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General Terms and Conditions of Business of PanTrac GmbH (hereinafter referred to as “PanTrac”) relating to agreements entered into with companies
These General Terms and Conditions of Business shall apply in addition to our quotations and order confirmations. Any divergent or supplementary terms and conditions of purchase of the ordering party shall not be binding on PanTrac.
I. Pre-contractual services, offer and acceptance
1. Initial cost estimates, including any drawings and diagrams required for explanation purposes, shall be provided free of charge. Furthermore, should any additional documents (drafts, plans, drawings, stability calculations, etc.) beyond the scope of the original quotation be prepared at your request, and should PanTrac not be awarded the contract, then PanTrac shall be entitled to charge adequate remuneration commensurate with the extra workload required.
2. PanTrac and your company agree that all information, drawings, data, etc., furnished within the scope of cooperation have been mutually entrusted to each other pursuant to § 18 UWG ([German] Unfair Competition Act) and may only be used within the scope of cooperation. Any other use, particularly any disclosure to third parties, is strictly prohibited.
3. Offers shall remain valid for 4 weeks from the date of submission. Any verbal arrangements or commitments shall not be binding on PanTrac unless confirmed in writing.
4. Technical data and descriptions set out in PanTrac’s product information sheets, instruction leaflets, etc. merely serve as benchmarks in the case of parts that are subject to wear and tear. These are based on technical expertise gained in the course of laboratory tests and various practical applications. Accordingly, they should in no circumstances be interpreted as warranted properties or quality and durability warranties pursuant to § 443 BGB (German Civil Code) in the case of specific applications.
II. Pricing and payment terms
1. The prices for the supply of materials are quoted net ex works, excluding packaging, freight, insurance VAT and customs duties, if applicable. In the event that assembly services are to be performed, the prices for such work shall be based on statutory and collectively agreed working hours as may be applicable to PanTrac. Should you be required to work overtime, at night, on Sundays or public holidays, then the collectively agreed and/or statutory allowances will be charged in addition to normal hourly rates. Apart from the agreed prices for hourly rates quoted net, any travel expenses incurred by PanTrac employees, travel allowances and standard daily allowances shall be paid at the rates applicable from time to time.
2. PanTrac reserves the right to effect delivery even if only 90% of the contractually agreed quantity or volume can be supplied unless this would result in an unreasonable disadvantage to the contractual partner. In the event that that PanTrac increases its prices in the period between ordering and delivery, then the price valid on the day of delivery shall be applied to the remuneration claim unless it exceeds the price applicable at the time the order was placed by 10%.
3. Invoices are payable no later than 30 days after receipt of invoice, without any deductions whatsoever. Any claims against PanTrac may only be set off or a right of retention relating to such claims exercised if the counterclaim is undisputed or established as legally binding by a court of law. All payment transaction costs shall be borne by your company. PanTrac reserves the right to assign any claims arising from the business relationship to third parties.
III. Reservation of ownership
1. PanTrac reserves ownership of the goods delivered to secure all claims to which PanTrac is entitled on the basis of current and future business relations. Ownership shall also extend to include any new products created by processing of the goods subject to reservation of ownership. In the event that such goods are processed, combined or mixed, along with other objects that are not PanTrac’s property, PanTrac shall acquire co-ownership of the new product in the ratio between the value of the invoice of the product subject to retention of ownership and that of the other materials used. In the event of any violations of duty by the contractual partner, in particular in the event of delayed payments, PanTrac shall be entitled, without it being necessary to set any time limits, to demand the return of the item delivered and/or to rescind the agreement. In such cases, the contractual partner shall be obliged to return the items in question. PanTrac’s demand for surrender of the item delivered shall not constitute a notice of rescission unless expressly stated as such.
2. Any monetary claims against your customers arising from the sale of materials still owned or co-owned by PanTrac shall be deemed to have been assigned by you to PanTrac in advance at the time of sale. The amount assigned in advance shall be limited to the amount of PanTrac’s claim against your company. Unless revoked by PanTrac, you are nevertheless entitled to collect the receivable yourself and pay the amount in question to PanTrac.
3. Should any justified doubts arise as to your company’s solvency prior to or during delivery/execution of work, PanTrac may request your company to provide adequate collateral to cover your payment obligations and may suspend any deliveries and services until such collateral has been provided. Should your company be unable to provide the required collateral, PanTrac may rescind the agreement.
4. To the extent that the value of the items of collateral in PanTrac’s favor exceed that of the receivables to be secured by more than 10%, such items of collateral shall be released accordingly at your company’s request.
IV. Export controls, reservation relating to own supplies
1. In the event that delivery and/or assembly of the material is prohibited or severely impeded on account of domestic and foreign import and export restrictions, any resultant delivery delays/impediments may only give rise to a claim for damages against PanTrac if such delay or impediment was caused through willful intent or gross negligence on the part of PanTrac.
2. In the case of any shipments made at your request, you shall be obliged to provide PanTrac with any import and export permits that may be required prior to such shipments being made.
3. PanTrac is entitled to rescind the agreement if it does not receive the components needed for the production of the item delivered, despite prior conclusion of a corresponding purchase agreement; PanTrac’s liability in terms of willful intent or negligence in accordance with the provisions set out in Nos. VI and VII shall remain unaffected by the above. PanTrac shall notify your company immediately if availability of the item to be delivered is delayed and shall exercise its right of rescission with immediate effect if PanTrac wishes to do so; in the event of the agreement being rescinded, PanTrac shall refund without delay any consideration already received from your company.
V. Place of performance and acceptance
In the case of delivery of materials, the place of performance is the supplier’s factory. If deliveries include assembly/installation work, the construction site shall be the place of performance. Acceptance shall be deemed to be given in the absence of formal acceptance on your part within 14 working days upon completion. PanTrac undertakes to point out the consequences of non-acceptance by referring to the concept of notional acceptance at the beginning of the period. This shall not apply if acceptance is impeded for reasons attributable to PanTrac’s responsibility and control.
VI. Delay
Agreed delivery dates refer to the date of dispatch of the merchandise and - in the case of deliveries including assembly/installation - to the time of completion of the plant. In the event of culpable failure to meet the delivery date, your company may assert your statutory rights after expiry of a reasonable period of grace to be stipulated in writing Liability shall be limited to the amount of the order value.
VII. Liability for defects
1. Pursuant to §§ 377 HGB (German Commercial Code), any notice of patent defects shall be in writing, failing which the assertion of claims based on defects shall be excluded. Timely dispatch of the notice of defects shall be sufficient to constitute observance of the time limit.
2. The limitation period for claims based on defects shall be limited to 12 months from the date of commencement of the statutory limitation period, unless PanTrac is liable on grounds of willful intent or gross negligence as well as any acts of injury to life, limb and health. In addition, the restriction on liability shall not apply if PanTrac delivered an item which, in accordance with its customary purpose and use, was applied to a building, causing the latter to become defective in the process. Should your company give notice of a defect after expiry of more than 6 months, then your company shall be obliged to furnish evidence that it had knowledge of such defect for some time and stopped using the subject matter of the agreement immediately after such defect was detected. Should you continue to use the item despite a defect for which PanTrac is responsible, resulting in such defect to increase, any claims asserted by your company for subsequent performance to remedy such defect shall lapse.
3. In the event that the notice of defects was unjustified, your company shall be obliged to reimburse PanTrac, against submission of an invoice, for the expenses PanTrac incurred for the inspection and verification of the complaint filed.
VIII. Other statutory liabilities
1. PanTrac shall be liable for any personal injury for which it is responsible and for all acts based on willful intent or gross negligence, in accordance with statutory regulations. Any claims for damages beyond those stated above – for whatever legal reason – in particular, claims based on any violation of accessory contractual duties, shall be excluded to the extent permissible by law and/or expressly permitted in accordance with these terms and conditions.
2. Liability for damage not directly caused to the merchandise itself shall be excluded. Liability for consequential loss or damage such as, in particular, production loss, business interruption, loss of profits as well as loss of information and data shall be excluded to the extent that PanTrac, as policy holder, has no insurance cover within the scope of the insurance policy of the extended product liability risk.
IX. Applicable law and place of jurisdiction
1. This Agreement is subject to the laws of the Federal Republic of Germany; UN law of purchase and sale is excluded. For interpretation purposes of delivery clauses, the Incoterms, as amended, shall be applicable.
2. The place of jurisdiction is Berlin, Head Office of PanTrac
Date: 27/04/2007
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Purchasing Conditions 