General Terms and Conditions of Sale and Delivery (General Terms and Conditions) PRO-plast Kunststoff GmbH
Section 1 Scope of application
- All deliveries and the services associated with them shall be provided solely on the basis of these terms and conditions of sale and delivery. Any reference by the purchaser to its own terms and conditions is hereby excluded. We shall only recognise the terms and conditions of the purchaser that contradict or deviate from our terms and conditions of sale if we have expressly agreed to such terms and conditions in writing. These terms and conditions of sale shall apply exclusively to companies, legal entities under public law or special funds under public law within the meaning of Section 310(1) of the German Civil Code (the “BGB”).
- These terms and conditions of sale shall also apply to all future transactions with the purchaser, insofar as they are legal transactions of a similar nature.
- Individual agreements concluded with the purchaser in specific instances (including collateral agreements, supplementary agreements and amendments) shall always take precedence over these terms and conditions of sale. A written contract or our written confirmation on the order confirmation shall be decisive for the content of such agreements, unless there is evidence to the contrary.
- All legally relevant declarations and notices that the contractor needs to submit to us after the conclusion of the contract (e.g. setting of deadlines, reminders, declaration of withdrawal) must be made in writing to be effective. Insofar as these terms and conditions require written declarations to be provided, e-mail, fax or electronic declarations within the scope of standard business practices shall also be sufficient for compliance with this form. This shall not affect any statutory formal requirements and further evidence, particularly if there is doubt as to the legitimacy of the person making the declaration.
Section 2 Offer and conclusion of a contract
Our offers are always subject to change, do not exclude an intermediate sale and are to be understood as an invitation to the purchaser to make a contractual offer. A contract shall be concluded after the purchaser has placed an order (offer) and we have accepted/confirmed the order in writing. If this deviates from the order, it shall be deemed to be a new offer by us which is not binding.
We reserve the right to exceed or fall short of the quantities actually delivered by up to ten percent in comparison to the confirmed quantities and to invoice accordingly. Unless otherwise agreed, the statutory provisions shall apply in the event of an excess or shortfall of more than ten percent.
The qualities, delivery dates and quantities specified by us shall in all cases be subject to us receiving proper, punctual and sufficient deliveries from our suppliers. If we are in default of delivery, the purchaser shall be entitled to withdraw from the contract in accordance with the statutory requirements.
Section 3 Documents provided
We shall retain the ownership and copyright of all documents – including those in electronic form – provided to the purchaser in connection with placing the order, such as calculations, drawings etc. Unless the purchaser has obtained our express written consent, these documents shall not be made available to third parties.
Section 4 Prices and payment
- Unless otherwise agreed in writing, our prices in effect at the time of delivery shall be ex works including our packaging, plus the currently applicable statutory VAT. (Additional) costs due to additional packaging at the request of the purchaser shall be invoiced separately.
- Payment of the purchase price shall be made exclusively to the account specified on the invoice. The deduction of discounts shall only be permitted if specifically agreed in writing. Payment by bills of exchange shall not be permitted unless expressly agreed otherwise.
- Unless otherwise agreed, the purchase price shall be paid within 30 days of the invoice being issued. Punctual payment shall only be deemed to have been made if we possess the full value of the money in our specified account on the due date. Failure to pay by the due date shall constitute a material breach of the contractual obligations. Interest on arrears shall be charged at a rate of 8% above the respective base rate p.a. We reserve the right to claim additional damages due to the default.
- The failure to pay invoices that are due or other circumstances that indicate a significant deterioration in the financial circumstances of the purchaser after the conclusion of the contract shall result in us being entitled to request immediate payment of all our claims based on the same legal relationship. If, despite a corresponding request, the purchaser is not prepared to effect payment in advance or to provide suitable security for the performance of the purchaser’s obligations, we shall be entitled to withdraw from the contract, insofar as we have not yet performed our contractual service.
- In the event that our prices for the product to be delivered or the terms of payment are changed in general between the conclusion of the contract and delivery, we shall be entitled to apply the prices or the terms of payment applicable on the day of delivery. In the event of a price increase, the purchaser shall be entitled to withdraw from the contract within 14 days of being notified of the price increase, unless the price increase is based solely on an increase in the freight charge. The right of withdrawal shall not apply to long-term delivery contracts (on-going contracts).
Section 5 Rights of retention
The purchaser shall only be entitled to exercise a right of retention if the purchaser’s counter claim is based on the same contractual relationship.
Section 6 Transfer of risk on dispatch
- The purchaser shall immediately take delivery of goods that have been communicated as being ready for dispatch, failing which we shall be entitled, at our discretion, to dispatch them at the purchaser’s expense or – if necessary, to store them outdoors. One week after the commencement of storage, the goods shall be deemed to have been delivered and may be invoiced. In this event, we shall not be liable for any damage to the goods.
- In the event of collection by the purchaser, the risk of accidental destruction, loss or damage of the goods shall transfer to the purchaser upon notification that the goods are ready for collection. In all other cases, the risk shall transfer at the time at which we hand over the goods to the carrier. In the absence of specific instructions, the selection of the means of transport and the transport route shall be at our discretion. Additional costs arising from the purchaser’s special shipping requests shall be borne by the purchaser.
- If the goods are dispatched to the purchaser at the latter’s request, the risk of accidental loss or accidental deterioration of the goods shall transfer to the purchaser upon dispatch to the purchaser, at the latest upon leaving the factory/warehouse. This shall apply irrespective of whether the goods are dispatched from the place of performance or who is responsible for the freight costs.
- The recipient of the goods shall immediately inspect incoming goods for any obvious transport damage. If obvious transport damage is detected, this shall be recorded in writing on the delivery documents in the presence of the deliverer/driver and signed by the deliverer/driver.
Section 7 Force majeure and other hindrances
All events and circumstances that are beyond our control, such as natural disasters, pandemics, war, labour disputes, raw material and energy shortages, traffic and operational disruptions, damage due to fire and explosion, and orders by public authorities, shall release us from our contractual obligations for the duration of the disruption and for a reasonable start-up period to the extent of its impact. In these cases, we shall also not be obliged to procure the goods from third parties. The first and second sentences shall also apply insofar as the events and circumstances make the execution of the affected transaction uneconomical for us in the long term or insofar as they exist at our suppliers. If these events continue for more than three months, both the purchaser and we shall be entitled to withdraw from the contract with regard to the delivery quantity affected by the disruption, without any claim for damages.
Section 8 Retention of title
- The delivered goods (goods subject to retention of title) shall remain our property until all our present and future claims against the purchaser have been fulfilled, including all claims for the balance of a current account. If the purchaser breaches the contract – in particular if the purchaser is in arrears for the payment of a claim for remuneration – we shall be entitled to withdraw from the contract after having granted a reasonable period of grace for performance. The transport costs incurred for the return of the goods shall be borne by the purchaser. If we take back the goods subject to retention of title, this shall already constitute a withdrawal from the contract. If we seize the goods subject to retention of title, this shall also constitute a withdrawal from the contract. We shall be entitled to recycle goods subject to retention of title that we have taken back. The proceeds of the recycling shall be offset against the amounts owed to us by the purchaser after we have deducted a reasonable amount for the costs of the recycling.
- The purchaser shall treat the goods subject to retention of title with care. The purchaser shall insure them adequately at replacement value at the purchaser’s expense against fire, water damage and theft. If maintenance and inspection work is necessary, the purchaser shall carry this out in punctually at its own expense.
- The purchaser shall be entitled to use the goods subject to retention of title and to resell them in the ordinary course of business, provided the purchaser is not in default of payment. However, the purchaser shall not be entitled to pawn the goods subject to retention of title or assign them by way of security. The purchaser hereby assigns to us by way of security and in full the purchaser’s claims for payment against its customers arising from the resale of the goods subject to retention of title and those claims of the purchaser in respect of the goods subject to retention of title arising from any other legal reason against its customers or third parties (in particular claims arising from tort and claims for insurance benefits), including all claims for the balancing of a current account. We hereby accept this assignment.
The purchaser shall be entitled to collect these claims that have been assigned to us in the purchaser’s own name and for its own account for as long as we do not revoke this authorisation. Our right to collect these claims ourselves shall not be affected by this; however, we shall not assert these claims ourselves and shall not revoke the collection authorisation as long as the purchaser duly complies with its payment obligations.
However, if the purchaser breaches the contract – in particular if the purchaser is in default of a claim for payment – we shall be entitled to demand that the purchaser informs us of the assigned claims and the respective debtors, notifies the respective debtors of the assignment and provides us with all the documents and information that we require to enforce the claims.
- Any processing or transformation of the goods subject to retention of title by the purchaser shall always be carried out on our behalf. If the goods subject to retention of title are processed together with other materials that do not belong to us, we shall acquire co-ownership of the new object in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the other processed materials at the time of processing. Furthermore, the same provisions that apply to the goods subject to retention of title shall apply to the new object created by processing.
If the goods subject to retention of title are inseparably combined or mixed with other materials that do not belong to us, we shall acquire co-ownership of the new object in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the other combined or mixed materials at the time of combination or mixing. If the goods subject to retention of title are combined or mixed in such a way that the purchaser's object is to be regarded as the main object, the purchaser and we hereby agree that the purchaser shall transfer proportional co-ownership of this object to us. We hereby accept this transfer.
The sole ownership or co-ownership of an object that has arisen in this way shall be retained by the purchaser on our behalf.
- In the event of the goods subject to retention of title being seized by third parties or in other interventions by third parties, the purchaser shall draw attention to our ownership and shall notify us immediately in writing so that we can enforce our rights of ownership. If the third party is unable to reimburse the legal or other costs incurred by us in this regard, the purchaser shall be liable for such costs.
- We shall be entitled to inspect the goods subject to retention of title or the new object at any time and to identify them accordingly. The purchaser shall grant us access to their premises for this purpose.
- At the request of the purchaser, we shall be obliged to release securities to which we are entitled insofar as their realisable value exceeds the value of our unpaid claims against the purchaser by more than 10%. We shall however be entitled to select which securities are to be released.
Section 9 Product quality, samples and specimens, guarantees, technical advice
- The agreed and assured quality of the goods shall be the quality that has been expressly and contractually agreed in writing in the course of the respective individual order. The quality described in our product descriptions, specifications and labels shall not automatically be deemed to be the contractually agreed quality. Public statements, promotional recommendations or advertising claims made by us shall not constitute quality specifications or a use as envisaged in the contract.
- The properties of samples or specimens shall also only be binding if they have been expressly and contractually agreed in writing in the course of the respective individual order.
- Information on the quality, durability and properties as well as any other information provided, insofar as such information has been contractually agreed, shall always only be properties that we ensure within the scope of these General Terms and Conditions of Sale and Delivery. They shall not however constitute a guarantee.
In the case of plastic regrind and pellets, minor impurities as well as slight deviations and variations in colour shall not constitute a defect and shall not justify a complaint.
Insofar as we have reprocessed and then delivered used plastics (plastic regrind or pellets etc.) on commission or for our own account, we shall only be liable for the professional reprocessing thereof. Beyond this, we shall not be liable for defects of any kind in the delivered goods, unless a specific quality was guaranteed in writing beforehand.
- Even if the quality of the goods has been contractually agreed, this shall not release the purchaser from checking the usability of the goods for the purpose intended by the purchaser. We shall not under any circumstances provide any warranty whatsoever or assume any liability whatsoever with regard to the usability for a specific purpose.
- The quality of the goods described in our product descriptions, drawings and illustrations is provided for purposes of general information and may be changed by us at any time without prior notice.
- The purchaser shall be solely responsible for complying with the existing regulations for the storage and use of the goods and for ensuring that they are stored and used in a proper, appropriate and professional manner.
- In the event that we provide consultancy services, these shall be provided to the best of our knowledge at the time of the consultancy services. All specifications and information about the suitability and application of the delivered goods, whether they are provided orally or in writing, shall be non-binding and shall not release the purchaser from checking each delivery for its suitability for the intended use before processing.
Section 10 Warranty, notice of defects and limitation of liability
- The purchaser’s warranty rights shall be subject to the purchaser having duly fulfilled its obligations to inspect the goods and give notice of any defect in accordance with Section 377 of the German Commercial Code. In any event, we shall only be liable for intentional acts and gross negligence.
- Claims for defects shall lapse 12 months after delivery of the goods by us to the purchaser. The statutory period of limitation shall apply to claims for damages in the event of intentional acts and gross negligence as well as injury to life, body and health arising from an intentional or negligent breach of duty by the user. Insofar as the law prescribes longer periods in accordance with Section 438(1) No. 2 of the BGB (buildings and items for buildings), Section 445b of the BGB (right of recourse) and Section 634a(1) of the BGB (construction defects), these periods shall apply. Our consent shall be obtained before any goods are returned.
- If, notwithstanding all due care having been taken, the delivered goods have a defect that was already present at the time of the transfer of risk, we shall, subject to notice of the defect having been given within the prescribed period, either repair the goods or deliver replacement goods at our discretion. The purchaser shall always grant us a reasonable period of grace for supplementary performance. We shall however in any event be released from the obligation to deliver goods free of defects (replacement goods) by way of supplementary performance.
- The purchaser shall have no claims for defects in respect of insignificant deviations from the agreed quality, an insignificant impairment of usability, natural wear and tear as well as in respect of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials, defective construction work, an unsuitable building site or due to particular external influences which were not provided for in the contract. If the purchaser or third parties carry out improper repair work or modifications, the purchaser shall also have no claims for defects for these and the resulting consequences.
- Claims by the purchaser for the expenses arising from the supplementary performance, in particular transport, travel, labour and material costs, shall be excluded to the extent that such expenses have increased because the goods delivered by us have subsequently been moved to a place other than the purchaser’s premises.
- Our liability shall be limited to cases of intentional acts, bad faith, claims under the German Product Liability Act, the lack of a quality guaranteed by us and for damages arising from injury to life, body or health in accordance with the statutory provisions. If we are guilty of gross negligence, our liability shall be limited to the foreseeable damage typical for the contract.
In cases of ordinary negligence, our liability for damages in lieu of performance (Section 281 of the BGB) shall be excluded. In all other cases of ordinary negligence, irrespective of the legal grounds, our liability shall be limited to cases in which we have breached a material contractual obligation, i.e. an obligation the fulfilment of which is essential for the proper performance of the contract and the fulfilment of which the purchaser regularly relies on and on which it is entitled to rely. In this event, our liability shall also be limited to the foreseeable damage typical for the contract. Notwithstanding the above, our liability for damages caused by delay due to ordinary negligence shall be limited to 5% of the value of that part of the total delivery that cannot be used on time or as agreed due to the delay.
Unless the above provisions provide otherwise, any further liability for damages or reimbursement of expenses, regardless of the legal basis, shall be excluded.
The preceding provisions on liability shall apply mutatis mutandis if the purchaser claims reimbursement of expenses instead of damages.
Section 11 Miscellaneous
- This contract and the entire legal relationship between the parties shall be governed by the law of the Federal Republic of Germany, excluding uniform international law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
- The place of performance and the exclusive place of jurisdiction in respect of all disputes arising from this contract shall be our place of business, unless otherwise specified in the order confirmation.
- All agreements concluded by the parties for the purpose of implementing this contract have been recorded in writing in this contract.
- If any provision of these General Terms and Conditions and the other agreements concluded is or becomes invalid, this shall not affect the validity of the other provisions of the contract.
PRO-plast Kunststoff GmbH; Feldstrasse 16 D; 64331 Weiterstadt; Deutschland; Phone:.0049 6151 3093-0; E-Mail: email@example.com
XV2003 Stand 11/2020