1. Subject of the contract
and scope of performance
1.1
The business relations and scope of performance
between us and the customer shall be based solely
on our written confirmation of order and the
following General Terms of Delivery. These terms
of business shall also continue to apply to
future contracts insofar as no other arrangement
has been agreed.
1.2
Any alterations or additions to the business
relations, including these General Terms of
Delivery, must be explicitly agreed in writing.
This shall also apply to any alteration or addition
waiving the requirement of written form.
1.3
Any other General Terms of Business, especially
those of the customer, shall not be a subject
of the contract even if we do not explicitly
express an objection to them.
2. Formation of the
contract/refusal of performance by the customer
2.1
All offers and quotations shall be subject to
change.
2.2
A contract between us and the customer shall
only come into effect with our written con-firmation
of order, with the content expressed therein
and subject to these General Terms of Delivery.
Any public utterances, especially details given
in advertising, shall not be deemed to be quality
descriptions and shall not constitute any quality
agreement on our part or any promise of suitability
for use under the terms of Section 434 of the
German Civil Code (BGB). Unless they are explicitly
declared in the confirmation of order, no warranties
are provided by us, especially not under the
terms of Section 443 of the German Civil Code
(BGB). Any supplementary agreements which are
not contained in the confirmation of order shall
not be deemed to be part of the contract.
2.3
If the customer refuses to fulfil a contract
which has become effective under the above provisions,
we shall be entitled at our own discretion to
enforce fulfilment of the contract or to revoke
the contract in accordance with the statutory
provisions and to enforce compensation claims
for the specific damage or loss we have incurred.
Instead of enforcing the specific damage or
loss, we reserve the right to charge lump sum
compensation of 10% of the contractual sum unless
the customer proves that we have incurred no
damage or loss, or that the damage or loss incurred
is lower than the lump sum charged.
3. Delivery/liability
arising from violation of obligations
3.1
We shall be entitled to render partial performance
and partial deliveries insofar as the cus-tomer
can be reasonably expected to accept them.
3.2
The delivery periods and deadlines specified
in the confirmation of order shall be deemed
to be non-binding times (approximate times).
Circumstances which are beyond our control such
as force majeure, import or export restrictions,
war, strike, delays in the delivery of major
raw materials and comparable circumstances,
shall extend the delivery period by a time commensurate
with the duration of the hindering circumstances.
Insofar as it can be foreseen that a delay in
delivery due to force majeure will last for
long-er than 2 months, both parties shall be
entitled to revoke the contract.
In important cases, we will inform the customer
of the start and end of such delays in de-livery
as soon as possible.
3.3
Any violation of obligations on our part, especially
delays in delivery, shall only be deemed to
apply when the delivery periods and deadlines
specified in the confirmation of order and described
in Article 3.2 paragraph 1 have been exceeded
by at least two weeks and we are responsible
for the delay. In such cases, if the customer
sets us an appropriate extension period which
must be at least a further two weeks, and declares
that it will refuse to accept the performance
after the expiry of this period, then the customer
shall be entitled to revoke the contract if
we fail to render the performance within this
extension period.
However, the customer shall only be entitled
to any claims for compensation, especially for
damage resulting from delay or default and for
a violation of secondary contractual obligations,
and to a right to withdraw from the contract,
if the violation of obligations by us was deliberate
or resulted from gross negligence. The same
shall apply if any vicarious agents or sub-contractors
are textlinkolved. This limitation of liability shall
not apply insofar as the violation of obligation
leads to any loss of life, bodily injury or
damage to the health of any third party.
In cases of force majeure, any claims for compensation
against us for violations of obli-gations are
excluded. This shall also apply if the force
majeure occurred at a time when the violation
of obligation had already happened, but the
damage only arose after the occurrence of the
force majeure. This shall not affect any claims
for compensation for loss of life, bodily injury
or damage to health insofar as we must accept
liability in spite of force majeure.
3.4
If there is any question of liability on our
part in spite of the above provisions, our liability
for all damage shall be limited to the contractual
sum except for cases of loss of life, bodily
injury or damage to health. We shall not be
obliged to pay compensation for any indirect
or consequential damage (especially loss of
profit, loss of sales etc. by the customer or
third parties).
4. Payment/set-off
and right of retention
4.1
Insofar as no other arrangement is specified
in the confirmation of order, the prices given
therein shall be deemed to be subject to the
applicable statutory value-added tax. The statutory
provisions at the time of the textlinkoice shall
be definitive for the amount of the value-added
tax. For any deliveries abroad, the relevant
statutory provisions for liability to value-added
tax shall apply.
4.2
If more than 4 months elapse between the confirmation
of order and the delivery/performance, and if
price increases occur in this period, especially
as a result of wage increases, in-creases in
the cost of raw materials, general price increases
due to inflation or comparable circumstances,
we shall be entitled to charge a correspondingly
higher price.
4.3
Insofar as no other arrangement is agreed, our
respective textlinkoices shall be payable in full
within 10 days from the textlinkoice date. The deduction
of discounts shall not be permissible.
4.4
In the event of any delay with due payments
we shall be entitled - without prejudice to
the enforcement of any specific loss or damage
- to charge interest at 8% above the base interest
rate unless the customer proves in such cases
that no damage or loss has occurred, or that
it was lower than this amount.
4.5
We shall only accept payment by bill of exchange
after an explicit prior agreement. In other
respects, the acceptance of bills of exchange
or cheques shall only be deemed to be conditional
payment under the terms of Section 364 (2) of
the German Civil Code (BGB); it shall be free
of any charges for us and without the deduction
of any discount. We shall not be liable for
timely presentation for payment, protest etc.
4.6
Insofar as the customer does not stipulate specific
redemption provisions, payments shall always
be deemed to redeem the oldest payable debt
of the customer.
4.7
The enforcement of any rights of retention or
a declaration of set-off with counterclaims
of the customer against our textlinkoices shall not
be permissible unless the counterclaims are
undisputed or have been awarded by an unappealable
ruling.
4.8
We shall assume the creditworthiness of our
customer at the time of the confirmation of
order unless we have any contrary information.
If the customer falls into default with a due
payment, all outstanding textlinkoices - without
prejudice to the payability date - shall become
due for immediate payment under the above provisions.
For further deliveries, we shall be entitled
to demand prepayment. The same shall apply if
the customer's asset situation deteriorates
significantly after the confirmation of order,
or if it becomes apparent after the confirmation
of order that the customer's asset situation
at the time of the confirmation of order was
significantly worse than was assumed at the
time.
In other respects, we shall be entitled to demand
prepayment, if this is necessary in view of
the volume of the contract and has been agreed
accordingly at the time of conclusion of the
contract.
5. Reservation of
ownership5.1
All goods supplied by us shall remain our property
until all accounts receivable from the business
relationship have been paid in full, including
any auxiliary claims, claims for compensation
and claims which will become effective in the
future. This shall especially apply until any
payment by cheque or bill of exchange has been
encashed, and also if any or all of our accounts
receivable have been included in an open account
(current account) and the balance has been struck
and accepted.
5.2
Any processing and treatment of the reserved
goods shall be on our behalf as the producer
in the sense of Section 950 of the German Civil
Code (BGB), but without any liability on our
part. The processed and treated goods shall
be deemed to be reserved goods under the terms
of the above paragraph.
5.3
If the customer processes, joins and mingles
the reserved goods with other goods, we shall
be entitled to co-ownership of the new product
in proportion to the textlinkoice value of the reserved
goods in relation to the textlinkoice value of the
other goods. If our ownership should lapse as
a result of the joining, mingling or processing
by the customer, the cus-tomer assigns to us
in advance its entitlement to the property and
entitlement rights in the new stock or goods
for the textlinkoice value of the reserved goods,
or for processed goods, in proportion to the
textlinkoice value of the reserved goods in relation
to the textlinkoice value of the other goods, and
the customer shall hold them on our behalf free
of charge. Our co-ownership rights shall be
deemed to be reserved goods in the sense of
the above provisions.
5.4
The customer shall only be entitled to resell
the reserved goods in its normal business transactions
at its normal terms and conditions and as long
as it is not in default with its performance
to us under this contract; subject to the proviso
that the customer agrees a reservation of ownership
with its customer and that the accounts receivable
from the resale shall be transferred to us in
accordance with these General Terms of Delivery.
The customer shall not be entitled to dispose
of the reserved goods in any other way. Any
use of the reserved goods in fulfilment of service
contracts or contracts for work, labour and
materials shall be deemed to be a resale.
5.5
The customer's accounts receivable for the resale
of the reserved goods are assigned to us in
advance. They shall serve as security for our
claims to the same extent as the reserved goods
in the sense of Section 5.1.
5.6
If the reserved goods are resold by the customer
together with other goods, the accounts receivable
for the resale shall be assigned to us in proportion
to the textlinkoice value of the reserved goods in
relation to the textlinkoice value of the other goods.
When goods in which we have obtained co-ownership
shares under Section 5.3 of these General Terms
of Delivery are resold, a proportion of the
accounts receivable corresponding to our co-ownership
share shall be assigned to us.
5.7
The customer shall be entitled to collect accounts
receivable from the resale unless we revoke
this collection entitlement. A revocation of
the collection entitlement shall especially
be permissible and reasonable for the customer
if any circumstances arise after the con-clusion
of the contract which cause a significant deterioration
in the customer's financial situation, or if
we learn of such a deterioration of the customer's
financial situation which existed before the
conclusion of the contract, and if this deterioration
of the customer's financial situation jeopardises
the payments to which we are entitled. A deterioration
of the customer's financial situation shall
especially be deemed to apply if any third party
enforcement proceedings are initiated against
the customer which are not remedied by the customer
without delay within 2 weeks after the initiation
of the enforcement proceedings and/or if an
application for insolvency is filed for the
customer's assets.
In such cases, we shall be entitled to demand
that the customer immediately notifies its purchasers
of the assignment to us and surrenders to us
the information and documents necessary for
collection. This shall be without prejudice
to our right, after a prior warning to the customer,
to inform its contract partner of the assignment.
The customer shall notify us without delay of
any seizure or other impairment by third parties.
5.8
In no case shall the customer be entitled to
assign the account receivable; this shall also
apply to factoring transactions, which the customer
shall not be entitled to carry out even on the
basis of the direct debit authorisation form.
5.9
If the value of the existing security exceeds
the total value of the secured accounts re-ceivable
by more than 20%, we shall be obliged to release
reasonable securities of our choice to this
extent if the customer so demands.
5.10
In the event of any violation of major contractual
obligations by the customer, especially delayed
payment, we shall after a prior warning be entitled
to take back the goods. The customer shall be
obliged to surrender them. Any repossession
of the goods and any seizure of the goods by
us - insofar as Section 503 of the German Civil
Code (BGB) is not applicable - shall only constitute
a revocation of the contract if we explicitly
declare this in writing to the customer.
6. Changes in performance
/ quantities
and other variations / warranty
6.1
Any slight and/or commercially normal variations
in the quality, colours, volume, quantities
and dimensions shall not give any cause for
complaints against us. Slight deviations in
volumes and/or quantities shall be deemed to
be deviations by up to 10% above or below the
quantity ordered.
6.2
Unless any other arrangement has been agreed,
the description of our goods shall not be deemed
to be a quality description or statement of
suitability for use under the meaning of Section
434 of the German Civil Code (BGB), and no warranty
under the meaning of Section 443 of the German
Civil Code shall be given.
If any specific composition in material, design
or similar is agreed, we shall only be liable
for proper production in accordance with the
agreements made.
6.3
Any complaints for excess or short delivery,
deviations from dimensions or obvious iden-tifiable
defects must be notified without delay, at the
latest within 8 days after the receipt of the
goods supplied by us; the date on which we receive
the complaint shall be the definitive date.
For any complaints concerning other defects
than those stated above, the complaint must
reach us within 8 days after the defect has
been detected. Any complaints against us must
be notified in writing.
6.4
If only part of the goods supplied are defective,
this shall not entitle the customer to object
to our delivery as a whole unless the partial
delivery is of no interest to the customer in
this case.
6.5
In the event of defects, the customer shall
only be entitled to demand a reduction of the
price or to revoke the contract if two attempted
remedies offered by us (either correction of
the defect or replacement delivery, at our discretion)
have failed.
The same shall apply to the enforcement of claims
for compensation for culpable violations of
our obligations, subject to the proviso that
we shall only be liable for such violations
within the framework of Section 3.3 and Section
7.
6.6
Goods which have been notified as defective
must not be touched.
6.7
Insofar as the customer is a business undertaking,
our warranty period shall be one year from the
transfer of risk.
7. Liability
Our liability - on whatever legal grounds -
shall be limited to deliberate or grossly negligent
violations of our obligations. The same shall
apply in the event of any damage or loss caused
by our vicarious agents or sub-contractors.
If there is nevertheless any question of a liability
on our part under the above provisions, the
compensation claim against us shall be limited
to the contractual volume, or at the most, the
damage which was foreseeable at the time of
conclusion of the contract. Any further loss
or damage (especially consequential loss arising
from the defect such as loss of revenue or loss
of profit) and any loss or damage occurring
after our goods have been mingled with other
products, are excluded. The above limitation
of liability shall not apply to any loss of
life, bodily injury or damage to the health
of any third party.
8. Property rights
and copyright
8.1
When we carry out an order according to the
instructions of the customer, we shall not be
obliged to check any property rights of third
parties (especially patents, utility models,
copyright etc.). In this case, the customer
shall guarantee that no property rights of third
parties are violated, and shall indemnify us
against any claims of third parties arising
from the violation of such rights.
8.2
All copyright claims and rights, especially
the right to duplicate or reproduce our designs,
sketches, illustrations, drawings and written
information, shall remain with us. Any reprinting,
reproduction and/or duplication shall only be
permissible with our explicit written approval.
9. Ahipping/transfer
of risk
Insofar as no other arrangement has been agreed,
the goods shall be sent out at the expense and
risk of the customer. The manner of dispatch
(especially the selection of the carrier) shall
remain at our discretion. The risk of loss,
ruin and/or damage of the goods shall pass to
the customer when the goods are transferred
to the carrier, unless any other arrangement
has been agreed.
10. Place of performance
and place of jurisdiction
The place of performance and place of jurisdiction
for all claims and legal disputes which may
arise from this contractual relationship, including
any bill enforcement proceedings and proceedings
based on documentary evidence, shall be solely
our registered place of business insofar as
the customer is a business enterprise under
the meaning of the German Commercial Code (HGB).
However, we also reserve the right to institute
legal proceedings against the customer at any
other permissible place of jurisdiction.
11. Applicable law
This contractual relationship shall be subject
exclusively to the laws of the Federal Republic
of Germany. The provisions of the uniform UN
right of sale and the United Nations Convention
on Contracts for the International Sale of Goods
(CISG) shall not apply.
The standard commercial provisions shall be
interpreted according to the respective Incoterms
which are applicable at the time of the confirmation
of order.
12. Severance clause
If any individual provisions of these General
Terms of Delivery should be or become textlinkalid,
this shall not affect the validity of the other
provisions. The textlinkalid provisions shall then
be replaced by the statutory provisions.
13. Valid text version
for translations
In any translations into any other language,
the German text version shall be the legally
binding version in the event of any inaccuracies
in the language or translation.
March 2004
TRIPLEX Kunststoffe GmbH
Heinrich-Schickhardt-Straße 1 · 72221 Haiterbach
(Germany)
Managers: Martin Hartl
Court of registration: Local court of
Stuttgart HRB 341000
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