General terms and conditions
Terms of delivery and payment
Scope of application
The following terms and conditions shall apply only to merchants, if the contract is part of the operation of their trade, legal entities under public law or a special fund under public law.Application
Orders shall only become binding with regard to the type and scope of delivery upon confirmation of the order by the supplier. Changes and additions must be made in writing.
In the case of continuous business relations, these terms and conditions shall also apply to future transactions in which no express reference is made to them if they were agreed by the partners in an earlier order. If provisions of the Purchaser or the Supplier to the contrary are to supersede these General Terms and Conditions, they must be expressly agreed by the partners. Should individual provisions be or become invalid, this shall not affect the remaining provisions.
The Purchaser's terms and conditions of purchase shall only be binding on the Supplier if they are expressly accepted by the Supplier.
Prices are ex works excluding packaging plus value added tax at the statutory rate.
If the dependence of the price on the partial weight has been agreed, the final price shall result from the weight of the released outturn samples.
Delivery and acceptance obligations
Delivery periods shall commence upon receipt of all documents required for the execution of the order, the agreed down payments and timely provision of materials. The delivery period shall be deemed to have been met upon notification of readiness for dispatch if dispatch is impossible through no fault of the Supplier.
If an agreed delivery period is not met due to the Supplier's own fault, the Purchaser shall be entitled, to the exclusion of any further claims, to claim compensation for delay after expiry of a reasonable period of grace or to withdraw from the contract if the Purchaser has pointed out the refusal of performance when setting the period of grace. The compensation for delay shall amount to ½% for each week of delay, in total not more than 5%, of the value of that part of the delivery which has not been made in accordance with the contract.
Reasonable partial deliveries as well as deviations from the order quantities of up to ± 10% are permissible.
The supplier is obliged to accept follow-up orders with reasonable delivery times as long as he has the right of possession of the customer's molds or the obligation to store his own molds bound to the customer. This obligation does not include any commitment to previous price agreements.
In the case of call-off orders without agreement on duration, production batch sizes and acceptance dates, the supplier may demand a binding stipulation in this respect no later than 3 months after confirmation of the order. If the Purchaser fails to comply with this request within 3 weeks, the Supplier shall be entitled to set a 2-week grace period and, after expiry thereof, to withdraw from the contract or to reject the delivery and claim damages.
Events of force majeure on the part of the supplier or his sub-suppliers shall extend the delivery period appropriately. This shall also apply in the event of interventions by public authorities, difficulties in the supply of energy and raw materials, strikes, lock-outs and unforeseeable delivery difficulties, provided that the Supplier is not responsible for them. The Supplier shall notify the Purchaser thereof without delay. The Supplier shall keep any impairment of the Purchaser as low as possible, if necessary by surrendering the moulds for the duration of the impediment.
Provision of materials
If materials are supplied by the purchaser, they must be delivered on time and in perfect condition at the purchaser's expense and risk with a reasonable quantity surcharge of at least 5%.
If these conditions are not met, 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.
Packaging, dispatch, transfer of risk
Unless otherwise agreed, the Supplier shall choose the packaging and mode of shipment at its best discretion.
Even in the case of carriage paid delivery, the risk shall pass to the Purchaser when the goods leave the Supplier's works. 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.
At the written request of the purchaser, the goods shall be insured at the purchaser's expense against damage in storage, breakage, transport and fire.
Retention of Title
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.
Any processing by the Purchaser shall be carried out on behalf of the Supplier to the exclusion of the acquisition of ownership pursuant to § 950 BGB; the Supplier shall remain the owner of the item thus created, which shall serve as reserved goods to secure the claims of the Supplier pursuant to 1.
In the event of processing (combination/mixing) with other goods not belonging to the Supplier by the Purchaser, the provisions of §§ 947, 948 BGB shall apply with the consequence that the co-ownership of the Supplier in the new item shall now be reserved goods within the meaning of these Terms and Conditions.
The Purchaser may only resell the Retained Goods in the ordinary course of business on condition that it also agrees with its customers on a retention of title pursuant to 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.
In the event of resale, the Purchaser herewith assigns to the Supplier, until all claims of the Supplier have been satisfied, all claims and other claims against its customers arising from the resale, including all ancillary rights. At the Supplier's request, the Purchaser shall provide the Supplier with all information and documents required to assert the Supplier's rights against the Purchaser's customers.
If the reserved goods are resold by the Purchaser after processing pursuant to 2 and/or 3 or together with other goods not belonging to the Supplier, the assignment of the purchase price claim pursuant to 5 shall only apply to the amount of the invoice value of the reserved goods of the Supplier.
If the value of the securities existing for the Supplier exceeds its total claims by more than 10%, the Supplier shall be obliged to release securities of the Supplier's choice at the Purchaser's request.
The Supplier shall be notified immediately of any seizure or attachment of the reserved goods by third parties. Any resulting intervention costs shall in any case be borne by the Purchaser.
If the Supplier makes use of its reservation of title by taking back reserved goods in accordance with the above provisions, it shall be entitled to sell the goods on the open market or have them auctioned. The goods subject to retention of title shall be taken back at the proceeds obtained, but at most at the agreed delivery prices. Further claims for damages, in particular loss of profit, remain reserved.
Terms of payment
All payments are to be made in EURO exclusively to the supplier.
Unless otherwise agreed, the purchase price ) for molds shall be paid net 50% upon confirmation of the order and 50% 30 days after presentation of the outturn samples in accordance with the contract. Upon confirmation of change orders by the purchaser prior to completion of the moulds, all costs incurred up to that point shall be reimbursed to the extent that they exceed the down payment.
b) for partial deliveries or other services payable with 3% discount for advance payment or cash on delivery, with 2% discount within 14 days and without discount within 30 days after date of invoice. The granting of a cash discount is subject to the settlement of all invoices due earlier.
If the payment dates are exceeded, interest will be charged at a rate of 2% above the respective Bundesbank discount rate, unless the supplier can prove higher debit interest.
Cheques and rediscountable bills of exchange shall only be accepted on account of performance; all costs associated therewith shall be borne by the Purchaser. Offsetting and assertion of a right of retention due to any counterclaims of the Purchaser disputed by the Supplier shall not be permissible.
Non-compliance with payment terms or circumstances which give rise to serious doubts about the creditworthiness of the Purchaser shall result in the immediate maturity of the Supplier's claims. In addition, the Supplier shall be entitled to demand advance payment for outstanding deliveries and, after a reasonable period of grace, to withdraw from the contract or to claim damages for non-performance, furthermore to prohibit the Purchaser from reselling the goods and to recover any goods not yet paid for at the Purchaser's expense.
The price for the molds also includes the sampling costs, but not the costs for testing and processing devices or for modifications initiated by the purchaser.
Unless otherwise agreed, the Supplier is and remains the owner of the molds produced for the Purchaser by the Supplier itself or by a third party commissioned by it. These 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 2 years after the last delivery of parts from the mould and prior notification of the Purchaser. In the offer and in the order confirmation it must be stated whether paid mold cost shares are to be refunded to the purchaser with 5% of the net part deliveries.
If, according to the agreement, the purchaser is to become the owner of the moulds, the ownership shall be transferred to him after payment of the purchase price for the moulds. The transfer of the molds to the purchaser is replaced by the supplier's obligation to keep the molds. Irrespective of the Purchaser's statutory claim to surrender and of the service life of the molds, the Supplier shall be entitled to exclusive possession of the molds until a minimum quantity to be agreed upon has been accepted and/or until the expiry of a certain period of time. The Supplier shall mark the molds as third-party property and, at the request of the Purchaser, insure them at the Purchaser's expense.
In the case of molds owned by the Purchaser in accordance with Clause 3 and/or molds provided by the Purchaser on loan, the Supplier's liability with regard to storage and care 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 the Purchaser fails to collect the moulds after completion of the order and a corresponding request to do so. As long as the purchaser has not fulfilled his contractual obligations in full, the supplier shall in any case have a right of retention to the moulds.
Liability for defects
If the supplier has advised the purchaser, he shall only be liable for the functionality and suitability of the plastic part if he has given an express written assurance.
Notification of defects must be made in writing without delay, at the latest 2 weeks after receipt of the delivery. In the case of hidden defects, this period shall be extended to 1 week after discovery, but no longer than 6 months after receipt of the goods.
In the event of a justified notice of defects, whereby the reference samples approved in writing by the Purchaser shall be decisive for quality and design, the Supplier shall be obligated, at his discretion, to rectify the defect or to make a replacement delivery free of charge. If the Supplier fails to meet these obligations within a reasonable period of time, the Purchaser shall be entitled to declare a reduction in the purchase price, rescission of the contract or cancellation of the contract. Further claims are excluded, unless there is intent or gross negligence. Replaced parts are to be returned to the supplier freight collect upon request.
Unauthorized reworking and improper handling shall result in the loss of all claims for defects. Only in order to prevent disproportionately great damage or in the event of delay in rectification of the defect by the Supplier shall the Purchaser be entitled, after prior notification of the Supplier, to rectify the defect and to demand reimbursement of the reasonable costs incurred.
Industrial property rights
The Purchaser shall be liable to the Supplier for the freedom of the supplies and services ordered from third parties' industrial property rights, shall indemnify the Supplier against all corresponding claims and shall compensate the Supplier for any damage incurred.
Designs and construction proposals of the Supplier may only be passed on with the Supplier's approval.
Place of performance and jurisdiction
The place of performance shall be the place of the supplier's works.
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 cheques.
German law shall apply exclusively. The application of the Uniform Laws of 17 July 1973 on the International Sale of Goods (BGBI. I p. 856) and on the Formation of Contracts for the International Sale of Goods (BGBI. I p. 868) is excluded.