of PLATEC Kunststofftechnik GmbH
These General Terms and Conditions of Sale shall exclusively apply. Any other contrasting or varying terms and conditions of the Purchaser shall only apply subject to the Supplier’s written approval having been provided.
These General Terms and Conditions of Sale shall also apply to any subsequent orders and spare part supplies, without requiring any repeat reference to these.
Subsidiary agreements and assurances, changes or amendments to a written or fax contract shall be made in writing.
Quotations shall only be final subject to stating a deadline for acceptance. In order to be final, quotations shall be subject to the Supplier’s written confirmation.
Diagrams, drawings, calculations and any other documentation attached to a quotation shall remain the Supplier’s property and may only be passed on to third parties after written approval by the Supplier. All diagrams, drawing, calculations and any other documentation shall be returned immediately if the order is not placed with Supplier.
Supplies and services shall be based on reciprocal statements. Should no statements be available, the Supplier’s written confirmation of order shall apply. In purchase contracts all delivery clauses shall be construed according to the INCOTERMS in force at time of conclusion of the contract.
Details in leaflets, catalogues or general technical documentation shall only be final when referred to in writing.
Unless otherwise agreed, any installation and assembly cost and all necessary auxiliary costs as travelling expenses or costs of transport for tools shall be paid for separately by the Purchaser.
Should software be part of the scope of services to be provided, the Purchaser shall be granted a non-exclusive right for the use of such software. The Purchaser shall only be entitled to duplicate or amend software to the extent that is legally permissible.
Partial delivery is permissible to the extent they are reasonable for the Purchaser giving due regard to the interest of Purchaser and Supplier.
All obligations with respect to deliveries abroad are accepted under the reservation that necessary export licences are granted.
Unless otherwise stated, all prices have been quoted in EURO and shall be net ex works prices excluding packaging (EXW, Incoterms 2000).
Prices shall not include any VAT, which shall be invoiced separately as applicable on the date of invoicing.
Deduction of cash discounts shall be subject to specific written agreement.
Unless otherwise stated in the confirmation of order, the purchasing price shall be payable within 30 days from the date of invoice.
Should the Purchaser not pay invoices by the agreed date, he shall be subject to interest for delay of 8% above the basis rate acc. To § 247 BGB from the due date without any reminder and subject to liability for any other loss/damage suffered.
All obligations with respect to deliveries abroad are accepted under the reservation that Purchaser provides an irrevocable confirmed letter of credit of a German bank.
In case of late payments Supplier is entitled after prior written notice to withhold his own all deliveries and services until full payment has been effected.
The Purchaser shall only be entitled to retain payment for alleged defects subject to the Supplier having accepted a complaint for defects. The Purchaser shall only be entitled to offset his accounts receivable against any amounts that are uncontested.
Deliveries shall be based on reciprocal written statements or, should a written confirmation of order be lacking, the Supplier’s written confirmation of order. Meeting deliveries shall be based on the punctual receipt of any documentation, required approvals and releases to be supplied by the Purchaser, meeting the terms of payment agreed and any other obligations. Should these conditions not be met in good time, deliveries shall be extended accordingly; this does not apply, if the delay is caused by Supplier.
If non-observance of the time-limits is the result of force majeur, e.g. mobilization, war, riot or similar events, e.g. strike or lock-out, the agreed upon time-limits shall be prolonged reasonably.
If mounting and assembly are not part of the agreed upon services, the time-limit shall be deemed observed if the goods ready for operation were shipped or collected within the time-limit. Should the delivery be delayed for reasons for which the customer is responsible, the time-limit shall be deemed observed upon notification of readiness for shipment.
If the supplier is responsible for the non-observance of the time-limit, the customer, provided the customer suffered an actual loss, may request compensation for delay for each full week of delay of a maximum of 0.5%, however, not exceeding 5% of the price for the part of the delivery which could not be taken into relevant operation because of the delay. Claims for compensation of the customer exceeding the limits stipulated in item 5.4 shall be excluded in all cases of delayed delivery or service, also after expiry of any grace period set to the supplier. This shall not apply to the extent mandatory liability exists in cases of intent, gross negligence or personal injury; a shift of the burden of proof to the disadvantage of the customer is not given in this case.
The customer’s right to withdraw after ineffectual expiry of a grace period for the supplier shall remain unaffected. The grace period, however, must be reasonable and amount to at least four weeks.
If shipment or delivery are delayed for more than one month after notice of readiness for shipment on the customer’s request, warehouse charges in the amount of 0.5% of the price of the delivery goods, however, not exceeding a total of 5%, may be charged to the customer for each month started. The parties to the contract shall remain free to furnish proof of higher or lower warehouse charges.
Unless otherwise agreed, the transfer of title and risk to the Purchaser shall be effected when supplies leave the Supplier’s works. For deliveries including installation or assembly, the date of acceptance or commissioning shall be the date of transfer.
Should shipment, delivery, the begin, the accomplishment, the installation or the assembly, the take-over in the Purchaser’s factory or a trial run be delayed for any reasons caused by the Purchaser, or if Purchaser has come into default of acceptance for any other reasons, the risk shall be transferred to the Purchaser at the time scheduled for shipment ex works.
In principle, delivery shall be effected in the Supplier’s standard packaging. The Supplier shall be entitled to select a special type of packaging as and when required, for which the Purchaser agrees to pay the cost incurred.
Should defects be found in any items provided by the Supplier, due to not being in the agreed condition or not suitable for the agreed or normal use, the Supplier within the warranty period agrees to repair any components affected or to supply new parts at his discretion, if the cause of defect was already existent at the time of transfer of risk.
The period of warranty shall be 12 month, unless otherwise provided for by law. The period of warranty shall be calculated from the time of transfer of title and risk (Art. 6).
The Purchaser shall notify the Supplier in writing of any defects without delay.
In case of a notice of defects Purchaser is only entitled to withhold any payments to the extent that the sum of payments withheld stands in adequate relation to the defects occurred. Purchaser is only entitled to withhold payments if there is no doubt that the notice of defect is legitimate. In case of unjustified notices of defects Supplier is entitled to claim compensation from Purchaser for all costs caused by the unjustified notice of defect.
The Purchaser agrees to grant to the Supplier the time required and a chance to remedy any defects. Should the Purchaser refuse to do so, the Supplier shall no longer be liable for any defects.
If the post-performance fails, the customer - notwithstanding possible claims for damages - may withdraw from the contract or reduce the compensation. The customer may not claim compensation for futile expenses.
Claims for defects do not exist in case of minor deviations from the agreed or assumed quality, minor impairment of usability, natural wear or damages incurred after passing of the risk because of incorrect or negligible handling, excessive use, unsuitable operating material, faulty construction work, unsuitable subsoil or because of special external influences which are not established in the contract as well as in case of non-reproducible software errors. If the customer or third parties perform improper modifications or repair work, no claims for defects will exist for these and the resulting consequences.
The Supplier shall not be responsible for payment of additional expenses, in particular transport, call-out, work and material charges and costs, resulting from any items supplied being retrospectively sent to another destination than the Purchaser’s premises or the original destination. This does not apply in cases where the shipment to another destination is accordance with the normal use of the product.
In all cases, the Purchaser agrees to take any feasible and equitable steps in order to keep costs as low as possible for the purpose of delayed performance. The Supplier shall only pay part of any recall costs when required, based on actual facts and the legal situation.
Regress claims of Purchaser against Supplier do only exist to the extent that Purchaser has not agreed with his customers on conditions that go beyond the statutory warranty claims. Para. 7.8 shall apply to any regress claims of Purchaser against Supplier accordingly.
Any claim for damages is governed by para. 10. (other claims of damages). Any other claims of Purchaser against Supplier and his auxiliary persons based on a defect of the product are excluded to the extent that such a claim is not regulated in this para. 7.
If not otherwise agreed upon, the supplier shall be obliged to render the delivery free of any industrial property rights and copyrights of third parties (hereinafter called: property rights) solely in the country of the place of delivery. To the extent a third party makes justified claims against the customer because of infringement of property rights by deliveries rendered by the supplier and used according to contract, the supplier shall be liable to the customer within the time-limit stipulated in item 8.2 as follows:
The supplier shall at the supplier’s expense and in the supplier’s discretion either obtain a right of use for the deliveries concerned, modify them such that the property right is not infringed or exchange them. Should the supplier not be able to do so under reasonable conditions, the customer shall be entitled to statutory cancellation or reduction rights. The customer may not claim compensation for futile expenses.
The supplier’s obligation to pay damages shall be subject to item 11.
The above mentioned obligations of the supplier shall only be given provided the customer immediately informs the supplier in writing about claims asserted by third parties, refuses to acknowledge an infringement, and all and any measures of protection and settlement proceedings remain reserved to the supplier. Should the customer discontinue the use of the delivery goods for the purpose of reducing the damage or for other reasons, the customer shall be obliged to inform the third party about the fact that the discontinuance of use does not represent an acknowledgement of the property rights infringement.
Claims of the customer shall be excluded to the extent the customer is responsible for the property rights infringement.
Claims of the customer shall furthermore be excluded to the extent the property rights infringement was caused by special standards stipulated by the customer, by use not foreseeable by the supplier or by the fact that the delivery goods were modified by the customer or used in conjunction with products not delivered by the supplier.
In the event of property rights infringements, the claims of the customer stipulated in item 9.1 a) shall apply, in addition the provisions in item 8.4, item 8.5, and item 8.10 shall apply correspondingly. In case of other defects of title, the provisions of item 8 shall apply correspondingly.
More extensive or other claims than stipulated in the present item 9 of the customer against the supplier and its persons employed in performing the obligations because of a defect of title shall be excluded.
To the extent the delivery is not possible the customer shall be entitled to claim damages, except the impossibility is attributable to the supplier. The customer’s claims for damages, however, shall be limited to 10% of the part of the delivery which cannot be taken into relevant operation because of the impossibility. This limitation shall not apply to the extent mandatory liability exists in cases of intent, gross negligence or personal injury; a shift of the burden of proof to the disadvantage of the customer is not given in this case. The customer’s right to withdraw from the contract shall remain unaffected.
In case of temporary impossibility, item 5 (Time-limits) shall apply.
Should unforeseeable events in the sense of item 5.2 significantly change the economic meaning or the content of the delivery or have a significant effect on the supplier’s operations, the contract shall be adapted in good faith. To the extent this is not economically reasonable, the supplier shall be entitled to withdraw from the contract. If the supplier intends to assert this right to withdraw, the supplier, after having obtained knowledge about the scope of the event, shall immediately inform the customer to this effect. This shall also apply if a prolongation of the delivery period was agreed upon with the customer at first.
The Purchaser’s claims for damages and refund of expenses due to any infringement of major or minor duties resulting from any obligations, illegal acts or any other legal reasons whatsoever, shall be excluded.
This exclusion shall not apply to the extent of compulsory liability, e.g. according to statutory product liability law, in cases of intent, gross negligence, injuries of health, violation of a guaranty for the existence of a certain attribute and infringement of essential contractual duties. In case of infringement of the said duties, the Supplier shall be liable for minor negligence, but liability shall be limited to damage/losses typical to a contract or reasonably foreseeable damage/losses, if no intent or gross negligence or a injury of health or a liability for a violation of a guaranty is given. These rules shall not imply any change of the rules of burden of proof for the Purchaser.
In all cases, claims for damages shall be struck by the statute of limitations after the period stated in 7.2. if not longer periods are prescribed by mandatory law.
Guaranties shall only be effective when provided in writing.
Data included in catalogues, any documentation for quotations and other literature and general advertising statements shall not constitute any offer for a warranty agreement.
The supplier reserves the title in the delivery goods (reserve goods) until the customer has made the complete payment due from the business relationship. The reservation of title shall also include the acknowledged balance, to the extent the supplier enters the claims against the customer in current account (current account reserve).
If the supplier accepts return of the delivery goods, this shall mean a withdrawal from the contract. Upon return of the goods purchased, the supplier shall be entitled to realise these goods; the realisation proceeds shall be credited to the customer’s obligations - minus reasonable realisation fees. In the event the delivery goods are attached, the supplier shall be entitled to withdraw from the contract without setting a time-limit. In case of attachment or other interventions by third parties, the customer shall immediately inform the supplier in writing for the supplier to be able to file action pursuant to §771 German Code of Civil Procedure. To the extent third parties are not able to reimburse the judicial and extrajudicial expenses of an action pursuant to §771 German Code of Civil Procedure to the supplier, the customer shall be liable for the loss incurred by the supplier.
The customer shall be entitled to resell the delivery goods in the proper course of business; however, the customer already now assigns to the supplier all and any claims in the amount of the final invoice amount, including value added tax, which are due to him from the resale against his purchaser or third parties, independent of the fact whether the delivery goods were resold without or after processing. The customer shall be entitled to collect this claim also after its assignment. The supplier’s power to collect the claim himself remains unaffected; the supplier, however, agrees not to collect the claim as long as the customer meets his payment obligations properly and is not delinquent. In this case, the supplier may request the customer to disclose the assigned claims and their debtors, to provide the information required for collection, to provide the relevant documentation and to inform the debtor (third party) about the assignment.
The processing and transformation of the delivery goods by the customer shall always be performed for the supplier. If the delivery goods are processed together with other objects not belonging to the supplier, the supplier shall obtain co-ownership in the new object in the proportion of the value of the delivery goods to the other processed objects at the time of processing. Otherwise, the same provisions as for reserve goods shall apply to the matter created by processing. The customer shall also assign to the supplier the claims for securing the supplier’s claims which are due to the customer against a third party by joining the delivery goods with a real property.
If the delivery goods are mixed inseparately with other objects not belonging to the supplier, the supplier shall obtain co-ownership in the new object in the proportion of the value of the delivery goods to the other mixed objects at the time of mixing. If the mixing is done such that the matter of the customer is to be deemed a main component, the parties agree that the customer shall assign to the supplier proportional co-ownership. The customer shall keep the sole property or co-property for the supplier. The customer shall insure it in the usual scope against usual risks such as e.g. fire, theft, water, and similar. The customer shall already now assign to the supplier the customer’s claims for compensation which are due to him from damages of the abovementioned type against insurers or other third parties, in the amount of the invoice value of the goods.
If the realisable value of the securities due to the supplier exceeds the supplier’s total claims by more than 10%, the supplier shall be obliged to release in the supplier’s discretion securities on request of the customer or a third party affected by the excessive security.
The parties hereto agree to subject themselves to the Supplier’s jurisdiction. However, the Supplier shall be entitled to institute legal proceedings at the Purchaser’s jurisdiction.
Contracts shall be subject to German material law. UN Purchasing Law (CISG) shall be excluded.
This is a translation of PLATEC’s German General Terms and Conditions provided for the convenience of PLATEC’s customers. In case of any discrepancies between the German version of the General Terms and Conditions and this English version the German version shall prevail.
These general terms and conditions for the supply of goods shall remain binding even if single clauses should be or become legally invalid. This does not apply if it would amount to an undue hardness of the other party to keep the contract in force.