GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF THE PLASTICS PROCESSING INDUSTRY
Area of application
The following terms and conditions shall apply only to entrepreneurs, legal entities under public law or a special fund under public law.
1. orders shall only become binding through the supplier’s order confirmation. Changes and additions shall be made in text form. All offers are subject to change unless they are designated as firm offers. 2.
2. these terms and conditions shall also apply to future business transactions in which no express reference is made to them, provided that they have been received by the purchaser in connection with an order previously confirmed by the supplier.
3. The Purchaser’s terms and conditions shall not apply unless expressly accepted by the Supplier.
4. Should individual provisions be or become invalid, this shall not affect the remaining provisions.
5. In case of doubt, the prices are ex works excluding freight. customs, import duties and packaging plus value added tax at the statutory rate.
6. If, after submission of the quotation or after confirmation of the order, the decisive cost factors change significantly until delivery, the supplier and the purchaser shall agree on an adjustment of the prices and the cost shares for molds.
7. If the price is agreed to be dependent on the weight of the parts, the final price shall be based on the weight of the approved outturn samples.
8. The supplier shall not be bound by previous prices in the case of new orders (= follow-up orders).III. Liefer-und Abnahmepflicht
9. delivery periods shall commence after receipt of all documents required for the execution of the order, the down 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 of readiness for dispatch if dispatch is delayed or impossible through no fault of the Supplier. 10.
10. If an agreed delivery period is not met due to the Supplier’s own fault, the Purchaser shall be entitled to claim compensation for delay or to withdraw from the contract after expiry of a reasonable grace period, unless the Supplier has acted with gross negligence or wilful misconduct, to the exclusion of any further claims. The compensation for delay shall be limited to a maximum of 5% of that part of the delivery which was not made in accordance with the contract. Withdrawal shall be excluded if the Purchaser itself is in default of acceptance. Reasonable partial deliveries as well as reasonable deviations from the order quantities of up to plus/minus 10% are permissible.
11. In the case of call-off orders without agreement on duration, production batch sizes and acceptance dates, the Supplier may demand a binding stipulation thereof no later than three months after confirmation of the order. If the Purchaser fails to comply with this request within three weeks, the Supplier shall be entitled to set a two-week period of grace and, upon expiry thereof, to rescind the contract and/or claim damages.
12. If the Purchaser fails to meet its acceptance obligations, the Supplier shall, without prejudice to any other rights, not be bound by the provisions on self-help sales, but may sell the delivery item on the open market after prior notification of the Purchaser.
13. 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 on account of the part not yet fulfilled. Force majeure shall be deemed to include strikes, lockouts or unforeseeable, unavoidable circumstances, e.g. operational disruptions, which make it impossible for the Supplier to deliver on time despite reasonable efforts; the Supplier shall furnish proof thereof. This shall also apply if the aforementioned hindrances occur during a delay or at a sub-supplier. The Purchaser may request the Supplier to declare within two weeks whether it intends to withdraw from the contract or to deliver within a reasonable period of grace. If he does not declare his intention, the Purchaser may withdraw from the unfulfilled part of the contract. The Supplier shall notify the Purchaser without undue delay if a case of force majeure as defined in paragraph 1 occurs. He shall keep any impairment of the Purchaser to a minimum, if necessary by surrendering the moulds for the duration of the impediment.
IV. Packaging, shipping, transfer of risk and default of acceptance
14. Unless otherwise agreed, the Supplier shall choose the packaging, mode of shipment and shipping route.
15. The risk shall pass to the Purchaser when the goods leave the Supplier’s works, even in the case of carriage-paid delivery. In the event of delays in dispatch for which the Purchaser is responsible, the risk shall pass as soon as the Purchaser is notified that the goods are ready for dispatch.
16. at the written request of the purchaser, the goods shall be insured at the purchaser’s expense against risks to be specified by the purchaser.
V. Retention of title
17. The Supplies shall remain the property of the Supplier until all claims of the Supplier against the Purchaser have been satisfied, even if the purchase price for specifically designated claims has been paid. In the case of a current account, the reserved title to the Supplies (Retained Goods) shall serve as security for the Supplier’s balance of the account. If, in connection with the payment of the purchase price, a liability of the Supplier under a bill of exchange is established, the retention of title shall not expire before the bill of exchange has been honored by the Purchaser as drawee.
18. Any processing or transformation by the Purchaser shall be carried out on behalf of the Supplier to the exclusion of the acquisition of title pursuant to § 950 of the German Civil Code (BGB); the Supplier shall become co-owner of the resulting item in proportion of the net invoice value of its goods to the net invoice value of the goods to be processed or transformed, which shall serve as reserved goods to secure the claims of the Supplier pursuant to paragraph 1.
19. In the event of processing (combination/mixing) with other goods not belonging to the Supplier by the Purchaser, the provisions of Sections 947, 948 of the German Civil Code (BGB) shall apply with the consequence that the Supplier’s co-ownership share in the new item shall now be deemed to be reserved goods within the meaning of these Terms and Conditions.
20. The Purchaser may resell the Retained Goods only in the ordinary course of business and on condition that it also agrees a retention of title with its customers in accordance with paragraphs (1) to (3). The Purchaser shall not be entitled to dispose of the Retained Goods in any other way, in particular by pledging them or assigning them as security.
21. In the event of resale, the Purchaser hereby assigns to the Supplier, until all claims of the Supplier have been satisfied, the claims and other justified claims against its customers accruing to it from the resale, together with all ancillary rights. At the Supplier’s request, the Purchaser shall immediately provide the Supplier with all information and documents required to assert the Supplier’s rights against the Purchaser’s customers.
22. If the reserved goods are resold by the Purchaser after processing in accordance with paragraphs 2 and/or 3 together with other goods not belonging to the Supplier, the assignment of the purchase price claim in accordance with paragraph 5 shall only apply to the amount of the invoice value of the reserved goods of the Supplier.
23. If the value of the securities existing for the Supplier exceeds the total claims of the Supplier by more than 10%, the Supplier shall be obliged to release securities of the Supplier’s choice at the request of the Purchaser.
24. The Supplier shall be notified without delay of any seizure or attachment of the reserved goods by third parties. Intervention costs arising therefrom shall in any case be borne by the Purchaser, unless they are borne by third parties. 25.
25. If the Supplier makes use of its retention of title by taking back goods subject to retention of title in accordance with the above provisions, it shall be entitled to sell the goods on the open market or have them auctioned. The assertion of the reservation of title and, in particular, the demand for return of the goods shall constitute a rescission of the contract. The goods subject to retention of title shall be taken back at the proceeds obtained, but at most at the agreed delivery prices. We reserve the right to assert further claims for damages, in particular for loss of profit.
VI. Liability for material defects
26. The quality and design of the products shall be determined by the reference samples which shall be submitted by the Supplier to the Purchaser for inspection upon request. The reference to technical standards serves to describe the performance and is not to be interpreted as a guarantee of quality.
27. If the Supplier has advised the Purchaser outside the scope of its contractual performance, it shall only be liable for the functionality and suitability of the delivery item if it has given express prior assurance.
28. notices of defects must be made in writing without delay. In the case of hidden defects, the complaint must be made immediately after discovery. In both cases, unless otherwise agreed, all claims for defects shall become time-barred twelve months after the transfer of risk. Insofar as longer periods are prescribed by law in accordance with § 438 Para. 1 No. 2 BGB, § 479 Para. 1 BGB and § 634a Para. 1 No. 2 BGB, these shall apply.
29. In the event of a justified notice of defect – whereby the reference samples approved in writing by the Purchaser determine the quality and workmanship to be expected – the Supplier shall be obliged to effect subsequent performance. If the Supplier fails to meet this obligation within a reasonable period of time or if the rectification of defects fails despite repeated attempts, the Purchaser shall be entitled to reduce the purchase price or to rescind the contract. Further claims, in particular claims for reimbursement of expenses or damages due to defects or consequential damages, shall only exist within the scope of the regulations on
VII. Replaced parts are to be returned to the supplier freight collect upon request.
30. Unauthorized reworking and improper handling shall result in the loss of all claims for defects. Only in order to prevent disproportionate damage or in the event of delay in remedying the defect by the Supplier shall the Purchaser be entitled, after prior notification of the Supplier, to remedy the defect and to demand reimbursement of the reasonable costs incurred.
31. Wear and tear caused by use in accordance with the contract shall not give rise to any warranty claims.
32. recourse claims pursuant to §§478, 479 BGB (German Civil Code) shall only exist if the claim by the consumer was justified and only to the extent provided by law, but not for goodwill provisions not agreed with the Supplier, and shall require compliance with the recourse beneficiary’s own obligations, in particular compliance with the obligations to give notice of defects.
VII. General limitations of liability
In all cases in which the Supplier, in deviation from the above conditions, is obligated to compensate damages or expenses on the basis of contractual or statutory claims, it shall only be liable to the extent that it, its executive employees or vicarious agents are guilty of intent, gross negligence or injury to life, body or health. Liability for culpable violation of essential contractual obligations shall also remain unaffected; however, liability shall be limited to the foreseeable damage typical for the contract except in the cases of sentence 1. A change in the burden of proof to the detriment of the purchaser is not associated with the above provisions.
VIII. Terms of payment
33. All payments shall be made in EUR (Euro) exclusively to the Supplier.
34. Unless otherwise agreed, the purchase price for deliveries or other services shall be payable with a 2% discount within 10 days and without deduction within 30 days of the invoice date. The granting of a cash discount is subject to the settlement of all previously due, undisputed invoices. No discount shall be granted for any payments by bill of exchange.
35. In the event that the agreed payment date is exceeded, interest shall be charged at the statutory rate of 8 percentage points above the respective prime rate of the ECB, unless the Supplier can prove higher damages. The Purchaser reserves the right to prove a lower damage.
36. the right to reject checks or bills of exchange is reserved. Cheques and rediscountable bills of exchange shall only be accepted on account of performance; all costs associated therewith shall be borne by the Purchaser.
37. the purchaser may only offset or assert a right of retention if his claims are undisputed or have been legally established.
38. Sustained non-compliance with payment terms or circumstances giving rise to serious doubts as to the creditworthiness of the Purchaser shall result in the immediate maturity of all claims of the Supplier. In addition, the Supplier shall be entitled in this case to demand advance payments for outstanding deliveries and to withdraw from the contract after the unsuccessful expiry of a reasonable period of grace.
IX. Molds (tools)
39. The price for molds also includes the costs for one-time sampling, but not the costs for testing and processing devices and for changes initiated by the purchaser. Costs for further sampling for which the supplier is responsible shall be borne by the supplier.
40. Unless otherwise agreed, the Supplier shall be and remain the owner of the moulds produced for the Purchaser by the Supplier himself or by a third party commissioned by him. Moulds shall only be used for orders placed by the Purchaser as long as the Purchaser meets its payment and acceptance obligations. The Supplier shall only be obliged to replace these molds free of charge if they are required to fulfill an output quantity assured to the Purchaser. The Supplier’s obligation to store the moulds shall expire two years after the last delivery of parts from the mould and prior notification of the Purchaser.
41. If, according to the agreement, the purchaser is to become the owner of the moulds, ownership shall pass to him after full payment of the purchase price for them. The handing over of the moulds to the purchaser is replaced by storage for the benefit of the purchaser. Irrespective of the Purchaser’s statutory claim to surrender of the moulds and of the life of the moulds, the Supplier shall be entitled to their exclusive possession until the termination of the contract. The Supplier shall mark the moulds as third-party property and insure them at the Purchaser’s request and expense.
42. In the case of molds owned by the Purchaser pursuant to Paragraph 3 and/or molds made available by the Purchaser on loan, the Supplier’s liability with regard to storage and maintenance shall be limited to the same care as in its own affairs. Costs for maintenance and insurance shall be borne by the Purchaser. The Supplier’s obligations shall lapse if, after completion of the order and a corresponding request, the Purchaser fails to collect the moulds within a reasonable period. As long as the customer has not fulfilled his contractual obligations in full, the supplier shall in any case have a right of retention to the molds.
X. Materials provided
43. If materials are supplied by the Purchaser, they shall be delivered in good time and in perfect condition at the Purchaser’s expense and risk with a reasonable quantity surcharge of at least 5%.
44. In the event of non-fulfilment of these conditions, the delivery period shall be extended accordingly. Except in cases of force majeure, the Purchaser shall also bear the additional costs incurred for interruptions in production.
XI. Industrial property rights and defects of title
45. If the Supplier has to deliver according to drawings, models, samples or using parts provided by the Purchaser, the Purchaser shall be responsible for ensuring that the property rights of third parties in the country of destination of the goods are not infringed thereby. The Supplier shall inform the Purchaser of any rights known to it. The Purchaser shall indemnify the Supplier against any claims of third parties and pay compensation for any damage incurred. If the Supplier is prohibited from manufacturing or supplying by a third party with reference to an industrial property right belonging to it, the Supplier shall be entitled – without examining the legal situation – to suspend work until the legal situation has been clarified by the Purchaser and the third party. If the Supplier can no longer reasonably be expected to continue the order due to the delay, he shall be entitled to withdraw from the contract.
46. Drawings and samples provided to the Supplier which have not led to an order shall be returned upon request; otherwise the Supplier shall be entitled to destroy them three months after submission of the offer. This obligation shall apply accordingly to the Purchaser. The party entitled to destroy the samples shall inform the contracting party of its intention to destroy the samples in good time before doing so.
47. The Supplier shall be entitled to the copyrights and, if applicable, industrial property rights, in particular all rights of use and exploitation to the models, molds and devices, drafts and drawings designed by it or by third parties on its behalf.
48. If there are other defects of title, No. VI shall apply accordingly.
XII. Place of performance and jurisdiction
49. The place of performance shall be the place of the supplying plant.
50. The place of jurisdiction shall be, at the Supplier’s option, the Supplier’s registered office or the Purchaser’s registered office, also for proceedings relating to documents, bills of exchange and checks.
51. German law shall apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (Federal Law Gazette 1989 p. 586) for the Federal Republic of Germany (Federal Law Gazette 1990 p. 1477) is excluded.
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