Schaumaplast Group’s General Conditions of Sale, Supply and Payment
(As at January 2018)
1. Scope of application
1.1 The following general conditions of sale, supply and payment apply only to those merchants and business entities who, on formation of contract, are acting in a commercial or independent professional capacity, and to public law legal entities and to public law special funds.
1.2 The following general conditions of sale, supply and payment apply exclusively to all our transactions with the customer, including future transactions. Deviating, contrary or supplementary general terms of business of the customer shall form part of the contract only insofar as we have expressly agreed to them. This requirement for agreement shall apply in all cases – for example, even where we have made unconditional deliveries to the customer in full awareness of its general terms of business.
2. Contract formation
Our quotations are non-binding unless explicitly described as binding. A contract is formed when we provide written confirmation of an order or execute an order.
3. Scope of supply, delivery periods
3.1 The scope of supply shall be definitively determined in our confirmation of order.
3.2 A delivery deadline shall be individually agreed or provided by us on receipt of order. Where this is not the case, the delivery deadline shall be four weeks from formation of contract.
3.3 A delivery period shall commence when we provide written confirmation of order and after we have received all the documents to be supplied by the customer that are necessary for the fulfilment of the order, including licences and approvals and especially plans. Adherence to delivery periods shall be subject to the customer’s fulfilment of agreed payment conditions, especially the payment of any deposit, and to the prompt provision of materials where agreed. The delivery period shall be deemed adhered to when notification is provided that the order is ready for despatch within the delivery period, even if despatch is delayed or impossible for reasons for which we are not responsible.
3.4 In the event that the preconditions under 3.3 are not met in a timely manner, there shall be a corresponding extension of the delivery periods or deadline; this shall not apply if the delay is attributable to us. If performance is not possible even within the extended deadline, we reserve the right to partly or wholly withdraw from the contract; any payment already made by the customer will be refunded immediately.
3.5 The delivery period shall also be extended if non-adherence to it is demonstrably attributable to military mobilization, war, insurgency, strike, lock-out or the occurrence of unforeseen impediments that are beyond our control, including their occurrence during a delivery delay or at any of our suppliers. The same shall apply if any of the official or other permits required for the fulfilment of the order (e.g. import or export permits) or any of the details required from the customer are not received in time.
The same shall apply in the event of the customer making post-contractual changes to its order.
3.6 We reserve the right to make partial deliveries.
3.7 Reasonable deviation from orders (up to plus/minus 10%) shall be permitted.
3.8 In the event that delivery is delayed for reasons attributable to us, any compensation payable shall, provided we are charged solely with ordinary negligence, be limited to the typical damage to be expected.
3.9 In all instances of delayed delivery, claims by the customer for compensation for the delay that exceed the aforementioned limit, including claims for compensation in place of performance, are excluded, including after expiry of any period imposed on us for delivery. This shall not apply where a special delivery period guarantee has been provided or in cases of malice or gross negligence or where there is mandatory liability for injury to life, limb or health of the customer.
The customer shall be entitled to withdraw from the contract under the statutory provisions only insofar as any delay of supply is attributable to us. The customer shall at our request and within an appropriate period of time state whether, on the grounds of delay of supply, it intends to withdraw from the contract or insist on delivery.
The aforementioned provisions do not imply any change to the burden of proof to the disadvantage of the customer.
3.10 For make-and-hold orders where there is no agreement as to duration and/or manufacturing volumes and/or acceptance deadlines, we can request a binding commitment in relation to such matters for up to three months after confirmation of order. If the customer fails to comply with this request within three weeks, we reserve the right to set a two-week grace period, following the expiry of which we reserve the right to withdraw from the contract and/or demand compensation.
4. Despatch, packaging and transfer of risk
4.1 Packaging and type and route of despatch shall be chosen by us. Packaging and despatch costs shall be borne by the customer. We shall not take back any packaging unless legally obliged to do so.
4.2 Despatch shall always be ex works at the customer’s cost and risk. Risk shall transfer to the customer as soon as the goods leave our factory. If goods are despatched in a way that has been requested by the customer, risk shall transfer to the customer with the transfer of the goods to the haulage operator and at the latest by the time the goods leave the factory.
If we deliver the goods to the customer’s unloading point, the risk shall transfer to the customer when the goods are made available from a delivery vehicle at the point of unloading. The goods shall be unloaded at the customer’s risk, even if the driver is due to assist; malice and gross negligence excepted.
4.3 If delivery is delayed through fault of the customer, the risk shall transfer to the customer from the day the goods are made available.
4.4 In the event that goods are returned by the customer because of an invalid complaint, the goods shall be sent back at the customer’s cost and risk.
4.5 The goods can, at the customer’s written request and expense, be insured against risks that the customer specifies, especially breakage and damage due to storage, transportation or fire.
5. Prices and payment terms
5.1 The prices confirmed by us at the time of confirmation of order shall apply. If there is no confirmation of order, the prices stated in the quotation shall apply. If there is no specific quotation provided by us, the list prices shall apply. Our prices are valid ex works excluding freight, customs duties, import duties and packaging plus statutory sales tax.
5.2 If it is agreed that the price shall be determined by part weight, the final price shall be determined by the weight of the approved outturn sample.
5.3 In setting the prices for follow-on orders, previous prices shall not be binding.
5.4 Partial deliveries can be invoiced separately when they are delivered.
5.5 All payments to us must be made in euros.
5.6 Unless agreed otherwise, our invoices shall be due net and in full within 30 days of invoice date.
5.7 Bills of exchange are accepted by us as payment subject to special agreement. Payment made by cheque or bill of exchange shall be deemed to have been made only with the final clearance of the instrument in question. Redemption fees, bank interest and bank charges shall be borne by the customer.
5.8 Only those claims of the customer that are uncontested or legally enforceable can be offset by the customer against sums it owes. Furthermore, the customer’s right to withhold payment shall be subject to the existence of a valid counter-claim arising from the same contractual relationship.
6.1 Insofar as the customer is a merchant, its claims under warranty shall be subject to the fulfilment of its statutory obligations to inspect and report deficiencies (§ 377, 381 Commercial Code [Handelsgesetzbuch – HGB]). The customer must insofar as is feasible under ordinary working conditions inspect the goods immediately after receipt and inform us immediately in writing of any defect. If the customer provides no such notification, the goods shall be deemed approved, unless there is a defect not discernible at inspection. Should such a defect be uncovered at a later date, notification must be provided immediately on discovery. Failure to do so shall result in the goods being deemed to be approved even in the light of this defect. For the safeguarding of the customer’s rights, the timely despatch of notification shall be sufficient. In the event of the intentional concealment of any defect, we shall not be entitled to rely on this provision.
6.2 Unless agreed otherwise, warranty claims shall expire twelve months after delivery. If however the item in question is a construction, or is an object that in accordance with its typical usage has been used for construction purposes (i.e. building material) and has caused the construction’s defect, the deadline for claims shall in accordance with statutory provision be five years from the date of delivery (§ 438 para 3 no. 2 BGB). This shall not affect any special statutory regulations regarding third party claims for surrender in rem (§ 438 para 1 no. 1 BGB) or fraud or malice on the part of the seller (§ 438 para. 3 BGB) or supplier recourse claims in the event of ultimate delivery to a consumer (§ 479 BGB).
6.3 Our right to examine any goods that are the subject of complaint is reserved.
6.4 Our warranty shall be deemed fulfilled when the defective parts or services are repaired, reworked or replaced by us, the choice to be at our discretion.
6.5 If we decline to rectify the problem(s) without just grounds or are not in a position to rectify or if our rectification fails in some other way, the customer shall be entitled to either withdraw from the contract or request a corresponding reduction in price, the choice to be at its discretion.
6.6 If, following failure to rectify, the customer chooses to receive compensation, the goods shall remain with the customer if it finds this acceptable. Compensation shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply if the breach of contract is attributable to fraudulent or malicious behaviour on our part.
6.7 The criteria for the quality and execution of the products shall be the initial samples that can on request be presented by us to the customer for inspection. Any reference to technical norms shall be for information purposes only and shall not constitute any guarantee regarding product features. Our guarantee does not include natural wear and tear or any damage caused by incorrect or negligent handling, intentional impairment, incorrect assembly or storage or other similar influence, especially unauthorised reworking, for which we are not responsible and that occurs after transfer of risk.
6.8 If the customer has installed in another item and in accordance with type and purpose a faulty item supplied by us or attached it to another item, we shall by way of subsequent performance reimburse the customer for the necessary cost of removing the faulty item and for the installation or attachment of a repaired or newly delivered defect-free item. If defects to goods that we have delivered or processed were apparent prior to assembly or further handling by the customer or by a third party engaged by the customer, we shall not be liable for the costs of dismantling or assembly.
6.9 Replaced parts shall become our property and must on request be returned to us freight forward.
6.10 Our liability for replacement parts shall be the same as for the original item.
6.11 Recourse in the sense intended by § 478 BGB and as benefitting the customer’s retail organisations or its outlets shall remain unaffected. In such cases however no. 7 below shall apply accordingly. Claims for recourse under §§ 478, 479 BGB shall be valid only where usage by the consumer was authorised and only to the extent allowed for by statute, but shall not be valid for goodwill provisions that have not been agreed with us. Any recourse claims shall be subject to the party that is exercising its right to recourse having met its own obligations, especially its duty to inspect and report.
7. Other liability
7.1 Unless these terms and conditions, including the provisions that follow, specify otherwise, our liability for breaches of contractual or non-contractual obligations shall be determined by the relevant statutory regulations.
7.2 We shall be liable for compensation, regardless of legal grounds, in case of malice or gross negligence. For ordinary negligence we shall be liable for compensation only for:
a) loss resulting from injury to life, limb or health;
b) loss resulting from the breach of an essential contractual obligation (i.e. an obligation whose fulfilment makes the ordinary performance of the contract possible and on adherence to which the contractual partner regularly relies and ought to be able to rely); in such cases, our liability shall be limited to the compensation payable for foreseeable and typical damage.
7.3 The limitations on liability under 7.2 shall not apply where we have intentionally concealed a defect or have provided a guarantee for the features of the goods. The same shall apply for claims brought by the customer under the Product Liability Act [Produkthaftungsgesetz – ProdHaftG].
7.4 The above provisions do not imply any change to the burden of proof to the disadvantage of the customer.
7.5 Where our liability is excluded, the personal liability of our employees, statutory representatives and agents shall also be excluded.
7.6 We shall not, except in cases of malice or gross negligence, be liable for materials of the customer stored at our premises. Such materials shall not be insured against theft, fire or other loss of value.
8. Moulds (tools)
8.1 The price for moulds includes the costs for the one-off samples but not the costs for the checking and processing equipment or for changes requested by the customer. Costs for additional samples shall be borne by us, provided the requirement for such samples is attributable to us. In such cases, only if the additional moulds are needed to meet production volumes for which the customer has been given a written assurance shall we be obliged to provide them free of charge.
8.2 Unless agreed otherwise, we shall retain ownership of the moulds manufactured for the customer by us or by a third party commissioned by us until such time as the moulds are paid for in full. Customer-specific moulds shall be used for the customer’s orders only if the customer has met its payment obligations and its obligation to take delivery.
8.3 For the purposes of securing our payment claims the customer shall, when it commissions us to manufacture its moulds, grant us right of lien over all the moulds that are in our possession or that will be in our possession following manufacture. The right of lien shall come into effect as soon as the moulds are transferred to us or produced by us. Insofar as the customer is not yet the owner of the moulds, the right of lien exists over the expectant right of ownership. We hereby accept the assignment of lien. Our statutory rights remain unaffected.
8.4 We shall be entitled to enforce the lien if the customer falls into arrears over payments in respect of the receivables secured by the lien and if a written warning of enforcement of lien, accompanied by the setting of a deadline of four weeks from the date of the warning, passes without effect. We may dispose of the assets acquired by enforcement of lien by selling them on the open market on our own or the customer’s behalf. In so doing we shall take account of the customer’s legitimate interests. Following disposal of the collateral, the proceeds from the disposal, less any sales tax incurred by the sale, will be used to cover the secured claim. Article 10.7 of these terms and conditions shall also apply with regard to right of lien.
8.5 If under the agreed terms the customer is to become the owner of the moulds, ownership shall transfer to the customer following complete payment of the purchase price of the moulds. The transfer of the moulds to the customer may be replaced by our keeping them in custody on the customer’s behalf. Regardless of the customer’s statutory entitlement to recover possession and of the lifespan of the moulds, we shall be entitled to exclusive ownership thereof until the acceptance of a minimum quantity to be agreed and/or until the expiry of a stipulated period of time and especially until the end of the contract. If the customer’s headquarters are located abroad, the customer shall declare that it does not intend to use the tools for its own commercial purposes. Any customer whose headquarters are located abroad shall agree that the right of disposal over the tools shall remain with us.
8.6 If the customer becomes the owner of the moulds, it shall arrange appropriate cover for them, including away-from-premises cover, as part of its plant assets. Additional assurance shall be arranged by us only after prior written agreement and at the customer’s expense. We shall identify the customer’s property as being under third-party ownership.
8.7 In the case that the customer’s own moulds and/or moulds provided by the customer are provided to us on loan, our liability for storage and care shall be limited to the storage and care we provide in our own affairs. We shall be under no obligation to insure such moulds against theft, fire or other damage or loss.
Our obligations shall cease to apply if, following fulfilment of order and a request to the customer to collect the moulds, the customer does not do so within an appropriate period. The moulds shall then, following further prior notification, be returned or disposed of, the choice to be at our discretion. The costs of return or disposal shall be borne by the customer.
9. Intellectual property rights
9.1 If we are to supply moulds/tools for the customer in accordance with drawings, models or templates or by using parts provided, the customer shall ensure that third-party intellectual property rights are not thereby infringed. We shall refer the customer to any rights of which we are. The customer shall exempt us from third-party claims and shall provide compensation for any loss arising. If we are forced to desist from manufacture or supply by a third party on the basis of its intellectual property rights, we reserve the right to cease work without having to investigate the legal situation and to desist from continuing until the situation has been clarified by the customer and the third party. Should the delay thus caused make the continuation of the order unfeasible, we reserve the right to withdraw.
9.2 Drawings and samples that have not resulted in an order being placed shall on request be returned; otherwise we reserve the right to destroy them three months after the date of our quotation. This provision shall also apply to the customer as appropriate.
9.3 We shall retain copyright and intellectual property rights over the models, moulds, equipment, drafts and drawings produced by us or by third parties on our behalf. All design concepts shall remain our intellectual property. Payment by the customer shall not confer any rights of invention or rights to equipment or tools resulting from the order in question.
10. Reservation of title
10.1 Goods supplied by us shall remain our property until all our claims against the customer are settled, even if the purchase price for specially delineated claims has been paid. For open accounts, we reserve ownership of the goods delivered (reservation of title) as security against the balance due. If in connection with the payment of the purchase price we establish grounds for mutual liability, reservation of title shall not expire before the customer, being the drawee, has honoured the bill of exchange.
10.2 Any processing or reworking by the customer shall be done on our behalf and shall not imply acquisition of ownership as provided for by § 950 BGB. The customer shall become co-owner of the resulting item in proportion to the ratio of the net invoice value of its goods to the net invoice value of the processed or reworked goods, the resulting item to be subject to reservation of title as security for our claims under 10.1.
10.3 For the customer’s reworking (combining/mixing) of goods with other goods that do not belong to us, §§ 947, 948 BGB shall apply, with the result that our co-ownership share in the new item shall thenceforth be subject to reservation of title in the sense intended by these terms and conditions.
10.4 Solely under the condition that it agrees with its client’s reservation of ownership as per 10.1 to 10.3 shall the customer be permitted to sell as part of its regular commercial activity those goods that are subject to reservation of title. The customer shall not be entitled to dispose in any other way of the goods that are subject to reservation of title, and especially not by way of pledge or assignment of security.
10.5 In the event of disposal, the customer shall, up until such time as all our claims have been settled, assign to us its receivables from the sale along with all other claims against its customers and all ancillary rights. The customer shall at our request submit all the information and documentation required for the enforcement of our rights against the customer’s clients.
10.6 In the event that, following reworking as per 10.2 and/or 10.3, the goods that are subject to reservation of title are sold by the customer in conjunction with other goods that do not belong to us, the assignment to us as per 10.5 of the amount received for the purchase shall not exceed the invoice value of those of our goods that are subject to reservation of title.
10.7 If the value of the securities we hold exceeds our total claims by more than 10%, we shall at the customer’s request release securities to an equivalent value, the choice of which to be at our discretion.
10.8 Third-party seizure and/or confiscation of goods subject to reservation of title must be communicated to us immediately. Any resulting intervention costs that are not borne by a third party shall in all cases be borne by the customer.
10.9 In the event that, under the aforementioned provisions, we make use of our reservation of ownership by taking back the goods in question, we reserve the right to dispose of the goods on the open market or via auction. The claiming of our reservation of ownership, and especially the demand for surrender, shall constitute withdrawal from the contract. The value of the repossessed goods that are subject to reservation of title shall be as sold or auctioned but no higher than agreed list prices. The right to bring further claims for compensation, especially for lost sales, is reserved.
11. Credit checking
If following acceptance of order or formation of contract or after delivery of goods we become aware that the customer is not creditworthy (e.g. because of a returned cheque or bill of exchange) and our payment claim is therefore put at risk, we reserve the right to withdraw from the contract or to demand immediate cash payment for goods already delivered and pre-payment for goods yet to be delivered, including a cash payment to cover any bills already drawn, such payments to be due immediately.
12. Jurisdiction, applicable law
12.1 The exclusive jurisdiction, including international jurisdiction, for all disputes arising directly or indirectly from the contractual relationship, is the court in whose jurisdiction our head office falls. We nonetheless reserve the right to bring claims in the general jurisdiction of the customer.
12.2 This contractual relationship is subject exclusively to the law of Germany with the exception of UN sales law (CISG).