(based on the non-binding recommended terms of IK Industrievereinigung Kunststoffverpackungen e.V. dated 01/04/2009)  ES

 

The General Terms and Conditions for Sale and Supply of the Plastics Processing Industry are recommended with non-binding effect by Gesamtverband Kunststoffverarbeitende Industrie [General Association of the Plastics Processing Industry]. Members of umbrella associations and their contractual partners are therefore free to use different terms and conditions of business.

Scope of applicability

 

The terms and conditions below apply to companies, legal entities under public law or public-law special funds.

I. Application

 

1.       Orders shall only become binding after order confirmation by the supplier. If the customer does not object to the content of the order confirmation within 7 days after receipt thereof, the contract shall be formed under the conditions mentioned therein, even if these differ from the original agreements due to transmission, communication or clerical errors.

 

          Any amendments and supplements shall be made in text form. All offers are subject to change at any time unless they are designated as firm offers. Any specifications regarding quantity or size shall be deemed to be non-binding approximate values unless they are expressly designated as binding.

 

2.       In ongoing business relationships, these terms and conditions shall also apply to future business even if express reference is not made thereto, provided that they are referred to in an order confirmed earlier by the supplier.

 

3.       The customer’s terms of business shall not apply even if we do not expressly reject same unless expressly recognised by the supplier in writing. The regulations regarding distance sales in business transactions with consumers do not apply to the business relationship with companies, not even in corresponding situations.

 

4.       Should individual terms and conditions be or become invalid, this shall not affect the remaining terms and conditions.

 

II. Pricing

 

1.     In the case of doubt, prices shall be valid ex-works excluding freight, customs, import or export duties, packaging and value added tax in the statutory amount.

 

2.     If, after submission of the offer or after order confirmation until the date of delivery, the decisive cost factors, in particular for material, energy or personnel increase by more than 5%, both parties shall be entitled to request a price adjustment. This shall be applied in the proportion that the decisive cost factor changes the overall price.

 

3.     For new orders, the supplier shall not be bound to prices charged previously.

 

III. Delivery and purchase obligation, force majeure

 

1.      Delivery periods shall commence after receipt of all the documents, advance payments and timely material provisions required for the execution of the order to the extent these were agreed. On notification of readiness for shipment, the delivery period shall be deemed to be complied with if the shipment is delayed or becomes impossible without this being the responsibility of the supplier.

 

2.      If an agreed delivery period is not complied with due to the fault of the supplier, the customer shall in all cases be obligated to set an appropriate period of grace.

 

3.      Part deliveries are permissible to the extent reasonable.

 

4.      For call-off orders without an agreement regarding term, production batch sizes and purchase dates, the supplier may request a binding determination thereof no later than three months after order confirmation. If the customer fails to comply with this request within three weeks, the supplier shall be entitled to set a two-week period of grace and, after expiry thereof, withdraw from the contract and/or demand compensation for damages.

 

5.      If the customer does not meet its purchase obligations, the supplier shall, without prejudice to its other rights, not be bound to the regulations regarding resale on the buyer's default but may, in fact, sell the item of supply privately after notifying the customer.

 

6.      Force majeure events entitle the supplier to postpone the delivery for the duration of the hindrance plus an appropriate start-up period or withdraw from the non-performed part of the contract, in whole or in part. Force majeure shall be deemed to include strikes, lockouts or unforeseeable, unavoidable circumstances, e.g. operational disruptions, transport delays or disruptions through no fault of the supplier, shortages of raw materials or energy through no fault of the supplier that make it impossible for the supplier to deliver in time despite making all reasonable efforts. This shall also apply if the aforementioned hindrances occur during default or in respect of a sub-supplier.

 

 

The customer may request the supplier to assert within two weeks whether the supplier wishes to withdraw or deliver within an appropriate period of grace. If the supplier fails to make an assertion, the customer may withdraw from the non-performed part of the contract.

The supplier shall notify the customer without delay if a force majeure event as described in paragraph 1 occurs. The supplier shall ensure that any negative effects impact the customer as little as possible, if applicable by providing the moulds for the duration of the hindrance.

 

IV. Payment terms

 

 

1.    All payments shall be made exclusively to the supplier in € (EURO). Unless agreed to otherwise, the purchase price for deliveries or other services shall be payable without deduction within 14 days after the date of invoice.

 

2.    Should the agreed payment date not be complied with, interest in the amount of the statutory interest rate of 8 percentage points above the respective base interest rate pursuant to section 247 BGB [German Civil Code] shall be charged unless the supplier proves higher losses.

 

3.    Cheques or bills of exchange shall only be accepted after express previous written agreement and only as conditional payment. All the costs associated therewith shall be for the customer.

 

4.    The customer may only offset or assert a right of retention of payments if its claims are uncontested or determined by a court of law.

 

5.    Long-term non-compliance with payment terms or circumstances that raise serious doubts in the customer’s creditworthiness shall entitle the supplier to collect all claims immediately. In addition, the supplier shall, in this case, be entitled to request advance payments for all outstanding supplies and to withdraw from the contract after fruitless expiry of an appropriate period of grace.

 

V. Packaging, shipment, passing of risk and delayed acceptance

 

1.       Unless otherwise agreed, the supplier shall choose the packaging, type of shipment and shipping method. The supplier is entitled to engage a forwarder customarily selected by same for its shipping business under the customary terms agreed with same.

 

2.       In the event of carriage paid delivery, risk shall also pass to the customer as soon as the supplied goods leave the supplier’s factory. In the event of delays in shipment that the customer is responsible for, the risk shall pass already on notification of readiness for shipment.

 

3.       The goods shall be ensured for the risks designated by the customer upon the customer’s written request.

 

 

4.       In the case of delayed acceptance by the customer, the supplier is entitled to store the goods at the cost of the customer. If the supplier stores the goods itself, the storage costs in the amount of 0.5% of the invoice amount of the stored goods per calendar week started shall be charged. The supplier reserves the right to charge higher storage fees on proof thereof.

 

VI. Reservation of title

 

1.       The supplies remain the property of the supplier until all the claims the supplier has against the customer are fulfilled even if the purchase price for specially designated receivables has been paid. In cases where a current account has been opened, the supplies subject to reservation of title (conditional goods) shall be deemed to be collateral for the balance of the invoice. If a liability on a bill of exchange is established for the supplier in connection with the payment of the purchase price, the reservation of title shall not lapse prior to collection of the bill of exchange by the customer as the drawee.

 

2.       Any adaptation or processing by the customer shall be regarded as carried out for the supplier to the exclusion of the acquisition of ownership pursuant to section 950 BGB; the supplier shall become co-owner of the goods arising in this manner in the ratio of the net invoice value of its goods to the net selling price of the goods to be adapted or processed. Such goods shall be deemed to be conditional goods and shall serve as collateral for the supplier’s claims pursuant to paragraph 1.

 

3.       If the customer processes (combines/mixes) goods with other goods not belonging to the supplier, the provisions of sections 947 and 948 BGB shall apply with the consequence that the supplier’s co-ownership portion in the new item shall now be regarded as conditional goods within the meaning of these terms and conditions.

 

4.       The customer may only resell conditional goods in the ordinary course of business and on condition that a reservation of title pursuant to paragraphs 1 to 3 is also agreed with its customer. The customer is not entitled to dispose of the conditional goods in any other manner, in particular by way of pledging or assignment as security.

 

5.       In the event of resale, the customer herewith, until fulfilment of all the supplier’s entitlements, assigns all the claims accruing to same from the resale and other justified entitlements in respect of its customers and all ancillary rights to the supplier Upon request by the supplier, the customer undertakes to provide the supplier without delay all the information and documents required to assert the supplier’s right in respect of the customer’s buyers.

 

6.       If the customer resells conditional goods after processing pursuant to paragraphs 2 and/or 3 together with other goods not belonging to the supplier, the assignment of the purchase price receivable pursuant to paragraph 5 shall only be in the amount of the value of the invoice for the conditional goods of the supplier.

 

7.       If the realisable value of the collateral held by the supplier exceeds its total receivables by more than 10%, the supplier undertakes to release collateral, at the choice of the supplier, upon request by the customer.

 

8.       The supplier must be notified without delay in the event of attachments or seizures of conditional goods by third parties. Any costs for interventions arising therefrom shall, in all cases, be borne by the customer unless they are borne by third parties.

 

9.       If, in accordance with the provisions above, the supplier exercises its reservation of title by taking back conditional goods, the supplier is entitled to sell the goods privately or have them auctioned off. Conditional goods shall only be taken back at the proceeds obtained, however, at maximum at the agreed delivery prices. We reserve the right to assert further claims for compensation for damages, in particular for profits foregone.

 

VII. Liability for material defects

 

1.       The product description or, if preparation is agreed, the initial samples, which were submitted to the customer for review by the supplier on request, shall define the quality and workmanship of the products. In all other respects, no. XII para. 1 must be observed. Any reference to technical standards is a description of the services and is not to be interpreted as a guarantee of quality. The tolerances accepted within the industry shall apply. Unless agreed-to separately, in writing, production shall be carried out using materials accepted within the industry and in accordance with the agreed, if there is no agreement then the well-known, manufacturing processes. For productions or reproductions in colour, minor deviations to the original shall not be regarded as defects. The same shall apply to differences between proofs and production prints.

 

2.       If the supplier has provided advice to the customer outside of its contractually agreed performance, the supplier shall only be liable for the functioning and suitability of the item of supply if an explicit assurance is provided in advance.

 

3.       Notifications of defects shall be made in writing without delay. In the case of hidden defects, the notification must be made immediately after determination thereof. In both cases, all claims for defects shall prescribe twelve months after the passing of risk, unless agreed to otherwise.

 

4.       In the event of a justified notification of defects, the supplier is obliged to render subsequent performance (subsequent improvement or replacement, at its choice). Should the supplier not comply with this obligation within an appropriate period, or if the subsequent performance repeatedly fails, the customer is entitled to reduce the purchase price or withdraw from the contract. The limitations of liability pursuant to no. VIII apply to any further claims, in particular claims for reimbursement of expenses or compensation for damages as a result of losses arising from defects or consequential damages. Replaced parts shall be sent back to the supplier carriage-forward upon request.

 

5.       Unauthorised reworking and improper handling shall lead to the loss of all claims for defects. The customer shall only be entitled to rectify defects in order to prevent disproportionately serious damage or if there is a delay in the rectification of the defect by the supplier after notifying the supplier and requesting reimbursement of the appropriate costs in this respect.

 

 

 

6.       Normal wear and tear does not imply any rights to make warranty claims.

 

7.       Recourse claims pursuant to section 478 and 479 BGB shall only be deemed to exist if the consumer’s claim against the claimant was justified and only to the legal extent, but not to ex-gratia arrangements made with the supplier, and shall presuppose the claimant’s compliance with its own duties, in particular the duty to report defects.

 

VIII. General limitations of liability

 

1.     The supplier shall only be liable to compensate for damages or reimburse expenses to the extent its managing employees or vicarious agents are guilty of wilful intent, gross negligence or injury to life, body or health.

 

2.     Strict liability pursuant to the product liability law as well as liability for the fulfilment of a guarantee of quality shall remain unaffected.

 

3.     Liability for a culpable violation of essential contractual duties shall also remain unaffected. However, the liability in this regard is limited to the foreseeable damages typical of this type of contract except for the cases referred to in no. 1. Essential contractual duties shall be deemed to include the fundamental, elementary duties arising from the contractual relationship that are of particular significance for the proper execution or performance of the contract or that substantially influence the relationship of trust in existence between the parties, in particular therefore the performance of supply obligations and important notification obligations.

 

4.     The above regulations do not constitute any change in the burden of proof to the disadvantage of the customer.

 

IX. Moulds (tools)

 

1.     The price of moulds shall also include the costs for one-off sampling, however, not the costs for testing and processing equipment as well as for modifications requested by the customer. Costs for further sampling that the supplier is responsible for shall be borne by the supplier.

 

2.     Unless agreed to otherwise, the supplier is and remains the owner of the moulds manufactured for the customer by the supplier itself or a contracted third party. Moulds shall, on explicit agreement, only be used for the customer’s order as long as the customer meets its payment and purchase obligations. The supplier shall only be obligated to replace these moulds free of charge if required for fulfilling an output quantity promised to the customer. The supplier’s storage obligation shall lapse two years after the last parts delivery using the mould. The customer shall be notified prior to removal from storage.

 

3.     If a contract is terminated, but if the moulds have not yet been written off, the supplier is entitled to invoice the full remainder of the amortisation value without delay.

 

4.     Should the customer become owner of the moulds by agreement, ownership shall pass to the customer on full payment of the purchase price for the moulds. Delivery of the moulds to the customer is replaced by storage for the benefit of the customer. Regardless of the customer's legal right to recover possession and the lifespan of the moulds, the supplier is entitled to exclusive ownership thereof until termination of the contract. The supplier shall mark the moulds as third-party property and insure same at its costs upon request by the customer.

 

5.     For the customer’s own moulds pursuant to no. 4 and/or moulds provided by the customer on loan, the supplier’s liability with respect to storage and care shall be limited to the duty of care applied to its own property. The costs of maintenance and insurance shall be borne by the customer. The supplier’s obligations shall extinguish if the moulds are not collected within an appropriate period of time after completion of the order and relevant request to the customer. As long as the customer does not fully comply with its contractual obligations, the supplier shall in all cases have a right of retention of the moulds.

 

X. Designs/printing plates/documents

 

1.     The supplier retains the sole execution rights and copyright in the supplier’s designs, documents, illustrations, drawings and other records. If the customer provides templates and ideas, the supplier shall acquire a joint copyright to the extent that the supplier contributed to the template or design.

 

2.     If no order is placed, the customer undertakes to return to the supplier all the documents handed to same, including any copies made thereof without delay. Any digital duplications shall be permanently destroyed..

 

3.     If templates and ideas are provided, the customer shall indemnify the supplier for any claims that third parties may assert in this respect.

 

4.     The designs, final artworks, printing plates and suchlike produced by the supplier shall remain its property even if the customer has been invoiced the costs of production.

 

XI. Provision of materials

 

1.     If the customer provides materials, they shall be delivered at its cost and risk with an appropriate quantity surcharge of at least a 5% in good time and in flawless quality.

 

2.     Should these requirements not be met, the delivery period shall be extended appropriately. Except in the case of force majeure events, the customer shall bear the additional costs arising, including for interruptions to production.

 

XII. Intellectual property rights and defects in title

 

1.     If the supplier is obligated to deliver according to drawings, models, samples or using parts provided by the customer, the customer provides its assurance that third-party intellectual rights in the country of destination of the goods are not violated thereby. The supplier shall notify the customer of the rights known to same but is not obligated to undertake its own research. The customer shall indemnify the supplier of third-party claims upon first request and compensate for damages arising. If the supplier is prohibited from manufacture or delivery by a third party with reference to a protective right of the third party, the supplier shall be entitled – without reviewing the legal situation – to discontinue work until the legal situation is clarified by the customer and the third party. Should it no longer be reasonable for the supplier to continue with the order due to the delay, the supplier shall be entitled to withdraw.

 

2.     Any drawings and samples provided to the supplier that did not give rise to an order shall be returned upon request. Otherwise the supplier is entitled to destroy same three months after submission of the offer. This obligation shall apply mutatis mutandis to the customer. The party entitled to destroy goods shall notify the contractual partner of their intention to destroy in good time in advance.

 

3.     The ownership rights, copyright and, if applicable, intellectual property rights, in particular all rights of use and exploitation in the models, moulds and equipment, designs and drawings created by same or a third party on its behalf shall accrue to the supplier. The customer shall return to the supplier without delay the records, documents, moulds, samples or models, including any duplications made, upon request.

 

4.     Should other defects in title be present, no. VII shall apply mutatis mutandis to same.

XIII. Food safety and recycling materials

 

1.     If a product is to be used for contact with foodstuffs, the suitability of the material for the specific foodstuff shall be tested by the customer under its own responsibility.

 

2.     Recycling raw materials shall be carefully selected by the supplier. Regenerated plastic may, however, be subject to higher fluctuations in surface quality, colour, purity, odour and physical or chemical properties from batch to batch. This shall not entitle the customer to notify the supply of a defect. However, the supplier shall assign to the customer any claims against the sub-supplier upon request. The supplier shall not provide any guarantee for the validity of such claims.

XIV. Place of performance and place of jurisdiction

 

1.   The place of performance shall be the place of the supplying factory.

 

2.   The place of jurisdiction shall be the registered offices of the supplier’s company or the registered offices

of the customer.

 

3.   German law shall apply exclusively under exclusion of UN Convention on Contracts for the International Sale of Goods.