General Terms and Conditions of Sale and Contract for Work
1. Scope of application, conflicting purchase (order) terms and conditions
1.1. These terms and conditions apply to all our deliveries, work deliveries and contract processing business. They also apply to customers. We object to any conflicting terms and conditions of purchase or order of the customer; they shall not be binding on us even if they claim exclusive validity or are introduced in a declaration of intent of the customer subsequent to our letter of offer or order confirmation and we do not object to them again. These terms and conditions shall be deemed accepted by the customer at the latest upon receipt of our delivery (the order goods).
1.2. A waiver of the validity of these terms and conditions or individual clauses thereof or the recognition of conflicting general terms and conditions of the customer or individual clauses thereof shall only be legally effective if we have set this down in writing in our order confirmation. Even if these terms and conditions are waived or if the customer’s terms and conditions of purchase/order are accepted, the provisions of these terms and conditions on retention of title (Clause 8, Paragraphs 1-5), on the exclusion of claims in the event of interruption of operations through no fault of our own and failure to deliver (Clause 4, Paragraph 1, Sentence 2), on the applicable law and on the place of jurisdiction (Clause 12, Paragraphs 1-2) shall form part of the contract, unless we have also waived them by expressly naming these clauses.
1.3. If both contracting parties insist on the exclusive validity of their General Terms and Conditions and if the customer’s approval of these terms and conditions cannot be inferred from any other circumstances arising from his conduct at the time of conclusion or performance of the transaction or from an ongoing business relationship, but if the contracting parties nevertheless perform the transaction by delivery/performance of work and services and acceptance thereof, the contract shall be deemed to have been concluded to the exclusion of the General Terms and Conditions of both parties with the content specified in our order confirmation and in the provisions of the law relating to contracts for sale or contracts for work. Also in such cases, the transfer of ownership of the delivered goods is subject to full payment of the purchase price.
2. Written form
2.1. Insofar as these terms and conditions require written declarations, faxes and notifications printed out by EDP shall also be sufficient for this form within the scope of what is customary in the trade.
3. Conclusion of the contract
3.1. Our offers are always subject to confirmation; contractual obligations shall only arise – even in the event of prior agreement of a transaction by telephone – upon receipt of our written order confirmation by the customer. Our sales representatives are only authorized to initiate, not to conclude contracts.
4. Delivery time, delivery disruptions, partial deliveries, transfer of risk
4.1. Delivery times are stated in the order confirmation in weekly dates; they are only binding if we assure this in writing. In the event of operational disruptions of any kind for which we are not responsible, as well as a lack of supply of raw materials for which we are not responsible, the delivery periods shall be suspended; if the period is exceeded for a longer period, we and – after setting a grace period – the customer shall be entitled to withdraw from the contract. Claims for damages due to late or non-delivery or claims other than claims for return are excluded – except in cases of intent and gross negligence. This exclusion of liability does not apply to injury to life, limb or health. If design documents, models, samples or the like are required by the customer for the execution of a delivery/work order, the delivery period shall only commence upon their receipt.
4.2. We are entitled to make partial deliveries. Tools remain our property in all cases, even if the customer has assumed a share of the costs. Deviations from the ordered quantities are permissible up to 10% upwards and downwards, because such deviations cannot always be avoided for technical reasons. If delivery on call is agreed, we shall be granted reasonable production periods from the time of the call.
4.3. The risk of accidental loss or accidental deterioration of the goods delivered or of goods entrusted to us for processing (finishing) under a contract for work and services shall pass to the addressee – even if the transport is carried out by us or by forwarding agents commissioned by us – when the goods leave our premises in Ahaus.
5. Prices, price due date, transport costs, payment modalities
5.1. The purchase price or compensation for work shall be set out in our order confirmation; in the case of domestic transactions, the statutory VAT shall always be added – even if this was overlooked in the order confirmation – which we shall show separately in our invoice in accordance with the requirements of § 14 UStG (Value Added Tax Act). If, outside a period of 4 months from the conclusion of the contract but prior to the execution of the contract, statutory levies or fees which burden the movement of goods or make work performances more expensive (in particular VAT, customs duties, compensation amounts, currency, freight charges) or tariff wages increase, we shall be entitled to increase the price by the additional imputed costs to be proven by us; the same shall apply to the purchase of necessary input materials in the case of contracts whose execution or partial execution is not planned until 7 months after the conclusion of the contract.
5.2. Our prices are net prices plus the respective applicable statutory value added tax.
5.3. Invoices shall be due for payment without deduction 30 days after the invoice date; in the event of default, we shall charge interest at a rate of 2% p.a. above the respective applicable prime rate (§1DüG), at least. but 8% p.a. If we are able to prove a higher damage caused by delay, we are entitled to claim it. Subcontracting and repair work shall be payable immediately upon receipt of the invoice (without granting a discount).
5.4. Unless delivery free buyer has been agreed, our prices do not include transport costs and insurance of the goods to be transported, which shall be borne by the buyer. In the absence of special instructions, we shall be free to choose the means of transport. We insure the goods only on the basis of appropriate insurance policies /request of the customer at his expense.
5.5. Checks are accepted on account of performance, subject to their being honored. We are not liable – except in case of gross negligence – for the delayed presentation of checks.
6. Material and processing defects, obligations to give notice of defects, warranty, limitation of liability
6.1. The customer shall inspect the goods delivered or the goods processed by us to the extent customary in the trade upon their arrival and shall immediately – at the latest within 8 working days – notify us in writing of any material or processing defects. Hidden defects must be reported no later than 8 working days after the discovery of the defect. Deviations in quantity, dimension and type shall also be deemed to be material defects (§ 378 HGB). Any possibility to give notice of defects shall end at the latest upon the occurrence of the statutory limitation period for warranty claims under purchase agreements or contracts for work and services.
6.2. At our request, the customer shall permit the inspection of the goods which are the subject of the complaint and shall not make any changes to them by means of further processing, installation or other operational use until a decision has been made on the acceptance/rejection of the complaint. In the event of culpable breach of these customer obligations, any warranty shall lapse. In cases of doubt, the customer must prove the identity of the item delivered (processed) by us with the item complained about.
6.3. In the event of proven material/processing defects, we shall be entitled, at our discretion, to make a replacement delivery, rectify the defect or issue a credit note compensating for the reduced value/rectification expenditure. The customer shall only be entitled to assert other statutory warranty claims after a replacement delivery/rectification has failed. If compensation for damages due to non-fulfillment or delayed fulfillment or due to positive breach of contract comes into consideration, we shall only be liable – except in the case of intent or gross negligence – up to the amount of the sales value of the delivered goods or up to three times the compensation for work; compensation for damages that are not inherent to the delivered item or the item processed by us (consequential harm caused by a defect) shall be excluded, unless we are liable under mandatory statutory provisions of product liability law. These limitations of liability do not apply to injury to life, limb or health. Indirect damage and consequential damage as a result of defects in the delivery item shall only be eligible for compensation if such damage is typically to be expected when using the delivered item as intended.
6.4. Damage to items delivered/worked on by us which are caused by unsuitable use, faulty assembly, improper commissioning by the customer, natural wear and tear, excessive stress, use of unsuitable operating equipment/tools or other circumstances in the customer’s sphere of operation over which we have no control shall not be subject to the warranty under the purchase contract or the contract for work and services.
6.5. Bearing, dimensional checks and residual stresses/water absorption
6.5.1. Prefabricated parts must not be stored outdoors. Exposure to sunlight, atmospheric oxygen and humidity can have a lasting negative effect on the material properties (e.g. fading and/or oxidation of the surface, water absorption, etc.). In the case of direct sunlight or one-sided heating, there is a risk of permanent distortion due to thermal expansion and released residual internal stresses.
6.5.2. Dimensional checks are to be carried out immediately after receipt of goods only if the products are at room temperature (≈+20°C) when delivered. Products with higher or lower temperatures can lead to incorrect measured values due to expansion or shrinkage of the plastic as a result of temperature influence. Products that are too warm/cold should be temporarily stored in a dry place and brought to room temerature before dimensional control.
6.5.3. Plastics and finished parts made from them are products which, due to their manufacturing processes, may be subject to residual stresses in the material despite annealing. These have a tendency to relax when stored over a longer period of time under the influence of temperature (e.g. due to sunlight). Polyamides also have the tendency to absorb water at elevated humidity, which causes an increase in volume. These processes are usually associated with dimensional changes and warpage. Despite the most careful manufacturing of the products, we cannot provide a guarantee with regard to the permanent dimensional accuracy and freedom from distortion of finished parts for the above reasons. For long-term storage of finished parts, we recommend storing them in closed cartons under constant conditions (≈normal climate +23°C/50% RF). The dimensional and shape changes to be expected are then minimal and do not usually affect the functional performance.
7. Property assurance, consulting, material testing
7.1. Special characteristics of the object of sale shall only be warranted by us at the express request of the customer and shall only be warranted if we have expressly mentioned this in our order confirmation. If delivery in accordance with DIN has been agreed, this shall be deemed to be a mere specification of quality (without warranty in accordance with sentence 1).
7.2. The examination of the suitability of the delivered or processed goods for the own operational use or further processing purposes as well as the selection of the quality is the sole responsibility of the customer. Any advice or recommendations by us are made to the exclusion of any liability; in this respect, we do not assume any contractual collateral obligations.
7.3. For claims for damages by the customer in the absence of warranted characteristics or in the event of claims arising from a breach of our obligations pursuant to Section 6.3, the limitations of liability set forth therein shall apply.
8. Retention of title
8.1. All delivery items shall remain our property until full payment of our purchase prices (including those arising from earlier or subsequent transactions) or claims for wages against the customer and any ancillary claims (e.g. interest on arrears, reminder charges). The retention of title shall also apply to claims not yet due or deferred as well as to claims which we hold or acquire against the customer on legal grounds other than a purchase/work delivery/work contract, in particular in the event of replacement of the aforementioned claims by abstract check claims. The customer shall be entitled to dispose of the reserved goods in the ordinary course of business, in particular to resell or further process them, until revoked by us. The resale of the goods subject to retention of title shall not be deemed to have been made in the ordinary course of business if the customer excludes the assignability of its claims against the secondary customer (§ 399 BGB), makes such assignment dependent on the consent of the secondary customer or exposes its claim to a right of set-off by the secondary customer. In the aforementioned cases, the customer’s right of disposal over the goods subject to retention of title shall not be granted by us from the outset; it shall also be deemed revoked if the customer becomes insolvent or insolvency proceedings are filed against its assets. The right to revoke the power of disposal for other reasons – which do not require justification – is reserved. If the customer’s power of disposal is or is deemed to be revoked, we shall be entitled to assert our claim for return of title without the need for a prior reminder or setting of a deadline; the customer waives in advance the objection of having conflicting rights of possession from the previous purchase / work delivery contract.
8.2. Any processing or treatment of the goods subject to retention of title at the customer’s premises shall be carried out on our behalf, without the customer being entitled to any claims for compensation for work against us as a result. If a new item or material entity is created by combining the goods subject to retention of title with parts that are not our property, we shall acquire a co-ownership share in this in the ratio of our invoice value for the goods subject to retention of title to the production or purchase value of the third-party parts. The provision of the preceding paragraph (1) sentences 3-6 of these Terms and Conditions shall apply mutatis mutandis to the Buyer’s right to resell items (aggregates of items) in which we have co-ownership.
8.3. The customer assigns to us in advance – in the case of co-owned goods proportionately in the value ratio of paragraph (2) sentence 2 – the claims against the second purchaser arising from the resale of goods subject to retention of title (extended retention of title). If the goods subject to retention of title have increased in value at the customer through processing or other finishing measures, the advance assignment shall be limited to the amount of our invoice value plus 10 % thereof. The customer shall not assert the non-assigned parts of the claim to our disadvantage. The customer shall remain authorized in the ordinary course of business to collect the claims assigned to us in advance, subject to revocation of this authority to collect at any time and without justification or notification of the assignment to the secondary customer by us. If the customer has assigned the claims arising from the resale of goods subject to retention of title (co-ownership) in favor of third parties (in particular lending banks) earlier than to us, this shall not be deemed to be a sale in the ordinary course of business. If the customer wishes to sell the claims arising from the resale of goods subject to retention of title (co-ownership) to a third party assuming the del credere risk (genuine factoring), the effectiveness of this sale shall depend on our prior written consent, otherwise the disposal – likewise always in the case of sale of claims assigned by us in advance in favor of a third party not assuming the del credere risk or assuming it only to a limited extent (non-genuine factoring) – of the claim to which we are entitled shall not be deemed to have been made in the ordinary course of business. All to us.
8.4. The customer shall notify us immediately of any seizure or other impairment by third parties of our goods subject to retention of title or of the claims (parts of claims) assigned to us in advance arising from their resale. Upon request, the customer shall permit access to its business premises for the purpose of ascertaining, identifying, separately storing or removing the goods subject to retention of title. The customer undertakes to provide us with the information required for the assertion of pre-assigned claims against secondary customers and to make available to us copies of the evidence required for this purpose from its business records.
8.5. Insofar as our rights from simple or extended reservation of title 6 in conjunction with any other securities in rem granted to us by the customer exceed our claims from the business relationship in terms of value by more than 10 %, we shall release securities of our choice at the request of the customer.
9. Set-off, right of retention
9.1. Offsetting against our payment claims shall be excluded unless the counterclaims of the customer are acknowledged by us or have become res judicata. The customer shall not be entitled to exercise a right of retention on account of counterclaims arising from a contractual relationship other than the specific contractual relationship.
10. Elimination of the obligation to pay in advance
10.1. In the case of agreed deliveries (partial deliveries), we shall be entitled to demand performance upon counter-performance against cash payment or the provision of sufficient securities if, after conclusion of the contract, circumstances become known which give rise to fears that our claim to payment will be jeopardized. The following shall be deemed to be a threat to claims: cheque protests and default in payment on the part of the customer after two unsuccessful reminders from us; in these cases, all our claims against the customer shall become due immediately. If the buyer refuses the performance upon counter-performance or the granting of securities, we shall be entitled, at our discretion, to withdraw from the contract or to claim damages for non-performance.
11. Property rights
11.1. The customer is liable to us for the freedom of the ordered deliveries and services from possible (protective) rights of third parties. In this respect, the customer shall indemnify us against all claims arising therefrom and shall be obliged to pay damages.
12. Data protection
12.1. For the purpose of credit checks, Bürgel Wirtschaftsinformationen GmbH & Co. KG, Postfach 500 166, 22701 Hamburg, Germany, will provide us with the address and creditworthiness data stored in its database relating to you, including data determined on the basis of mathematical-statistical methods, provided that we have credibly demonstrated our legitimate interest.
12.2. For the purpose of deciding on the establishment, implementation or termination of contractual relationships, we collect or use probability values, the calculation of which includes address data.
13 Applicable law, place of jurisdiction
13.1. The contractual relations with the customer are subject to the law of the Federal Republic of Germany.
13.2. The place of jurisdiction for all disputes arising from bilateral commercial transactions (including actions on checks) shall be Ahaus. We are also entitled to sue the customer before the court responsible for his place of business.
Teplast Herbert Terbrack GmbH & Co KG
September 2019