General Terms and Conditions of Sale and Delivery Scope
The following terms and conditions shall apply only to entrepreneurs, legal entities under public law, or special funds under public law.
I. Application
1. Orders shall become binding only upon the supplier’s order confirmation. Amendments and additions should be made in text form. All quotations are non-binding unless designated as firm quotations.
2. These terms and conditions shall also apply to future transactions within ongoing business relationships where no express reference is made to them, provided that they were received by the purchaser in connection with an earlier order confirmed by the supplier.
3. The purchaser’s terms and conditions shall not apply unless expressly accepted by the supplier.
4. Should any individual provisions be or become invalid, the remaining terms and conditions shall remain unaffected. II. Prices
5. In case of doubt, prices shall apply EXW (Incoterms 2010), excluding freight, customs duties, ancillary import charges and packaging, plus VAT at the statutory rate.
6. If the relevant cost factors change materially after submission of the quotation or following order confirmation and before delivery, the supplier and the purchaser shall agree on an adjustment to the prices and the allocation of costs for moulds.
7. If it has been agreed that the price depends on the part weight, the final price shall be determined by the weight of the approved sample parts.
8. The supplier shall not be bound by previous prices for new orders (= follow-up orders). III. Delivery and Acceptance Obligations
9. Delivery periods shall commence upon receipt of all documents required for the execution of the order, the advance payment and the timely provision of materials, insofar as these have been agreed. The delivery period shall be deemed to have been met upon notification that the goods are ready for dispatch if dispatch is delayed or becomes impossible through no fault of the supplier.
10. If an agreed delivery period is not met due to fault attributable to the supplier, the purchaser shall, provided that the supplier has not acted with gross negligence or intent, be entitled, to the exclusion of any further claims and after expiry of a reasonable additional period, to claim compensation for delay or withdraw from the contract. Compensation for delay shall be limited to a maximum of 5% of the value of the part of the delivery that has not been performed in accordance with the contract. Withdrawal shall be excluded if the purchaser itself is in default of acceptance. The purchaser reserves the right to prove that a greater loss has been incurred.
11. Reasonable partial deliveries and reasonable deviations from the quantities ordered of up to plus or minus 10% shall be permissible.
12. In the case of call-off orders where no agreement has been reached regarding the contract term, production batch sizes and acceptance dates, the supplier may demand a binding determination of these matters no later than three months after order confirmation. If the purchaser fails to comply with this demand within three weeks, the supplier shall be entitled to set an additional period of two weeks and, upon its expiry, to withdraw from the contract and/or claim damages.
13. If the purchaser fails to fulfil its acceptance obligations, the supplier shall, without prejudice to any other rights, not be bound by the provisions governing self-help sales and may instead sell the delivery item by private sale after prior notification of the purchaser.
14. Events of force majeure shall entitle the supplier to postpone delivery for the duration of the impediment and a reasonable start-up period or to withdraw from the contract, in whole or in part, in respect of the part not yet performed. Strikes, lockouts or unforeseeable and unavoidable circumstances, such as operational disruptions, which make timely delivery impossible for the supplier despite reasonable efforts, shall be deemed equivalent to force majeure; the supplier shall bear the burden of proof in this respect. This shall also apply if the aforementioned impediments occur during a period of delay or at a subcontractor. The purchaser may request the supplier to declare within two weeks whether it intends to withdraw from the contract or deliver within a reasonable additional period. If the supplier fails to make such a declaration, the purchaser may withdraw from the unperformed part of the contract. The supplier shall notify the purchaser without delay if an event of force majeure as described in paragraph 1 occurs. The supplier shall minimise any adverse effects on the purchaser, where necessary by releasing the moulds for the duration of the impediment. IV. Packaging, Dispatch, Transfer of Risk and Default of Acceptance
15. Unless otherwise agreed, the supplier shall select the packaging, method of dispatch and route of dispatch.
16. The risk shall pass to the purchaser when the goods leave the supplier’s works, even in the case of carriage-paid delivery. If dispatch is delayed for reasons attributable to the purchaser, the risk shall pass upon notification that the goods are ready for dispatch.
17. At the purchaser’s written request, the goods shall be insured at its expense against risks specified by it. V. Retention of Title
18. The deliveries shall remain the property of the supplier until all claims held by the supplier against the purchaser have been satisfied, even if the purchase price relating to specifically designated claims has been paid. In the case of a current account, the supplier’s retained title to the deliveries (goods subject to retention of title) shall serve as security for the balance due to the supplier. If liability under a bill of exchange is incurred by the supplier in connection with payment of the purchase price, the retention of title shall not expire before the bill of exchange has been honoured by the purchaser as drawee.
19. Any treatment or processing by the purchaser shall be carried out on behalf of the supplier, excluding the acquisition of ownership pursuant to Section 950 of the German Civil Code (BGB); the supplier shall acquire co-ownership of the resulting item in proportion to the net invoice value of its goods relative to the net invoice value of the goods being treated or processed. The resulting item shall serve as goods subject to retention of title to secure the supplier’s claims pursuant to paragraph 1.
20. If the purchaser processes the goods by combining or mixing them with other goods not owned by the supplier, Sections 947 and 948 of the German Civil Code (BGB) shall apply, with the result that the supplier’s co-ownership share in the new item shall henceforth be deemed goods subject to retention of title within the meaning of these terms and conditions.
21. The purchaser may resell the goods subject to retention of title only in the ordinary course of business and on condition that it also agrees retention of title with its customers in accordance with paragraphs 1 to 3. The purchaser shall not be entitled to make any other dispositions of the goods subject to retention of title, in particular by pledging them or transferring them by way of security.
22. In the event of resale, the purchaser hereby assigns in advance to the supplier, until all claims of the supplier have been satisfied, all claims arising from the resale and all other legitimate claims against its customers, together with all ancillary rights. At the supplier’s request, the purchaser shall immediately provide the supplier with all information and hand over all documents required to enforce the supplier’s rights against the purchaser’s customers.
23. If, after processing in accordance with paragraph 2 and/or 3, the purchaser resells the goods subject to retention of title together with other goods not owned by the supplier, the assignment of the purchase price claim pursuant to paragraph 5 shall apply only up to the invoice value of the supplier’s goods subject to retention of title.
24. If the value of the security interests held by the supplier exceeds its total claims by more than 10%, the supplier shall, at the purchaser’s request, release security interests to that extent at the supplier’s discretion.
25. Any attachment or seizure of the goods subject to retention of title by third parties must be reported to the supplier without delay. Any resulting intervention costs shall in all cases be borne by the purchaser insofar as they are not borne by third parties.
26. If the supplier exercises its retention of title in accordance with the foregoing provisions by repossessing goods subject to retention of title, it shall be entitled to sell the goods by private sale or have them auctioned. The assertion of retention of title and, in particular, any demand for surrender shall constitute withdrawal from the contract. The repossessed goods shall be credited at the proceeds obtained, but no more than the agreed delivery prices. Further claims for damages, particularly for loss of profit, shall remain reserved. VI. Liability for Material Defects
27. The reference samples submitted by the supplier to the purchaser for inspection upon request shall be decisive for the quality and design of the products. Any reference to technical standards serves solely to describe the performance and shall not be construed as a guarantee of quality.
28. If the supplier has advised the purchaser outside the scope of its contractual obligations, it shall be liable for the functionality and suitability of the delivery item only where it has given an express prior assurance.
29. Notices of defects must be submitted in writing without delay. In the case of latent defects, notice must be given without delay upon discovery. In both cases, unless otherwise agreed, all claims in respect of defects shall become time-barred 24 months after the transfer of risk pursuant to Section 437 of the German Civil Code (BGB).
30. In the event of a justified notice of defects – whereby the reference samples approved in writing by the purchaser shall determine the expected quality and design – the supplier shall be obliged to provide subsequent performance. If the supplier fails to fulfil this obligation within a reasonable period or if remedial work fails despite repeated attempts, the purchaser shall be entitled to reduce the purchase price or withdraw from the contract. Further claims, in particular claims for reimbursement of expenses or damages arising from defects or consequential damage caused by defects, shall exist only within the scope of the provisions set out in Section VII. Replaced parts shall, upon request, be returned to the supplier carriage forward.
31. Unauthorised reworking and improper handling shall result in the loss of all claims in respect of defects. Only in order to prevent disproportionately extensive damage or where the supplier is in delay in remedying the defect shall the purchaser be entitled, after prior notification of the supplier, to carry out remedial work itself and claim reimbursement of the reasonable costs incurred.
32. Wear or deterioration resulting from use in accordance with the contract shall not give rise to any warranty claims.
33. Rights of recourse pursuant to Sections 478 and 479 of the German Civil Code (BGB) shall exist only insofar as the claim made by the consumer was justified and only to the extent provided by law, but not in respect of goodwill arrangements not agreed with the supplier, and shall require the party entitled to recourse to have complied with its own obligations, in particular its obligations to give notice of defects.
VII. General Limitations of Liability
In all cases in which, notwithstanding the foregoing terms and conditions, the supplier is obliged to pay damages or reimburse expenses on contractual or statutory grounds, it shall be liable only insofar as intent, gross negligence or injury to life, limb or health is attributable to the supplier, its senior employees or its agents. Fault-based liability under the German Product Liability Act and liability for compliance with a guarantee as to quality shall remain unaffected. Liability for the culpable breach of material contractual obligations shall also remain unaffected; however, except in the cases referred to in sentence 1, such liability shall be limited to foreseeable damage typical of the contract. The foregoing provisions shall not entail any change in the burden of proof to the detriment of the purchaser.
Warranty
Where recycled plastics are used, the colour of the delivery item may differ from quotations, samples, trial deliveries and previous deliveries. Small inclusions of unmelted rigid plastic particles or other non-melting residues, as well as welding burrs resulting from the production process, shall constitute defects within the meaning of the warranty. The same shall apply to minor dimensional deviations caused by twisting or shrinkage of the plastic.
VIII. Terms of Payment
34. All payments shall be made exclusively to the supplier in EUR (euros).
35. Unless otherwise agreed, the purchase price for deliveries or other services shall be payable subject to a 2% cash discount within 10 days or without deduction within 30 days of the invoice date. The granting of a cash discount is conditional upon the settlement of all earlier due and undisputed invoices. No cash discount shall be granted for payments made by bill of exchange.
36. If the agreed payment date is exceeded, interest shall be charged at the statutory rate of 8 percentage points above the applicable ECB base rate, unless the supplier proves that a greater loss has been incurred. The purchaser reserves the right to prove that a lesser loss has been incurred.
37. The supplier reserves the right to refuse cheques or bills of exchange. Cheques and rediscountable bills of exchange shall be accepted only on account of payment; all associated costs shall be borne by the purchaser.
38. The purchaser may exercise a right of set-off or assert a right of retention only if its claims are undisputed or have been finally adjudicated.
39. Persistent failure to comply with the terms of payment or circumstances giving rise to serious doubts regarding the purchaser’s creditworthiness shall result in all claims of the supplier becoming immediately due and payable. In such a case, the supplier shall also be entitled to demand advance payments for any outstanding deliveries and, following the unsuccessful expiry of a reasonable period, to withdraw from the contract. IX. Moulds (Tools)
40. The price for moulds shall also include the cost of one initial sampling, but not the cost of inspection and machining fixtures or of modifications requested by the purchaser. The supplier shall bear the cost of any further sampling for which it is responsible.
41. Unless otherwise agreed, the supplier shall be and remain the owner of the moulds manufactured for the purchaser by the supplier itself or by a third party commissioned by it. The moulds shall be used only for the purchaser’s orders for as long as the purchaser fulfils its payment and acceptance obligations. The supplier shall be obliged to replace these moulds free of charge only if this is necessary to achieve an output quantity guaranteed to the purchaser. The supplier’s obligation to store the moulds shall expire two years after the last delivery of parts produced from the mould, subject to prior notification of the purchaser.
42. If, as agreed, the purchaser is to become the owner of the moulds, ownership shall pass to it upon full payment of the purchase price for them. Physical delivery of the moulds to the purchaser shall be replaced by their storage on behalf of the purchaser. Irrespective of the purchaser’s statutory right to demand their surrender and of the service life of the moulds, the supplier shall be entitled to their exclusive possession until termination of the contract. The supplier shall mark the moulds as third-party property and, at the purchaser’s request, insure them at the purchaser’s expense.
43. In the case of moulds owned by the purchaser pursuant to paragraph 3 and/or moulds provided by the purchaser on loan, the supplier’s liability for storage and care shall be limited to the degree of care it exercises in its own affairs. The purchaser shall bear the costs of maintenance and insurance. The supplier’s obligations shall expire if, following completion of the order and a corresponding request, the purchaser fails to collect the moulds within a reasonable period. As long as the purchaser has not fulfilled its contractual obligations in full, the supplier shall in all cases have a right of retention over the moulds. X. Materials Supplied by the Purchaser.
44. If materials are supplied by the purchaser, they must be delivered in good time, at the purchaser’s expense and risk, in perfect condition and with a reasonable quantity allowance of at least 5%.
45. If these requirements are not met, the delivery period shall be extended accordingly. Except in cases of force majeure, the purchaser shall bear any additional costs incurred, including those resulting from interruptions to production. XI. Industrial Property Rights and Defects in Title.
46. If the supplier is required to deliver in accordance with drawings, models or samples or using parts supplied by the purchaser, the purchaser warrants that this will not infringe any third-party intellectual property rights in the country of destination of the goods. The supplier shall inform the purchaser of any rights known to it. The purchaser shall indemnify the supplier against third-party claims and compensate it for any resulting loss. If a third party prohibits the supplier from manufacturing or delivering the goods on the basis of an intellectual property right held by that third party, the supplier shall be entitled, without examining the legal position, to suspend the work until the legal position has been clarified by the purchaser and the third party. If the delay makes it unreasonable for the supplier to continue performing the order, it shall be entitled to withdraw from the contract.
47. Drawings and samples provided to the supplier which do not result in an order shall be returned upon request; otherwise, the supplier shall be entitled to destroy them three months after submitting the quotation. This obligation shall apply correspondingly to the purchaser. The party entitled to destroy them shall inform the other contracting party of its intention to do so in good time.
48. The supplier shall hold the copyright and, where applicable, the industrial property rights, in particular all rights of use and exploitation, in the models, moulds and fixtures, designs and drawings created by it or by third parties commissioned by it.
49. If any other defects in title exist, Section VI shall apply accordingly. XII. Place of Performance and Jurisdiction
50. The place of performance shall be the location of the supplier’s works.
51. At the supplier’s option, the place of jurisdiction shall be either the supplier’s registered office or the purchaser’s registered office, including for documentary proceedings and proceedings relating to bills of exchange and cheques. German law shall apply exclusively. The application of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (Federal Law Gazette 1989, p. 586) for the Federal Republic of Germany (Federal Law Gazette 1990, p. 1477) is excluded.