General Terms and Conditions of Sale and Delivery
1.1 These General Terms and Conditions of Sale and Delivery shall apply to all purchase contracts concluded by GODIPLAST GMBH (« GODIPLAST ») with customers that are companies within the meaning of Section 310 (1) of the German Civil Code, legal entities in German public law or special funds in German public law.
1.2 Deviating terms and conditions of the customer shall not apply although GODIPLAST does not expressly object to them, unless otherwise agreed in writing.
- Conclusion of Contracts
GODIPLAST’s offers are subject to change and non-binding. A contract shall not be concluded until GODIPLAST has confirmed the order in writing or until the order has been executed without delay.
- Services Provided by GODIPLAST
3.1 The scope of services provided by GODIPLAST shall be determined by the individual contract.
3.2 The information GODIPLAST’s about its products and its processes is based on application-based experience. GODIPLAST assumes no liability for these details over and above the provisions of each individual contract. The information is provided verbally and in writing to the best of GODIPLAST’s knowledge. GODIPLAST reserves the right to make technical changes to this information during the product development process.
3.3 The customer is required to test GODIPLAST’s products and processes for their suitability for its own use itself. This shall also apply with regard to the protection of third-party industrial property rights, applications and procedures.
4.1 Prices are subject to value added tax at the applicable statutory rate. Exports are not subject to value added tax. The international trade clauses (the latest applicable version of Incoterms) shall apply.
4.2 All calculations shall be based on the dimensions and weights determined by GODIPLAST.
5.1 Unless otherwise agreed, invoices are due for payment within 30 days of the invoice date.
5.2 Unless otherwise agreed, payment shall be made by bank transfer or in cash.
5.3 If cheques and bills of exchange are accepted on the basis of a separate agreement, they shall be accepted as conditional payment on account of performance. Discount and other bill charges shall be borne by the customer. Credits for bills of exchange or cheques shall apply subject to receipt of the equivalent value of these papers and at the value date on which GODIPLAST is able to dispose of the equivalent value.
5.4 If claims are collected by GODIPLAST on the basis of a separate agreement in the bank’s direct debit procedure, the customer shall ensure that its account has sufficient funds on the agreed payment dates.
5.5 Where goods are exported, the costs associated with payments incurred outside the Federal Republic of Germany shall be borne by the customer.
- Advance Payments / Security Deposits / Offsetting and Retention
6.1 GODIPLAST reserves the right to request an advance payment or that security be provided to the value of the invoice amount of the goods if circumstances which endanger GODIPLAST’s claim against the customer occur or become known after conclusion of the contract.
6.2 If the customer fails to make an advance payment or provide security as requested within a reasonable period set by GODIPLAST, GODIPLAST shall be entitled to withdraw from the contract without setting a further deadline.
6.3 The customer shall only be entitled to offset claims if its counterclaims have been legally established, are undisputed or have been recognised by GODIPLAST. To this extent, right of retention is also ruled out.
- Place of Performance
Unless otherwise agreed, the place of performance shall be the location of GODIPLAST’s supplying plant or warehouse.
- Shipping/Deliveries/Delivery Deadline Periods
8.1 Unless otherwise agreed, GODIPLAST shall ship the goods at the customer’s risk. GODIPLAST shall determine the mode of shipment, the shipping route and the carrier. Paragraph 7 shall remain unaffected.
8.2 Partial deliveries are permitted.
8.3 If an agreed delivery date is exceeded, the customer shall initially grant GODIPLAST a grace period of three weeks or, in individual cases, a reasonable longer grace period for performance.
8.4 GODIPLAST reserves the right to correct and punctual self-delivery.
8.5 In the event of Acts of God, the delivery period shall also be extended to a reasonable extent. In the event of energy-shortages, shortages of raw materials, labour disputes, official instructions or transport or operational disruptions for which GODIPLAST is not responsible, GODIPLAST shall be entitled to withdraw from the contract insofar as these affect GODIPLAST’s obligation to perform.
8.6 GODIPLAST shall also be entitled to withdraw from the contract if there is a material change in the circumstances existing when the contract was concluded and which affects GODIPLAST’s obligation to perform.
- Retention of Title
9.1 The goods sold shall remain the property of GODIPLAST (« reserved goods ») until all claims of GODIPLAST arising from the business relationship have been satisfied.
9.2 If the reserved goods are treated or processed by the customer, the retention of title shall extend to the new item in its entirety.
9.3 If the customer processes, combines or mixes the reserved goods with other goods, GODIPLAST shall acquire co-ownership at the invoice value of the reserved goods as a proportion of the value of the other goods used by the customer at the time of processing, combining or mixing. If the reserved goods are combined or mixed with a main item belonging to the customer or third parties, the customer shall hereby assign its rights to the new item to GODIPLAST. GODIPLAST hereby accepts the assignments.
9.4 Transfer of ownership of the reserved goods to third parties will only be permitted if this takes place in the course of the customer’s ordinary business and the customer reserves ownership of the reserved goods in accordance with the above conditions. The customer hereby assigns to GODIPLAST its claims from this resale and the rights from the retention of title agreed by it. GODIPLAST hereby accepts the assignment. If requested by GODIPLAST, the customer will notify the purchaser of the assignment and provide GODIPLAST with the information and documents required to assert its rights against the purchaser. The customer shall be entitled to collect the assigned claims in its own name until this entitlement is revoked by GODIPLAST. Such revocation may only be declared if the customer is in arrears of payment.
9.5 The customer will handle the reserved goods with care. In particular it will insure them adequately at its own expense against theft and damage by fire and water.
9.6 At the request of the customer, GODIPLAST shall release the securities to which it is entitled if the realisable value of these securities exceeds the claims to be secured by more than 10%. The choice of securities to be released shall be the responsibility of GODIPLAST.
10 Liability for Defects
10.1 GODIPLAST will be liable in accordance with the law if the customer asserts damages claims based on intent or gross negligence, including intent or gross negligence by its representatives or vicarious agents. If no allegations of intentional breach of contract have been made against GODIPLAST, its liability for damages will be limited to foreseeable damage typically occurring in these cases.
10.2 GODIPLAST will be liable in accordance with the law if it culpably breaches an essential contractual obligation. However in this case as well, its liability for damages will be limited to the foreseeable damage typically occurring in these cases.
10.3 The prementioned of claims for defects by the customer shall be conditional on the customer having duly complied with its statutory obligations to examine the goods and notify any defects.
To this end, the customer shall be required to inspect the delivered goods and in writing notify any defects immediately but no later than 10 days of receipt of the goods or, in the case of concealed defects, within 10 days of discovery.
10.4 If the goods are defective and this has been notified in good time in accordance with Clause 10.3, GODIPLAST shall, at its option, supply replacement goods or repair the defective goods (« subsequent performance »).
10.5 If subsequent performance fails, including after a second attempt, the customer will, at its option, be entitled to withdraw from the contract or request a price-reduction.
10.6 Liability for culpable injury to life, limb or health shall remain unaffected. This shall also apply to obligatory liability further to the German Product Liability Act and in the event that a guarantee is assumed.
10.7 Unless otherwise agreed above, liability shall be ruled out.
10.8 The expiry period for warranty claims shall be 12 months calculated from the date of the transfer of risk. The statutory provisions for the expiry period in the event of delivery recourse after the purchase of consumer goods shall remain unaffected.
- Other Liability
11.1 Any further liability for damages other than that provided for in No. 10 shall be ruled out irrespective of the legal nature of the claim asserted.
11.2 This limitation shall also apply if the customer requests reimbursement of futile expenses instead of a claim for damages in place of performance.
11.3 If GODIPLAST liability for damages is ruled out or limited, this will also apply with regard to the personal liability for damages of GODIPLAST’s employees, workers, staff, representatives and vicarious agents.
- Applicable Law/Jurisdiction
12.1 The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on the International Sale of Goods shall not apply.
12.2 The place of jurisdiction for all disputes concerning the validity, origin and termination of the individual contracts between GODIPLAST and the customer and all rights and obligations arising from these contracts shall be Saarbrücken. GODIPLAST may also bring legal action at the customer’s general place of jurisdiction.
- Final Provisions
13.1 Additions and/or amendments to or the cancellation of individual contracts must be in writing to be valid. This shall also apply to additions to or cancellation of this written form requirement.
13.2 Declarations and notifications by the customer shall only be valid if made in writing.
13.3 The full or partial transfer to third parties of rights and obligations arising from individual contracts requires the written consent of each contracting party.
13.4 Should individual provisions of these General Terms and Conditions of Sale and Delivery or parts thereof be or become invalid, or should an omission become apparent, this will not affect the validity of the remaining provisions or those of the individual contracts.