PoVoTec GmbH & Co. KG

Terms and conditions

PoVoTec GmbH & Co.KG

§ 1 General Provisions

(1) The following General Terms and Conditions (GTC) apply in commercial transactions with all customers; in non-commercial transactions, these GTC apply in accordance with Clause 7.

(2) Terms and conditions of the customers or third parties shall not apply, even if P1-Systems does not expressly object to their applicability in individual cases. Even if P1-Systems refers to a letter that contains or references the terms and conditions of the customer or a third party, this does not constitute agreement with the applicability of those terms and conditions.

(3) Offer and Contract Formation
a. All offers are non-binding and subject to change unless they are expressly designated as binding or include a specific acceptance period. Orders or assignments may be accepted within 14 days of receipt.

b. The sole basis for the legal relationship between PoVoTec and the customers is the written purchase agreement, including these General Terms and Conditions. This agreement reflects all understandings between the contracting parties concerning the subject matter of the contract. Oral promises made prior to the conclusion of this agreement are not legally binding, and oral agreements between the parties are replaced by the written agreement unless it is expressly stated within them that they shall remain binding.

c. Additions and modifications to the agreements made, including these General Terms and Conditions, must be made in writing to be effective. Except for managing directors or authorized signatories (Prokuristen), employees of PoVoTec are not authorized to make any deviating oral agreements.

d. Information regarding the subject of delivery or service (e.g., weights, dimensions, usability values, load capacity, tolerances, and technical data) as well as representations of the same (e.g., drawings and illustrations) are only approximately authoritative unless exact conformity is required for the contractual purpose. They are not guaranteed characteristics but rather descriptions or identifications of the delivery or service. Standard deviations and deviations that arise due to legal regulations or represent technical improvements, as well as the substitution of components with equivalent parts, are permissible as long as they do not impair usability for the contractually intended purpose.

e. PoVoTec reserves ownership or copyright for all offers and cost estimates issued by it, as well as drawings, illustrations, calculations, brochures, catalogs, tools, and other documents and aids made available to the customer. Without express consent, the customer may neither make these items accessible to third parties in their entirety or in parts, nor disclose them, use them themselves, or allow third parties to use or reproduce them. Upon request, the customer must fully return these items and destroy any copies made if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

§ 2 Net Prices, Inflation Surcharge, Set-Off, Advance/Security Payments

(1) Net Prices
The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. Packaging costs are generally included in the product price. Special packaging will be invoiced to the customer at cost price. Prices are quoted in euros ex works, plus statutory VAT, customs duties, fees, and other public charges in the case of export deliveries. Additional special labels are not included in the price.

(2) Inflation Surcharge
If the agreed prices are based on price lists and the delivery is to take place more than four months after the conclusion of the contract, the price lists valid at the time of delivery from P1-Systems shall apply (in each case less any agreed percentage or fixed discount). Exceptions to this are prices agreed upon in framework contracts.

(3) Invoice amounts are to be paid within 8 days without any deductions unless otherwise agreed in writing. The payment date is determined by the date of receipt. Checks are considered paid only after they have been cashed.

(4) If the customer fails to make payment when due, the outstanding amounts shall accrue interest at a rate of 5% p.a. from the due date; claims for higher interest rates and further damages in the event of default remain reserved.

(5) Set-Off
Set-off with counterclaims by the customer or the retention of payments due to such claims is only permissible if the counterclaims are undisputed or have been legally established.

(6) Advance/Security Payments
PoVoTec is entitled to execute or provide outstanding deliveries or services only against advance payment or security deposit if, after the conclusion of the contract, circumstances become known that significantly impair the creditworthiness of the customer and thereby endanger the payment of outstanding claims by the customer from the respective contractual relationship (including from other individual orders under the same framework contract). For customers unknown to PoVoTec, deliveries are made only against advance payment, and PoVoTec grants a 2% discount to the customer.

§ 3 Deliveries

(1) Deliveries are made ex works.

(2) If the order value of a purchase exceeds a net amount of 250.00 EUR, delivery from the distribution warehouse to the customer’s storage address within Germany is free of freight charges. For orders under 250.00 EUR but over 125.00 EUR, a shipping cost and small-quantity surcharge of 16.00 EUR is charged for deliveries within Germany. For orders under 125.00 EUR, 24.00 EUR is charged. Direct deliveries, special products, as well as special distributions or special dimensions, are sent at the customer’s expense.

(3) Delivery periods and deadlines that are promised are always approximate unless a fixed period or deadline has been expressly confirmed or agreed upon in writing. If shipment is agreed, delivery periods and deadlines refer to the time of handover to the carrier, freight forwarder, or other third party commissioned with the transport.

(4) Without prejudice to its rights resulting from the customer’s default, PoVoTec may request an extension of delivery and performance periods or a postponement of delivery and performance dates for the period in which the customer fails to fulfill its contractual obligations toward PoVoTec.

(5) PoVoTec is not liable for the impossibility of delivery or for delivery delays caused by force majeure or other unforeseeable events at the time of contract conclusion (e.g., operational disruptions of any kind, difficulties in material or energy procurement, transport delays, strikes, lawful lockouts, labor shortages, energy or raw material shortages, difficulties in obtaining necessary regulatory approvals, governmental actions, or the absence, incorrectness, or untimeliness of supplier deliveries) that are not attributable to PoVoTec. If such events significantly impede or render delivery or performance impossible and the hindrance is not merely temporary, PoVoTec is entitled to withdraw from the contract. For obstacles of a temporary nature, delivery or performance periods are extended, or delivery or performance dates are postponed, by the duration of the hindrance plus a reasonable acceptance period. If the delay makes acceptance of the delivery or performance unreasonable for the customer, the customer may withdraw from the contract by immediate written declaration.

(6) Partial deliveries are permitted if:
– The partial delivery can be used by the customer within the scope of the contractual purpose,
– The delivery of the remaining ordered goods is ensured, and
– The customer does not incur significant additional expenses or costs.

(7) If PoVoTec is in default with a delivery or performance or if delivery or performance becomes impossible, regardless of the reason, liability for damages is limited as specified in §7 of these General Terms and Conditions.

§ 4 Place of Performance, Shipping Method, Transfer of Risk, Acceptance

(1) Place of Performance
The place of performance for all obligations arising from the contractual relationship is Lennestadt, unless otherwise specified. If PoVoTec is also responsible for installation or commissioning, the place of performance is the location where the installation is to take place.

(2) The method of shipping and the type of packaging are determined at PoVoTec’s reasonable discretion.

(3) Transfer of Risk
The risk passes to the customer no later than upon handover of the delivery item to the carrier, freight forwarder, or any other third party designated for shipment, with the commencement of the loading process being decisive. This also applies in the case of partial deliveries or if PoVoTec has undertaken additional services (e.g., shipping or installation). If shipment or handover is delayed due to circumstances attributable to the customer, the risk passes to the customer from the day the delivery item is ready for shipment and PoVoTec has notified the customer of this.

(4) Storage Costs
The customer bears storage costs after the transfer of risk. In the case of storage by PoVoTec, the storage costs amount to 0.25% of the invoice amount of the stored delivery items per completed week. The right to assert and prove higher or lower storage costs remains reserved for both parties.

(5) Insurance
The shipment will only be insured against theft, transport, fire, water damage, or other insurable risks at the express request of the customer and at their expense.

(6) Acceptance
If acceptance is required, the purchased item is considered accepted if:

  • The delivery and, if PoVoTec also owes installation or commissioning, the installation is complete,
  • PoVoTec has notified the customer of this completion and requested acceptance while referencing the acceptance fiction under this paragraph,
  • Twelve business days have passed since delivery or installation, or the customer has started using the purchased item (e.g., operating the delivered system), in which case six business days since delivery or installation have passed, and
  • The customer has failed to carry out acceptance within this period for reasons other than a defect reported to PoVoTec that makes the use of the purchased item impossible or significantly impairs it.

§ 5 Retention of Title

The goods remain the property of PoVoTec until full payment of all claims, including ancillary claims, claims for damages, and the redemption of checks and bills of exchange. The retention of title also remains in effect if individual claims are included in a current account, and the balance has been calculated and acknowledged.

The buyer is entitled to process and resell the goods under reservation of ownership, subject to the following provisions:

  • The buyer’s authority to process goods subject to retention of title in the ordinary course of business ends upon the buyer’s suspension of payments or the filing or initiation of insolvency proceedings.
  • The buyer does not acquire ownership of the new item through processing under § 950 BGB (German Civil Code). The processing is carried out for PoVoTec, without PoVoTec incurring any liabilities as a result. If PoVoTec’s goods are processed, mixed, or combined with other items, PoVoTec acquires co-ownership of the new item in proportion to the value of its goods subject to retention of title relative to the total value of the goods.

The buyer hereby assigns to PoVoTec any claims, including all ancillary rights, arising from the resale of the goods under retention of title. This also applies proportionately if the goods have been processed, mixed, or combined and PoVoTec has acquired co-ownership to the extent of the invoice value. In such cases, PoVoTec is entitled to a corresponding share of the respective purchase price claim in proportion to the invoice value of its goods subject to retention of title relative to the invoice value of the item sold.

If the buyer has sold the claim within the framework of genuine factoring, they assign to PoVoTec the claim against the factor that replaces it. PoVoTec accepts this assignment.

As long as the buyer fulfills their payment obligations, PoVoTec will not collect the assigned claims. The collection authorization expires if the buyer defaults on payment. In this case, PoVoTec is authorized by the buyer to inform the purchasers of the assignment and to collect the claims itself.

The buyer is obligated, upon request, to provide an exact list of the claims due to PoVoTec, including the names and addresses of the purchasers, the amounts of individual claims, invoice dates, etc., and to provide all necessary information for asserting the assigned claims and to allow verification of this information.

The buyer is entitled to collect the claims as long as PoVoTec does not issue contrary instructions. If the value of the securities held by PoVoTec exceeds the total claims by more than 20%, PoVoTec is obliged, at the buyer’s request, to release securities of its choice to that extent.

§ 6 Warranty, Defects in Goods

(1) Warranty Period

The warranty period is one year from the date of delivery or, if acceptance is required, from the date of acceptance.

(2) Inspection and Obligation to Notify Defects

The delivered items must be carefully inspected immediately upon delivery to the customer or the third party designated by the customer. They are considered approved unless PoVoTec receives a written notification of defects regarding obvious defects or other defects that were identifiable during an immediate and careful inspection within seven working days after delivery of the item, or otherwise within seven working days after the defect was discovered or at any earlier time when the defect was recognizable to the customer under normal use of the item without closer inspection.

Upon request by PoVoTec, the defective delivery item must be returned freight-free. In the event of a justified defect complaint, PoVoTec will reimburse the cost of the cheapest shipping method. This does not apply if the costs increase because the delivery item is located at a place other than the intended place of use.

(3) Remedy of Defects

For material defects in the delivered items, PoVoTec is obligated and entitled, at its discretion and within a reasonable timeframe, to either repair the defect or provide a replacement. If the remedy fails—meaning repair or replacement is impossible, unreasonable, refused, or unduly delayed—the customer may withdraw from the contract or reduce the purchase price appropriately.

(4) Fault-Based Liability

If a defect is due to the fault of PoVoTec, the customer may claim damages under the conditions specified in § 7.

(5) Exclusions and Additional Costs

The warranty is void if the customer modifies the delivery item or has it modified by third parties without PoVoTec’s consent, and this makes the rectification of defects impossible or unreasonably difficult. In any case, the customer must bear the additional costs of defect rectification caused by such modifications.

§ 7 Liability

(1) Liability

PoVoTec’s liability for damages, regardless of the legal basis, including impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations, and tortious acts, is limited as specified in this § 7, provided that fault is a factor.

(2) PoVoTec is not liable in cases of simple negligence by its directors, legal representatives, employees, or other vicarious agents, unless it concerns the breach of essential contractual obligations. Essential contractual obligations include the obligation to deliver and install the goods free of significant defects and any obligations regarding advice, protection, or custody that enable the customer’s proper use of the goods or aim to protect the customer’s life, health, or property from significant damage.

(3) To the extent that PoVoTec is liable under this § 7, its liability is limited to damages that PoVoTec foresaw as a possible consequence of a breach of contract at the time of contract conclusion or that it should have foreseen with the exercise of ordinary care. Indirect damages and consequential damages arising from defects in the delivered goods are also recoverable if such damages are typically expected with the intended use of the goods.

(4) In the case of liability for simple negligence, PoVoTec’s liability for property damage and resulting further financial losses is limited to a maximum of 1 million euros per damage event, regardless of whether it concerns a breach of essential contractual obligations. This limitation applies according to PoVoTec’s current product liability insurance or liability insurance coverage.

(5) The liability exclusions and limitations outlined in this § 7 apply equally to PoVoTec’s directors, legal representatives, employees, and other vicarious agents.

(6) If PoVoTec provides technical advice or consulting services that are not included in the agreed contractual scope of performance, such advice and consulting are provided free of charge and without any liability.

(7) The limitations in this § 7 do not apply to PoVoTec’s liability for intentional conduct, guaranteed quality characteristics, breaches of life, body, or health, or under the Product Liability Act.

§ 8 Returns

There is no right to exchange or return goods that have been delivered in accordance with the contract. If PoVoTec exceptionally agrees to exchange or take back the goods, the following conditions apply:
Prior to returning the goods, the exchange or return must be agreed upon in writing with PoVoTec. The goods must then be returned freight-free and at the buyer’s risk to PoVoTec’s warehouse. The goods must arrive at PoVoTec in perfect condition; they must not be used, already assembled, broken, defective, or refurbished materials. It is further agreed that PoVoTec will invoice the buyer for a cost reimbursement of 15% of the value of the exchanged or returned goods, unless a different amount has been agreed upon in writing.

§ 9 Final Provisions

(1) Jurisdiction
The court of jurisdiction for all disputes arising from the business relationship between PoVoTec and its customers/clients is, at PoVoTec’s choice, either Lennestadt or the customer’s/recipient’s place of residence. For lawsuits against PoVoTec, Lennestadt is the exclusive court of jurisdiction. Mandatory statutory provisions on exclusive jurisdictions remain unaffected by this regulation.

(2) Applicable Law
The relationship between PoVoTec and its customers/clients is governed exclusively by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980, does not apply.

In case the contract or these General Terms and Conditions contain gaps, legally valid provisions that the parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions are deemed to be agreed to fill such gaps.

Effective Date: 01/2021

With the publication of this version of the General Terms and Conditions, all previous terms and conditions of PoVoTec GmbH & Co.KG shall be rendered invalid.

© PoVoTec GmbH & Co.KG

Technological errors and printing mistakes reserved.