Status: 24 August, 2010
General Terms and Conditions on the Sale of Goods
1. Scope of Validity of these Terms and Conditions
1.1 All sale and purchase transactions of CaPlast Kunststoffverarbeitungs GmbH (hereinafter: „CaPlast“) shall be exclusively subject to the following general terms and conditions on the sale of goods (hereinafter: “General Terms”).
1.2 Entering into a contract based on these General Terms substantiates the applicability thereof to all other delivery transactions with the purchaser (hereinafter: “Purchaser”), even if CaPlast does not make explicit reference thereto in future.
1.3 Agreements deviating from these General Terms shall require our explicit written consent to become valid and have to be accepted separately in writing for every individual contract. Such conditions shall not be binding upon CaPlast, even if CaPlast fails to explicitly contradict them, or if CaPlast, being fully aware of such conditions, delivers to Purchaser without reservations.
2. Offers and Conclusion of Contract
2.1 Offers of CaPlast shall not be binding with regards to pricing and delivery dates. Drawings, depictions, dimensions, weights or other performance data shall only be binding if explicitly agreed upon in writing; CaPlast reserves rights of ownership and copyrights with respect to such data.
2.2 When Purchaser places an order, this shall be considered a binding offer on the part of Purchaser. CaPlast may accept this offer within a period of 1 month by sending Purchaser an order confirmation.
2.3 A purchasing agreement shall only come into existence by written order confirmation of CaPlast.
3. Prices and Payment Conditions
3.1 Prices are ex works (Incoterms 2000: EXW Nordkirchen) and do not include freight, customs, import duties, ancillary levies; they are net prices plus statutory value added tax.
3.2 In the event that during the period between conclusion of the contract and delivery cost decreases or cost increases occur, unforeseen and uninfluencable by CaPlast, especially due to changes in the raw material prices by more than 10 %, CaPlast and Purchaser are entitled to request of the respective other party an adjustment of the agreed prices by renegotiation. The validity of the remaining provisions shall not be affected by such renegotiations. If no agreement can be reached by the renegotiations, both CaPlast and Purchaser are entitled to withdraw from the contract.
The same applies in case that between conclusion of the contract and delivery the consumer costs index, as established for all of the Federal republic of Germany by the German Federal Statistics Office in Wiesbaden, changes, unforeseen and uninfluencable by CaPlast, by more than 5 % compared to the index as established at the time of Purchaser´s order.
If desired, Purchaser may request the percentaged price development of the basic raw materials used by CaPlast as an overview (source: branch paper information for plastics (KI) – www.kiweb.de). Calculation base for price changes are the prices as shown in the aforementioned KI raw materials price index at the time of Purchaser´s order. The consumer costs index by the German Federal Statistics Office is visible to Purchaser anytime via their homepage under www.destatis.de.
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In case that price increases or prices decreases are due to price changes of special raw materials not shown in the KI raw material price index, CaPlast will in each individual case prove towards Purchaser such price changes.
3.3 Invoices of CaPlast shall be paid upon receipt. They are to be paid in EUR.
3.4 If Purchaser delays on payment with respect to carried out deliveries CaPlast is, at its option, entitled to either withhold not yet carried out deliveries until Purchaser has performed advance payment accordingly, or to withdraw from the contract about the not yet carried out deliveries, unless Purchaser´s delay on payment refers to such counterclaims of Purchaser against CaPlast which have been finally and conclusively been established by a competent court of law or are undisputed.
3.5 Bills of exchange and checks are only accepted on account of performance and the debt shall only be cleared upon receipt of full payment. If bills of exchange are not negotiated within 14 calendar days after the term agreed upon, immediate payment in cash may be demanded. CaPlast shall assume no liability for correct and timely presentation and protesting with regard to the negotiated check or bill of exchange. Discount charges (2 % above the discount rate charged by CaPlasts bank, minimum € 50.-), and all expenditure and costs in connection with the honoring of bill of exchange and check amounts shall be borne by Purchaser.
3.6 If, after the conclusion of a contract, there are reasonable doubts as to the solvency or credit standing of Purchaser or, if such circumstances are prevailing at the conclusion of the contract but become known at a later date, CaPlast shall be entitled to demand advance payment or the posting of collateral prior to delivery, as well as to revoke payment terms granted and render all credited receivables immediately due for payment. [Anm.: Zusammenlegung mit 3.4?]
3.7 Despite conflicting determinations of Purchaser, CaPlast shall be entitled to initially offset payments against older debts of Purchaser and shall notify Purchaser of the nature of any offset. If costs and interest have already accrued, CaPlast shall be entitled to offset payments against these costs first, then against interest and finally against the principal debt.
3.8 Purchaser shall only be entitled to offset, hold back or reduce payment - even if defects have been notified or counterclaims asserted -, if the counterclaims have been finally and conclusively been established by a competent court of law, or are undisputed.
CaPlast may offset any claims against claims of Purchaser. This also applies in case Purchaser, despite delaying in payment, deducts cash discount. For the timeliness of payment the receipt of the entire amount due on one of CaPlast´s business accounts is decisive.
4. Delivery and Time of Delivery
4.1 Deliveries shall be effected ex works (Incoterms 2000: EXW Nordkirchen).
Upon completion of orders sold on EXW basis Purchaser is required to pick up his goods within 7 days from receiving notice of completion. Purchaser is obliged to settle any resulting transport and/or all other costs upon pick-up.
4.2 Mode of dispatch (if differing from 4paragraph 1 above) as well as form, modality and scope of packaging are in the sole discretion of CaPlast.
4.3 Envisaged delivery dates shall be specified in the order confirmation or shall be agreed in written form and
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will be complied with to the extent possible.
If a delivery date is not met and overdue by more than two weeks, Purchaser shall be entitled to set CaPlast an adequate subsequent period of time for due delivery. If delivery shall not be made within the subsequent period of time, Purchaser shall be entitled to resign from the contract. Should Purchaser make use of his right to resign from the contract he has to declare this fact to CaPlast in written form. The right to withdraw from the contract shall not exist if CaPlast has been unable to comply with the subsequent period of time set for delivery because of circumstances for which CaPlast is not responsible, and it is not reasonable to expect from Purchaser to adhere to the contract. If Purchaser chooses compensation for damages, CaPlast´s liability is subject to the limitations as stipulated in provision 8 below.
4.4 For the period of the existence of circumstances outside of the control of CaPlast (“Force Majeure”), such as inability to source raw materials and transportation means, stoppages in production, strikes and lock-outs, fire and natural catastrophes, CaPlast shall be discharged from its delivery obligation. Delivery deadlines agreed shall be extended by the period of the existence of the circumstances of Force Majeure. Purchaser shall only have the right to reject the deliveries after the circumstances of Force Majeure have ended if it is unreasonable to expect from Purchaser taking delivery after lapse of such time.
4.5 CaPlast shall be entitled to effect partial deliveries and services, if (i) the partial delivery is usable for Purchaser within the intended purpose of the contract, (ii) the delivery of the remaining ordered goods is secured and (iii) no substantial additional expenses occur for Purchaser through this (unless CaPlast agrees in writing to take over these expenses).
4.6 In case CaPlast delivers goods to a non-EU country upon Purchaser´s request without being provided with a certificate of export, Purchaser is liable towards CaPlast insofar as CaPlast is held liable for payment of Value Added Tax (VAT) regarding the respective delivery, unless CaPlast is responsible accordingly.
5. Transfer of risk
5.1 The risk of accidental loss of goods shall pass over to Purchaser in all cases (regardless of any INCOTERM 2000 clause CaPlast and Purchaser have agreed to) as soon as the consignment is handed over to the third party effecting the transport or has left CaPlast´s warehouse for dispatch purposes. This shall also apply in case of deliveries "freight prepaid".
5.2 If dispatch cannot be carried out within the agreed delivery period for reasons for which CaPlast is not responsible, the risk of accidental loss of the goods shall pass over to the Purchaser upon him receiving notice of completion.
6. Warranty; Period of Limitation
6.1 Obvious defects and defects noticeable upon proper inspection of the delivery shall be notified by Purchaser in written form immediately upon receipt of the goods. Defects that could not be discovered within this period, even upon proper inspection, shall be notified to CaPlast immediately upon their discovery. The same applies to complaints because of wrong deliveries and discrepancies in quantities. If the period for notification is not observed, warranty claims shall be excluded.
6.2 Purchaser shall, prior to processing the delivered goods, be obliged to inspect them for their suitability for the purposes of use, even if samples of goods have been supplied before.
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6.3 Minor discrepancies in dimensions and formats shall not entitle Purchaser to raise complaints for defects. Potential discrepancies listed in the relevant quality guidelines known to Purchaser are all in consistency with the contract.
6.4 Warranty rights may only be raised in respect of goods that are available for inspection or return. Without prior mutual agreement products may not be returned to CaPlast.
Taking back goods by CaPlast does in no case constitute an acknowledgement that the goods taken back are defective.
6.5 For defects notified in time pursuant to 6.1, CaPlast grants delivery of new goods free from defects. In case the delivery of new goods by CaPlast turns out to be unsuccessful, Purchaser shall, at its option, be entitled to reduce the price or to withdraw from the contract. There are no claims for compensatory damages, except as provided for in provision 8 below.
6.6 The warranty obligation shall expire if the goods delivered are changed, processed or improperly handled.
6.7 CaPlast is not liable for such products Purchaser provides CaPlast with for the purpose of processing or finishing. With respect to such goods there shall be no warranty rights for Purchaser, unless the defect is due to the processing or finishing by CaPlast.
6.8 The warranty Statute of Limitations amounts to twelve months from transfer of risk, unless another statutory term is prescribed by law (e.g. sec. 438 German Civil Code (Bürgerliches Gesetzbuch – BGB): five years), or unless the compulsory provisions in sec. 478, 479 BGB are applicable.
7. Retention of Title
7.1 Until such time as all receivables from the business relationship with Purchaser have been paid CaPlast shall retain title (ownership) to the purchased goods. To the extent CaPlast agrees with Purchaser on payment of the purchasing price on the basis of check / bills of exchange procedure, the retention of title shall also extend to the encashment as well as any claims against Purchaser in connection with a potential liability of CaPlast towards respective third parties holding rights in such bills and does not expire with the receipt of money from such check / bills of exchange procedure.
7.2 Processing or reshaping of delivered goods shall exclusively be made under maintenance of the securities of CaPlast. The processed product shall secure at its full value the receivables mentioned above. To the extent that the goods delivered are being processed with other goods not owned by CaPlast, CaPlast shall acquire co-ownership in the new product in the proportion of the value of the goods delivered by CaPlast to the other goods processed not owned by CaPlast at the time of processing. In addition, to the new product generated by procession the same applies as to the goods delivered under retention of title by CaPlast.
To the extent that the goods under retention of title are inseparably assembled or mixed with goods of other suppliers, CaPlast shall acquire co-ownership in the new product in the proportion of the value of the goods under retention of title (invoice amount plus value added tax) to the other goods they have been assembled or mixed with at the time of assembly or mixture.
If the assembly or mixture is made in such a way that the goods of CaPlast under retention of title become essential parts of a new product, CaPlast shall acquire co-ownership in the new product in the aforesaid proportion.
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Purchaser shall store the respective share of co-ownership of CaPlast free of charge. In the case no acquisition of ownership in the sense of this section commences, Purchaser already now assigns its future ownership or co-ownership in the new product in aforesaid proportion to CaPlast by way of security.
7.3 Purchaser shall be entitled to sell the goods of CaPlast in the ordinary course of business. The receivables of Purchaser from selling or other receivables substituting the goods shall already now be assigned to CaPlast by way of security in their full amount with all ancillary rights irrespective whether the goods of CaPlast have been delivered with or without processing, reshaping, assembling or mixing and whether CaPlast´s goods have been processed, reshaped, assembled or mixed with goods of other third party suppliers. If another supplier is entitled to lawfully claim extended retention of title concerning receivables of Purchaser, Purchaser shall assign to CaPlast the receivables concerned to the extent of the retention of title of CaPlast to the sold goods.
7.4 If the receivables of Purchaser from selling the goods of CaPlast under retention of title or of goods in which CaPlast holds co-ownership are put in a current account Purchaser already now shall assign to CaPlast its payment claim in the amount of the respectively acknowledged balance covering the amount of the claims of CaPlast.
7.5 Until canceled, Purchaser is entitled to collect the assigned claims, and CaPlast will not collect the claims itself. Out of legitimate reason, like defaults of payment or cessation of payment of Purchaser, filing for initiation of insolvency proceedings regarding the assets of Purchaser, or other jeopardy to the satisfaction of the claims of CaPlast against Purchaser, the authorization of the Purchaser to collect the receivables may be canceled by CaPlast. In this case the Purchaser hall be obliged among others to immediately label the reserved goods as property of CaPlast in appropriate manner recognizable for each third party.
Purchaser shall provide CaPlast with a detailed list of any reserved goods also to the extent that they are processed as well as a list of assigned receivables with naming of the third party debtors. Irrespective thereof, representatives of CaPlast shall be entitled to conduct appropriate examinations with Purchaser and inspect the documents necessary in this connection during normal working hours.
7.6 Purchaser bears the risk for the goods delivered by CaPlast. It shall be obliged to keep the goods diligently in custody and sufficiently insure them against usual risks, like damage, loss, theft, fire etc. to usual terms and common extent. Purchaser herewith assigns to CaPlast any claim against the insurer for the case of damages namely a first ranking partial amount corresponding to the purchasing price of goods delivered under retention of title. To the extent that the insurer does not cover the total damage, CaPlast may not be referred to a proportionate compensation.
7.7 Pledging or transfer of title for security purposes are excluded. Purchaser has to inform CaPlast without delay of any event concerning the title of CaPlast and be obliged to use best efforts in particular to make all legal declarations towards CaPlast or a third party in order to render the agreed retention of title and the pre-assignment effective. Purchaser shall be liable for all cost of an intervention in court and / or out of court.
7.8 CaPlast is obliged to release collaterals in their dutiful discretion, if and to the extent that the estimated value of the collateral exceeds the total receivables of CaPlast to be secured respectively, permanently by 50 %.
8. Restrictions on liability
8.1 In case of damages to life, personal injury and health CaPlast is liable for each degree of responsibility, including ordinary negligence.
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8.2 In all other cases all damage claims raised against CaPlast, irrespective on whatever legal grounds they are based, shall be excluded, unless willful intent or gross negligence is given or there shall be a mandatory liability for violation of essential contract obligations.
8.3 To the extent CaPlast is liable for a violation of essential contractual obligations as well as in cases of gross and ordinary negligence, the obligation of CaPlast for compensation of damages shall be limited to the foreseeable and typically occurring damage.
8.4 Furthermore, in case of 8.3 above, the liability of CaPlast is limited to compensation of direct damages; compensation for indirect / consequential damages (example. g., compensation for loss of profits) is excluded as far as legally admissible.
8.5 The liability of CaPlast according to other mandatory binding provisions, especially according to the German Product Liability Act, shall not be affected thereby.
8.6 Purchaser shall, in the internal relationship to CaPlast, take the sole risk as co-producer in accordance with the German Product Liability Act, insofar as the damage falls within his domain of responsibility and organization, and if he, in his external relationship to the claimant, is liable as producer. Purchaser shall in the abovementioned cases indemnify CaPlast explicitly from any third party claims and shall, when necessary, provide security insofar as his liability in the internal relationship is concerned. This applies especially, but not exclusively, in cases in which Purchaser delivered products to CaPlast.
The provision in 8.6 does not apply insofar as, in cases Purchaser provided CaPlast with goods or products for the purpose of processing or finishing, the cause of damage is due to the processing or finishing by CaPlast, not even in cases CaPlast does not appear as producer towards third parties.
8.7 In the event that during the period between conclusion of the contract and delivery it turns out, unforeseeable to CaPlast, especially at the time of the conclusion of the contract, that CaPlast can not be provided in sufficient amount with a raw material essential for CaPlast´s fulfillment of the contract, and such non-availability is not contemporary and cannot be overcome by reasonable expenses, CaPlast is entitled to withdraw from the contract with Purchaser. This does not apply if CaPlast is liable for such non-availability. CaPlast will inform Purchaser about the non-availability without delay.
8.8 Any further damage claims exceeding the stipulations in this provision, regardless on what legal grounds whatsoever, are excluded. Insofar as the liability of CaPlast is limited, this also applies to the personal liability of CaPlasts´s employees, staff members, representatives and servants.
9. Confidentiality
9.1 CaPlast and Purchase shall undertake to treat all orders and all commercial or technical information and documents associated with them as business secrets. In particular, all diagrams, drawings, calculations, quality directives, samples and similar objects are to be kept strictly secret. The reproduction and dissemination of such secret information shall only be allowed within the scope of operational requirements. It may only be disclosed or made accessible to third parties upon prior express and written consent.
9.2 The aforesaid obligation to keep confidential shall survive the termination of the supply relationship, as long as the confidential information has not become common knowledge.
9.3 After termination of the supply relationship Purchaser undertakes to return to CaPlast all business secrets he has received, provided that they are in hard copy or saved on electronic media, unless they are
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included in the scope of delivery. All business secrets are to be removed from Purchaser´s data processing equipment and storage media. Reproductions, regardless of their form, are to be destroyed in such way that reconstruction is impossible.
10. Applicable law, Court of Venue
10.1 All contractual and non-contractual relationships between CaPlast and Purchaser shall be governed by the laws of the Federal Republic of Germany. The application of the consistent United Nations Convention on Contracts for the International Sale of Goods (CISG) and - as far as permitted by law – of the German provisions on the Conflict of Law shall be excluded.
10.2 Court of venue shall, at CaPlast´s option, exclusively be the registered office of CaPlast or Cologne. CaPlast may also sue Purchaser at Supplier’s registered office. Aforesaid does not apply if compulsory legal provisions provide for any other exclusive court of venue.
11. Other Provisions
11.1 Should particular provisions of these General Terms be or become invalid, the validity of the remaining provisions shall not be affected hereby. CaPlast and Purchaser are then obliged to agree on a new provision which comes as close as possible to the economic intent pursued by the invalid provision. The same applies in case of a gap in these General Terms.
11.2 Changes and deviations to these General Terms require written form to become effective. This also applies to a change of this written form requirement itself.
11.3 In case of substantial discrepancy of these General Terms from the individual contract between CaPlast and Purchaser concluded on the basis of Purchaser´s order, the provisions of the individual contract shall prevail.
11.4 These General Terms shall be concluded in both German and English language. In case of any discrepancies between the German and English version, the German version shall prevail.
