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Generell Terms and Conditions
General Terms and Conditions of Delivery for Goods and Services of Lakowa Gesellschaft fuer die Kunststoffbe- und verarbeitung mbH, Wilthen
- The agent, hereinafter called Supplier, is Lakowa Gesellschaft fuer die Kunststoffbe- und verarbeitung mbH, Dresdner Strasse 25, 02681 Wilthen.
- The principal is called Buyer in the following.
- Offers that are not marked firm offers, are without obligation. Orders only become binding with the Supplier’s order confirmation.
- During ongoing business relations, these Terms and Conditions are also binding for future business deals that do not expressly refer to them, as long as they have been agreed upon by the Parties for an earlier order.
- The Buyer’s Terms and Conditions do not apply, unless the Supplier has expressly acknowledged them.
- Should individual provisions be or become invalid, the validity of the remaining provisions is not affected. The Contracting Parties undertake to replace the invalid provision with a valid one that is as close as possible in content and economic success to the invalid provision.
II. Offers and orders
- Specifications attached to offers are an essential components of them, the specification that the order confirmation is based on forms part of the contract.
- If there is doubt, prices are quoted ex works excluding freight, duty, ancillary import charges and packaging, plus statutory value added tax.
- Should decisive cost factors change significantly after the offer has been made or after order confirmation until delivery, the Buyer and Supplier will come to an understanding on adjusting prices and the portion of costs for moulds.
- If it has been agreed that the price is dependent on the weight per part, the final price will be determined by the weight of the approved type sample.
- For new orders (= follow-up orders) the Supplier is not bound to previous prices.
IV. Obligation to deliver and to accept delivery
- The Supplier undertakes to manufacture and deliver the tools (moulds) ordered from it according to agreed specifications and state of the art technology.
- Delivery terms begin after receipt of all documents necessary for the execution of the order, the deposit and the timeous provision of materials, as far as this has been agreed upon.
- The delivery and/or completion deadlines are deemed to have been met when the delivery object has left the Supplier’s factory. On notification of readiness for shipment the deadline is deemed met, even if the delivery is delayed or impossible through no fault of the Supplier or if the Customer is obliged to collect the goods.
- If the Supplier anticipates that the deadline cannot be met, it is obligated to inform the Buyer immediately by stating reasons.
- Adequate part deliveries as well as reasonable deviations from the ordered quantity up to plus/minus 10% are permissible.
- For call-off orders without an agreement on duration, manufacturing batch sizes and call-off times, the Supplier may request a binding stipulation of these at the latest three months after order confirmation. If the Buyer does not comply with this request within three weeks, the Supplier is entitled to extend the deadline by two weeks and thereafter withdraw from the contract and/or claim damages.
- If the Buyer does not fulfil its obligations to accept delivery, the Supplier is not bound to the provisions of self-help sale, without prejudice to other rights, rather the Supplier may sell the contractual object directly after notifying the Buyer beforehand.
- Events of force majeure entitle the Supplier to postpone the delivery by the duration of the disruption and an adequate start-up period, or to withdraw from the the undelivered portion of the contract in total or in part. Force majeure includes industrial actions (such as strikes or lockouts), unrest, official measures or unforeseen, unavoidable circumstances, e.g. operational stoppages, which make timeous deliveries impossible for the Supplier despite its best efforts; proof of this must be brought by the Supplier. This also applies if the above mentioned hindrances occur during a delay or at a sub-supplier. The Buyer may request the Supplier to declare within two weeks, if it wants to withdraw or is able to delivery after a reasonable period of grace. Should he not make a declaration, the Buyer may withdraw from the unfulfilled portion of the contract. The Supplier will inform the Buyer immediately should an event of force majeure, as described in paragraph 1, occur. The Supplier must try and keep impairments to the Buyer to a minimum, possibly by handing over the moulds for the duration of the disruption.
- For all cases where the parts or tools are not delivered through no fault of the Supplier, the costs incurred by the Supplier must be reimbursed. The Buyer is entitled to request that all unfinished tools incl. ancillary works are handed to it, unless the Buyer is responsible for nondelivery.
V. Packaging, despatch, transfer of risk and delay in accepting delivery
- Unless otherwise agreed upon, the Supplier selects packaging, type of despatch and shipping route.
- Also in the case of freight free delivery, risk is transferred to the Buyer when the delivery item leaves the supplying works. If there is a delay in despatch, for which the Buyer is responsible, the risk is already transferred to the Buyer at the time of notification of readiness for shipment.
- At the Buyer’s written request, the goods will be insured at its expense against risks specified by the Buyer.
VI. Retention of title
- The deliveries remain the Supplier’s property until all claims from the Supplier against the Buyer have been fulfilled, even when the purchase price for specifically marked claims has been paid. For current accounts, the retained title to the deliveries (retention goods) is considered security for unpaid Supplier invoices. If in the context of the payment the Supplier becomes liable on the basis of a bill of exchange, the retention of title does not cease until the Buyer as drawee has redeemed the bill of exchange.
- Processing by the Buyer occurs on instruction of the Supplier under exclusion of acquiring ownership according to Art. 950 BGB [German Civil Code]; it becomes co-owner of the thus created object at a ratio of the net invoice amount of its goods to the net invoice amount of the goods to be processed, the new object serves as retention goods for securing the Supplier’s claims according to paragraph 1.
- If the Buyer processes (combines/mixes) the goods with other goods that do not belong to the Supplier, the provisions of Art. 947, 948 BGB apply with the proviso that the Supplier’s coownership of the new item is now considered as retention goods in terms of this provision.
- The Buyer may only resell the retention goods within the normal course of business and with the condition that it also agrees on a retention of title according to paragraphs 1 to 3 with its customers. The Buyer is not permitted to dispose of the retention goods in any other way, in particular not pledge them or transfer them as security.
- For the event of resale, the Buyer now already assigns the claims arising from the resale and all other valid claims against its customers, including all ancillary rights, to the Supplier until all of the Supplier’s claims have been fulfilled. At the Supplier’s request, the Buyer must immediately furnish the Supplier with all information and documents that are necessary for the Supplier to assert its rights against the Buyer’s customer.
- If the Buyer resells the retention goods after processing according to paragraphs 2 and/or 3 together with other goods that do not belong to the Supplier, the assignment of the purchase price claim according to paragraph 5 only applies in the amount of the invoice for the retention goods.
- If the value of the securities held by the Supplier exceeds the total claim by more than 10%, the Supplier is obligated, at the Buyer’s request, to release securities at the its choice.
- Pledges or garnishment of the retention goods by third parties must be communicated to the Supplier immediately. Intervention costs thus incurred are in all events at the Buyer’s expense, unless they are borne by third parties.
- Should the Supplier make use of his retention of title in terms of the aforementioned provisions by taking back the retention goods, it is entitled to sell the goods directly or have them auctioned. Asserting the retention of title and in particular taking the goods back, constitute a withdrawal from the contract. The retention goods are taken back at the sales price obtained, at most, however, at the agreed delivery prices. Further claims for damages, especially lost income, remain reserved.
VII. Liability for material damage
- Decisive for quality and design of the product are the type samples, which the Supplier will make available to the Buyer for testing at the Buyer’s request. The indication of technical norms serve to describe the work and should not be construed as a procurement guarantee.
- If the Supplier has advised the Buyer beyond its contractual responsibility, it only guarantees the functionality and suitability of the delivered object, if this was expressly assured in advance.
- The Buyer is obligated to examine the purchased object immediately after receipt and make notification of defects or of other deviations immediately. Notice of defects must be asserted in writing immediately. In the case of hidden defects, the notification must be made as soon as they are discovered. In both cases, all defect claims become statute bound twelve months after the transfer of risk, unless otherwise agreed upon. Should the law according to Art. 438 para. 1 no. 2 BGB, Art. 479 para. 1 BGB and Art. 634a para. 1 no. 2 BGB makes longer limitation periods mandatory, these will apply.
- For justified notices of defects – where the type designs approved in writing by the Buyer determine the expected quality and design – the Supplier is obligated to provide remedy. Should the Supplier not comply with this obligation within a reasonable period of time or if remedy fails despite numerous attempts, the Buyer is entitled to abate the purchase price or withdraw from the contract. Additional claims, in particular claims for reimbursement of expenses or compensation due to defect and consequential damage, only exist within the context of the conditions in VII. Parts that have been replaced must be returned freight collect to the Supplier at its request.
- Unauthorised remedy and improper handling will result in a loss of all claims for damages. The Buyer is only entitled to provide remedy after informing the Supplier in advance, or request reimbursement of reasonable expenses for this, in order to prevent disproportionately great damage or when remedy is delayed by the Supplier.
- Wear and tear caused during contractual use does not result in warranty claims.
- The right of recourse according to Arts 478, 479 BGB only exist, if the availment by the customer was justified and only to the extent allowed by law, however not for ex gratia payments that were not coordinated with the Supplier, and require that the recourse justified has fulfilled its duty to inspect and object, in particular the obligation to notify defects.
- Indirect damages will not be compensated. This also applies, if the Supplier has not removed the defect properly or cannot remove it.
VIII. General limitations of liability
- In all cases where the Supplier is obligated to provide compensation for damages or expenses other than the above conditions due to a contractual or legal bases for claim, it is only liable, if it, its management or vicarious agents are responsible for intent, gross negligence or injury to life, limb or health. Liability according the product liability law that is independent of culpability as well as liability for the fulfilment of a quality guarantee are not affected. In addition, liability for culpable breach of essential contractual duties is not affected; however, aside from cases in sentence 1, liability is limited to the foreseeable damage typical for the contract. A change to the burden of proof disadvantaging the Buyer is not part of the above mentioned regulations.
IX. Terms of payment
- All payments must be made in € (EURO) exclusively to the Supplier.
- If not otherwise agreed upon, the purchase price for tools (moulds) must be made to the Supplier in three payments of one third each, on order confirmation, on presentation of the type sample and when the tool is delivered to the Buyer.
- If not otherwise agreed upon, the respective purchase price payable according to point 2 above as well as the purchase price for goods or other services is payable with 2% discount within 10 days and without deduction within 30 days of invoice date. Granting a discount requires that all previously outstanding and undisputed invoices have been settled. There is no discount on possible payments with a bill of exchange.
- If the agreed upon payment term is exceeded, interest will be charged in the amount of the statutory interest rate of 8% above the valid base interest rate of the ECB, unless the Supplier can prove a greater damage. The Buyer has the right to prove a lesser damage.
- The right to refuse cheques and bills of exchange remains reserved. Cheques and rediscountable bills of exchange are only accepted on account of performance, all costs associated with this are for the Buyer’s account.
- The Buyer may only set off claims or assert a right to withhold, if its claims are undisputed or have been legally determined.
- Lasting non-conformity with terms of payment or circumstances that raise serious doubts about the Buyer’s creditworthiness result in all the Supplier’s claims becoming due immediately. In this event, the Supplier is additionally entitled to demand advance payment on all outstanding deliveries as well as withdraw from the contract after a reasonable deadline has passed unsuccessfully.
X. Moulds (tools)
- The price for moulds also includes the costs of a one-off sampling inspection, not however the costs for test and processing equipment nor costs for changes requested by the Buyer. Further sampling inspections for which the Supplier is responsible go to its account.
- On principle, moulds must be manufactured under serial conditions.
- If not otherwise agreed upon, the Supplier is and remains the owner of moulds manufactured for the Buyer by the Supplier or by a third party instructed by the Supplier. Moulds are only used for orders from the Buyer as long as the Buyer fulfils its payment and acceptance obligations. The Supplier is only obligated to replace these moulds free of charge, if this is necessary to fulfil an output quantity assured to the Buyer. The Supplier’s obligation to store ceases two years after the last parts delivery and after informing the Buyer beforehand.
- If the contract provides for the Buyer to become the owner of the moulds, ownership passes to the Buyer after the purchase price for them has been paid in full. The handover of the moulds to the Buyer is replaced with storing the moulds for the benefit of the Buyer. Irrespective of the Buyer’s right of having the moulds returned and their useful life, the Supplier is entitled to their exclusive ownership until the end of the contract. The Supplier must mark the moulds as outside ownership and insure them at the request of the Buyer at the Buyer’s expense.
- For moulds belonging to the Buyer according to paragraph 3 and/or moulds made available by the Buyer on hire, the Supplier’s liability with regard to storage and care is limited to the same diligence used regarding its own matters. The Buyer bears the cost of maintenance and insurance. The Supplier’s obligations cease, when the contract is complete and the Buyer has not collected the moulds within a reasonable period after having been requested to do so. Should the Buyer not have fulfilled its contractual obligations to the full extent, the Supplier definitely has the right to withhold the moulds.
XI. Changing the tools
- In the case of changes to the construction, prices and delivery times must be renegotiated. Any costs incurred until then are due immediately and must be paid to the Supplier.
XII. Provision of materials
- Should the Buyer provide material, they must be supplied at its expense and risk with an adequate excess of at least 5% on time and in perfect condition.
- If these conditions are not met, the delivery time will be extended accordingly. Except in the case of force majeure and circumstances equal to it according to no. IV, section 8, the Buyer bears the additional costs arising also for interruptions in production.
XIII. Industrial property rights and defects of title
- If the Supplier has to deliver from drawings, models, samples and by using parts provided by the Buyer, the Buyer will assure that industrial property rights of third parties in the country of destination of the goods are not violated. The Supplier will indicate rights to the Buyer of which it is aware. The Buyer must indemnify the Supplier with regard to third party claims and compensate damages accrued. Should a third party prohibit the Supplier from manufacturing or delivering on the strength of a patent right belonging to him, the Supplier is entitled – without verifying the legal position – to stop work until the legal position has been clarified by the Buyer and the third party. Should the postponement make it unacceptable to the Supplier to continue the contract, it has the right to withdraw.
- Designs, drawings, templates, samples, models, construction suggestions and also confidential information from the Supplier or from the Buyer may only be passed on to third parties with the originator’s permission.
- Drawings and samples given to the Supplier, which have not led to a contract, will be sent back on request; otherwise the Supplier is entitled to destroy them three months after making the offer. This obligation applies equally to the Buyer. The Party entitled to destroy items must inform the other Contracting Party of its intention to destroy timeously in advance.
- The Supplier is entitled to all copyrights and possible industrial property rights to models, moulds and equipment, designs and drawings, in particular to all rights of use and exploitation.
- Should there be any other defects of title, no. VII applies to these accordingly
XIV. Place of fulfilment and legal venue
- Place of fulfilment is the location of the delivery works.
- Legal venue is at the Supplier’s choice either its company address or the Buyer’s place of business, this also for documents, bills of exchange and cheque processes.
- German law exclusively shall apply. The application of the UN Convention on Contracts for the National Sale of Goods dated 11 April 1980 (BGBI [Federal Gazette] 1989 Page 586) for the Federal Republic of Germany (BGBI 1990 Page 1477) is excluded.