General Terms and Conditions
- Orders will become valid regarding manner and extent of delivery with the order confirmation by the supplier. Alterations and amendments require the written form.
- The buyer´s purchase conditions will only obligate the supplier, if these were explicitly accepted by the supplier.
The prices apply ex works excluding packaging plus the respective legal VAT.
III. Delivery obligations and obligations to accept
- Delivery terms commence at receipt of all documents necessary for the execution of the order, the payment of the agreed deposit and the timely supply of materials. The delivery term is deemed fulfilled with the notice of readiness for dispatch, if the dispatch is not possible due to no fault of the supplier.
- If an agreed delivery term is not adhered to due to default by the supplier, the buyer is entitled, after a suitable grace period, under exemption of further claims, to claim a penalty payment or withdraw from the agreement, if he provided notification of the refusal of service at the time of stipulation of the grace period.
- Adequate partial deliveries, as well as variations from the ordered amounts of up to ± 10 %, are permissible.
IV. Supply of material
- If materials are supplied by the buyer, they are to be delivered at his expense and peril in a timely manner and in immaculate condition with an adequate quantity premium of at least 5 %.
- In case of failure to fulfil these conditions, the delivery term is extended appropriately. Except in cases of force majeure, the buyer will bear the additional costs, including those arising from the disruptions of production.
V. Packaging, dispatch, passing of risk
- Unless otherwise agreed, the supplier chooses packaging and manner of dispatch at their best discretion.
- The risk will pass to the buyer also in case of freight-free delivery at the time the goods leave the supply plant. In case of dispatch delays due to the buyer, the risk will be passed to the buyer at the time of notice of readiness to dispatch.
- Upon written demand by the buyer, the goods will be ensured against storage-, breakage-, transport- and fire damage at his expense.
VI. Reservation of title
- The deliveries remain the property of the supplier up to the fulfilment of all conditions due to the supplier by the buyer, even if the purchase price for specially described claims has been paid. In case of a revolving account the reserved title to deliveries (reserved goods) is deemed as security for the balance of invoice of the supplier.
- Adaptation and processing by the buyer occurs to the exclusion of acquisition of ownership according to § 950 German Civil Code by order of the supplier; the supplier remains the owner of the thereby created item, which serves as reserved goods for the security of the supplier´s claims according to 1.
- In case of the buyer´s processing (mixing/blending) with other products not belonging to the supplier, the regulations of §§ 947, 948 German Civil Code apply with the consequence that the part ownership of the supplier in these new products now becomes reserved goods in terms of this condition.
- The on-sale of reserved goods by the buyer in the normal course of business is only permitted under the condition that he stipulates with his customer a reservation of title according to 1 to 3 as well. The buyer is not entitled to any other disposal of the reserved goods, especially pledging and transfer of security.
- In case of on-sale, the buyer herewith in advance transfers all rights to claims and other rights against his customers arising for him due to the on-sale to the supplier, including all ancillary rights, until fulfilment of all claims by the supplier. At the supplier´s demand the buyer is obligated to deliver to the supplier all information and documents necessary for the assertion of supplier´s rights against the buyer´s customer.
- If the reserved goods are on-sold by the buyer after processing according to 2 and/or 3 or together with other goods not belonging to the supplier, the assignment of purchase price claim according to 5. applies only to the amount of the invoice value of the supplier´s reserved goods.
- If the value of the supplier´s existing security exceeds the supplier´s entire claim by more than 10 %, the supplier, at the buyer´s request, is obligated to the release of security to this extent at the supplier´s choice.
- Levies of attachment or seizure of the reserved goods by third parties are to be made known to the supplier immediately. Related intervention costs are in all cases at the expense of the buyer.
- If, in accordance with the above conditions, the supplier exercises his reservation of title by redemption of the reserved goods, the supplier is entitled to sell or auction the goods privately. The redemption of the reserved goods occurs at the achieved revenue, however at a maximum of the agreed delivery prices. Other claims of compensation, especially lost profit, remain unaffected.
VII. Payment terms
- Any payments are to be made in Euro exclusively to the supplier.
- Unless otherwise agreed, the purchase price is payable (a) for molds 1/3 at confirmation of order, 1/3 at completion of tool and 1/3 at sample approval net each. With the confirmation of alteration orders by the buyer prior to completion of molds, all costs accrued up to that time are to be paid if they exceed the amount of the deposit; (b) for partial deliveries or other services payable with 2 % discount within 10 days from date of invoice, otherwise without deduction within 30 days. Individual payment objectives in addition to the above mentioned conditions may be issued by the supplier. The granting of a discount requires the payment of all previously due invoices.
- In case of exceeding the payment terms, interest at the amount of 5 % above the base interest rate will be charged unless the supplier can verify a higher interest on debt.
- Non-compliance with the payment terms or circumstances, which justify serious doubts regarding the credit-rating of the buyer, have the consequence of immediate maturity of the supplier´s claims. The supplier is further entitled to demand pre-payment of any outstanding deliveries as well as withdraw from the agreement following an adequate grace period and demand compensation for non-compliance; the supplier is furthermore entitled to prohibit the buyer from on-selling the goods and to retrieve the unpaid goods at the buyer´s expense.
- The price of the molds also contains the costs for the provision of samples, but not the costs for test- and adaptation equipment as well as changes requested by the buyer.
- Unless otherwise agreed, the supplier is and remains the owner of the molds produced by the supplier himself or through an appointed third party for the buyer. These molds will only be used for the buyer´s orders until the buyer has met his delivery obligations and obligations to accept. The supplier is only obligated to replace the molds free of charge, if these forms are necessary for the fulfilment of the mold life promised to the buyer. The supplier´s obligation of safe-keeping expires 2 years after the last partial delivery of the mold and prior notification of the buyer. It is to be noted in the offer and in the order confirmation, whether paid mold-cost-shares are reimbursed to the buyer at 5 % of the net partial deliveries.
- If, according to agreement, the buyer is to become the owner of the molds, the ownership transfers to the buyer upon payment of purchase price for the molds. The transfer of the molds to the buyer replaces the supplier´s obligation to preserve. Independent of the buyer´s legal claim for return and the life of the molds, the supplier is entitled to the exclusive ownership of the molds up to the acceptance of an agreed minimum quantity and/or up to the expiration of a certain period of time. The supplier is to identify the molds as third party property.
- In case of buyer-owned molds according to Nr. 3 and/or molds supplied by the buyer on a loan basis, the liability of the supplier regarding storage is limited to the diligence one usually employs in one´s own affairs. Costs for maintenance and insurance are borne by the buyer. The supplier´s obligation expires when, after execution of the order and after appropriate request, the buyer does not collect the molds. If the buyer has not fulfilled his contractual obligations to the full extent, the supplier is in any case entitled to a right of retention for the molds
IX. Liability for defects
- Notifications of defects are to be asserted immediately and in writing. In case of concealed defects this term is extended to 1(one) week from detection.
- In case of a justified notification of defect - whereby the samples approved by the buyer in writing are decisive for quality and design - the supplier is, at his choice, obligated to rectify the defect or provide a replacement free of charge. If he does not fulfil his obligations within an appropriate time, the buyer is entitled to declare withdrawal from the agreement. Further claims are excluded unless in case of intent or gross negligence. This limitation does not apply in case of damage to persons. Replaced parts are to be returned to the supplier freight forward on demand. A strict liability for body- and health damages remains excluded according to § 14 of the Product Liability Act dated 15. December 1989.
- Unauthorised rectification and inappropriate treatment result in the loss of all claims. Only in case of prevention of relatively large damages or in case of delay of damage rectification by the supplier, the buyer is entitled, after prior notification of the supplier, to rectify and demand reimbursement of the appropriate expenses.
X. Proprietary right
The buyer is liable to the supplier regarding the liberty of any third party proprietary rights of deliveries and services, exempts the supplier from all relevant claims and has to compensate the supplier for any damages occurred.
XI. Place of performance and jurisdiction
- Place of performance is Sulzbach-Laufen, Germany.
- Jurisdiction is, at the choice of the supplier, his place of business or the seat of the buyer, this applies also for certificate-, exchange- and cheque processes.
- The German Law applies exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods dated 11. April 1980 (Federal Law Gazette 1989 II page 586) for the Federal Republic of Germany (Federal Law Gazette 1990 II page 1477) is excluded.
Monday 27 April, 2009
Solmser Kunststofftechnik GmbH & Co.KG
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