General sales terms and delivery conditions of the plastics processing industry

I. Application

  1. Orders become binding with the supplier’s confirmation of the order. Any changes or amendments shall be made in writing. All offers are subject to change unless they are referred to as binding offers.

  2. These conditions apply to permanent business relations and also to future commercial operations. Provided that the purchaser has received these conditions earlier with an order confirmed by the supplier, they will be not expressly referred to.

  3. Business conditions of the purchaser do not apply, unless the supplier explicitly acknowledges them.

  4. If individual provisions are or become invalid, all other terms and conditions remain unchanged.

II. Prices

  1. The prices are quoted ex works, excluding freight, customs, subsidiary import charges, and packaging, plus the legally provided value added tax.

  2. If the decisive cost factors change after submission of the quote or after confirmation of the order until delivery, supplier and purchaser will agree on an adjustment of the prices and the portions of costs for moulds.

  3. After an agreement has been reached that the price depends on the weight of the parts, the final price is determined by the weight of the approved patterns.

  4. New orders (= follow-up orders) do not bind the supplier to previous prices.

III. Obligation to take delivery and to supply goods

  1. Delivery dates commence after the documents required for execution of the order, the deposit and the supplies have been received in time, as far as agreed upon. With the notification of readiness for shipping the delivery date is considered to have been met, even if the shipment is delayed or impossible through no fault of the supplier.

  2. If a delivery date agreed upon is not met due to actual fault of the supplier, and if he has not acted wantonly negligent or deliberately, the purchaser is entitled to claim a compensation for delay or to withdraw from the contract after an appropriate respite, excluding further claims. The compensation for delay is limited to 5% of that part of the delivery, which has not been effected according to the contract. A withdrawal is impossible if the purchaser himself is in default of acceptance. The purchaser has the right to prove that more damage was done.

  3. Adequate partial deliveries and reasonable variations from the order quantities of more/less than 10% are admissible.

  4. For call orders without an agreement on terms, lot production sizes and purchase deadlines, the supplier can demand a binding agreement at the latest three months after confirmation of the order. If the purchaser does not comply with this demand within three weeks, the supplier is entitled to set a respite of two weeks and withdraw from the contract after expiration of this term and/or claim compensation.

  5. If the purchaser does not meet his obligation to take delivery, notwithstanding any further rights, the supplier is not bound to the regulations on self-help sale and can in fact privately sell the delivery item after previous notification of the purchaser.

  6. 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 non-fulfilled part of the contract. Equal to force majeure are strike, lock out or unforeseeable circumstances, i.e. operational disorders which make a timely delivery impossible for the supplier despite of reasonable endeavours. The supplier shall give evidence of that. This also applies if the above-mentioned obstructions occur during a delay or happen to a sub-supplier. The purchaser can ask the supplier to declare within two weeks if he wants to withdraw or deliver within an appropriate respite. If the latter does not respond, the purchaser can withdraw from the non-fulfilled part of the contract. In the event of force majeure, according to paragraph 1, the supplier will notify the purchaser immediately. The supplier shall minimize adverse effects for the purchaser, if need be, by handing over the moulds for the duration of the obstruction.

IV. Packaging, shipping, transfer of perils, and default of acceptance

  1. Unless otherwise agreed the supplier chooses packaging, dispatch type and route.

  2. When the goods have left the supplier, the risk will be borne by the purchaser, even if the delivery is free of carriage charges. In case of dispatch delays on the part of the purchaser, he will bear the risk already from the notification of dispatch.

  3. On written request of the purchaser the goods will be insured at his expense against risks to be listed by him.

V. Reservation of property rights

  1. The deliveries continue to be the property of the supplier until all claims the supplier is entitled to and may have against the purchaser have been met, even if the purchase price for specific claims has been paid. For open accounts, the reserved property in deliveries (goods subject to retention of title) is safeguarding the supplier’s open account. If the payment of the purchase price triggers an obligation for the supplier, the reservation of property rights does not expire before the buyer, being the drawee, honours the bill.

  2. According to § 950 BGB (German Civil Code), the treatment or processing of goods by the purchaser excludes acquisition of property on behalf of the supplier who becomes a co-proprietor of the item caused thereby, according to the ratio of the net invoice value of his goods to the net invoice value of the goods to be treated or processed, which serve as retained goods to safeguard the claims of the supplier, according to paragraph 1.

  3. If the purchaser processes (combining/mixing) the goods with other goods which do not belong to the supplier, the regulations of §§ 947, 948 BGB apply, with the result that the co-ownership share of the supplier in the new item is henceforth considered as retained goods for the purpose of such conditions.

  4. The purchaser is permitted to resell the retained goods 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 purchaser is not entitled to dispose otherwise of the retained goods, particularly not to pledge or assign them as security.

  5. In case of resale and until all claims have been met by the supplier, the purchaser assigns herewith his claims originating from the resale and other legitimate claims against his customers with all ancillary rights to the supplier. At the request of the supplier, the purchaser is obliged to provide every information and to hand out all documents required to enforce the supplier’s rights against the customers of the purchaser.

  6. If the retained goods are resold by the purchaser after processing, according to paragraph 2 and/or 3, together with other goods which do not belong to the supplier, the assignment of the purchase price demand, according to paragraph 5, applies only to the amount of the invoice value of the supplier’s retained goods.

  7. If the value of the actual supplier’s securities exceeds his total receivables by more than 10%, on request of the purchaser, the supplier is obliged in this respect to release securities at the supplier’s option.

  8. Garnishments or confiscations of the retained goods by third parties shall be notified to the supplier without delay. Investment costs arising out of that are in any case for account of the purchaser, unless they are defrayed by a third party.

  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 retained goods are taken back in the amount of the earned profit, not exceeding the contract prices agreed upon. Further entitlements to damages, especially loss of profit, remain reserved.

VI. Warranties for defects of quality

  1. Decisive for quality and workmanship of manufactures are the patterns, which are presented to the purchaser for review on request of the supplier. An indication of technical standards is a description of services and should not be interpreted as a guarantee of quality.

  2. If the supplier has advised the purchaser beyond his contractual services, he is only liable for the operational capability and suitability of the delivery item if this has been expressly and previously warranted.

  3. Defects shall be notified immediately in written. In the case of hidden defects, the notification of defect shall be assigned immediately after its discovery. In both cases all claims based on defects prescribe twelve months after the transfer of perils, except when otherwise stipulated. If longer periods are mandatory by law, according to § 438(1) No 2 BGB, 479(1) BGB and § 634a(1) No 2 BGB, these apply.

  4. In case of a justified notification of defects – where the patterns released in written by the purchaser determine the quality and workmanship to be expected – the supplier is obliged to perform supplementary. If he does not meet this obligation within a reasonable period of time or a rectification of the defect fails despite of several attempts, the purchaser is entitled to reduce the purchase price or to withdraw from the contract. Further claims, specifically claims for reimbursement of expenses or claims for damages due to direct harm or consequential harm caused by a defect can only be made within the framework of regulations under VII. Substituted parts shall be returned, postage unpaid, to the supplier on his request.

  5. Post-processing without authority and improper handling, result in losing all claims based on defects. Merely for defence against unreasonably great damages or in case of delay in the rectification of defects by the supplier, the purchaser is entitled to repair the goods and to demand substitution of appropriate costs after previously informing the supplier.

  6. Wear and tear in an ordinary scope entails no guarantee claims.

  7. Rights of recourse, according to §§ 478, 479 BGB exist only if the customer’s claims were justified and only in the legally prescribed scope. They do not apply, however, to ex gratia agreements, not agreed upon with the supplier, and imply the adherence to the personal duties of the person entitled to recourse, particularly the adherence to the duty to notify about defects in time.

VII. General liability limitations

  1. In all cases in which the supplier, contrary to the above conditions, on grounds of a contractual or legal basis for a claim, is obligated to pay compensation or reimburse expenses, he is only liable as far as he, his executive staff or assistants are accused of intent, gross negligence or death or bodily injury. Liability regardless of negligence or fault, according to the Product Liability Act, will remain unaffected. The liability for culpable injury or breach of principal contractual obligations also remains unaffected; liability is limited in this respect, however, to foreseeable contract coherent damage, excluding S.1 cases. The abovementioned provisions shall not constitute an amendment of the burden of proof to the detriment of the purchaser.

VIII. Terms of payment

  1. All payments must be made exclusively to the supplier in € (EURO).

  2. Except when otherwise stipulated, 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. Provided that all earlier, due and undisputed invoices have been settled the discount will be granted. A discount will not be granted for possible payments by bill.

  3. If the agreed date of payment has been exceeded, interest to the amount of the legal interest rate of 8% above the respective prime rate of the ECB will be charged unless the supplier provides evidence of a higher loss. The purchaser has the right to prove that the damage was lower.

  4. Rights to refuse checks or bills are reserved. Checks and rediscountable bills are only accepted on account of performance, all costs involved are at the expense of the purchaser.

  5. The purchaser can only offset or assert retention rights if his claims are undisputed or bindingly established in court.

  6. The persistent failure to comply with conditions of payment or circumstances which give reason to serious doubts as to the creditworthiness of the purchaser, result in the immediate maturity of all outstanding debts in favour of the supplier. Moreover, the supplier is entitled in this case to request advance payments for deliveries still due and to withdraw from the contract after the unsuccessful expiration of an adequate time limit.

IX. Moulds (Tools)

  1. The price for moulds also includes the costs for a one-time sampling, however, not the costs for testing and processing devices or for changes prompted by the purchaser. Costs for further samplings initiated by the supplier are at his expense.

  2. Except when otherwise stipulated, the supplier is and remains owner of the moulds produced for the purchaser by the supplier himself or by a third party assigned by him. Moulds are only used for orders of the purchaser as long as the purchaser meets his obligations to pay and to accept. The supplier is only obligated to replace these moulds free of charge if they are required for meeting a mould life warranted to the purchaser. The supplier’s custody obligation expires two years after the last delivery of parts from the mould and after previous notification of the purchaser.

  3. If, according to agreement, the purchaser shall become the owner of the moulds, the property passes into the ownership of the purchaser after their purchase price has been paid in full. The transfer to the purchaser is substituted by custody on behalf of the purchaser. Irrespective of the supplier’s legal obligation to pass over the moulds and of the durability of the moulds, the supplier is entitled to their exclusive possession until expiration of the contract. The supplier shall mark the moulds as third party property and insure them on request of the purchaser at the latter’s expense.

  4. For the purchaser’s own moulds, according to paragraph 3, and/or for the purchaser’s moulds on loan, the supplier’s liability regarding custody and maintenance is limited to the same diligence applied to personal matters. The purchaser shall pay the costs for maintenance and insurance. The obligations of the supplier terminate if, after completion of the order and a respective request, the purchaser fails to collect the moulds within an appropriate period of time. Until the purchaser has fulfilled his obligations in their entirety, the supplier has the right to retain the moulds in any case.

X. Supplies

  1. If the purchaser furnishes equipment, it has to be delivered in time and in a flawless condition at his expense and risk with an adequate quality premium of at least 5%.

  2. In the event of non-compliance with these requirements, the delivery period will extend appro-priately. With the exception of force majeure, the purchaser bears the respective additional costs, including process interruptions.

XI. Industrial property rights and defects of title

  1. If the supplier shall deliver according to drawings, models, samples or parts supplied by the purchaser, the latter is responsible for the non-violation hereby of third party rights in the country of the goods’ destination. The supplier shall advise the purchaser of rights known to him. The purchaser shall exempt the supplier from third party claims and pay damages for the loss incurred. If a third party prohibits production or delivery of the supplier to assert a trade mark right, the supplier is entitled to a cessation of work until the legal situation has been clarified by the pur-chaser and the third party without verification of the legal situation. If due to the delay it should become unreasonable to carry out the order, the supplier is entitled to rescission.

  2. The drawings and samples entrusted to the supplier for parts of the order which were not followed through will be returned on request; otherwise he is entitled to destroy them three months after submission of the quote. This obligation equally applies to the purchaser. The party entitled to destruction shall inform the contracting partner in due time about the intent.

  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.

  4. If there should be other defects of title, No VI applies respectively.

XII. Place of performance and jurisdiction

  1. Place of performance is the supplier’s place of business.

  2. Area of jurisdiction is at the supplier’s choice, either his or the purchaser’s place of business, also for claims to be asserted during the procedure of producing documentary evidence and proceedings based on promissory notes, bills of exchange and checks.

    German law applies exclusively. The application of the United Nations Convention on Contracts for the National Sale of Goods, dated 11 April 1980 (BGB 1989 p. 586), for the German Federal Republic (BGB 1990 p. 1477), is excluded.