General Terms and Conditions of Trade, Delivery and Payment of formoplast Kunststofftechnik GmbH, valid from 1st of August 2013
1. General remarks
Solely the conditions following below apply to all our quotations, contracts and consignments. By placing an order the customer (party ordering) declares its acceptance of these terms and conditions to their full extent. The customer’s (party ordering) terms and conditions of trade (purchasing conditions) are not accepted unless they have been agreed upon in writing before.
2. Conclusion of contract
Our quotations are always without engagement. Orders are not considered accepted until we have confirmed them in writing. For express deliveries the invoice shall be considered the acknowledgement of order.
In general, our prices are to be understood ex works Dornstadt excluding packing, postage, freight, other dispatch expenses, insurance, customs duties and assembly. Value added tax is added to the agreed prices. It is invoiced separately.
We reserve the right to appropriately adjust our prices to the cost situation on the day of delivery if we have not effected performance within 4 months of conclusion of contract.
Delivery to the customer is subject to the condition that Formoplast receives sufficient supplies itself.
The observance of the agreed delivery periods depends on undisturbed and orderly work processes in our and our suppliers’ houses. Reasonable part deliveries must not be rejected by the customer.
Events of force majeure, interference by the authorities, problems in the supply of energy and raw materials, strikes, lock-outs and unforeseeable obstacles to delivery shall extend the delivery period appropriately. In the case of other unforeseeable or serious events beyond the supplier’s control, it shall be released from its delivery obligations for the time period of the disturbance and to the extent of its effect.
5. Packing, dispatch and passing of risk
Unless agreed otherwise, we shall choose packing and dispatch at our best discretion. The risk shall also pass onto the customer on leaving the supplier’s site if the consignment is delivered carriage paid. If the customer is responsible for a delay in dispatch, the risk shall pass onto it on advice of dispatch already. Insurance against damage caused by storage, break or fire is only taken out if expressly required by the customer at the customer’s expense.
Transport of goods, also goods belonging to the customer, is principally executed at the customer’s expense and risk. Freight charges possibly paid by us shall be considered disbursed for the customer.
The actual characteristics of the products may deviate from the characteristics mentioned in our acknowledgement of order. This does not represent a material defect if the product is suitable for the contractually accepted purpose.
The German standard regulations shall apply to inspections and shop tests. The materials are chosen at our best discretion and according to the data provided by the customer regarding purpose of use and load. In this respect we are guided by the characteristics guaranteed by the producer of the raw materials. We do not guarantee for the behaviour of the manufactured raw materials. If the customer chooses a certain raw material this will be at its own risk.
7. Retention of title
We retain title to the goods supplied by us until all our claims against the customer have been fully settled. In current accounts the retained ownership to the consignments (reserved goods) is considered security for the balance. Handling or processing of goods in our possession is done for us as manufacturer and by our order without any obligation arising to us from this. If our property is connected to or mixed with other goods not in our possession by the customer, we shall become joint proprietor pursuant to §§947, 948 Civil Code.
The customer may only resell reserved goods in the ordinary course of business subject to revocation on the condition that it agrees a corresponding retention of title with its customer. The customer is not entitled to any other dispositions of the reserved goods, particularly pledging and transfer by way of security.
If the goods are resold, the customer shall hereby assign to us all receivables and other claims against its clients with all ancillary rights resulting from the resale until all our claims are settled. At our request the customer shall be obliged to disclose all information and hand over the documents required to enforce our rights against the customer’s clients.
If the reserved goods are resold by the customer after processing together with other goods not belonging to the supplier, the assignment of the purchase price is effected only in proportion to our share in the property.
If the value of the securities for the supplier exceeds its total claims by more than 20%, the supplier is obliged to release securities at the customer’s request at the supplier’s discretion.
Seizure or attachment of reserved goods by third parties must be disclosed to the supplier without delay. Costs of intervention resulting from this are at the customer’s expense.
If the supplier makes use of its retention of title by claiming back reserved goods according to the aforementioned provisions, it is entitled to sell the goods by private treaty or to put them up for auction. The return of reserved goods is effected at the price achieved, at most, however, at the agreed purchase prices. Further claims for damages, particularly lost profit, shall remain reserved.
The invoice amount must be paid without deduction according to the terms of payment mentioned in our acknowledgement of order. After expiry of agreed deadlines we shall be entitled to charge default interest ipso jure pursuant to § 288 Civil Code, particularly without further reminder. Setting off counterclaims or holding payment back due to possible counterclaims is excluded unless the counterclaim has been established by a valid court judgement or has not been contested.
The warranty period is one year from date of invoice. If the customer is a consumer, the legal provisions shall apply.
The customer has to notify obvious defects without delay, at the latest, however, within two weeks of taking notice. Other defects, which cannot be detected immediately despite thorough examination, must be notified immediately. If the customer is a merchant, §377 Commercial Code shall apply.
We shall grant warranty by removing possible defects resulting from delivery not in conformity with the contract within a reasonable period of time or replacing them with suitable parts. If rectification of defects or delivery of spare parts is impossible, we shall be entitled to cancel the contract.
If rectification of the defect or replacement fails so often, at least, however, twice that the customer cannot reasonably be expected to accept further efforts of rectification, the customer shall be entitled to cancel the contract or demand a corresponding reduction of the purchase price. The claim of damages is laid down in clause 10 (Liability) of the present terms and conditions.
We only accept liability in case of intentional or gross negligence of our company or our vicarious agents. This does not apply in the case of breach of essential contractual obligations, legal damage claims because of delay in performance and in case the contract cannot be fulfilled on our part. Damage claims in each case shall be limited to typical damages.
The provisions of this clause shall not apply in cases of injury to a person’s life, body, and health in cases of liability pursuant to the Product Liability Act.
11. Industrial property rights
Calculations, drawings, documents and drafts produced in our company must not be disclosed to any third parties by the recipient. Drawings or documents enclosed with quotations must be returned by the recipient immediately if the order is not placed. The documents must not be used to construct the same or similar plants and neither for tenders or blank forms.
If we have to deliver according to drawings, samples or models of the customer, the customer shall be held responsible that industrial property rights of third parties are not violated.
12. Place of performance and venue
Place of performance and venue for all present and future claims arising from business connections with merchants is Ulm (Germany). Only German Law shall be applicable.