General terms of sale

as of 01/04/2019

They apply in business contacts with entrepreneurs, legal entities governed by public law and special public and legal assets.

1. General arrangements
  1. With regard to the legal relationship between the Supplier and the Buyer in connection with the Supplier's deliveries and / or services (hereinafter: deliveries) also in current trade relations, as well as in all future transactions with the Buyer without separate reconciliation, only these conditions apply. The Supplier does not accept any changes or supplements or conditions of the Supplier that are contradictory or deviate from these General Terms of Trade, unless confirmed in writing as an addition to these General Terms of Trade and thus their validity has been approved. This also applies if the Supplier performs delivery to the Buyer unconditionally, knowing that the terms of the Buyer are contradictory or different from these General Terms.

  2. The term 'claim for damages in these General Terms also includes claims for reimbursement of unnecessary expenses.
2. Offers
  1. The Supplier's offers are free and non-binding, unless the Supplier has clearly identified them as binding in writing. Declarations of acceptance and orders of the Buyer become binding if they are to be qualified as an offer in accordance with § 145 of the Civil Code, only on the basis of a written confirmation of the Supplier's order. To accept the Buyer's orders, the Supplier has twelve working days from receiving the order.

  2. Documents belonging to the offer of the Supplier within the meaning of 2.1, such as illustrations, drawings, etc., as well as the resulting dimensional and weight specifications are only approximate unless the Supplier has expressly specified them in writing. The same applies to the instructions of use. Normal tolerances shall remain reserved to the Supplier to the extent acceptable to the Buyer.

  3. The Supplier reserves the copyright, ownership and other rights to all drawings, samples, brochures, technical descriptions, sketches, catalogues and other documents, as well as other business and technical information from the Supplier. They may not be disclosed to third parties without the Supplier's written consent, used commercially or reproduced and must be returned to the Supplier immediately if the order is not transferred or after the supplier's business relationship is terminated, including all copies. These documents and / or information will be made available by the Buyer to persons who must necessarily be involved in their use and who are also bound by secrecy. This shall not apply if the information and / or documents are publicly known or intended by the Supplier for resale by the Buyer.

  4. The use of IATF 16949, ISO 9001 and other quality standards is made only if and to the extent that the Supplier explicitly and in writing has agreed to take into account the relevant quality standard.
3. Prices
  1. Prices are understood as prices directly from the factory, excluding postal charges, freight, insurance and packaging, plus the applicable statutory value added tax. The prices confirmed by the Supplier in the order confirmation are valid. If the Supplier has agreed with the Buyer in the agreement for a delivery period of more than 8 weeks from receipt of the order from the Buyer, and the cost factors have increased with the Supplier, for example by the increase of costs, in particular due to a rise in wages, due to changes in collective agreements and / or price increases materials, this appropriate price increase is considered agreed with the Buyer. Upon demand, the supplier proves the increase of costs to the Buyer. If the price increase exceeds 15% of the price agreed in the agreement with the Buyer, the Buyer has the right to terminate the agreement.

  2. Deliveries of spare parts and return of repaired goods are made, unless they are covered by the responsibility for material defects, with the charge of an appropriate flat rate payment and packaging fee to the additional renumeration for the Supplier’s services. If the Supplier agreed to pick up the delivered goods as a courtesy, the Supplier will charge a flat rate of 15% of the net purchase price of the goods in question as a reimbursement of expenses for re-storage and administrative expenses.

  3. If the Supplier has taken over the setting, assembly or any other service and if nothing else has been agreed, the Buyer shall pay, to the agreed remuneration, all necessary additional costs, such as travel and transport costs, as well as additional expenses for food, accommodation and diet.

  4. If the dependence of the price on the weight of the parts has been agreed, the final price results from the weight of the approved exempted specimen type sample.
4. Terms of payment
  1. All payments must be made in Euros only to the Supplier.

  2. Unless agreed otherwise, the purchase price is payable in net amounts
    1. for moulds in the amount of 50% after order confirmation and 50%, 30 days after presenting the type of payment samples according to the agreement. After confirming orders changing the ordering party, before the moulds are made, all costs incurred up to that point should be returned if they exceed the advance payment amount.
    2. for delivery of parts or other services payment with 3% discount (discount for cash payment) for prepayment or payment on delivery, with 2% discount for payment within 14 days and without deductions within 30 days from the invoice date. The provision of a discount requires the settlement of all invoices due in advance.

  3. The supplier has the right to deduct payment with the oldest due claim. The supplier may, however, depending on the choice, make the delivery dependent on the payment (for example, cash on delivery or direct debit for bank debits) or on the payment of a down payment or security. This applies in particular when the Supplier becomes aware of circumstances that undermine the Buyer's creditworthiness, in particular when it is impossible to buy a Buyer's check or the Buyer will withhold payment. In the event of exceeding the aforementioned payment date, the Supplier may demand default interest amounting to 8 percentage points above the basic interest rate in accordance with § 247 of the Civil Code. The supplier reserves the right to prove a higher damage caused by delay.

  4. The Buyer cannot compensate for the claims of the Supplier against the opposing claims that have been contested by the Supplier or which have not been legally established.
5. Moulds
  1. The price of moulds also includes the costs of making a test cast, but not the costs of testing and processing equipment and changes caused by the Buyer.

  2. Unless agreed otherwise, the Supplier is and remains the owner of the forms manufactured for the Buyer by the Supplier or a third party, to which he has commissioned this. They will be used only to fulfil the Buyer's orders, as long as the Buyer meets his payment obligations and obligations to collect the goods. The supplier is only then obliged to replace these forms free of charge if they are necessary to realise the production volume guaranteed to the Buyer. The Supplier's obligation to storage expires 2 years after the last delivery of some of the moulds and prior notification to the Buyer. The offer and confirmation of the order must state if the shares in mould costs are returned to the Buyer in the amount of 5% of the net value of the parts deliveries.

  3. If, as agreed, the Buyer becomes the owner of the forms, the ownership passes to him after paying the purchase price of the forms. The transfer of moulds to the Buyer shall be replaced with the Supplier's obligation to store. Regardless of the Buyer's statutory claim for the issue and mould vitality, the Supplier is entitled to exclusive possession, until receipt of the minimum quantity to be determined, and / or until the specified period of time expires. The supplier must mark the forms as a foreign property and, at the request of the Buyer, insure them at his expense.

  4. In the case of moulds owned by the Buyer, in accordance with clause 5.3, and / or moulds made available by the Buyer on a loan basis, the Supplier's liability for storage and maintenance is limited to diligence, such as in its own cases. The costs of maintenance and insurance are borne by the Buyer. The Supplier's obligations shall expire if the Buyer fails to collect the forms after the order has been completed and an appropriate request has been made. Until the Buyer has fulfilled his contractual obligations to the full extent, the Supplier has the right to keep the forms in any case.
6. Reservation of ownership
  1. Items of delivery (proprietary goods) remain the property of the Supplier until all claims due to him from the commercial relationship from the Buyer are met. Provided that the value of all security rights to which the Supplier is entitled exceeds the amount of all secured claims by more than 20%, the Supplier shall release, at the Buyer's request, an appropriate portion of the collateral; The supplier has the right to choose between the various security rights when exempted.

  2. During the period of retention of ownership, the Buyer is prohibited from pledging or transferring collateral and further resale is only available to resellers in the ordinary course of trade and only on the condition that the reseller receives payment from his client or stipulates that ownership will pass to the customer only when he fulfils his payment obligations.

  3. If the Buyer resells the proprietary goods, it already derogates from future re-sale receivables to its customers in relation to the Supplier, with all additional rights - including receivables from the balance - as a precautionary measure, without the need for additional special declarations. If the goods subject to retention of ownership are resold together with other objects without agreeing the unit price for the reserved goods, the Buyer gives the Supplier the part of the total price of the payment, which corresponds to the price of the goods invoiced by the Supplier.

  4. The buyer may process the reserved goods or mix them or combine them with other items. The processing takes place for the Supplier. The buyer secures the new item for the Supplier with the diligence of an honest buyer. The new item is considered a restricted product. Both the Supplier and the Buyer now agree that if they are merged or mixed with other objects not belonging to the Supplier, the Supplier shall in all cases be entitled to the co-ownership of the new product, equal to the proportion due to the value of the mixed or combined goods constituting the collateral to the value other goods, at the moment of merging or mixing. The new item is also a reserved item to such an extent. Regulation on the transfer of receivables in accordance with paragraph 6.3 also applies to the new item. However, the withdrawal takes place only up to the amount corresponding to the value invoiced by the Supplier, processed, combined or mixed. If the Buyer combines goods reserved for land or movable property, it shall - as security for the Supplier - also withdraw its receivables, which it is entitled to as a reimbursement fee, together with all additional rights in the proportion of the share of the value of the related reserved goods to other related goods at the time of linking.

  5. Until revocation, the Buyer has the right to collect the assigned receivables from resale. In the event of a justified reason, in particular failure to pay, cease of payment, initiation of bankruptcy proceedings, promissory note or substantiated conditions of excessive indebtedness or impending insolvency of the Buyer, the Supplier has the right to withdraw the Buyer's authorisation of recovery. In addition, the Supplier may, after a previous warning, within a reasonable time, disclose the withdrawal of the collateral, revalue the receivables and demand disclosure of the collateral by the Buyer to the Customer.

  6. In the event of seizure, confiscation or other regulations or interventions of third parties, the Buyer must immediately notify the Supplier. If the legitimate interest is justified, the Buyer must provide the Supplier with the information required to enforce his rights against the customer and provide the necessary documents.

  7. In the event of the Buyer's breach of obligations, in particular failure to pay, the Supplier has the right, after ineffective expiration, to an appropriate period of performance provided to the Buyer, in addition to the return, also to withdrawal; legal provisions regarding the lack of necessity to grant an additional deadline remain unaffected. The buyer is obliged to issue. Withdrawing or using the retention of title or taking possession of the goods reserved by the Supplier shall not constitute a withdrawal from the agreement, unless the Supplier has made a clear statement in this matter.
7. Delivery dates and services; delay
  1. Delivery dates, which the Supplier has not explicitly agreed in writing as binding upon the Buyer, are only non-binding data. In case of doubts, the delivery period begins along with sending the order confirmation by the Supplier.

  2. Compliance with delivery dates assumes timely receipt of all documents to be provided by the Buyer, necessary approvals and permits, in particular plans, as well as compliance with agreed terms of payment and other obligations of the Buyer. If these assumptions are not met on time, the dates will be extended accordingly; this does not apply if the Supplier is responsible for the delay,

  3. If the inconsistency with the agreed delivery date results from force majeure, e.g. mobilisation, war, anxieties or similar events, e.g. strike, blockade, dates are extended accordingly. The same applies to a delayed delivery or incorrect delivery to the Supplier by one of its Suppliers.

  4. If the Supplier defaults, the Buyer - provided that he proves that he has suffered damage - will be entitled to compensation for each completed week of delay of 0.5%, but not more than 5% of the net price for the part of deliveries which could not be commissioned as intended due to a delay.

  5. Both the Buyer's claims for damages resulting from delayed delivery and claims for damages instead of benefits which go beyond the limits mentioned in point 7.4 are excluded in all cases of delayed delivery, even after the expiry of the additional period granted to the Supplier. This does not apply if the liability is compulsory, in case of intentional gross negligence or personal injury, threats to health or life. The buyer may withdraw from the agreement only in the scope of legal provisions, if the supplier is responsible for the delivery delay. A change in the burden of proof to the disadvantage of the Buyer is not related to the above provisions.

  6. At the Supplier's request, the Buyer is obliged to declare within a reasonable time whether he will withdraw from the agreement due to a delay in delivery or insists on delivery.

  7. If the shipment or delivery is delayed by more than one month after notification of readiness for dispatch at the Buyer's request, the Buyer may be charged storage fees in the amount of 0.5% of the item price for each additional month started, but no more than 5% of the total. Proof of higher or lower storage costs remain at the disposal of the parties to the agreement.

  8. The supplier is obliged to accept supplementary orders with reasonable delivery times, as long as it has the ownership right to the customer's moulds or the obligation to store customer-related moulds of its own. This obligation does not contain any previous price agreements.

  9. In the case of orders without consent as to the date, size of production batches and collection dates, the Supplier may request a binding determination of these, no later than 3 months after order confirmation. If the ordering party fails to comply with this request within 3 weeks, the Supplier shall be entitled to set a 2-week additional period and after its expiration, to withdraw from the agreement or to refuse delivery and demand compensation.
8. Materials supply
  1. If the materials are delivered by the ordering party, they must be delivered on time and in perfect condition at its expense and risk, with a reasonable surcharge of at least 5%.

  2. If this condition is not met, the delivery time will be extended accordingly. Except in cases of force majeure, the Buyer bears the additional costs incurred, also due to interruptions in production.
9. Passing of risk
  1. The delivery takes place ‘from the gates of the plant’, unless the supplier has explicitly agreed otherwise with the buyer. Therefore, the risk of accidental loss and accidental deterioration of the quality of goods delivered by the Supplier passes to the Buyer, unless the supplier has clearly taken over the delivery or assembly of the delivery item, along with the transfer to or with collection by the transporting person. This also applies to partial deliveries.

  2. In the case of deliveries with set-up or assembly, the risk passes to the Buyer on the day of the takeover in his own company or, if agreed, after trouble-free trial operation.

  3. If the shipment, delivery, commencement, setting up or assembly, handover in own factory or trial start-up is delayed due to reasons for which the Buyer is responsible or the Buyer is delayed from collection for any other reason, the risk passes to the Buyer at the time of delay in delivery.

  4. At the Buyer's written request, the goods will be insured against damage to storage, damage, transportation and fire at its expense.
10. Receipt
  1. The buyer cannot refuse to accept deliveries due to slight defects.

  2. Partial deliveries and deviations from the number of orders up to +/- 10% are acceptable, if they are possible at the Buyer.
11. Setup and assembly

Unless agreed otherwise in writing, the following provisions shall apply to the setup and assembly of:

  1. The buyer must take over at his expense and deliver on time:
    1. all earthworks, construction works and other auxiliary works outside the industry, including necessary specialist and auxiliary personnel, building materials and tools,
    2. goods and materials required for assembly and start-up, such as scaffolding, jacks and other equipment, fuels and lubricants,
    3. energy and water in the place of use, including connections, heating and lighting,
    4. in the place of assembly for storage of parts of machines, equipment, materials, tools, etc., sufficiently large, suitable, dry and closed rooms, and working and accommodation rooms suitable for installation personnel, including sanitary facilities appropriate to the circumstances; in addition, in order to protect the property of the Supplier and assembly personnel at the construction site, the Buyer must take such measures as he would take to protect his property,
    5. the required protective clothing and protective equipment necessary due to the particular circumstances of the place of installation.

  2. Before commencing the assembly work, the Buyer will provide necessary information on the location of invisible electricity, gas, water or similar installations, and the required static information.

  3. Before starting setup or assembly, the equipment and items required to start work must be in place of installation or setup, and all preparatory work must be sufficiently advanced before commencing assembly so that the setup or assembly starts as intended and is carried out smoothly. Access routes and the place of installation or assembly must be levelled and cleaned.

  4. If the setup, assembly or start-up is delayed due to circumstances beyond the Supplier's control, the Buyer shall bear reasonable costs of waiting time and additional journeys of the Supplier or assembly personnel.

  5. The Buyer is obliged to notify the Supplier every week about the working time of the installation personnel, as well as immediately notify about the completion of the setup, assembly or commissioning.

  6. If the Supplier requests a receipt of delivery after completion of delivery, the Buyer must complete it within two weeks. If this does not happen, acceptance is considered to have taken place. It is also considered that the acceptance took place if the delivery was put into service - in a given case after the end of the agreed test phase.
12. Material defects

In the case of material defects, the Supplier responds as follows:

  1. All parts or services will be repaired, re-delivered or the service will be re-supplied free of charge at the Supplier's discretion, provided that their cause already existed at the time the risk was transferred.

  2. Claims for supplementary benefits are subject to a limitation period of 12 months from the start of the statutory limitation period; The same applies to the withdrawal and reduction of value. This period does not apply if the law provides for longer periods in accordance with §§ 438 para. 1 no. 2 (construction works and items for construction works), 445b para. 1 (right of recourse) and 634a para. 1 no. 2 (construction defects) of the Civil Code, in case of deliberate, fraudulent concealment of the defect, as well as failure to guarantee the property. Statutory provisions regarding the suspension of the end of the limitation period, suspension and resumption of time limits remain unaffected.

  3. Complaints from the Buyer must be submitted promptly in writing.

  4. In the case of notification of a defect, the Buyer's payments may be withheld to the extent that it is in reasonable proportion to the material defects. The buyer may withhold payments only when a notification of a defect is submitted that exists undoubtedly. The Buyer’s right to withhold does not exist if his claims for defects have expired. If the defect notification has been wrongly submitted, the Supplier has the right to demand compensation from the Buyer for incurred expenses.

  5. Suppliers should be given the opportunity to supplement the service within a reasonable period of time.

  6. If the subsequent performance fails, the Buyer may, without prejudice to claims for damages in accordance with paragraph 12.10 - withdraw from the agreement or reduce the remuneration.

  7. Claims for defects do not exist with slight deviation from the agreed quality, slight deterioration of utility, natural wear or damage after transfer of risk due to defective or careless handling, overloading, improper operating equipment, erroneous construction work, inadequate substrate or due to special influences external, which were not created in the agreement, as well as non-reproducible software errors. If the changes or repairs are made incorrectly by the Buyer or third parties, there are no claims for these defects and the resulting consequences.

  8. Buyer's claims for expenses required for supplementary services, in particular transport, travel, labour and material costs, are excluded, if the expenses increase, because the subject of the delivery has been moved to a location other than the Buyer's branch, unless the message corresponds to its use in accordance with destiny.

  9. Claims of the Buyer's recourse against the Supplier in accordance with § 445a of the Civil Code (entrepreneur's regress) exist only to the extent that the Buyer has not entered into any agreements with his Recipient that go beyond statutory claims for defects. As regards the buyer's recourse against the Supplier in accordance with § 445a para. 1 of the Civil Code, point 12.8.

  10. Claims for compensation for damages incurred by the Buyer due to material defects are excluded. This does not apply to the fraudulent concealment of a defect, failure to comply with the quality guarantee, personal injury, health risk, or freedom or intentional or gross violation of obligations by the Supplier. A change in the burden of proof to the disadvantage of the Buyer is not related to the above provisions. Further claims or claims of the Buyer other than those specified in these General Terms and Conditions due to material defects are excluded.

  11. If the Supplier advised the Buyer, he is responsible for the functionality and suitability of the plastic part only on the basis of explicit written assurances.
13. Industrial property rights and copyrights; legal defects
  1. Unless agreed otherwise, the Supplier is obliged to deliver goods free from industrial property rights and copyrights of third parties (hereinafter: property rights) only in the country of the place of delivery. If a third party makes substantiated claims against the Buyer due to violation of ownership rights through deliveries made by the Supplier and used in accordance with the agreement, the Supplier shall be liable to the Buyer within the time specified in point. 12.2 as follows:
    1. The supplier will, at his own discretion, obtain the right to use the given deliveries at his own expense, modify them so that the ownership right is not infringed or replaced. If it is not possible for the Supplier on reasonable terms, the Buyer is entitled to a statutory right to withdraw or reduce the price.
    2. The Supplier's obligation to pay compensation is determined in accordance with paragraph 15 of these General Terms and Conditions.
    3. The above-mentioned obligations of the Supplier exist only to the extent that the Buyer immediately notifies the Supplier about claims claimed by a third party in writing, does not confirm the breach and the Supplier has reserved all defence and negotiation measures for the settlement. If the Buyer suspends the use of the delivery to reduce damage or for other important reasons, he is obliged to inform the third party that the termination of the protection rights is not related to the cessation of use.

  2. Buyer's claims are excluded if he is responsible for the violation of protection rights. In addition, the Buyer's claims are excluded, as long as the infringement of property rights is caused by specific recommendations of the Buyer, by application not provided by the supplier or by the delivery being changed by the Buyer or used with products not delivered by the supplier.
  3. In the case of breaches of protection rights, the provisions of point 13.1 a. shall apply to settled claims of the Buyer, in other cases provisions of points 12.4, 12.5 and 12.9 respectively.

  4. In the case of other legal defects, the provisions of point. 12 shall apply. The Supplier shall ensure that the processes, products and services used and delivered by it comply with the latest applicable legal, regulatory, and other requirements of the country of manufacture. In addition, the Buyer shall be solely responsible for verifying that all processes, products and services underlying the Orders are in accordance with the latest applicable legal, regulatory and official requirements and other requirements of other countries, in particular the countries of destination.

  5. Further claims of the Buyer or claims other than those mentioned in point 13 resulting from a legal defect towards the supplier and its executive assistants are excluded.
14. Inability; adjusting the Agreement
  1. If delivery is not possible, the Buyer has the right to demand compensation, unless the Supplier is not responsible for the impossibility. However, a claim for damages of the Buyer is limited to 5% of the value of that part of the delivery which cannot be correctly used as part of proper exploitation in accordance with its destiny, because of inability. This limitation does not apply if the liability is compulsory in the case of intentional actions, gross negligence or threat to life, damage to the body or health; the change of the burden of proof to the disadvantage of the Buyer is not connected with this. The Buyer's right to withdraw from the agreement remains unaffected.

  2. If unforeseen events within the meaning of paragraph 7.3 significantly change the economic significance or content of delivery or significantly affect the supplier's plant, the agreement will be adjusted in good faith. Unless it is economically justified, the Supplier has the right to withdraw from the agreement. If he wants to exercise this right of withdrawal, he must immediately notify the Buyer after recognising the consequences of the event, even if it was originally agreed with the Buyer to extend the delivery time.
15. Other claims for liability for defects, limitation
  1. Claims for damages of the Buyer for any legal reason, in particular due to a breach of obligations arising from the obligation relationship or tort, are excluded.

  2. This does not apply to situations where liability is compulsory, e.g. in accordance with the Product Liability Act, in case of intentional gross negligence, bodily injury or health hazard to life or violation of significant contractual obligations. Significant contractual liabilities are such liabilities the execution of which enables correct performance of the agreement in general and in whose delivery the contract partner normally trusts and can trust. wever, a claim for compensation for breach of material contractual obligations shall be limited to typical foreseeable contractual damages unless there is intentional or gross negligence or liability for bodily injury to life or health. A change in the burden of proof to the disadvantage of the Buyer is not related to the above provisions.

  3. If the Buyer is entitled to claims for damages, they shall be subject to the statute of limitations after the period specified in point. 12.2 of the applicable limitation period. The same applies to the Buyer's claims in relation to measures to prevent damage (for example, withdrawal). In the case of claims for damages in accordance with the Product Liability Act, the statutory provisions on limitation shall apply.
16. Place of performance, jurisdiction
  1. Unless the Agreement provides otherwise, the place of performance is the seat of the Supplier.

  2. Unless the law requires any other local jurisdiction, the place of jurisdiction for all legal disputes arising directly or indirectly from contractual relations based on these General Business Terms is Detmold. District Court Lemgo is responsible for proceedings before district courts. However, the Supplier has the right to sue the Buyer at the place where he conducts business or at its registered office or branch or at the place of performance of the agreement.
17. General provisions
  1. Disputes arising from this contractual relationship and contractual relationships between the Supplier and the Buyer are subject only to German law, with the exception of the UN Convention on Agreements for the International Sale of Goods (CISG) and the Collision law.

  2. If one provision of these terms and further arrangements is or will become ineffective, the validity of the remaining conditions shall not be affected. The contracting parties are obliged to replace an ineffective decision with a provision that is as close as possible to the intended economic objective. The same applies to regulatory gaps.

General terms of sale

Gerdes Kunststoff-Technik GmbH
Tel.: +49 (0)5262 940-0

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PRETTL group of companies.

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