The terms of delivery and payment apply exclusively to all business relations, including future transactions. Conflicting terms and conditions, in particular the purchaser's terms of purchase, shall not be recognized, unless their validity is expressly agreed. VORTELLA's terms of delivery and payment shall also apply if we carry out orders unconditionally in knowledge of contradictory or deviating terms of the customer's delivery and payment terms.
Deviations from the terms of delivery and payment, irrespective of the nature of the delivery and payment conditions, and in particular the promises made by representatives, shall be invalid without express written confirmation.
2. Prices and payments
Unless otherwise agreed, the prices are in EURO ex works, including loading at the factory plus the value-added tax applicable at the time of invoicing. Rental equipment (eg containers, carts, pallets, etc.) must be returned in ready-to-use condition immediately after use. The cost of the return delivery shall be borne by the Purchaser. In the case of loss or damage to auxiliary equipment, VORTELLA calculates the fair value or, if these fall below the fair value, the repair costs.
The prices, if not expressly confirmed as fixed prices, shall be binding and entitle to a reasonable price adjustment if wage increases or increases in material prices occur within four months after conclusion of the contract. These shall be demonstrated to the customer on request.
All payments must be made at the due date without any deduction free of charge from VORTELLA.
Unless explicitly agreed otherwise, VORTELLA shall be entitled to calculate the bank rates customary at the time of the excess if the payment dates set or contractually agreed are not met. Without further proof, VORTELLA may at least charge maturity interest of five percent pa.
In the case of prior or subsequent retroactive payment of a payment term which deviates from the above payment periods in favor of the Purchaser of more than thirty days from the date of maturity, the maturity interest amounts to at least 5 percentage points above the base interest rate and more than sixty days at least 7 percentage points above the base interest rate. The customer is in arrears if he exceeds an agreed payment goal or, if this is not agreed, does not pay within a period of thirty days after the due date and receipt of an invoice or does not pay despite the due date and the reminder.
If the conditions for default are met, VORTELLA may charge default interest at a rate of 8 percentage points above the base interest rate, provided VORTELLA does not prove a higher default. VORTELLA may demand compensation for all damages caused by the delay, including reasonable expenses for the prosecution. If delay is not due to the fault of the customer, VORTELLA may, however, demand maturity interest according to the above provisions.
Bills of exchange and checks will only be accepted on account of performance. Any expenses or other costs arising therefrom shall be compensated immediately, at the latest within one week after publication in cash. If a bill is to be debited in accordance with the agreement, maturity interest will be charged at least 5% pa according to the above provisions.
Offsetting is not permitted to the customer, unless the counterclaim is not disputed or legally established. The customer is only entitled to exercise a right of retention to the extent that his counterclaim is undisputed or legally established and is based on the same contractual relationship as the claim of VORTELLA.
In the case of a default of payment by the customer, the occurrence of payment difficulties, unsuccessful foreclosure measures or the application for the opening of an insolvency proceeding, all receivables of VORTELLA, including - for example, by acceptance acceptance - are immediately due. Previously granted discounts and rebates become meaningless.
3. Delivery time
Specified delivery times are approximate only. VORTELLA shall be obliged to perform its duties only after the customer has fulfilled his contractual obligations. This applies in particular to cooperation activities to be carried out by the customer, such as, for example, a timely retrieval of call orders. In the absence of essential cooperation actions by the Purchaser, agreed delivery periods shall be extended by the duration of the delay.
In the case of impossibility or impossibility for which VORTELLA is not responsible, we are exempt from the obligation of delivery; otherwise the statutory provisions shall apply in this case.
The orderer is obliged to accept partial services through VORTELLA, unless the customer can not use the partial service meaningfully and therefore has no interest in it.
If VORTELLA is in default with the performance owed, in full or in part, its liability for compensation for the delay shall be limited to the normally foreseeable damage.
If the purchaser is in default of acceptance or if he violates other cooperation obligations, then the following additional charges will be charged to him, starting with the following week, according to § 373 I HGB, but at the time of storage in the VORTELLA factory at least 2, 5% of the invoice price for each month. The purchaser may, however, prove that no additional costs have been incurred or substantially lower.
VORTELLA is entitled, but not obliged to make use of the possibilities offered by § 373 II HGB after expiry of a period of seven days to be set by it and notification to the customer. This applies in particular if the destruction of the goods ordered threatens.
4. Characteristics and protective rights
Samples, illustrations, photographs, printed matter, etc., as well as information on dimensions, weights, services, etc., which are enclosed with offers or deliveries, are only approximate, in particular, not considered as guaranteed properties or quality guarantees. We reserve the right to make changes to the technical progress.
VORTELLA is not obligated to check the information given by the Purchaser.
The documents made available to the Purchaser by VORTELLA remain the property of VORTELLA and may not be reproduced or made available to third parties in any form without their prior written consent.
5. Transfer of risk and delivery
In the case of delivery, the risk is transferred to the customer with the provision of the goods on the VORTELLA factory site and indication of the readiness for delivery, even if it is reasonable to make partial deliveries. At the request of the customer, the consignment is insured by VORTELLA at his expense. The transport insurance is covered by VORTELLA at the request of the customer and is billed at the cost price. The customer is obliged to inspect the goods immediately upon delivery by the freight forwarder or freight carrier for transport damages and to provide proof of such evidence to the transporter for the purpose of legal protection.
6. Reservation of proprietary rights
The deliveries are subject to retention of title according to § 449 BGB with the following extensions:
a) The delivery item remains the property of VORTELLA until full payment of all claims, including future claims against the purchaser resulting from the business relationship.
b) The Purchaser's purchase of the reserved goods by processing and / or processing the reserved goods to a new movable object is excluded. Any processing and / or processing by the Purchaser shall be carried out on behalf of VORTELLA, without any liabilities arising from this. The ownership of the goods delivered to the contractor remains with VORTELLA and is used to secure the claims of VORTELLA in the amount of the reserved value.
c) If VORTELLA is connected or mixed with other movable property not owned by VORTELLA, VORTELLA shall be entitled to co-ownership of the new object in proportion to the value of the reserved value at the value of the other processed items at the time of processing. The customer is obliged to inform the owners of the other items of VORTELLA's reservation of title. In all other respects, the new item resulting from the processing is the same as for the reserved goods within the meaning of these provisions. The purchaser shall include the deliveries which have not yet become the sole property of the Purchaser in his existing or concluded insurance contracts.
d) The purchaser is entitled to resell the reserved goods, to process them, to process them or to connect them with other goods or a land only within the scope of the normal course of business and with the proviso that he does not agree to a prohibition of assignment with third parties. The claim of the customer from the resale of the reserved goods, whether or not unchanged, processed and / or processed independently of the customer number, is already assigned to VOTELLA in the amount of the invoice value of the delivered items plus the respectively applicable VAT. VORTELLA accepts the assignment.
e) VORTELLA agrees to assign the claims of the Purchaser from the resale of the goods supplied by VORTELLA against its third customers in the course of a genuine factoring (assignment to the factor in place of fulfillment) in a proper course of business however on the condition that the customer is entitled to his payment claims against the factor from the sale of the claims against its third customers to VORTELLA and instructs the fact that payment to VORTELLA only. VORTELLA accepts the assignment. Insofar as the purchase price for the claim is lower than the claim of VORTELLA, the further claim of VORTELLA shall remain unaffected. The Purchaser shall provide VORTELLA with all information necessary to assert the claims of VORTELLA against the Factor.
f) The orderer is not entitled to any other dispositions relating to the reserved goods of VORTELLA. It is obliged to immediately notify VORTELLA of any seizure or other impairment of VORTELLA's goods and rights by third parties.
In this case, the purchaser shall bear the necessary costs for the intervention by VORTELLA.
g) In addition to VORTELLA, the Purchaser is authorized to collect receivables despite the assignment. VORTELLA will not collect the claim and will not disclose the assignment as long as the Purchaser duly fulfills his payment obligations. At the request of VORTELLA at any time, the customer shall notify the debtors of the assigned claims and notify the debtors of the assignment.
h) The retention of title shall also remain in force when individual receivables from VORTELLA are included in a current account, the balance is drawn and recognized.
i) With the full payment of all claims, including costs and interest, which VORTELLA has from the business relationship with the customer, the title to the reserved goods of VORTELLA and the assigned claims are transferred directly to the customer. VORTELLA, however, undertakes, at the Purchaser's request, to release the collateral to which it is entitled under the above provisions, provided that its value exceeds the receivables to be secured by 10%.
j) The customer undertakes not to agree with his third parties a prohibition of assignment.
VORTELLA assumes liability for deficiencies in products and deficiencies in the product. Precondition for the liability for material defects is the exact observance of the storage and processing regulations of VORTELLA. VORTELLA does not assume any warranty for faulty or incorrect storage, unless this is due to a vague or incomplete storage or processing instructions. The guarantee also does not extend to damages caused by spoilage after expiry of the minimum shelf life specified by VORTELLA in compliance with the relevant provisions of food law or by chemical or physical influences which are not attributable to VORTELLA.
If there is a defect in the delivery item, the customer is entitled to the statutory warranty rights in full. However, VORTELLA shall be entitled, at its discretion, to supplementary performance (rectification of defects or delivery / manufacture of a defect-free product). VORTELLA shall be obliged to bear the expenses necessary for the purpose of the supplementary performance, in particular transportation, travel, work and material costs, insofar as these do not increase in unforeseeable manner for VORTELLA by the delivery item being transported by the customer to a place other than the agreed upon Place of delivery. Damages due to a defect are only made by VORTELLA at fault.
However, the warranty is excluded if the defect of the delivery item is solely based on circumstances for which the customer is responsible. This is the case, in particular, if the purchaser prescribes the use of his own, faulty recipes, or if the components of the delivery item which were ordered by the customer were defective without VORSELLA being aware of them under normal due diligence or when VORTELLA is concerned about such a circumstance and the Purchaser nevertheless requires the use of the recipe or the use of the components supplied.
The limitation period for claims of the customer for supplementary performance and compensation for defects of VORTELLA delivered or produced movable objects depends on the minimum durability period within which the goods may be processed and placed on the market. If such a minimum durability period is not specified, the limitation period is one year. For the rest, please refer to §§ 478, 479 BGB.
The assignment of warranty claims by the purchaser to third parties is excluded.
8. Compensation for the rest
If, in addition to the above-mentioned cases, the Purchaser is entitled to compensation under the statutory provisions, the liability of VORTELLA is, as a matter of principle, limited to the intent and gross negligence of its legal representative or its executive employees. This does not apply, however, to damages resulting from injury to life, body or health which result from a negligent breach of duty by VORTELLA or a deliberate or grossly negligent breach of duty by a legal representative or vicarious agent of VORTELLA. This also does not apply to damages caused by a culpable violation of essential contractual obligations or by a grossly negligent violation of non-contractual obligations by a simple vicarious agent of VORTELLA; in this respect, however, liability is limited to the typically foreseeable damage.
9. Jurisdiction and applicable law
For all present and future claims arising from the business relationship, exclusive jurisdiction is the place of business of VORTELLA. VORTELLA is entitled, in its own right, to appeal, at its discretion, to the administrative court competent for its place of business, irrespective of the amount of the value of the dispute.
The legal relations of the parties to the contract are governed exclusively by German law, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
10. Severability clause
The total or partial invalidity of individual contractual provisions shall not affect the validity of the contract.