General terms and conditions
The following terms are applicable only to business persons, governmental entities or special governmental estates. The Terms and Conditions of Delivery and Payment of the plastics processing industry in the latest version always apply.
1. Orders only become binding once they have been confirmed by the supplier. Amendments and additions thereto have to be made in writing. All offers are subject to change unless they are referred to as binding offers.
2. In the case of ongoing business relationships, these conditions also apply to future transactions in which they are not expressly referred to, provided the customer has received them with a prior order confirmed by the supplier.
3. Different conditions of purchase by the customer are only binding for the supplier if he has expressly accepted them.
4. Should individual provisions thereof be or become ineffective, the validity of the remaining provisions shall not be affected thereby.
1. Prices are quoted ex works, excluding freight, customs, subsidiary import charges and packaging, plus the legally provided value added tax.
2. Should relevant prices vary considerably after posting of the tender or confirmation of the order prior to delivery, customer and supplier shall consult each other and agree to a price variation and apportioning of the costs for forms and tooling.
3. Should the price be agreed on the basis of component weight, the final price shall be based on the weight of the approved outturn samples.
4. In case of new orders (follow-up orders) supplier shall not be bound to prices charged in former orders.
III. Obligation of delivery and acceptance
1. Delivery periods start upon reception of all documents required for execution of the order, of the down payment and the timely placing at disposal of materials as far as this was agreed upon. The delivery period is considered observed upon notification about readiness for shipment if the dispatch was delayed or rendered impossible without fault on the part of supplier.
2. If a delivery period agreed is not respected due to the supplier’s own fault the customer is, provided the supplier did not act with gross negligence or intent, entitled upon expiration of an appropriate additional period of time and under exclusion of any further claims to claim compensation for damage resulting from delay or to cancel the contract, provided the customer has indicated the rejection of the goods in the notice extending the deadline. Compensation for damage resulting from delay is limited to 5 % maximum of the part of delivery which was not executed in compliance with the contract.
3. Appropriate partial deliveries as well as reasonable divergences from the quantities ordered up to plus/minus 10 % are admissible.
4. In case of make-and-hold orders without agreement of terms, batch sizes and acceptance dates the supplier may demand binding determination thereof three months upon order confirmation at the Iatest. In case the customer does not comply with this request within three weeks the supplier is entitled to set an additional two-week period of time and upon expiration of this period he is entitled to withdraw from the contract or decline delivery and demand compensation for damages.
5. In case the customer does not comply with his obligations of acceptance the supplier is not bound to the regulations concerning emergency sale without affecting any other rights. The supplier may sell the delivery item in the open market upon prior notification to the customer.
6. If the supplier takes back his delivered goods as a gesture of goodwill, this assumes a faultless state of the goods, original packaging and carriage free delivery after having arranged a date. The supplier has the right to calculate adequate costs resulting from the taking back of these goods.
7. Force majeure entitles the supplier to delay the delivery by the duration of the obstruction and an appropriate time for adjustment or to withdraw from the contract completely or partially on account of the nonfulfilled part of the contract. Strike, lockout or unforeseeable unavoidable circumstances such as operating trouble which make timely delivery impossible for the supplier in spite of reasonable effort are treated as equivalent to force majeure; the supplier has to produce evidence thereof. This also applies when the aforementioned hindrance occurs during the default or with a sub-supplier. The customer may require the supplier to state within two weeks whether the supplier wishes to cancel the agreement or to deliver within a reasonable additional period of time. If the supplier does not make such statement the customer is entitled to cancel the part of the contract which was not fulfilled. The supplier will immediately notify the customer if a case of force majeure as stated in paragraph 1 occurs. The supplier is obliged to keep impairments for the customer as slight as possible, if necessary by releasing the moulds for the duration of the hindrance.
IV. Packaging, shipment, passing of risk
1. Unless otherwise agreed, the supplier shall choose the packaging, mode of dispatch, and shipping route at his discretion.
2. The risk also transfers to the customer for carriage paid delivery, as soon as the shipment has left the supplier’s works. In case of delays of shipment caused by the customer the risk already passes to the customer upon notification of readiness for shipment.
3. When requested in writing by the customer the goods will be insured at cost to the customer against breakage, damage to goods in transit and damage caused by fire.
V. Reservation of ownership
1. Deliveries remain the ownership of the supplier until all claims of the supplier against the customer will be fulfilled, also in case the purchase price for specially named claims has been paid. In case of current accounts the retained ownership of the deliveries (reserved goods) is considered as security for the balance. If in the context of the payment of the purchase price the supplier becomes liable on the basis of bills of exchange, the retention of title does not l lapse before the customer, being the drawee, honors the bill.
2. Treatment or processing by the customer is effected under exclusion of acquisition of ownership according to § 950 BGB (Federal common Law of Germany) upon order of the supplier; the supplier becomes co-owner of the goods thus produced in function of the ratio of the invoiced net amount of the supplier’s goods to the invoiced net amount of the goods to be treated or processed which, being reserved goods, serve as security for the claims of the supplier according to paragraph 1.
3. Further processing (in combination or addition) by the customer with other goods not owned by the supplier, §§ 947, 948 BGB (Federal common Law of Germany) are applicable, resulting in proportional co-ownership by the supplier in the resulting goods, which are now considered reserved ownership goods.
4. The customer is permitted to resell the retained goods only in the common course of business and under the condition that he also agrees upon a reservation of property rights with his customers, according to paragraphs 1 to 3. The customer is not authorized to any other disposition over the conditional commodity, in particular pledging or assignment.
5. In case of resale the customer hereby assigns until fulfillment of all claims of the supplier, all claims arising from resale and all other justified claims in relation to his customers including all secondary rights to the supplier. Upon the supplier’s request the customer is obliged to immediately give all information to the supplier and to remit all documents which are necessary for enforcement of the supplier’s rights in relation to the customer’s customers.
6. In case the reserved goods are resold by the customer after processing according to paragraph 2 and/or 3 together with other goods not belonging to the supplier, the assignment of the purchase-money claim according to paragraph 5 is only valid to the amount of the invoice value of the supplier’s reserved goods.
7. Should the value of the securities held by the supplier exceed the total billed value of the goods by more than 10% the supplier must release such securities to a commensurate value; the supplier may nominate the securities to be released.
8. Supplier must be notified immediately if reserved goods are garnished or seized by third parties. All intervention costs incurred in this connection shall at any rate be borne by the customer unless such costs are borne by third parties.
9. If the supplier, pursuant to the above regulations, exercises his reservation of property rights by taking back retained goods, he is entitled to privately sell the goods or have them auctioned. The value of the returned reserved ownership goods shall be as sold or auctioned and no higher than the agreed contract price. Additional claims for compensation of damages, in particular compensation for loss of earnings, remain unaffected hereby.
VI. Warranty and Liability for defects
1. The reference samples which the supplier shall submit to the customer for inspection on request are decisive for the quality and the design. The warranty of certain characteristics of the delivery item and of the performance of moulds must be made in writing on the order confirmation. The reference to technical standards serves only as a mere performance description. The warranty does not include the risk of damages consequential to defects inasmuch as the supplier, his managerial executives or vicarious agents have not acted with intent or gross negligence.
2. When the supplier has advised the customer beyond his contractual obligation, he only warrants the functionality and suitability of the supplied goods after prior express assurance. The criterion is the state of the art at the time of acceptance of the order.
3. The customer has to raise any complaint due to defects immediately, at the latest 2 weeks after receipt of the goods in writing. In the case of hidden defects, this term shall be extended to 1 week from their detection. In both cases all claims for defects shall become statute barred – insofar as not otherwise agreed – 6 months after receipt of the goods.
4. If a notice of defects is justified – with the type sample approved in writing by the customer being the criterion for quality and design – the supplier, at his discretion, is obliged to remedy the defect free of charge or to provide a free replacement. If the supplier fails to fulfil these obligations within a reasonable period, customer shall be entitled to demand a reduction in the price or to rescind the contract and demand reimbursement of the incidental costs (such as e.g. costs for installation and disassembly, transport costs). Any more extensive claims on the part of the customer shall be excluded, regardless of their legal ground. Replaced parts are to be returned to the supplier at his request and cost.
5. Arbitrary repairs and wrong handling shall result in forfeiture of all claims based on defects. Only in the event of urgent cases of the protection against unreasonably high damages or delay with the removal of defects, the Customer shall be entitled to cure the defect by himself or by a third party after prior notice and to demand from supplier the restitution of the necessary costs.
VII. General limitations of liability
In all cases, which differ from the conditions outlined above, and to which the supplier is obligated by reason of contractual or legal liability to pay compensation or reimbursement, his liability is limited only to cases in which he, his employees or sub-contractors are guilty of culpable intent, gross negligence or injury to life, limb and health.
VIII. Terms of payment
1. All payments must be made exclusively to the Supplier in € (EURO).
2. Unless otherwise agreed, the purchase price for deliveries or other services is payable with a 2 percent cash discount within 14 days or in full within 30 days after invoice date. Any cash discount presupposes the due settlement of all undisputed outstanding previous accounts. For payments with bill of exchange no cash discount is granted.
3. If the agreed date of payment has been exceeded, interest to the amount of the legal interest rate of 2% above the discount rate of the Bundesbank or the European Central Bank will be charged unless the supplier provides evidence that the interest rate charged by commercial banks for outstanding overdrafts is higher.
4. The right to decline bills of exchange and cheques shall be reserved. Cheques and bills of exchange eligible for rediscount are only accepted on account of payment, not instead of payment, all expenses in relation hereto have to be paid by the customer.
5. The customer may only set off a balancing claim against the supplier’s claims and assert a right of retention if the customer’s counterclaim is unchallenged or if a legally valid title exists.
6. Non-observance of terms of payment or circumstances which are justifying reasonable doubt concerning the creditworthiness of the customer, result in immediate maturity of all claims of the supplier. In this case the suppler is also entitled to claim payment in advance for outstanding deliveries, to withdraw from the contract after an appropriate period of grace and prohibit the customer from reselling goods and repossess at the customer’s expense any goods which have not been paid for.
IX. Moulds (tools)
1. The price for moulds contains as well the costs for one sample, but it does not contain the costs for test and processing procedures, nor costs incurred by customer initiated alterations. Any further samples required by the supplier are at his own costs.
2. Unless anything is agreed to the contrary, supplier is and remains owner of the moulds produced for the customer by the supplier himself or by a third party assigned by him. Moulds are used exclusively for the orders of the customer, as long as the customer meets his payment and acceptance obligations. The supplier is obliged to replace these moulds free of charge only if this is necessary to produce the quantity promised to the customer. The obligation of the supplier to retain moulds expires two years after the final parts delivery and following notification of the customer.
3. If it is agreed that the customer shall become the owner of the moulds, the ownership is transferred after the purchase price for the moulds has been paid. The handover of the moulds to the customer shall be replaced by the obligation of the supplier to retain them. Regardless of the customer’s legal right to recover possession and the lifespan of the moulds, supplier shall be entitled to sole ownership of the moulds until an agreed minimum number of units have been accepted and/or a certain length of time has passed. The Supplier must mark the moulds as the property of a third party and insure said property at the customer’s request and expense.
4. For moulds owned by the customer according to paragraph 3 and/or for moulds made available by the customer by way of lending the supplier’s liability is limited to the duty of care observed in his own affairs concerning safekeeping. Any costs incurred for such insurance and maintenance shall be borne by the customer. Supplier’s obligations shall expire in case the customer does not collect the moulds within a reasonable term upon completion of the order and supplier’s request to the customer to pick up the moulds. Until the customer has fulfilled his obligations in their entirety, the supplier has the right to retain the moulds in any case.
X. Delivery of materials
1. In case the customer supplies materials these are to be delivered at his expense and risk in due time and perfect quality with a reasonable extra quantity of at least 5 %.
2. If this requirement is not met, the delivery time shall be extended reasonably. Except for cases of force majeure, the customer shall bear the resulting additional costs, including those for the interruption of production.
XI. Intellectual property rights
1. In the event of Supplier having to deliver in accordance with drawings, models or samples, or using parts provided by customer, the customer shall warrant that these do not infringe the intellectual property rights of third parties. The supplier shall advise the customer of rights known to him. The customer has to release the supplier from any claims of a third party and pay compensation for any resulting damage. In case the supplier’s production or delivery is forbidden by a third party referring to a protective right of the third party, the supplier is entitled – without examination of the legal situation – to stop work until clarification of the legal situation by the customer and the third party.
2. Any drawings and samples provided to supplier without an order subsequently being placed shall be returned on request; otherwise, supplier shall be entitled to destroy those three months after issuing the quotation.
3. The supplier is entitled to the copy rights and possibly to the industrial property rights, and particularly to all rights of use and patent rights to the models, moulds and devices, drafts and drawings, made by him or a third party on behalf of him.
XII. Place of performance and place of jurisdiction
1. Place of performance is the place of the supplier’s works.
2. The place of jurisdiction is, at the discretion of the supplier, the location of the supplier factory or the registered office or headquarters of the customer.
3. The only law that shall apply to the contractual relationships shall be the law of the Federal Republic of Germany, under exclusion of the law of conflicts and the UN Convention on Contracts of the International Sale of Goods (CISG, UN agreement on purchasing rights).