlin, the registered office of PanTrac.