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General Terms and Conditions

Preamble

These General Terms and Conditions regulate the contractual relationships between us, the trading
Polywest Kunststofftechnik Saueressig + Partner GmbH & Co. KG,
represented by the Polywest Saueressig + Partner Geschäftsführungsgesellschaft mbH,
represented in turn by the managing director Dipl.-Kfm. Jörg C. Saueressig
Ridderstraße 42, 48683 Ahaus, Germany

and our contractual partners (hereinafter referred to as Purchasers). We can be contacted under the following data:

Phone: +49 (0) 2561 9321- 11
Fax: +49 (0) 2561 9321- 55
E-Mail: VKH@polywest.de

Contractual language is German. Level August 2012

§ 1 Definitions

  1. Businessman (plural: businessmen) shall either be a person who runs a trade in terms of the commercial code or a person who has their firm of their company registered in the commercial register.
  2. Firm shall be the name under which the businessman runs their business and signs documents.
  3. Trade shall be any business enterprise, unless the company does not require a commercially-established business operation according to type or extent.
  4. Commercial businesses shall be all businesses of a businessman that are part of the operation of their trade.
  5. Entrepreneur shall be a natural or legal person or a partnership with legal capacity who acts in the exertion of their commercial or self-employed occupational activity at conclusion of a legal transaction.
  6. Text form shall be the issuance of a declaration of intent in a deed or in another form suitable for permanent reproduction in printed characters which names the declaring person and makes the conclusion of the declaration evident by the signature of their name or otherwise.
  7. Damage caused by defect shall be damage that leads to the object of purchase placing the buyer in a worse position compared to a defect-free object of purchase due to a defect that can be corrected by supplementary performance.
  8. Consequential damage caused by a defect shall be damage that is not corrected by a defect-free supplementary performance and that is suffered by the customer to legal assets other than the object of purchase due to the defect that can be corrected by supplementary performance, especially to body, ownership, possession and liability for damages to third parties.

§ 2 General, validity of these General Terms and Conditions, ownership rights and rights of use

  1. These General Terms and Conditions shall only apply to businessmen, entrepreneurs and legal persons under public law as well as separate assets under public law.
  2. We shall render our services solely based on these General Terms and Conditions. We shall not acknowledge opposing or deviating conditions.
  3. These General Terms and Conditions shall also apply to future business transactions with the Purchaser.
  4. We shall be entitled at any time to alter or add to these General Terms and Conditions. The Purchaser shall be entitled to object to such alterations. If the Purchaser fails to object to the altered conditions in writing within four weeks after receipt of the alteration notification, they shall become valid according to the alteration. At the beginning of this period, we shall notify the Purchaser in writing that the alteration notification is considered accepted if the Purchaser fails to object within four weeks.
  5. We shall reserve all our ownership rights and rights of use with respect to offer documents, illustrations, drawings, measurements, calculations and other documents. They may not be made accessible to third parties without our consent. In case of unauthorised use, the unauthorised user shall be obliged to pay a contractual penalty to the amount of five times the fee that is customary in the market for the use.

§ 3 Offer and conclusion of contract, subject matter of the contract

  1. The promotion of our services and/or our documents described as offers shall be a non-binding invitation to the Purchaser to make an offer.
  2. We can accept the Purchaser’s offer within three weeks after the order date either by confirmation of order or by delivery of the goods.
  3. Illustrations, drawings, measurements, quality information, weights and colour shades shall be approximate values customary in the industry. Usual deviations and technical alterations as well as alterations in form and/or colour and/or quality and/or weight shall remain reserved if the alteration or deviation is reasonable for the Purchaser in consideration of our interests.

§ 4 Prices, terms of payment

  1. Our prices shall be strictly net without any discount or other rebates in Euros ex works plus the respectively valid turnover tax.
  2. Packaging, freight and insurance shall be charged separately.
  3. In the case of an obligation that is not a long-term obligation, we shall be entitled to change the prices if cost reductions or cost increases occur after conclusion of the contract. In case of a price increase, this shall not apply if our service is performed within four months after conclusion of the contract.
  4. In the case of a long-term obligation, we shall also be entitled to change the prices. If a change is made, we shall inform the Purchaser in writing. At the same time, we shall expressly point out to the Purchaser that the changed price will be applicable if the Purchaser fails to object to the changed price in writing within four weeks. The contractual relationship shall then be continued according to the changed fees.
  5. If the Purchaser objects in due time, both parties shall be entitled to terminate the long-term obligation with a four weeks’ period of notice to the end of a calendar month.
  6. Unless otherwise expressly agreed, payments after delivery shall be made within 14 days after receipt of the invoice without any discount deductions. If payment is delayed, we shall charge default interest to the amount of 8% over the base rate, notwithstanding any further rights.
  7. We shall convert payments in currencies other than Euro in accordance with the official exchange rate, and in its absence in accordance with the market price valid on the day of credit to our account. The costs of conversion and of the crediting in Euros shall be borne by the Purchaser.
  8. Payments made by the Purchaser shall be credited at first to the debt due, among several debts due to such debt that provides us the lesser amount of collateral security, among several equally secure debts to the one that is more troublesome for the Purchaser, among several equally troublesome debts to the older debt and in case of equally old debts to every debt proportionally. If costs and interests have already accrued, the payment shall be made at first on the costs, then on the interest and lastly on the main service.
  9. Cheques and bills of exchange shall only be accepted after separate agreement and only on account of performance with consideration of all collection and discount fees. The payment shall not apply as performed until the cashing of the cheque/bill of exchange or the unconditional and final credit of the cheque amount or the bill of exchange amount, as the case may be.
  10. If the Purchaser is culpably in arrears with their payments, we shall be authorised to render the entire residual debt due for payment. In this case, we shall also be entitled to demand collateral security to the extent of the receivable with respect to which the Purchaser is culpably in arrears with payment. With respect to the type of collateral security, the Purchaser shall be entitled to the options in accordance with § 232 BGB [German Civil Code]. We shall also be entitled to the same right to demand collateral security if we realize, after conclusion of the contract, that the Purchaser is unworthy of credit or if the Purchaser has given incorrect information about their creditworthiness prior to, or at conclusion of, the contract. If the Purchaser fails to provide the collateral security on demand, we may withdraw from the contract.

§ 5 Terms of delivery/forwarding costs and return shipment costs in case of revocation

  1. Delivery dates the customer indicates in their order shall require our confirmation to be valid.
  2. Deliveries shall be made ex works excluding packaging. Partial deliveries shall be permissible as far as they are reasonable for the Purchaser.
  3. The commencement of the delivery period indicated by us shall require that the Purchaser has given us all information, documents and items to be provided according to the agreement and that we confirm their complete receipt immediately after receipt of all information. With receipt of this confirmation at the Purchaser’s location, the delivery or service period, as the case may be, shall commence. The defence of non-performance of the contract shall remain reserved. The delivery period shall be deemed as complied with when the delivery item has left our factory or warehouse until expiry of the deadline or when we have informed the Purchaser about the readiness for dispatch.
  4. The delivery period shall be extended appropriately in the case of measures taken during labour disputes, especially strikes and lock-outs or official requirements or orders as well as in the case of unforeseeable disruptions beyond our control, as far as such disruptions have been shown to have considerable influence on the completion or delivery of the item to be delivered. This shall also apply if the circumstances occur during supply.
  5. The risk of accidental loss or destruction and the accidental deterioration of the items to be delivered shall be transferred to the Purchaser once they have been handed over to the forwarder, the carrier or other persons assigned to perform the dispatch. Handing-over shall have occurred even if the Purchaser is in default of acceptance. Moreover, the risk of the items to be delivered shall be transferred to the Purchaser upon receipt of the notification of readiness for dispatch.
  6. Unless otherwise expressly agreed, the shipping method, type and means of dispatch shall be left to us without guarantee for the fastest and cheapest transport. The Purchaser’s interests shall be reasonably considered. On request, the goods to be delivered shall be insured against damage caused by theft, breakage, transport, frost, fire and water as well as other risks to be named by the Purchaser at the Purchaser’s expense, as far as this is possible.
  7. If shipment is delayed by the request of the Purchaser, we shall charge for costs accrued from storage, beginning one month after the notification of readiness for dispatch.

§ 6 Models of the Purchaser, protective rights of third parties

  1. If the Purchaser delivers materials for performance of a job order to us, they shall deliver them at their own cost and risk in flawless condition and in due time and with a quantity premium of 5% to the quantity of the respective material required for performance of the job order.
  2. The Purchaser shall make sure that the documents, samples, information, etc. to be provided by them are complete and correct; they shall be especially responsible of ensuring that the utilisation of these items or this information does not violate any rights of third parties. Otherwise, the Purchaser shall indemnify us from any claims by such third parties in the even of infringement.

§ 7 Moulds, tools

  1. Unless otherwise expressly agreed, we shall be and remain the owner of the moulds and tools manufactured by us or by a third party assigned by us for the Purchaser.
  2. Our obligation to store such moulds and tools according to no. 1, if agreed, shall expire 2 years after our last delivery based on the mould or the tool from the job order, as the case may be, for which fulfilment the mould or the tool, as the case may be, has been manufactured, at the latest.
  3. If such moulds and tools according to no. 1 have been damaged or lost, we shall be obliged to provide replacements free-of-charge but only within the named 2 years’ period of time and only if they are mandatorily required for the creation of an order quantity promised to the Purchaser and if the Purchaser is not responsible for the damage or loss.
  4. We shall conclude insurance against damage for the Purchaser’s own moulds and tools that we store and/or may use at the Purchaser’s request and cost. The Purchaser shall bear the costs for the appropriate maintenance of these moulds and forms if we are not permitted to use them.

§ 8 Liens, reservation of ownership, protective rights

  1. We shall be entitled to a statutory contactor’s lien on the items of the Purchaser processed by us. Irrespective thereof, the Purchaser shall provide us with a contractual lien on the items given to us for the purpose of processing which serves the securing of our receivable from the job order. Unless otherwise expressly agreed, the contractual lien shall also apply to receivables from previously performed job orders and services, as far as they are in an internally connected, consistent living condition with the object of the job order.
  2. We shall reserve the ownership of the goods against our purchasers until complete payment of all receivables from the current business relationship. As far as we agree the payment of the purchase price debt on the basis of the cheque/bill of exchange transaction with the Purchaser, the reservation shall also be extended to the Purchaser’s cashing of the bill of exchange accepted by us and shall not expire through the crediting of the received cheque by us.
  3. We shall be obliged to release the collateral securities we are entitled to at the request of the Purchaser insofar as the realisable value of our collateral securities exceeds the receivables to be secured by more than 20%; the choice of the collateral securities to be released shall be at our disposal.
  4. Delivery of the item subject to the reservation of ownership or our equitable lien, as the case may be, to a place other than the place of delivery or disposal shall not be permitted without our express consent. At our request, the Purchaser shall be obliged to attach a mark to these items on a clearly visible place that points out our property. Furthermore, the Purchaser shall be obliged to inform us immediately about any access of third parties to the goods, e.g. in case of seizure, as well as about possible damage or destruction of the goods. They shall furthermore be obliged to take all other measures according to the law of the site of the goods subject to reservation of ownership or our equitable lien, as the case may be, in order to also maintain our property with effect against third parties without limitation. If the third party is not able to reimburse the extra-judicial and judicial costs of an action according to § 771 ZPO [Code of Civil Procedure], or similar foreign legal remedies, to us, the Purchaser shall be liable for the loss incurred by us. The Purchaser shall immediately inform us of any change of ownership of the goods as well as any change of their own residence or change of the business location, as the case may be.
  5. The Purchaser shall be obliged to handle the goods subject to our reservation of ownership or equitable lien with care, to insure them sufficiently against theft, breakage, fire and water damage and to apply for an insurance certificate at the insurance company in our favour at our request and to assign the claims to the insurance company and the person causing the damage to us at our request. As far as maintenance and inspection works are required, they shall be performed by the Purchaser at their own costs and in due time. The Purchaser shall adhere to statutory rules and regulations applicable to the possession and utilisation of the goods. If the Purchaser fails to fulfil the insurance obligation even after a reasonable grace period given by us, we shall be entitled to insure the goods delivered under reservation of ownership correspondingly at the cost of the Purchaser. In all other cases, the Purchaser shall bear the risk of accidental loss or destruction of the goods during the term of reservation of ownership.
  6. The Purchaser shall already assign to us all receivables from resale or another legal ground with respect to the delivered reserved goods or the goods in our equitable lien to the amount of the final invoice amount (including turnover tax) of our receivables including all ancillary rights and with priority to their remaining receivables accruing to them towards third parties from the resale to the buyer or from other legal ground. This shall apply irrespective of the delivered goods having been resold without or after processing or compounding or mixing. We shall accept the assignments. After the assignment, the Purchaser shall be entitled to collect the receivable irrespective of our own entitlement. We shall however be obliged to not collect the receivable ourselves if the Purchaser duly fulfils their payment obligations and is not in delay of payment and especially if no application for opening of insolvency or composition proceedings over their assets is filed or the Purchaser ceases their payments. If this is the case, we can demand that the Purchaser discloses the assigned receivables and their debtors and hands over all documents required for collection and informs the debtors or the third parties, as the case may be, about the assignment.
  7. The processing of the goods subject to retention of ownership or goods which are in our equitable lien, as the case may be, made by the Purchaser shall always be made on behalf and by order of us without leading to obligations on our part. If items are processed that are not property of the Purchaser, we shall acquire the co-ownership of the new item in relation to the value of the goods delivered by us (final amount of invoice plus VAT) to the other processed items at the time of processing. In all other cases, the same shall apply to the item resulting from processing as to the object of purchase delivered with reservation. This shall also apply if the Purchaser acquires sole ownership by activities according to sentence 2. The storage shall be free of charge for us. If the object of purchase is inseparably mixed with other items that are not our property, we shall acquire the co-ownership of the new item in relation of the value of the goods delivered for us (final amount of invoice plus VAT) to the other mixed items at the time of the mixing. If the mixing is made in such a way that the item of the Purchaser has to be considered the main item, it shall be agreed that the Purchaser transfers co-ownership to us on a pro-rata basis. The Purchaser shall store the so accrued sole ownership or co-ownership for us free of charge.
  8. If the Purchaser behaves contrary to the contract, especially in case of delay of payment, we shall be entitled, after granting a reasonable grace period, to seize delivered items or to demand their surrender. The seizure – also by way of attachment – of the object of purchase and our demand for surrender shall constitute withdrawal from the contract. Once we get the object of purchase back, we shall be entitled to its disposal; the proceeds of disposal shall be credited to the Purchaser’s liabilities, less reasonable costs for disposal.
  9. Our agents shall be entitled to inspect the delivered goods subject to reservation of ownership or the goods in our equitable lien during the usual business hours at the Purchaser’s location and may mark them as our property.
  10. We may invoice a reasonable fee in line with § 315 BGB for all services and measures during ordering, administration, release and disposal of collateral securities as well as during the demands on jointly liable persons. Moreover, the Purchaser shall bear all other expenses and extra costs in this connection, especially warehousing charges, warehousing costs, costs of supervision, commissions and costs of litigation.

§ 9 Warranty rights

  1. Damages and consequential damages caused by defects that have been caused by improper use or treatment of the goods by the Purchaser shall not be included by the warranty rights.
  2. The Purchaser shall inspect the goods immediately after delivery, if this is feasible according to proper course of business, and immediately declare any identified defects. If the Purchaser fails to do so, the warranty rights concerning the defect not declared shall be excluded.
  3. A notification shall be considered immediately if it is made
    a. if the following is known from the start or visible:
    i.    known defects,
    ii.   evident defects without inspection of the goods,
    iii. defects identified or identifiable in an inspection feasible during proper course of business
    and/or
    b. in case of later knowledge or recognisability of a defect within one week after it was known or should have been known
  4. Inspections feasible according to proper course of business shall be made as
    a. visual inspection at receipt of the goods,
    b. visual and functional inspection during installation of the goods into the Purchaser’s system environment,
    c. visual and functional inspection during the first use of the goods in the Purchaser’s system environment.
  5. Where a defect is identified, we shall render supplementary performance by additional delivery or rectification of defects at our discretion.

§ 10 Statute of limitations for the warranty rights

  1. Any claims against us due to a defect in terms of § 9 shall become statute-barred one year after delivery and/or after acceptance.
  2. If the goods have been used, any claims against us shall be excluded.

§ 11 Liability

  1. We shall exclude our liability for ordinary negligent breaches of duty, unless damage resulting from loss of life, personal injury or illness or claims in accordance with the German Product Liability Act are concerned or guarantees are concerned.
  2. Furthermore, the liability for the breach of duties, whose fulfilment makes the proper execution of the contract possible in the first place and on whose content the customer may regularly rely, shall remain unaffected.
  3. The same shall apply to breaches of duty committed by our vicarious agents.
  4. Our liability shall however be limited to the foreseeable damages typical for this type of contract. Further liability shall be excluded.

§ 12 Purchaser’s obligation to minimise damage

  1. The customer shall perform a function test prior to the first use of the goods.
  2. In case of violation of these obligations, we shall not be liable for consequential damages caused by defects that could have been prevented by a function test.

§ 13 Exclusion of set-off, retention of goods

  1. The Purchaser shall not be entitled to set their own claims off against our claims for payment, unless the claims are undisputed or found legally valid by a court of law.
  2. The same shall apply to rights of retention.

§ 14 Applicable law, area of jurisdiction, collateral agreements, partial invalidity

  1. The contract, including these General Terms and Conditions, shall be subject exclusively to the substantive law of the Federal Republic of Germany. The provisions of the United Nations Convention on Contracts for the International Sale of Goods from 11 April 1980 (CISG) shall not be applicable.
  2. Our registered office shall be place of jurisdiction for any legal disputes. We shall also be entitled to file a claim in any other statutorily provided place of jurisdiction.
  3. There shall be no collateral agreements.
  4. Should any provision of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions.

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General Terms and Conditions

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General Business Terms of Polywest Kunststofftechnik Saueressig & Partner GmbH & Co. KG, Ahaus, Germany.


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