As of 01.01.2015, we conclude supply agreements only under the following terms and conditions, even if we make no express reference to said terms and conditions in our permanent business relations.
I. Scope of application
1. For the seller's deliveries, the seller's conditions of sale, as stipulated in the following, shall apply. Purchaser’s terms and conditions contrary to or deviating from these general terms of delivery will not be recognised unless said conditions were expressly approved in writing by the seller. The general terms of delivery shall apply also if the seller accepts the purchaser's orders without reservation in the knowledge of these terms and conditions being contrary to or in derogation of the seller's terms of delivery.
2. The law of the Federal Republic of Germany shall apply exclusively; the application of the UN Sales Convention shall be excluded.
3. These general terms of delivery shall apply only to contractors, legal entities under public law or special funds under public law within the meaning of Sec. 310 (1) German Civil Code.
1. Except as otherwise specified in the offer, all of the seller's offers are subject to change without notice.
2. An order placed with the seller shall take effect only if it has been confirmed in writing to the purchaser. Changes and amendments to the purchase and the order by the purchaser require the seller's prior written confirmation.
3. We reserve the right of ownership of all images, drawings, calculations and other documents; in the event of copyright capacity, we also reserve the right to own copyrights in these documents. This also shall apply to those written documents referred to as "confidential". Prior to passing on said documents to third party, the purchaser requires the seller's express written approval.
III. Price, payment, delivery periods and delivery
1. The purchase price shall be ex works and in EUR. Packaging costs and forwarding costs, as well as the statutory rate of VAT, will be invoiced separately.
2. The risk shall be transferred to the purchaser at the time of forwarding the merchandise. If the purchaser does not specify the means of transportation, the seller shall specify appropriate means of transportation. Insurances against transport damage will be effected only upon the purchaser's instruction and costs.
3. Invoices will be issued on the date of delivery of the merchandise. This date shall apply also to the potential granting and charging of a discount.
4. The deduction of discount is subject to a special written agreement.
5. Except as otherwise specified in the acknowledgment of order, the purchase price is due net (without deduction) within 30 days of the invoice date. The statutory regulations shall apply concerning the consequence of payment defaults.
6. The purchaser shall be entitled to set-off rights only when its counterclaims have been recognised by declaratory judgment or by the seller and were not acquired by assignment. Furthermore, the purchaser shall be authorised to exercise a right of retention to the extent that its counterclaim is based on similar contract terms.
7. If the purchaser is in default of payment for the supplied merchandise, the granting of a discount shall be excluded.
8. Compliance with time limits for deliveries requires the timely receipt of all documents to be supplied by the purchaser, necessary authorisations and releases, in particular plans and the compliance of negotiated payment terms and conditions, as well as other obligations on the part of the purchaser. Should these requirements not be fulfilled in due time, the time limit will be extended appropriately; this shall not apply if the seller is liable for the delay.
9. Compliance with the time limits for deliveries shall be subject to the proviso of correct and punctual availability of supplies and raw materials. The seller shall notify the buyer as soon as possible of any looming delays.
10. If non-compliance with the time limits for deliveries is caused by force majeure, labour disputes or other events that lie outside the seller's sphere of influence, the delivery period shall be extended appropriately. The seller shall notify the purchaser at the start and end of such circumstances as soon as possible.
11. The purchaser may not refuse to accept deliveries on account of negligible defects. Partial deliveries are permissible, if this providing is acceptable to the Purchaser.
12. If the seller is in delay and should this cause the purchaser any damage, the purchaser is authorised to demand a flat-rate compensation for delay. For each full week of delay, this shall be 0.5%, overall, however, a maximum of 5% of the total value of the respective part of the total delivery, which cannot be used in due time or in accordance with the contract, because of delay.
If the purchaser grants the seller a reasonable period after the due date – in consideration of exceptional cases under the law – and if the seller fails to meet this time limit, the purchaser shall be authorised to withdraw from the contract within the scope of the legal regulations. Upon the seller's request, the purchaser agrees to state within a reasonable time limit whether it will invoke its right to withdraw from the contract.
Additional claims from delay of delivery shall be determined exclusively in accordance with item VI. of these terms of conditions.
13. If, upon the purchaser's request, the forwarding or delivery is delayed by more than one month following the notice of readiness for shipment, the purchaser may be charged a storage fee of 0.5% of the price of the items of delivery for each month or part hereof, at the most, however, a total of 5%. The parties are at liberty to prove higher or lower storage fees.
1. The supplied merchandise shall remain the seller's property until all claims by the seller against the purchaser from the mutual business agreement, including interest and costs, have been paid in full.
2. In the case of attachments, confiscations and other court orders or interventions by third parties, the purchaser shall notify the seller immediately.
3. By payment default of the purchaser, all of the seller's claims shall become due. In this case the purchaser is obligated to return the conditional commodity for the sake of security and effect advance payments for merchandise not yet delivered or provide collateral. The purchaser may neither pledge nor sell the conditional commodity or assign said merchandise as collateral.
4. If the purchaser wishes to use the conditional merchandise itself or through third parties outside the territorial sphere of the Federal republic of Germany, this will require the prior written approval by the seller.
V. Responsibility for defects
1a POLY-TOOLS assume the warranty for the free of defects of his products. This means it guaranties the agreed condition, use and quality of the delivered products.
1b. In the case of a defect, POLY TOOLS will bear all expenditure required for the rectifying of the defects or for the delivery of substitute parts.
1c. The period of warranty is 12 months following the delivery from POLY TOOLS
2. At the time of ordering, the merchandise shall be in keeping with the applicable state of the art. Beyond that, no other quality warranties are given. In particular, no quality warranty is given for the buyer's special uses.
3. In the case of moulds for producing plastic components by means of the blow, injection, injection blow or foaming process, the seller shall accept the liability for defects only if that said parts are produced accurately in accordance with the submitted samples and they are functional during the blow, injection, injection blow or foaming processing with materials generally used in the Federal Republic of Germany. However any liability for defects, shall be excluded for uncertainties, such as fading values, distortion due to uneven wall thickness distribution.
4. Excluded in particular is a liability for defects for failure with regard to taste or fashion of the plastic components produced with the moulds, as well as for the durability of parts due to forming.
5. Liabilities for defects do not exist in the case of negligent deviation from the negotiated quality, in the event of negligible impairment of usability, natural wear or damage caused after the transfer of risk as a consequence of faulty or negligent treatment, excessive stress or unsuitable operating means. If the purchaser or third parties make improper changes to the supplied merchandise, any consequences resulting therefrom shall not be subject to warranty claims.
6. The liability for defects shall be limited to free-of-charge improvements or redelivery and withdrawal from contract, should this meet the legal requirements for withdrawing from the contract. Place of execution for subsequent performance is Donsieders. The purchaser is by no means authorised to effect improvements of defects without the seller's written approval and to bill the seller potentially incurred costs.
7. Additional claims on the part of the purchaser according to this item V. shall be determined exclusively according to item VI. of these terms of delivery.
8. The seller shall not be liable to the purchaser for the infringement of design patents, utility patents, patent rights or other copyrights in connection with the plastics components produced with the tools. If the seller is held liable by a third party with respect to such proprietary rights, the purchaser is obligated to indemnify the seller against all related claims, should the purchaser be liable for the cause of the utilisation.
9. The purchaser agrees to examine the merchandise immediately upon receipt, report defects to the seller immediately and in writing, specifying details.
VI. Other liability on the part of the seller
1. If the object of delivery cannot be used in accordance with the contract due to the seller's fault resulting from omitted or faulty execution of the proposals and consultations effected before and after the conclusion of contract or by violating the purchaser's other contractual secondary obligations, the regulations of items V. and VI.2. shall apply, subject to the exclusion of other claims by the purchaser.
2. For damage caused not directly to the item of delivery, the seller shall be liable – irrespective of whatever legal reasons – only
- in the case of intent
- in the case of gross negligence on the part of the owner/executive body or managerial employees
- in the event of negligent injury to life, body or health
- in the event of defects the Seller maliciously concealed
- within the framework of a guaranteed undertaking
- in the event of defects of the item of delivery provided under the product liability act, the seller is liable for personal or property damage of items designated for private use.
In the event of negligent breach of major contractual obligations, the seller also shall be liable in the case of gross negligence of non-managerial employees and in the case of regular negligence, which in the latter case is limited to typically contractual, reasonably foreseeable damage.
All other claims shall be excluded.
VII. Period of limitation
All of the purchaser's claims – irrespective of whatever legal reasons – shall fall under the 12-month statute of limitations. The time limits shall apply to damage claims under item VI.2. Furthermore, they apply to defects of construction or items of delivery, which were used for a building in accordance with their regular method of utilisation and caused its defectiveness.
VIII. Data protection and secrecy
1. The purchaser shall grant its approval that all of the purchaser’s data stored in the course of the fulfilment of duty (contract processing and accounting) may be processed by means of electronic data processing.
2. Each party shall use all documents and knowledge, which it obtains from the business relations, exclusively for jointly pursued purposes and shall keep said knowledge confidential with the same due care it correspondingly applied to its own documents and knowledge with respect to third parties, if the other party designates said documents and knowledge as confidential or evidently is interested in keeping them confidential.
This also shall apply to after the termination of this business relationship.
IX. VAT Liability
If the seller subsequently is held liable by the revenue authorities of its country to pay VAT because the requirements of a tax-free delivery did not exist, the purchaser shall be obligated to reimburse the seller the amount, if the use of tax exemption is based on incorrect information provided by the purchaser.
X. Jurisdictional Venue
1. The area of jurisdiction is Zweibrücken unless this is opposed by mandatory, statutory regulations. The same shall apply to litigations involving drafts and cheques.
2. Should one or several provisions hereof become invalid, the other provisions shall remain valid. Any invalid provisions are to be replaced from a commercial standpoint, and shall be replaced in consideration of the statutory provisions.