GTC – General Terms and Conditions
for the Purchase and Sale of VIP Kunststoff-Vertrieb GmbH
§ 1 General – Scope of Application
Our General Terms and Conditions (GTC) apply exclusively. We do neither accept conflicting terms and conditions of our customers nor terms and conditions that differ from our General Terms and Conditions, unless we have explicitly agreed to their validity in writing. Our General Terms and Conditions also apply if we execute delivery to a customer without reservation despite being informed of conflicting terms and conditions of the customer or of terms and conditions that differ from our Terms and Conditions.
All agreements that are concluded between us and the customer for the purpose of the execution of this agreement are laid down in this agreement in writing.
Our GTC only apply to business customers within the meaning of § 310 par. 1, BGB, the German Civil Code.
Our GTC also apply for all future transactions with the customer.
Timely, complete and correct self-delivery remains reserved.
§ 2 Offer – Offer Documents – Product Specifications
If a customer’s order is to be described as an offer pursuant to § 145 BGB, the German Civil Code, we can accept it within 2 weeks.
Our offers are non-binding, unless otherwise specified in the order confirmation. This also applies to repeat orders.
Specifications concerning quality and quantity are made to the best of our knowledge and belief. Deviations remain reserved provided that these are within the scope of quality and quantity tolerances usual in trade and are deemed acceptable to the orderer.
If we provide a customer with samples, these are always considered non-binding type samples. Analytical specifications are only regarded as approximate values, unless certain characteristics are explicitly guaranteed in writing.
No liability is assumed for the fulfilment of foreign import and/or marketability regulations, not even within the European Union.
Our application-technical consultation given verbally or in writing is non-binding, even if possible property rights of third parties are concerned and thus does not exempt the buyer from his/her own inspection of the products delivered by us with regard to their fitness for intended processes and purposes.
§ 3 Invoice – Prices– Payment Terms – Set-off and Retention – Danger to our Purchase
The customer agrees to an electronic processing of invoices, for example via email.
Our prices are quoted “free domicile” including packaging costs and delivery, unless specified otherwise in the order confirmation.
Payments must be made in euros and can only be made with discharging effect to those pay offices stated by us in writing. If another currency than euros has been agreed for payments, the customer bears the risk of exchange rate variations.
Statutory VAT is not included in our prices. VAT is quoted separately in the invoice at the applicable rate on the day of invoicing. Furthermore, prices do not include public duties and charges as well as custom duties; these are therefore also charged separately.
Any deductions are subject to a special agreement with the customer.
Our purchase price is net (without deduction) and payable upon receipt of invoice or equivalent payment schedule, unless specified otherwise in the order confirmation. The orderer is in arrears if he/she fails to effect payment within 30 days upon receipt of invoice or equivalent payment schedule. The statutory regulations concerning the consequences of delay of payment apply.
The customer is only entitled to any rights of set-off and retention if his/her counterclaims are legally established, uncontested and/or admitted by us.
If we are under the obligation for advance performance and if it becomes clear after conclusion of the agreement that our claim to payment of the purchase price is endangered due to the customer’s insufficient capacity to pay, we are entitled to refuse performance. This right to refuse performance no longer applies if the customer pays in advance or provides security. In the case of sentence 1, we are entitled to set the customer a reasonable time limit during which he/she has to either effect payment or provide security contemporaneously against delivery of the goods ordered. Upon unsuccessful expiry of the time limit, we are entitled to withdraw from the agreement. As a rule, our claim to payment of the purchase price is endangered if the customer provided information on his/her financial status, if insolvency proceedings in respect of the customer’s assets have been initiated or if the customer’s creditworthiness deteriorated in such a way that a credit insurance for our purchase price claim is impossible.
§ 4 Delivery Time – Delay
The beginning of the delivery time stated by us requires the clarification of all technical issues.
Furthermore, the adherence to our obligation to deliver is subject to timely and proper fulfilment of the customer’s duties. The objection to non-fulfilment of the agreement remains reserved.
If the customer is in default of acceptance or culpably violates other cooperation duties, we are entitled to demand compensation for the damage incurred so far including any possible additional expenditures. Further claims and rights remain reserved.
If the conditions mentioned in Par. (3) are met, the customer bears the risk of accidental loss or accidental deterioration of the object of purchase from the time he/she fails to accept delivery or he/she is in debtor’s delay.
We are liable according to legal provisions if the underlying purchase agreement is a firm deal within the meaning of § 286 par. 2 no. 4 BGB, the German Civil Code, or § 376 HGB, the German Commercial Code. We are also liable according to legal provisions if the customer is entitled to assert that his/her interest in a further fulfilment of the agreement ended as a consequence of the delay in delivery caused by us.
Furthermore, we are liable according to legal provisions if the delay in delivery was caused by us by intentionally or grossly negligent violation of the agreement; we are liable for all faults caused by our representatives or vicarious agents. Provided that the delay in delivery was caused by us by grossly negligent violation of the agreement, our liability for compensation is limited to foreseeable, typically occurring damage.
We are also liable according to legal provisions if the delay in delivery was caused by us by culpable violation of essential contractual obligations; in this case, however, the liability for compensation is limited to foreseeable, typically occurring damage.
Furthermore, in the event of delay in delivery, our liability is limited to a maximum of 5 % of the delivery value.
Further legal claims and rights of the customer remain reserved.
§ 5 Transfer of Risk – Packaging Costs – Partial Deliveries
Delivery “free domicile” is agreed, unless specified otherwise in the order confirmation.
Special agreements apply for the taking back of packagings.
We are entitled to make partial deliveries, unless this cannot be reasonably expected of the buyer. Partial deliveries are considered separate businesses.
§ 6 Investigation of Defects – Liability for Defects – Third Party Liability Clause
Customer’s claims for defects require that he/she properly attended to his/her investigation duties and requirements to give notice of defects pursuant to § 377 HGB, the German Commercial Code. It is understood that obvious defects must be claimed not later than one week after delivery of the goods.
We are only obliged to a simplified incoming goods inspection. This includes random checks of the delivered batch for obvious defects. Hidden defects will be claimed as soon as they are identified in the proper course of business. The supplier refrains from delayed objection of notification of defects for all defects identified within 14 days upon receipt of goods, or in the event of hidden defects upon identification of the reported defects.
If the object of purchase is defective, we are, at our own choice, entitled to supplementary performance in form of removal of defects or delivery of a new flawless object. In the case of removal of defects or replacement delivery, we are obliged to bear all necessary costs required for supplementary performance in particular transportation, road, labour and material costs provided that these costs do not increase due to the fact that the object of purchase was transported to a place other than the place of fulfilment.
If supplementary performance fails, the customer is entitled at his/her own choice to withdraw from the agreement or to claim reduction.
We are liable according to legal provisions if the customer asserts claims for compensation that are based on intent and gross negligence including intent and gross negligence on part of our representatives or vicarious agents. Insofar as we are not charged with intentionally or grossly negligent violation of the agreement, the liability for compensation is limited to foreseeable, typically occurring damage.
We are liable according to legal provisions if we culpably violate an essential contractual obligation; even in this case, however, the liability for compensation is limited to foreseeable, typically occurring damage. An essential contractual obligation is concerned if the violation of duty relates to an obligation the fulfilment of which the customer relied upon and was entitled to rely upon.
If, furthermore, the customer is entitled to compensation of damage instead of performance because of negligent violation of duty, our liability is limited to foreseeable, typically occurring damage.
Any liability for culpable injury to life, body or health remains unaffected. The same applies to compulsory liability according to product liability legislation.
Unless stipulated otherwise above, liability is excluded.
The limitation period for claims for defects is 12 months. This does not apply if we are liable according to par. 4 – 7 and according to § 438 par. 1 no. 2 BGB, the German Civil Code. Furthermore, the statutory limitation period in the event of delivery recourse pursuant to §§ 478, 479 BGB, the German Civil Code remains unaffected.
Before taking us in recourse, the buyer is firstly obliged to enforce all relevant claims against our pre-suppliers. For this purpose, we commit ourselves to assign all warranty and compensation claims we are entitled to assert against our pre-suppliers to our customer. The buyer is obliged to enforce these claims and take legal action. If any taking in recourse of our pre-suppliers remains unsuccessful, the buyer may take us in recourse according to the aforementioned conditions.
§ 7 Joint Liability
Any further liability for compensation for damages as provided in § 6 is – irrespective of the legal nature of the asserted claim – excluded. This particularly applies to claims for compensation resulting from culpability upon conclusion of the agreement due to other violations of duties or because of tortious claims for compensation of damage to property pursuant to § 823 BGB, the German Civil Code.
The limitation according to Par. (1) also applies if the customer claims compensation of useless expenditures instead of compensation for damages in place of performance.
Insofar as liability for compensation against us is excluded or limited, this also applies to the personal liability for compensation of our staff members, employees, associates, representatives and vicarious agents.
§ 8 Retention of Title
We retain the title of ownership to the object of purchase until all claims, also future claims and additional claims resulting from the existing business relationship with the customer have been fulfilled irrespective of the legal reason and also if payments to certain claims have been effected. With an existing current account, this reservation refers to a recognised balance. In the case of breach of contract on part of the customer, in particular in the event of default in payment, we are entitled to take back the object of purchase. Our taking back of the object of purchase establishes a withdrawal from the agreement. We are entitled to utilisation after having taken back the object of purchase, the proceeds thereof are to be set-off against the customer’s liabilities – less reasonable utilisation costs.
The buyer is obliged to treat the object of purchase with care. In particular, the buyer is obliged to sufficiently insure them at original value at his/her own costs against damage caused by fire, water and theft. If maintenance and inspection work is required, the customer must carry them out at his/her own costs in due time.
In the case of garnishment or other third party interventions, the customer must immediately notify us in writing so that we are in a position to file a complaint pursuant to § 771 ZPO, the German Code of Civil Procedure. Provided that a third party is not able to reimburse us all court and out-of-court costs resulting from a complaint pursuant to § 771 ZPO, the German Code of Civil Procedure, the customer is liable for the loss we suffered.
The customer is entitled to resell the object of purchase in the proper course of business. The customer, however, already now assigns to us all claims in the amount of the final invoice amount (including VAT) that arise from the resell against his/her purchasers or third parties and this irrespective of whether the object of purchase was resold without or after processing. Even after having assigned a claim, the customer remains authorised to collect it. Our authority to collect the claim ourselves remains unaffected thereof. We commit ourselves, however, to not collect the claim as long as the customer meets his/her payment obligations from received proceeds, he/she is not in default of payment and especially no request for the opening of settlement or insolvency proceedings has been filed or suspension of payment has taken place. If this is the case, however, we can request the customer to announce all assigned claims and their debtors, to deliver all details required for collection, to hand over all relevant documents and to notify debtors (third parties) of the assignment.
The processing and transformation of the object of purchase by the customer is always performed for us. If the object of purchase is processed with other means than ours, we will acquire co-ownership in the new object in proportion to the value of the object of purchase (final invoice amount including VAT) to other processed objects at the time of processing. Furthermore, for the processed object applies the same as for the object of purchase delivered under reservation.
If the object of purchase is inseparably mixed with objects other than ours, we will acquire co-ownership in the new object in proportion to the value of the object of purchase (final invoice amount including VAT) to other mixed objects at the time of mixing. If mixture is effected in such a way that the customer’s object is considered the main object, it is understood that the customer transfers a pro rata share co-ownership in the object to us. The customer keeps safe the newly emerged sole ownership or co-ownership for us.
The customer also assigns to us all claims securing our claims against him/her that arise against third parties from the connection of the object of purchase with a property.
We commit ourselves to release all securities we are entitled to upon the customer’s request insofar as the realisable value of our securities exceeds the securities to be secured by more than 10 %; the selection of securities to be released is at our discretion.
§ 9 Place of Jurisdiction – Place of Performance
Provided that the contracting party is businessman, legal entity under public law or special fund under public law, our place of business in Forchheim, Germany is the exclusive place of jurisdiction. However, we are entitled to sue our contracting party at the court of his/her place of residence.
The law of the Federal Republic of Germany applies. The validity of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
Our place of business in Forchheim, Germany is the place of fulfilment, unless specified otherwise in the order confirmation.
As of: June 2015