General terms and conditions of Portec GmbH
A. Terms and Conditions for all types of contracts
Unless otherwise agreed in the individual contract, the following general terms and conditions apply exclusively and for all - including future contracts - with the customer. Conflicting or deviating contractual terms and conditions of the customer can only be agreed upon with our express written approval.
§ 1 conclusion of contract
1. All offers are subject to change. The contract only comes into existence through our written order confirmation under the conditions specified there or through execution of the order. The written order confirmation determines the scope of the services to be performed.
2. Drawings, calculations, reviews of calculations, cost estimates or other documents may not be reproduced or made accessible to third parties without our consent and must be returned to us immediately if the order is not placed.
3. Official or other approvals are to be provided by the client.
§ 2 price changes
Price changes are permitted if there are more than four months between the conclusion of the contract and the agreed delivery date. If wages, material costs or market prices are increased after the delivery is completed, Portec GmbH is entitled to increase the price appropriately in line with the cost increases. The customer is only entitled to withdraw if the price increase significantly exceeds the increase in the general cost of living between ordering and delivery. An increase in VAT can be charged to the customer if the goods or services are delivered or rendered within 4 months of the conclusion of the contract. If the customer is a merchant, a legal entity under public law or a special fund under public law, price changes are permitted in accordance with the aforementioned regulation if there are more than six weeks between the conclusion of the contract and the agreed delivery date.
§ 3 retention of title
1. Portec GmbH reserves ownership of the delivery items until full payment. This also applies if some of our claims have been included in a current invoice.
2. In the event of behavior contrary to the contract, in particular in the event of delayed payment, Portec GmbH is entitled to take the goods back after a reminder and the buyer is obliged to surrender them.
3. The assertion of the retention of title and the attachment of the delivery items by Portec GmbH do not count as a withdrawal from the contract, unless the provisions of the Consumer Credit Act apply or this is expressly declared by us in writing.
When used against business people, a legal person under public law or a special fund under public law, the following also applies:
1. The customer is entitled to resell the delivery items in the ordinary course of business - without agreeing prohibitions of assignment; however, he already assigns to Portec GmbH all claims in the amount of the purchase price (including VAT) agreed between the customer and the customer, which accrue to the customer from the resale, regardless of whether the delivery items are resold without or after processing. Portec GmbH accepts the assignment. The customer is authorized to collect these claims after their assignment. The authority of Portec GmbH to collect the claims itself remains unaffected; however, it undertakes not to collect the receivables as long as the purchaser duly fulfills his payment obligations and is not in default of payment. If this is the case, however, it can demand that the customer announce the assigned claims and their debtors, provide all the information required for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.
2. The processing or transformation of the goods by the customer is always carried out for Portec GmbH. If the delivery items are processed with other items that do not belong to them, they acquire joint ownership of the new item in the ratio of the value of the delivery items to the other processed items at the time of processing.
3. If the delivery items are inseparably mixed with other items that do not belong to them, they acquire co-ownership of the new item in the ratio of the value of the delivery items to the other mixed items. The customer keeps the co-ownership for himself.
4. The customer may neither pledge the delivery items nor assign them as security. In the event of seizures, confiscation or other dispositions by third parties, the customer must immediately inform Portec GmbH and provide them with all information and documents that are necessary to safeguard their rights. Enforcement officers or a third party must be informed of their property.
5. Portec GmbH undertakes to release the collateral to which it is entitled at the request of the customer insofar as these exceed the value of the claims to be secured, insofar as these have not yet been settled, by more than 20%.
§ 4 liability
1. Portec GmbH is only liable for damage caused intentionally or through gross negligence. This also applies to the actions of their vicarious agents and vicarious agents. Liability is excluded - in particular for consequential damage caused by a defect.
2. Smaller color deviations (eg due to production) and color deviations that can be attributed to the use or combination of different materials are considered to be in accordance with the contract. § 5 General payment modalities 1. Checks and bills of exchange only count as payments after they have been cashed. The acceptance of bills of exchange always requires a prior written agreement with Portec GmbH. When accepting bills of exchange, the bank discount and collection fees are calculated. They are payable immediately in cash.
2. Interest on arrears is calculated at 3% pa above the respective discount rate of the Deutsche Bundesbank. They are to be set higher or lower if there is a charge with a higher interest rate or if the customer can prove a lower charge.
3. If the customer is a merchant, a legal entity under public law or a special fund under public law, the withholding of payments is not permitted due to any counterclaims of the customer that are not recognized by Portec GmbH, nor is the offsetting against such.
4. Portec GmbH is entitled to offset payments without regard to the clearing provisions of the payer.
5. If payment in installments has been agreed, the total amount is due if the customer is in arrears at a rate longer than 10 days.
6.If after conclusion of the contract it turns out that the customer's credit relationships are not suitable for granting credit or payment terms (e.g. tight payment relationships), we are entitled, at our option, to make advance payment or provide security due to due or non-due claims from all existing contracts to claim and refuse fulfillment until advance payment or security deposit.
7. If advance payments or security deposits are not made on time, we can withdraw from the contract and claim damages for non-performance.
§ 6 other
1. Transfer of rights and obligations of the customer from the contract concluded with Portec GmbH require their written consent to be effective.
2. Should a provision be or become null and void, the validity of the other provisions remains unaffected. In the case of contradicting agreements, the more specific applies.
§ 7 Place of performance and jurisdiction
1. The place of performance is Münster.
2. In all disputes arising from the contractual relationship, if the purchaser is a registered trader, a legal entity under public law or a special fund under public law, the suit must be brought before the court responsible for the headquarters of Portec GmbH. Portec GmbH is also entitled to sue at the customer's headquarters.
3. German law applies exclusively to the exclusion of the laws on the international purchase of movable property, even if the customer is based abroad.
B. General conditions for sales contracts
In addition, the following conditions apply to sales contracts in which Portec GmbH has not also undertaken to install the delivered goods.
§ 1 delivery period
1. The delivery period begins when the order confirmation is sent, but not before the customer has provided the documents, approvals, releases that may have to be procured and before receipt of any agreed down payment.
2. The delivery period is met if the readiness for dispatch has been communicated by the end of the delivery or if the delivery item has left the factory.
3. The delivery period is extended for measures in the context of industrial disputes, in particular strikes and lockouts, as well as in the event of unforeseen obstacles that lie outside the sphere of control and will of Portec GmbH, such as operational disruptions, delays in the delivery of essential materials, as far as such obstacles can be demonstrated the delivery of the delivery item is of considerable influence. This also applies if the circumstances occur with suppliers. The delivery period is extended according to the duration of such measures and obstacles. Portec GmbH is also not responsible for the aforementioned circumstances if they arise during an already existing delay. In important cases, the customer will be informed of the start and end of such obstacles as soon as possible.
4. Partial deliveries are permitted within the delivery times specified by Portec GmbH, provided that there are no disadvantages for their use. § 2 Scope of delivery Design and shape changes, which can be attributed to the improvement of the technology or to demands of the legislature, remain reserved during the delivery period, provided the delivery item is not changed significantly and the changes are reasonable for the customer.
§ 3 terms of payment
Unless otherwise stated in the contract or the order confirmation, the purchase price and the fees for ancillary services are payable one-third after receipt of the order confirmation, the remaining purchase price on delivery net without deduction within 30 days of the invoice date.
§ 4 packaging and shipping
Packaging becomes the property of the customer. Postage and packaging expenses will be invoiced separately. Unless otherwise expressly agreed, the mode of dispatch is selected at the customer's discretion.
§ 5 Acceptance and transfer of risk
1. Unless otherwise agreed, the delivery takes place in Münster. The customer is entitled to inspect the delivery item within fourteen days after receipt of the notification of availability or other notifications from completion at the handover location. The purchaser is obliged to accept the delivery item within the same period.
2. The risk is transferred to the customer upon acceptance of the delivery item. If there is a mail order purchase, the legal regulation of § 447 Abs. 1 BGB applies. If the customer declares that he will not accept the delivery item, the risk of accidental loss or accidental deterioration of the delivery item passes to the customer at the time of refusal.
§ 6 warranties
Portec GmbH assumes the guarantee for the delivery items in the following way: For defects that occur within a period of six months after the transfer of risk, Portec GmbH has the right to at least three attempts to rectify them. If the errors cannot be remedied or Portec GmbH refuses to rectify them, the customer has the legal rights to change or reduce the price. Natural wear and tear is excluded from the guarantee in any case. For the rest, reference is made to the provision under A § 4 of these terms and conditions.
C. General delivery and assembly conditions
In addition, the following delivery and assembly conditions apply to all contracts in which Portec GmbH has committed itself not only to the delivery of goods but also to assembly.
Unless specifically regulated here, the general contractual conditions for the execution of construction work (VOB / B) and the general technical contract conditions for construction work (VOB / C) also apply in the latest version when the contract is concluded.
§ 1 terms of payment
The total price is to be paid as follows:
- 1/3 after conclusion of the contract
- 1/3 after completion in our company
- 1/3 after assembly and acceptance, 30 days net without deduction
§ 2 warranty
The warranty period is 2 years; for work on a property 1 year after acceptance or partial acceptance of the work. The provisions of VOB / B also apply. For the rest, reference is made to the provisions under A § 4 of these terms and conditions.
§ 3 Acceptance and transfer of risk
1. Portec GmbH bears the risk until the system is accepted.
2. If the system is damaged or destroyed prior to acceptance by force majeure or other inevitable circumstances for which Portec GmbH is not responsible, Portec GmbH is entitled to payment for the work previously carried out and the other costs incurred.
3. If the customer is in arrears with acceptance, the risk passes to him at the time of the delay. The same applies if the assembly is interrupted for reasons for which the client is responsible and if Portec GmbH has handed over the services provided up to that point to the custody of the client.
4. The system must be accepted after completion of the service, even if the final adjustment has not yet taken place. This applies in particular after a trial start-up and in the event of early start-up.
§ 4 delivery time and assembly
Subsequent changes to the order will be made against calculation of the costs incurred up to the time of the change and will result in a reasonable extension of the delivery time.