General Terms and Conditions of Sale and Delivery of KELMAPLAST G. Kellermann GmbH
Alt Bossel 11-17
I. Scope of Application and Validity
1. The present General Terms and Conditions of Sale and Delivery (GTCs) apply to all contracts and contract negotiations entered into by KELMAPLAST G. Kellermann GmbH (“the Seller”) insofar as the respective contract involves the production and/or sale and/or delivery of goods by KELMAPLAST G. Kellermann GmbH.
2. The present GTCs further apply solely to a contractual partner (“the Buyer”) of the Seller that is an entrepreneur within the meaning of Sections 310 (14) of the German Civil Code (BGB). It stipulates that an entrepreneur is a natural or legal person or a partnership with capacity to contract that, in entering into a legal transaction, is acting in a commercial or freelance professional capacity.
3. Contracts, contract negotiations and deliveries shall be executed and other services rendered by the Seller solely on the basis of these GTCs. In particular, they also apply without reservation if the Seller makes delivery/renders a service in the knowledge that the Buyer’s terms and conditions conflict with its own. The Buyer’s general terms and conditions shall apply only with the Seller’s written consent. In cases where specific conditions differing from the present conditions are agreed upon for a given order, the GTCs shall then be subordinate and supplementary to such specific conditions.
4. Insofar as the present GTCs require all communications to be made in writing, that requirement shall be met by corresponding declarations communicated via fax or email. A written agreement shall also be deemed to have been entered into if the Seller and the Buyer provide each other with written declarations of corresponding content.
II. Quotes and Conclusion of Contracts
1. All quotes are without obligation. A contract between the Seller and the Buyer is established only once the Seller has given the Buyer written confirmation of acceptance of the order. Any silence on the part of the Seller with regard to the Buyer’s order cannot be interpreted as acceptance and specifically cannot form the basis for the conclusion of a contract. Even if the Seller raises no objection, any commercial letters of confirmation written by the Buyer shall not establish that a contract has been entered into, the content of which deviates from the quote, the order confirmation or any other written declarations of the Seller.
2. The content of the contract is based solely on the order confirmation and the present GTCs. Insofar as the Seller’s order confirmation differs from the Buyer’s order, the contract containing the specifications detailed in the order confirmation shall be established if not expressly rejected in writing by the Buyer within one working day of receipt of the order confirmation.
3. Other content, especially such as that included in the Seller’s brochures and other sales material, shall only be the subject of the contract if they are expressly detailed in the order confirmation.
III. Prices and Payment
1. The Seller’s prices are quoted in euros and the Buyer must settle all payments in euros unless otherwise agreed. All prices are quoted net and, unless otherwise agreed, apply ex works and exclusive of statutory value added tax.
2. In the case of contracts due for fulfilment by the Seller later than four months after conclusion of the contract or that, for reasons for which the Buyer is responsible, can only be fulfilled more than four months after conclusion of the contract, if the Seller’s cost prices increase between conclusion of the contract and execution of the order, the Seller is entitled to demand an increased price on a pro rata basis as a percentage of the purchase price in question. In the case of continuous obligations, the Seller is entitled to do so even if a period shorter than four months lies between conclusion of the contract and fulfilment.
3. Prompt payment discount shall only be granted to the Buyer subject to express written agreement. The Seller does, however, have the right to refuse prompt payment discount, even after the agreement has been signed, if a previous invoice – excluding invoices to which the Buyer has raised valid objections – has not yet been settled by the Buyer. For prompt payment discount invoices, the discount is calculated on the net invoice amounts after deduction, for example, of reductions, freight, return goods credits and suchlike.
4. The Seller issues one or more invoices to the Buyer for services rendered. Unless otherwise expressly agreed in writing, the Seller’s invoices are payable within 30 days of date of invoice, at the latest, however, upon receipt of the deliveries or services without any deductions.
5. The Buyer must make all payments to the Seller’s business account given in the respective invoice. If more than one business account is named, payment may be made to any of those accounts. Cheques and bills of exchange shall only be accepted by the Seller on account of fulfilment and may be returned at any time. They shall not be deemed to be payment in full until they have been redeemed and irrevocably credited to the Seller’s account. All costs and expenses incurred in connection with the issue of cheques and bills of exchange shall be borne by the Buyer.
6. As of the due date of the invoice amounts, the Seller shall be entitled, without further reminder, to interest at a rate of 9 % above the current base rate. Further claims – in particular due to default on the part of the Buyer – shall remain unaffected.
7. Counterclaims disputed by the Seller and/or not legally established may not be offset against payment claims of the Seller. A right of retention for claims that are not based on the same contractual relationship may not be asserted if such claims are not recognised by the Seller and/or not legally established. The Buyer may only withhold payments on the basis of a notice of defects if there can be no doubt about its justification, and only to an extent commensurate with the defects that have occurred.
8. If one of the following events occurs or if the Seller only later becomes aware of such an event having already existed at the time the contract was concluded, the Seller shall be entitled to demand advance payment in the amount of the agreed price from the Buyer and also to revoke terms of payment agreed or granted, or to return current bills of exchange and to demand immediate payment. This applies to the following events:
a) the Buyer applies for the initiation of judicial or extrajudicial insolvency or composition proceedings, or judicial or extrajudicial insolvency or composition proceedings are instituted against the Buyer’s assets, or the initiation of such proceedings is refused for lack of assets;
b) a written credit report from a bank indicates the Buyer’s credit unworthiness or a significant deterioration in the Buyer’s financial circumstances, or that a cheque or bill of exchange the Seller has accepted from the Buyer is not honoured or is protested.
If the Buyer fails to comply with the Seller’s justified request for advance payment within a reasonable period of grace set by the Seller, even though the Seller has stated that the Buyer’s acceptance of further deliveries will be rejected upon expiry of the grace period, the Seller shall be entitled to withdraw from the contract or to demand compensation for damages in lieu of payment, but only in relation to that part of the contract not yet fulfilled.
IV. Shipping/Delivery and Transfer of Risk
1. The goods will be shipped by the Seller to the shipping and delivery address. Unless the Buyer expressly notifies the Seller otherwise, the shipping and delivery address shall be the address or one of the addresses specified in the Buyer’s written order.
2. The Seller may determine the shipping materials and mode of shipment at its own discretion unless otherwise these are expressly agreed with the Buyer. All shipping and packaging costs incurred shall be borne by the Buyer, as shall all other costs incurred for the transport and import and export of the goods under public or civil law unless such costs are attributable at least to gross negligence on the part of the Seller.
3. Irrespective of the place of shipment, the risk shall in any case pass to the Buyer upon shipment of the goods by the Seller, even if, in exceptional cases, freight-free delivery or delivery free warehouse has been agreed upon and/or the Seller is required, in addition to the delivering the goods, to perform further services (e. g. assembly, installation, commissioning) at the Buyer’s place of use. This does not apply, however, in cases where the Seller’s own employees transport the goods or are responsible for loss of or damage to the goods.
4. Only by explicit arrangement with the Buyer and at the Buyer’s expense shall the Seller insure the delivery item against any and all insurable risks requested by the Buyer, specifically against theft and transport damage. The Seller must be notified immediately of any transport damage incurred. On receipt of the goods, the consignee must further notify the carrier of all relevant claims and reservations it may have regarding the condition of the goods on arrival.
5. The Seller is entitled, but not obliged, to make partial deliveries and to invoice them separately, provided that the partial deliveries are acceptable to the Buyer and that the Seller has justifiable reasons for making such partial deliveries. Other regulations are only binding for the Seller if they were expressly agreed in writing.
V. Delivery dates, Delivery Periods and Default
1. Delivery dates and/or delivery periods shall only be binding for the Seller if they have been expressly agreed in writing.
2. A performance deadline which is defined only in terms of duration shall commence at the end of the day on which agreement is reached on all details of the contract’s content, at the earliest upon the Seller’s acceptance of the order, but not before all required documents, approvals and clearances have been furnished by the Buyer and not before receipt of any down payment due from the Buyer.
3. If the agreed delivery date is more than four months after the date the contract was concluded and, after that four-month period, the Seller incurs unforeseen additional goods-related costs for which it is not responsible, the Seller is entitled to pass on the increased costs to the Buyer through a reasonable increase in the sales price. The Seller must notify the Buyer accordingly in writing, giving justification for the increase.
4. Delayed delivery can only be attributed to the Seller and constitute a claim for damages on the part of the Buyer if the Seller was at fault either intentionally or through gross negligence, or where damage resulting from injury to the life, limb, health or freedom of our contractual partner is concerned. In this respect, the Seller cannot be held responsible for any delays resulting from force majeure or other events beyond its control. The latter may be assumed, for example, if the Seller is dependent on goods or services provided by a third party for the production or delivery of the contractual goods, and that third party fails to provide the required goods or services on time. The Buyer’s right to withdraw from the contract in the event of delayed deliveries for which the Seller is responsible shall remain unaffected provided such right exists.
5. Should shipping be delayed at the request of the Buyer or for other reasons for which the Buyer is responsible, or should the Buyer be in default of acceptance, the Seller shall store the goods at the Buyer’s expense and risk. In such case, the risk shall pass to the Buyer upon the Seller’s notification of readiness to ship. The Seller is not obliged to insure the stored goods.
6. If the Buyer is late in accepting the Seller’s goods in whole or in part, the Seller is entitled, upon fruitless expiry of a reasonable grace period it has set along with issuing a warning that upon expiry of said grace period the Seller shall refuse the Buyer’s acceptance of the Seller’s goods and either withdraw from the contract or demand damages in lieu of payment, however only in relation to the part of the contract not yet fulfilled. The statutory rights of the Seller shall otherwise remain unaffected in the event that the Buyer is in default of acceptance.
VI. Defects in the Goods Sold
1. Information about the characteristics or intended purposes of the goods which the Seller has made available to the Buyer in sales catalogues, price lists and other material shall in no way constitute a quality agreement or a Seller’s warranty. Such arrangements must be expressly agreed in writing by the contractual parties.
2. Illustrations, dimensions, weights, details of colours, surface quality and other information concerning appearance and workmanship contained in catalogues, brochures, price lists, descriptions, drawings or other documents provided by the Seller are only approximate values customary in the industry. In this respect, samples and patterns serve merely as approximate indications of quality, dimensions and other characteristics.
3. In the event of technical need, the Seller is entitled to deliver the ordered goods with deviations in quality, dimensions and other characteristics. The Seller will give the Buyer timely notification of changes. In such case, the Buyer is not entitled to warranty claims if and to the extent that the changes do not have a significant adverse effect on the usefulness of the products for the Buyer’s intended purpose.
4. The Seller is entitled to make excess or short deliveries of up to ten per cent of the agreed quantity of goods without giving rise to warranty claims from the Buyer. Another arrangement shall only apply if it has been expressly agreed by the contractual parties.
5. On receipt of the goods, the Buyer is obliged to check them for transport damage or other defects. Should such defects exist, the Buyer must record them them immediately, notify the Seller in writing and supply photographic evidence. Should the Buyer fail to fulfil this obligation, the goods are deemed approved. The same rule applies to defects that were not recognisable at delivery, with the proviso that the Seller must be notified of the defect immediately upon its discovery. In all other respects, Section 377 HGB (German Commercial Code) applies.
6. The notice of defects does not at the same time justify the assertion of a warranty right, unless expressly stated in the Buyer’s notice of defects. Otherwise, a separate and written assertion of the specific warranty right is required.
7. The Buyer is obliged to make available to the Seller, on request and in a timely manner, a sufficient quantity of the parts it considers to be defective for inspection by the Seller or third parties for the purpose of ascertaining and assessing whether claims for defects in an item or service are justified, whereby the Seller bears the shipping costs.
8. The rights of the Buyer regarding defects in the goods sold are governed by the respective statutory provisions unless otherwise provided for in these GTCs, and are otherwise subject to the following provisions:
a) The Buyer shall grant the Seller a reasonable period of at least four weeks for subsequent fulfilment, whereby it reserves the right to grant the Seller a reasonable period of less than four weeks in individual cases, should the Buyer deem a period of at least four weeks for subsequent fulfilment unreasonable. The period allowed for subsequent fulfilment shall under no circumstances commence prior to the point when the Buyer returned the defective goods to the Seller, whereby the Seller bears the shipping costs.
b) Should only a portion of the goods delivered by the Seller be defective, then the right of the Buyer to demand rescission of the contract or compensation for damages instead of fulfilment is limited to the defective portion of the delivery, unless such limitation is deemed impossible or unreasonable by the Buyer.
c) The Buyer’s claims for damages in respect of defects in delivery or fulfilment shall be limited to the extent set forth in Section VII below.
9. Should a notice of defects submitted by the Buyer prove unjustified, the Buyer shall reimburse the Seller for all necessary and reasonable expenses incurred as a result of the unjustified notice of defects.
10. The warranty period for purchase contracts and labour and materials contracts is two years from the date of transfer of risk, and for used goods, one year from the date of transfer of risk. For labour and materials contracts, the warranty period is two years from the date of acceptance, whether formal or implied.
VII. Buyer’s Claims for Damages
In all cases where reference is made to this provision in these GTCs and in all cases where no other provision is made in these GTCs, claims for damages by the Buyer against the Seller are inadmissible unless:
a) they are based on an intentional or grossly negligent breach of duty on the part of the Seller or one of the Seller’s legal representatives or vicarious agents;
b) they concern a breach of significant contractual obligations. In such case, the Seller is also liable for slight negligence, but limited to reasonably foreseeable damage typical of the type of contract;
c) they arise from loss of life, bodily injury or violation of freedom of our contractual partner as a result of a culpable breach of duty by the Seller;
d) they are compensation claims based on the German Product Liability Act (ProdHaftG);
e) they are based on the absence of contractually agreed characteristics and qualities if and to the extent that the purpose of the warranty was to protect the Buyer from damage other than that to the goods delivered or the service itself.
VIII. Retention of Title and Further Processing of the Goods
1. The goods ordered by the Buyer shall remain the property of the Seller until full payment of all receivables arising from the transaction. The inclusion of individual receivables in an open invoice as well as account balancing and recognition thereof shall not affect the retention of proprietary rights.
2. The Buyer is entitled to resell the reserved goods in the ordinary course of business and to process and combine or mix them with other goods within the meaning of Sections 946 to 950 BGB (German Civil Code). The following applies in such cases:
a) where the goods are combined, mixed or processed in accordance with Sections 946–950 of the German Civil Code (BGB), the Seller acquires pro rata joint ownership of the new goods proportionate to the value of the goods in relation to the objects with which they have been combined, mixed or processed. Section 947 (2) BGB shall remain unaffected insofar as the Seller’s goods constitute the main element;
b) where the goods or the item manufactured in accordance with paragraph a) above are resold and title to them is transferred, the Buyer is obliged to declare in writing to the Seller, within a period of seven days, the assignment of all claims arising from such resale, insofar as they are transferable. The Seller herewith accepts such assignment. No further or separate declaration of acceptance is required. This assignment takes priority over any other claims.
3. Any other legal or material disposal of the goods subject to retention of title is only permissible with the express written consent of the Seller.
4. In the case of paragraph 2 b) above, the Seller hereby authorises the Buyer, subject to revocation, to collect the assigned receivables. The Buyer shall immediately pay the amounts collected to the Seller, insofar as and as soon as the respective receivables are due. Insofar as these receivables are not yet due, the amounts collected must be recorded separately by the Buyer. The right of the Seller itself to collect the amounts remains unaffected.
5. On cessation of payment, application for or opening of insolvency proceedings, or judicial or extrajudicial composition proceedings, the Buyer’s rights to the reserved goods as set out in Section VIII shall expire as shall the Buyer’s authorisation to collect the assigned claim, even without its revocation of the Seller.
6. In the case of paragraph 2 b), at the Buyer’s request, the Seller undertakes to release transferred claims to the extent that the realisable value of the securities exceeds the receivables to which the Seller is entitled by more than 20 per cent. The Seller shall select the securities to be released.
7. In the case of paragraph 2 a), the Buyer qualifies for return of title by the Seller, and in the case of paragraph 2 b) to reassignment of the receivables if and as soon as the Buyer has entirely fulfilled its payment obligation arising from the business relationship.
8. In the event of seizures of the reserved goods or other interventions by third parties, the Buyer must inform the third party of the reservation of title to the property and inform the Seller immediately so that the Seller can take legal action in accordance with Section 771 ZPO (German Code of Civil Procedure). Insofar as the Buyer fails to meet this obligation, it shall be liable for the damage incurred.
IX. Further Rights and Obligations of the Buyer
1. The Buyer may only assign to third parties the rights arising from the contractual relationship with the Seller if the Seller has given written consent to this effect. The Buyer shall notify the Seller immediately in writing of any intention to assign the rights. If an assignment is made even though the Seller has not agreed to it, the non-existent or refused approval shall be deemed equivalent to the contractual parties having agreed a prohibition of assignment. Section 354a HGB remains unaffected.
2. Any offsetting or assertion of a right of retention shall only be permissible for the Buyer – also in cases other than those specified in III (7) of these GTCs – where counterclaims are undisputed or legally established. A counterclaim is deemed undisputed only if the contractual parties are in agreement as to its cause and amount. A right of retention arising from previous or other transactions under the current business relationship cannot be asserted.
X. Documents, Industrial Property Rights and Confidentiality
1. The Seller is entitled to unrestricted ownership of and copyrights to cost estimates, calculations, drawings, drafts, designs, forms, samples, models, copies, tools, simulations, files and other documents or data which the Buyer has received directly from the Seller or at the Seller’s instigation from third parties.
2. If the goods are to be manufactured according to drawings, samples or other information provided by the Buyer, the Buyer shall guarantee that no rights of third parties, specifically patents, utility models or other property rights or copyrights are infringed. The Buyer shall indemnify the Seller against any claims of third parties arising from any infringement of such rights. In addition, the Buyer shall bear all costs incurred by the Seller as a result of third parties claiming infringement of such rights and taking action to defend themselves against such infringement. The same applies to the use of samples, drafts, artwork or similar created by the Seller or provided by the Buyer.
3. If, in the course of development work on the part of the Seller, results, solutions or techniques should arise that are in any way eligible for rights of protection, the Seller alone shall be the owner of the resulting property rights, copyrights and rights of use, and reserves the right to apply for the respective property rights on its own behalf and in its own name.
4. The Buyer may not take any action or instigate third parties to take any action liable to jeopardise the intellectual property rights of the Seller in connection with the goods. In particular, trademarks and other distinctive features printed on or affixed to the Seller’s goods may not be hidden, altered or removed by the Buyer.
5. In the event that the Buyer further processes the goods, in particular uses them in the manufacture of new products, the Buyer assures the Seller that such new products shall not infringe the industrial property rights of third parties. X (2) shall apply accordingly.
XI. Final provisions
1. The present GTCs and the contracts to which they apply are subject to the rules and regulations of German law. In the absence of other provisions in the GTCs, the statutory provisions shall apply. The rules and regulations of the UN Convention on Contracts for the International Sale of Goods (CISG) do not apply.
2. It is permissible to deviate from the provisions of these GTCs only within the framework of contracts to which they apply if the contractual parties have expressly agreed to this in writing and by mutual agreement.
3. Insofar as legally permissible, the place of jurisdiction shall be the court responsible for the Seller’s place of business or, at Seller’s option, the Buyer’s general place of jurisdiction. Unless otherwise stated in the order confirmation, the place of performance shall be our registered office.
4. These terms and conditions shall also remain valid in the event of individual passages therein becoming ineffective or unfeasible.