The following conditions apply to entrepreneurs, legal entities under public law or special funds under public law.
1. Orders shall only become binding upon confirmation of the order by the supplier. If the customer does not object to the contents of the order confirmation within 7 days of receipt, the contract shall be concluded according to the conditions stated therein, even if these deviate from the original agreements due to transmission, notification or spelling mistakes. Changes and additions shall be made in text form. All offers are subject to change without notice, unless they are designated as firm offers, unless expressly designated as binding, non-binding approximate values.
2. Unless expressly agreed otherwise in writing, these terms and conditions shall also apply to current business relations and future transactions, even if no express reference is made to them, insofar as they were referred to in an order previously confirmed by the supplier.
3. The customer's terms and conditions shall not apply, even if we do not expressly object to them, unless they have been expressly accepted in writing by the supplier. The provisions on distance selling in business transactions with costomers shall not apply to the business relationship with entrepreneurs, not even correspondingly.
4. Should individual provisions be or become invalid, this shall not affect the remaining provisions.
1. In case of doubt, the prices are ex works excluding freight, customs, import or export duties and packaging plus VAT at the statutory rate.
2. If the decisive cost factors, in particular for material, energy or personnel, change by more than 5% after submission of the offer or after order confirmation up to delivery, each party shall be entitled to demand a price adjustment. This has to be measured according to how the relevant cost factor changes the total price.
3. The supplier shall not be bound to previous prices in the case of new orders.
4. The preparation and submission of the offer as well as further cost estimates shall not be remunerated.
5. In the case of a value of goods or an order quantity per article of up to EUR 500 € net, we shall charge a surcharge for short quantities of EUR 280 € net.
III. Delivery and Acceptance Obligation, Force Majeure
1. 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 observed upon notification of readiness for dispatch if dispatch is delayed or impossible through no fault of the supplier.
2. If an agreed delivery period is not observed due to the supplier's own fault, the customer shall in any case be obliged to set a reasonable grace period.
3. Partial deliveries are permissible, if reasonable.
4. In the case of call-off orders without agreement on duration, production batch sizes and acceptance dates, the supplier may demand a binding specification of these 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 to withdraw from the contract and/or claim damages after its expiration.
5. If the customer does not fulfil his acceptance obligations, the supplier shall not be bound to the regulations on self-help sales, notwithstanding other rights, but may sell the delivery item by private treaty after prior notification of the customer.
6. Events of force majeure 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 because of 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, raw materials through no fault of the supplier or energy shortages, which make it impossible for the supplier to deliver on time despite reasonable efforts. This shall also apply if the aforementioned hindrances occur during a delay or at a subcontractor. The customer may request the supplier to declare within two weeks whether he wishes to withdraw from the contract or to deliver within a reasonable period of grace. If the supplier does not make such a declaration, the customer may withdraw from the unfulfilled part of the contract. The supplier shall inform the customer immediately if a case of force majeure as described in paragraph 1 occurs. He shall keep the Customer's impairments as low as possible, if necessary by surrendering the moulds for the duration of the period of control.
7. Periods and dates for deliveries and services promised by us are always only approximate, unless a fixed period or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
8. If it has been agreed that a fixed agreed delivery quantity is to be delivered within a fixed period and our contractual partner is entitled to determine the delivery date (contingent on call), the deliveries are to be called off from us at the latest twelve weeks before the desired delivery date. After expiry of the specified period without call-off, we may deliver and invoice the quantity not yet called-off.
IV. Terms of payment
1. All payments are to be made in € (EURO) exclusively to the supplier. Unless otherwise agreed, the purchase price for deliveries or other services shall be paid without deduction within 30 days of the invoice date.
2. If the agreed payment date is exceeded, interest shall be charged at the statutory interest rate of 8 percentage points above the respective base interest rate in accordance with § 247 BGB (German Civil Code), unless the supplier can prove higher damages.
3. Cheques 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.
4. The customer may only offset or assert a right of retention of payments if his claims are undisputed or have been finally determined by a court of law.
5. The sustained non-compliance with terms of payment or circumstances, which justify serious doubts about the creditworthiness of the customer, entitle the supplier to the immediate maturity of all claims. In addition, 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.
6. We are entitled to assign our claims to third parties.
V. Packaging, Dispatch, Transfer of Risk and Default of Acceptance
1. Unless otherwise agreed, the supplier shall choose the packaging, type and route of dispatch. He shall be entitled to commission one of the consignors usually selected by him for his dispatch transactions at the usual conditions agreed with him.
2. The risk shall pass to the customer when the goods leave the supplier's works, even in the case of carriage paid delivery. In the event of delays in dispatch for which the customer is responsible, the risk shall pass to the customer upon notification of readiness for dispatch.
3. 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.
4. In the event of default of acceptance on the part of 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 commenced calendar week. We reserve the right to assert higher storage costs against proof.
5. Unless otherwise agreed, our deliveries shall be made EXW (Incoterms 2010 = ex works), 98587 Steinbach-Hallenberg, Altersbacher Straße 14.
VI. Retention of Title
1. The supplies 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 title to the deliveries (reserved goods) shall serve as security for the supplier's balance invoice. If, in connection with the payment of the purchase price, a bill of exchange liability of the Supplier is established, the retention of title shall not expire until the bill of exchange has been honoured by the Buyer as the drawee.
2. Any processing or treatment by the customer shall be deemed to have been carried out for the Supplier to the exclusion of the acquisition of ownership in accordance with § 950 BGB; the Supplier shall become co-owner of the object thus created in accordance with the ratio of the net invoice value of its goods to the net sales price of the goods to be processed or treated which serves as reserved goods to secure the Supplier's claims in accordance with paragraph 1.
3. In the event of processing (combination/mixing) by the customer with other goods not belonging to the supplier, the provisions of §§ 947, 948 BGB shall apply with the result that the co-ownership share of the supplier in the new item shall now be deemed to be reserved goods within the meaning of these conditions.
4. The resale of the reserved goods is only permitted to the customer in the ordinary course of business and under the condition that he also agrees a retention 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 or assigning them as security.
5. In the event of resale, the customer hereby assigns to the supplier all claims arising from the resale and other justified claims against his customers with all ancillary rights until all claims of the supplier have been satisfied. At the Supplier's request, the Customer shall be obliged to immediately provide the Supplier with all information and documents required to assert the Supplier's rights against the Customer's customers.
6. 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.
7. If the realisable value of the securities existing for the Supplier exceeds the Supplier's total claims by more than 10%, the Supplier shall be obliged to release securities of the Supplier's choice at the Customer's request.
8. The Supplier shall be notified immediately of any seizure or confiscation of the reserved goods by third parties. Any intervention costs arising therefrom shall in any case be borne by the customer unless they are borne by third parties.
9. 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 by private contract or to have them auctioned. The goods subject to retention of title shall be taken back at the proceeds obtained, but no more than the agreed delivery prices. Further claims for damages, in particular lost profit, remain reserved.
VII. Liability for Defects as to Quality
1. The quality and design of the products shall be determined by the product description or, if their preparation has been agreed, by the outturn samples, which shall be submitted to the customer for inspection by the supplier upon request. In all other respects, No. XII para. 1 shall also be observed. The reference to technical standards serves the performance description and is not to be interpreted as a guarantee of quality. The tolerances customary in the industry shall apply. Without a special written agreement, production shall be carried out with materials customary in the industry and in accordance with the agreed manufacturing processes or, in the absence of an agreement, in accordance with known manufacturing processes. Minor deviations from the original in colored productions or reproductions shall not be deemed defects; the same shall apply to deviations between proofs and print runs.
2. If the supplier has advised the customer outside his contractual performance, he shall only be liable for the functionality and suitability of the delivery item with express prior assurance.
3. Notifications of defects must be made immediately in writing. In the case of hidden defects, the complaint must be made immediately after discovery. In both cases, unless otherwise agreed, all warranty claims expire twelve months after transfer of risk.
4. In the event of a justified notice of defect, the supplier shall be obliged to subsequent performance (at his discretion either repair or replacement). If he does not comply with this obligation within a reasonable period of time or if subsequent performance fails repeatedly, the customer shall be entitled to reduce the purchase price or withdraw from the contract. For further claims, in particular reimbursement of expenses or claims for damages due to defect or consequential defect damage, the limitations of liability pursuant to No. VIII shall apply. Replaced parts shall be returned to the supplier freight collect upon request.
5. Unauthorized reworking and improper handling shall result in the loss of all warranty claims. The customer shall only be entitled, after prior notification to the supplier, to remedy the defect and demand reimbursement of the reasonable costs incurred in order to avert disproportionately large damage or in the event of delay in remedying the defect by the supplier.
6. Wear and tear to the usual extent shall not give rise to any warranty claims.
7. Rights of recourse according to §§ 478, 479 BGB (German Civil Code) only exist if the consumer was entitled to claim against the party entitled to recourse and only to the extent permitted by law, not, however, for goodwill settlements not agreed with the supplier, and presuppose that the party entitled to recourse observes its own obligations, in particular the duty to notify defects.
VIII. General Limitations of Liability
1. The supplier shall only be liable for damages or reimbursement of expenses to the extent that he, his executive employees or vicarious agents are guilty of intent, gross negligence or injury to life, limb or health. In cases of damage in which the special liability regulations and limitations of liability agreed in these General Terms and Conditions are not relevant, the Supplier shall only be liable for damage up to a maximum of € 5 thousand per case, unless the Supplier is at fault in the form of intent or gross negligence.
2. The strict liability according to the Product Liability Act as well as the liability for the fulfilment of a quality guarantee shall remain unaffected.
3. Liability for the culpable breach of essential contractual obligations shall also remain unaffected; however, liability shall be limited to the foreseeable damage typical of the contract, except in the cases of No. 1. Essential contractual obligations are to be understood as the fundamental, elementary obligations from the contractual relationship which are of particular importance for the proper execution or fulfilment of the contract or which have a significant influence on the mutual trust existing between the parties, in particular the fulfilment of delivery obligations and important information obligations.
4. A change in the burden of proof to the disadvantage of the customer is not associated with the above provisions.
5. If we are basically liable for damages, this liability shall be limited to damages which we foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which we should have foreseen if we had exercised due care. Indirect damage and consequential damage resulting from defects in the delivery item can only be claimed from us if such damage was typically expected when the delivery item was used as intended.
6. In the event of liability for simple negligence, our liability for damages to property and any further financial losses resulting therefrom shall be limited to the sum insured under the product liability insurance of the respective company in the group with which the contract exists, even if this is a breach of material contractual obligations, unless otherwise agreed.
IX. Moulds (Tools)
1. The price for moulds shall also include the costs for one-off sampling, but shall not include the costs for testing and processing equipment or for modifications initiated by the customer. Costs for further samples for which the supplier is responsible shall be borne by him.
2. Unless otherwise agreed, the supplier is and remains the owner of the moulds manufactured for the customer by the supplier himself or by a third party commissioned by him. If expressly agreed, moulds shall only be used for customer orders as long as the customer meets his payment and acceptance obligations. The Supplier shall only be obliged to replace these moulds free of charge if they are necessary to fulfil a guaranteed output quantity to the Customer. The Supplier's obligation to store the moulds shall expire two years after the last delivery of parts from the mould. The customer must be informed prior to disposal.
3. If a contract is terminated but the moulds have not yet been amortised, the Supplier shall be entitled to invoice the remaining amortisation amount in full immediately.
4. If, as agreed, the customer is to become the owner of the moulds, ownership shall pass to him after full payment of the purchase price for the moulds. The transfer of the moulds to the customer shall be replaced by storage in favour of the customer. Irrespective of the customer's statutory right to claim surrender and of the service life of the moulds, the supplier is entitled to exclusive possession of the moulds until termination of the contract. The supplier must mark the moulds as third-party property and insure them at the customer's request and expense.
5. In the case of moulds owned by the customer in accordance with no. 4 and/or moulds made available on loan by the customer, the liability of the supplier with regard to storage and care shall be limited to the same care as in his own affairs. Costs for maintenance and insurance shall be borne by the Customer. The Supplier's obligations shall expire if the Customer does not collect the moulds within a reasonable period of time after completion of the order and corresponding request. As long as the customer does not meet his contractual obligations in full the supplier shall in any case have a right of retention to the moulds.
X. Drafts/ Clichés/ Documentation/ Auxiliary
1. The supplier retains 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.
2. 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 finally destroyed.
3. When providing templates and ideas, the Customer shall indemnify the Supplier against any claims by third parties asserting rights thereto.
4. The designs, final artwork, printing plates and the like produced by the Supplier shall remain the property of the Supplier, even if the Customer has been charged for the production costs.
5. If we manufacture (auxiliary) models, moulds, tools etc. within the scope of the commissioned service, these shall not be part of the service and shall remain our property unless otherwise agreed in writing.
XI. Provision of Materials
1. If materials are supplied by the customer, they shall 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%.
2. If these conditions are not met, the delivery period 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
1. 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 draw the customer's attention to the rights known to him, but shall not be obliged to conduct his own research. The customer shall indemnify the supplier against claims of third parties upon first request and shall pay compensation for the damage incurred. If the Supplier is prohibited from manufacturing or supplying by a third party with reference to a property right belonging to him, he shall be entitled - without examining the legal situation - to suspend the work until the legal situation has been clarified by the Customer and the third party. Should the supplier no longer be able to continue the order due to the delay, he shall be entitled to withdraw from the contract.
2. Drawings and samples provided to the supplier which have not led to the order shall be returned on request; otherwise the supplier shall be entitled to destroy them three months after submission of the offer. This obligation shall apply accordingly to the customer. The party entitled to the destruction must inform the contractual partner of his intention to destroy in good time in advance.
3. The supplier shall be entitled to the property rights, copyrights and any industrial property rights, in particular all rights of use and exploitation to the models, moulds and devices, drafts and drawings designed by him or by third parties on his behalf. Upon request, the customer must return the documents, moulds, samples or models, including any copies made, to the supplier without delay.
4. Should other defects of title exist, No. VII shall apply mutatis mutandis to these.
XIII. Food Safety and Recycling Materials
1. If a product is to be used for contact with food, the suitability of the material for the specific food must be checked in advance by the customer at his own responsibility.
2. Recycling raw materials shall be carefully selected by the supplier. Regenerated plastics may nevertheless be subject to greater fluctuations in surface quality, colour, purity, odour and physical or chemical properties from batch to batch; this does not entitle the customer to notify the supplier of defects. However, the supplier shall assign to the customer any claims against sub-suppliers upon request; the supplier shall not assume any warranty for the existence of such claims.
XIV. Place of Performance and Jurisdiction
1. The place of performance shall be the place of the supplying plant.
2. The place of jurisdiction shall be the registered office of the supplier.
3. German law applies exclusively.
4. The application of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (BGB/ 1990 p. 1477) is excluded.
MegaPlast GmbH Issue Date: 28.02.2019
Altersbacher Straße 14
98587 Steinbach - Hallenberg