General terms of sale and delivery of plastic industry
(Based on the non-binding conditions recommendation of the IK Industrievereinigung Kunststoffverpackungen e.V. of 01.04.2009)
The following General Terms and Conditions of Sale and Delivery for the Plastics Processing Industry are recommended by the General Association of the Plastics Processing Industry without obligation. Therefore, the members of the supporting associations and their contracting parties are free to use deviating terms and conditions.
The following terms and conditions shall apply to entrepreneurs, legal entities under public law or special funds under public law.
- Orders shall only become binding upon confirmation of the order by the supplier. If the customer does not object to the content of the order confirmation within 7 days of receipt, the contract shall be concluded on the terms and conditions stated therein, even if these deviate from the original agreements due to transmission, comprehension or typing errors.
Changes and additions shall be made in text form. All offers are subject to change unless they are designated as firm offers. Quantities or sizes are, unless expressly designated as binding, non-binding approximate values.
2. these terms and conditions shall also apply to future transactions in the case of continuous business relations, even if no express reference is made to them, provided that they were referred to in an earlier order confirmed by the supplier.
- Terms and conditions of the customer shall not apply, even if we do not expressly object to them, unless they are expressly accepted in writing by the supplier. The regulations on distance selling in business transactions with consumers shall not apply to the business relationship with entrepreneurs, not even mutatis mutandis. Should individual provisions be or become invalid, this shall not affect the remaining provisions.
- Sollten einzelne Bestimmungen unwirksam sein oder werden, so werden die übrigen Bedingungen hiervon nicht berührt.
- In case of doubt, the prices are ex works excluding freight, customs, import or export duties and packaging plus value added tax at the statutory rate.
- If the relevant cost factors, in particular for material, energy or personnel, change by more than 5% after submission of the offer or after order confirmation until delivery, each party shall be entitled to demand a price adjustment. This adjustment shall be based on the extent to which the relevant cost factor changes the total price.
- The Supplier shall not be bound by previous prices in the case of new orders.
III. Delivery and Acceptance Obligations, Force Majeure
- Delivery periods shall commence upon receipt of all documents required for the execution of the order, the down payment and the timely provision of materials, insofar as these have been agreed. The delivery period shall be deemed to have been met upon notification of readiness for dispatch if dispatch is delayed or impossible through no fault of the supplier.
- If an agreed delivery period is not met due to the supplier's own fault, the customer shall in any case be obliged to set a reasonable period of grace.
- Partial deliveries are permissible as far as reasonable.
- In the case of call-off orders without agreement on duration, production batch sizes and acceptance dates, the supplier may demand a binding stipulation of this no later than three months after order confirmation. If the customer does not comply with this request within three weeks, the supplier shall be entitled to set a two-week grace period and, after its expiry, to withdraw from the contract and/or claim damages.
- If the Customer does not fulfill its acceptance obligations, the Supplier shall, without prejudice to any other rights, not be bound by the provisions on self-help sales, but may rather sell the delivery item on the open market after prior notification of the Customer.
- Events of force majeure shall entitle the Supplier to postpone the delivery for the duration of the hindrance plus a reasonable start-up period, or to withdraw from the contract in whole or in part due to the part not yet fulfilled. Force majeure shall be deemed to include strikes, lockouts or unforeseeable, unavoidable circumstances, e.g. operational disruptions or transport delays or interruptions through no fault of the Supplier, shortage of raw materials or energy through no fault of the Supplier, which make timely delivery impossible for the Supplier despite reasonable efforts. This shall also apply if the aforementioned hindrances occur during a delay or at a sub-supplier.
The Customer may request the Supplier to declare within two weeks whether it intends to withdraw from the contract or to deliver within a reasonable period of grace. If the supplier does not declare, the customer may withdraw from the unfulfilled part of the contract
The Supplier shall notify the Customer without delay if a case of force majeure as set out in paragraph 1 occurs. He shall minimize any interference with the customer, if necessary by releasing the moulds for the duration of the interference.
IV.Terms of payment
- All payments are to be made in € (EURO) exclusively to the supplier. Unless otherwise agreed, the purchase price for deliveries or other services is to be paid without deduction within 30 days of the invoice date.
- If the agreed payment date is exceeded, interest shall be charged at the statutory rate of 8 percentage points above the respective prime rate pursuant to § 247 BGB (German Civil Code), unless the supplier proves higher damages.
- Checks or bills of exchange shall only be accepted upon express prior written agreement and only on account of performance. All costs associated with them shall be borne by the customer.
- The customer may only offset or assert a right of retention of payments if its claims are undisputed or have been finally determined by a court of law.
- Sustained non-compliance with payment terms or circumstances that give rise to serious doubts about the customer's creditworthiness shall entitle the supplier to immediately call in all claims. Furthermore, in this case the supplier is entitled to demand advance payments for outstanding deliveries and to withdraw from the contract after the unsuccessful expiry of a reasonable period.
V. Packaging, Dispatch, Transfer of Risk and Default of Acceptance
- Unless otherwise agreed, the Supplier shall choose the packaging, mode and route of shipment. He shall be entitled to use one of the shippers usually selected by him for his shipping business at the usual terms and conditions agreed with the shipper.
- Even in the case of carriage paid delivery, the risk shall pass to the customer when the goods leave the supplier's works. In the event of delays in dispatch for which the customer is responsible, the risk shall already pass upon notification of readiness for dispatch.
- At the written request of the customer, the goods shall be insured at the customer's expense against risks to be specified by the customer.
- In the event of default of acceptance by the Customer, the Supplier shall be entitled to store the goods at the Customer's expense. If the Supplier stores the goods himself, he shall be entitled to storage costs amounting to 0.5% of the invoice amount of the stored goods per calendar week or part thereof. We reserve the right to claim higher storage costs against proof.
VI Retention of Title
- The deliveries shall remain the property of the Supplier until all claims to which the Supplier is entitled against the Customer have been satisfied, even if the purchase price for specially designated claims has been paid. In the case of a current account, the reserved ownership of the Supplies (Retained Goods) shall serve as security for the Supplier's balance of the account. If, in connection with the payment of the purchase price, a liability of the supplier based on a bill of exchange is established, the reservation of title shall not expire before the bill of exchange has been honored by the customer as drawee.
- Any processing or transformation by the customer shall be deemed to have been carried out on behalf of the supplier to the exclusion of the acquisition of title pursuant to Section 950 of the German Civil Code (BGB); the supplier shall become co-owner of the item thus created in proportion to the net invoice value of its goods to the net sales price of the goods to be processed or transformed, which shall serve as reserved goods to secure the claims of the supplier pursuant to paragraph 1.
- In the event of processing (combination/mixing) with other goods not belonging to the Supplier by the Customer, the provisions of Sections 947, 948 of the German Civil Code shall apply with the consequence that the Supplier's co-ownership share in the new item shall now be deemed to be reserved goods within the meaning of these Terms and Conditions.
- The customer is only permitted to resell the reserved goods in the ordinary course of business and on condition that he also agrees a reservation of title with his customers in accordance with paragraphs 1 to 3. The customer shall not be entitled to dispose of the reserved goods in any other way, in particular by pledging them or assigning them as security.
- In the event of resale, the customer hereby assigns to the supplier, until all claims of the supplier have been satisfied, the claims and other justified claims against its customers arising from the resale, including all ancillary rights. At the Supplier's request, the Customer shall be obliged to provide the Supplier without delay with all information and documents required to assert the Supplier's rights against the Customer's customers.
- If the reserved goods are resold by the customer after processing in accordance with paragraph 2 and/or 3 together with other goods not belonging to the supplier, the assignment of the purchase price claim in accordance with paragraph 5 shall only apply to the amount of the invoice value of the reserved goods of the supplier.
- If the realizable value of the securities existing for the Supplier exceeds its total claims by more than 10%, the Supplier shall be obliged to release securities of the Supplier's choice to this extent at the Customer's request.
- The supplier must be notified immediately of any seizure or attachment of the reserved goods by third parties. Intervention costs arising therefrom shall in any case be borne by the customer, unless they are borne by third parties.
- If the supplier makes use of his retention of title by taking back goods subject to retention of title in accordance with the above provisions, he shall be entitled to sell the goods on the open market or have them auctioned. The goods subject to retention of title shall be taken back at the proceeds obtained, but at most at the agreed delivery prices. Further claims for damages, in particular loss of profit, remain reserved.
VII Liability for material defects
- The quality and design of the products shall be determined by the product description or, if their preparation has been agreed, by the reference samples which shall be submitted to the customer by the supplier for inspection upon request. In addition, No. XII para. 1 shall also be observed. The reference to technical standards serves to describe the performance and is not to be interpreted as a guarantee of quality. The tolerances customary in the industry shall apply. In the absence of a special written agreement, production shall be carried out using materials customary in the industry and in accordance with the agreed or, in the absence of an agreement, known manufacturing processes.
Minor deviations from the original in the case of color productions or reproductions shall not be deemed to be defects; the same shall apply to deviations between press proofs and print runs.
- If the supplier has advised the customer outside the scope of his contractual performance, he shall only be liable for the functionality and suitability of the delivery item if he has given express prior assurance.
- Notification of defects must be made in writing without delay. In the case of hidden defects, the complaint must be made immediately after discovery. In both cases, unless otherwise agreed, all claims for defects shall become time-barred twelve months after the transfer of risk.
- In the event of a justified notice of defect, the Supplier shall be obliged to remedy the defect (either by repair or replacement, at the Supplier's option). If he does not meet this obligation within a reasonable period of time or if the subsequent performance fails repeatedly, the customer shall be entitled to reduce the purchase price or to withdraw from the contract. For further claims, in particular claims for reimbursement of expenses or damages due to defects or consequential damages, the limitations of liability pursuant to No. VIII shall apply. Replaced parts shall be returned to the supplier freight collect upon request.
- Unauthorized reworking and improper handling shall result in the loss of all claims for defects. Only in order to prevent disproportionate damage or in the event of delay in rectification of the defect by the supplier shall the customer be entitled, after prior notification of the supplier, to rectify the defect and to demand reimbursement of the reasonable costs thereof.
- Wear and tear to a customary extent shall not give rise to any warranty claims.
- Claims for recourse according to §§ 478, 479 BGB (German Civil Code) shall only exist if the consumer's claim against the party entitled to recourse was justified and only to the extent provided by law, but not for goodwill provisions not agreed with the supplier and presuppose the compliance with the party entitled to recourse's own obligations, in particular the compliance with the obligations to give notice of defects.
- The Supplier undertakes to ensure the quality of its products:
- Apply and maintain an effective quality management system
- To apply only suitable procedures
- To further develop its QM system in accordance with EN 9100.
VIII. General limitations of liability
- The Supplier shall be liable for damages or reimbursement of expenses only to the extent that it, its executive employees or vicarious agents are guilty of intent, gross negligence or injury to life, body or health.
- The liability without fault according to the Product Liability Act as well as the liability for the fulfillment of a quality guarantee shall remain unaffected.
- Liability for culpable breach of essential contractual obligations shall also remain unaffected; however, liability in this respect shall be limited to the foreseeable damage typical for the contract, except in the cases of No. 1 above. Essential contractual obligations shall be understood to mean the fundamental, elementary obligations arising from the contractual relationship, which are of particular importance for the proper execution or fulfillment of the contract or which have a very significant influence on the relationship of trust existing between the parties, i.e. in particular the fulfillment of delivery obligations and important obligations to provide information.
- A change of the burden of proof to the disadvantage of the customer is not connected with the above regulations.
IX. Molds (Tools)
- The price for molds also includes the costs for one-time sampling, but not the costs for testing and processing devices and for changes initiated by the customer. Costs for further sampling for which the supplier is responsible shall be borne by the supplier.
- Unless otherwise agreed, the supplier is and remains the owner of the molds produced for the customer by the supplier himself or by a third party commissioned by him. Molds shall only be used for orders of the customer if expressly agreed, as long as the customer meets his payment and acceptance obligations. The supplier shall only be obliged to replace these molds free of charge if they are required for the fulfillment of a quantity of output assured to the customer. The supplier's obligation to store the moulds expires two years after the last delivery of parts from the mould. The customer must be informed prior to any disposal.
- If a contract is terminated but the molds have not yet been amortized, the supplier is entitled to invoice the remaining amortization amount in full without delay.
- If, according to the agreement, the customer is to become the owner of the molds, ownership shall pass to him after full payment of the purchase price for the molds. The handover of the molds to the customer is replaced by storage for the benefit of the customer. Irrespective of the customer's legal right to return the moulds and of the life of the moulds, the supplier is entitled to their exclusive possession until the termination of the contract. The supplier must mark the molds as third-party property and insure them at the customer's request and expense.
- In the case of customer-owned molds pursuant to No. 4 and/or molds made available by the customer on loan, the supplier's liability with regard to storage and care shall be limited to the care taken in its own affairs. Costs for maintenance and insurance shall be borne by the customer. The supplier's obligations shall lapse if, after completion of the order and a corresponding request, the customer fails to collect the molds within a reasonable period of time. As long as the customer has not fully complied with his contractual obligations, the supplier shall in any case have a right of retention to the molds.
- The supplier shall retain the sole right of execution and copyright to drafts, documents, illustrations, drawings and other documents of the supplier. If the customer provides templates and ideas, the supplier shall be granted a joint copyright to the extent that the template or draft was designed by the supplier.
- If no order is placed, the customer shall be obliged to return to the supplier without delay all documents handed over to him, including any copies made. Digital copies are to be permanently destroyed.
- When providing templates and ideas, the customer shall indemnify the supplier against any claims by third parties asserting rights thereto.
- The drafts, final artwork, printing plates and the like produced by the Supplier shall remain the Supplier's property, even if the Customer has been charged for the production costs.
XI. Provision of materials
- If materials are supplied by the customer, they must be delivered in good time and in perfect condition at the customer's expense and risk with an appropriate quantity surcharge of at least 5%.
- If these conditions are not met, the delivery time shall be extended accordingly. Except in cases of force majeure, the customer shall also bear the additional costs incurred for interruptions in production.
XII. Industrial property rights and defects of title
- If the Supplier has to deliver according to drawings, models, samples or using parts provided by the Customer, the Customer shall be responsible for ensuring that industrial property rights of third parties in the country of destination of the goods are not infringed thereby. The Supplier shall inform the Customer of any rights known to it, but shall not be obliged to carry out its own searches. The customer shall indemnify the supplier against claims of third parties upon first request and pay compensation for the damage incurred. If the Supplier is prohibited from manufacturing or supplying by a third party with reference to an industrial property right belonging to it, it shall be entitled - without examining the legal position - to suspend work until the legal position has been clarified by the Customer and the third party. If the continuation of the order is no longer reasonable for the Supplier due to the delay, the Supplier shall be entitled to withdraw from the contract.
- Drawings and samples provided to the Supplier which have not led to an order shall be returned upon request; otherwise the Supplier shall be entitled to destroy them three months after submission of the offer. This obligation applies accordingly to the customer. The party entitled to destroy them shall inform the contracting party of its intention to destroy them in good time in advance.
- The supplier shall be entitled to the property rights, copyrights and, if applicable, industrial property rights, in particular all rights of use and exploitation to the models, molds and devices, drafts and drawings designed by him or by third parties on his behalf. Upon request, the customer shall immediately return to the supplier the documents, molds, samples or models, including any copies that may have been made.
- Should other defects of title exist, No. VII. shall apply to these accordingly.
XIII. Foodstuff Resistance and Recyclable Materials
- If a product is to be used for contact with foodstuffs, the suitability of the material for the specific foodstuff must be checked in advance by the customer on his own responsibility.
- Recycled raw materials are carefully selected by the supplier. Recycled plastics may nevertheless be subject to major variations in surface quality, color, purity, odor and physical or chemical properties from batch to batch; this does not entitle the customer to give notice of defects to the supplier. However, the Supplier shall, upon request, assign to the Customer any claims against upstream suppliers; the Supplier shall not assume any warranty for the existence of such claims.
XIV Place of Performance and Jurisdiction
- The place of performance shall be the place of the supplier's works.
- The place of jurisdiction shall be, at the supplier's option, its registered office or the customer's registered office.
- German law shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.