certoplast – general terms and conditions
[General terms of business]
1. Our offers are subject to alteration. Delivery and invoicing are carried out on the basis of the prices valid on the day of dispatch or collection of the goods. Considerable changes in costs, in particular for raw materials, wages, power etc. will entitle us to demand adjustment of prices and in case of non-agreement the right to withdraw from the contract. Carriage is charged to the recipient. We do not give compensation for collection by the customer.
If express dispatch is prescribed (air freight, fast freight, express goods), the customer will bear the difference between the expenses for freight and the increased costs.
2. The goods are transported at the recipient's risk. We will not insure the goods. If the goods are ready for shipment and dispatch or final inspection are delayed for reasons not caused by ourselves, the risk is transferred to the customer on receipt of the notice of readiness for shipment. We reserve the right to demand immediate payment and to store the goods with a storekeeper or forwarding agent at the customer's expense and risk or to auction the same.
3. The minimum net order value is Euro 150,- for delivery freight free within the Federal Republic of Germany, for export free German border or FOB, respectively. For orders under Euro 150,- we will calculate a minimum amount surcharge of Euro 12,50. The ordered amount of production goods can be exceeded or reduced by 10 %.
4. There is no charge for packaging if nothing is agreed to the contrary. Special packaging (e.g. boxes, steel pallets) are charged at cost price. In the case of return free of charge in useable state we will reimburse the full value of steel pallets, and in the case of other special packaging 2/3 of the amount charged. For steel pallets the hire charge is Euro 3,07 per week beginning 4 weeks after date of dispatch.
5. Delivery dates are given which in all probability can be kept. Disturbance of the normal course of business, in particular force majeure and other such events on our premises, or those of our sub-suppliers or affecting transport companies for example fire, flooding, lack of labour, power or raw materials, strike, lock-out, measures by authorities release us from punctual delivery for the duration of the disturbance. Compensation or any other claims from delays in delivery or cessation of delivery are excluded as far as legally permissible. Besides this, the customer retains the legal right to withdraw from the contract.
In the case of contracts to be fulfilled in more than one delivery, non-fulfilment, faulty or delayed performance of one delivery has no effect on other deliveries of the contract.
6. Return of sold goods is principally excluded.
In as far as in exceptional cases goods in perfect state which are not out of date are accepted back, this will be carried out at the net price of the day of delivery, unless the net price of return is below this price. In such cases the latter is valid. The freight expenses occurring will be borne by the customer. The above is not valid in the case of exercise of reservation of ownership.
7. Notice of bankruptcy or insolvency proceedings, execution of a declaration in lieu of an oath, incipient financial difficulties or knowledge of considerable worsening of the customer's financial circumstances give us the right to stop delivery and to refuse fulfilment of current contracts.
8. We retain the title and copyright for quotations, drafts, drawings and other documents; they may be made accessible to third parties only with our permission. Drawings which are part of offers and other documents must be returned on demand and in any case if we are not awarded a contract.
In as far as we will deliver objects according to drawings, models, patterns or other documents from the customer, the same will guarantee that protective rights of third parties are not violated. If third parties prohibit us to manufacture and deliver such objects with reference to protective rights, we are inasmuch entitled - without obligation to review the legal situation - to stop any further activity and claim compensation. The customer is obliged to exempt us without delay from any claims in this connection by third parties.
9. Parts supplied by the customer for fulfilment of orders (e.g. metal or plastic parts) will be delivered by him free of charge, in time, in perfect condition and with an extra amount to be agreed for possible rejects. In default hereof we are entitled at our discretion not to begin production or to interrupt the same and to charge the expenses to the customer. This does not affect our right to compensation.
10. Test parts necessary for trials will be charged alongside the costs possibly incurred in particular for patterns, tools and appliances.
If patterns, tools and appliances are acquired by us or manufactured under our directions for production, we will invoice the same as share of production.
In both cases the patterns, tools and appliances remain our property. Possible amortization agreements will refer to a maximum period of three years. Payments for patterns, tools and appliances not yet made then, will be made in cash.
[B. Reservation of proprietary rights]
1.a)We retain title to all goods delivered by us until all claims by us against the customer, also those occurring conditionally and in the future have been settled (§§362 ff. BGB - German Civil Code).
Cash payments, cheque payments and bank transfers which are executed against forwarding of a promissory note of the customer issued by us are considered as fulfilled only when the bill of exchange is discharged by the drawee and we are thus cleared of liability on the bill.
b) Enforcement of the reservation of proprietary rights, in particular by reclaiming of the goods, which is permissible in the case of delayed payment or endangering of our claim to property, is not considered withdrawal from the contract.
c) Irrespective of the customer's obligation to pay, we are entitled to do the following:
aa) to sell the goods by private contract at best price and to credit the proceeds
bb) to credit the goods at contract price - minus premiums accorded, discounts and other allowances and with deduction of a depreciation of 20% (basis contract price)
d) The customer must give us immediate notice of an attachment or any other impairment of our rights to title by third parties and confirm our right to title in writing to third parties as well as to ourselves. Attachment or transfer of ownership as security on a debt of the goods delivered under reservation of ownership are prohibited to the customer.
e) Customer's acquisition of ownership of the goods subject to reservation of proprietary rights in accordance with § 950 BGB in the case of treatment or processing of the goods subject to reservation of proprietary rights to create a new object is ruled out. Possible treatment or processing is carried out by the customer for us without any obligations arising for us. The processed or treated goods serve as our security. In the case of connection, mixing or blending with other goods not owned by us (§ 947, 948 BGB) we are entitled to co-ownership of the new object in relation to the value of the goods subject to reservation of ownership used for the manufactured object to the sum total of all invoice values of the other goods.
If the customer acquires sole ownership of the new object, the contractual parties will agree that the customers will concede us joint ownership of the new object in relation to the value of the processed, connected, mixed or blended goods subject to reservation of ownership. The new object created is considered as goods subject to reservation of ownership in the sense of these conditions.
The customer will store them with all due commercial care for us and is obliged to give us all details necessary for us to exercise our rights and to grant us insight into his records for this purpose.
f) The customer must insure the goods subject to reservation of proprietary rights sufficiently, in particular against fire and theft. Claims on the insurance in the case of damage to goods subject to reservation of ownership are already assigned to us to the extent of the value of the goods subject to reservation of proprietary rights. The customer must inform the insurance of the assignment of the claim.
2.a)The customer's claims from resale of the goods subject to reservation of proprietary rights along with all secondary rights are already assigned to us independently of the fact whether the goods subject to reservation of ownership are resold without or after treatment, processing or connection or blending or whether they are resold to one or more purchasers. If the assigned claims on the third party debtor have been entered in a running account, the agreed assignment will also refer to the claims from the current account.
The assigned claims serve to secure all our rights and claims according to B.1.a)
b) In the case that the goods subject to reservation of proprietary rights are sold by the purchaser together with other goods not owned by us, whether after connection, mixing, treatment or processing, the assignment of the purchase price claim according to B.2.a) to an amount of the contract price of the goods subject to reservation of ownership plus 20% which are set off against interest and expenses after receipt of the amount is considered to be agreed, whereby the additional amount not expended must be reimbursed.
c) If the goods subject to reservation of ownership are used by the customer to fulfil a contract of manufacture or delivery, then the claims from the contract of manufacture or delivery will be assigned to us in advance to the same extent as designated under B.2.a) and b).
d) The customer is authorised and entitled to resale or use of goods subject to reservation of proprietary rights in any other way only under the prerequisite that the claims designated under B.2 a) to c) are assigned to us.
He is not entitled to any other disposal of the goods subject to reservation of proprietary rights.
e) The customer is entitled to redemption of the claims from resale despite assignment. Our power of redemption remains unaffected by the power of redemption of the customer. We will not, however, redeem the claims ourselves, as long as the customer correctly complies with his financial responsibilities. He must inform us of the debtor of the assigned claims if requested by us, give us the necessary information and documents as well as inform the debtors of the assignment.
f) In the cases mentioned under A.7. the customer's authority to resell the goods subject to reservation of ownership and redeem the claims assigned to us is terminated.
3.a)The reservation of proprietary rights according to the above regulations also remains in force if individual claims by us are entered in a running account and the balance has been struck and acknowledged.
b) The reservation of proprietary rights according to the above regulations expires when all claims listed under B.1.a) have been fulfilled. Therewith the ownership of the goods subject to reservation of proprietary rights is transferred to the customer and the assigned claims reside with him.
4. If the value of all securities existing for us persistently exceeds our claims by more than 20% in total, then we are obliged to release securities of our choice to this extent as requested by the customer.
[C. Terms of payment]
1. All invoices are to be paid within 14 days of invoice date with 2% trade discount, within 30 days net, if nothing else is agreed explicitly in writing.
2. Our invoices are to be paid free of postage and expenses. The invoice date concurs with the day of dispatch.
3. Cash account is only granted if all financial obligations due from earlier deliveries have been met and the invoiced amount has been made available to us in cash or has been credited to our account promptly before the above due dates. Handing over of a bill of exchange is insufficient for granting of cash accounts. In the case of cash-free payment, in particular by handing over of cheques, it will depend on the time of the credit. In the case of payment or credit with the proviso of a condition or other limitations, trade discount cannot be granted. The risk of the means of payment is borne by the customer.
4. Bills of exchange and cheques are only credited subject to receipt of the full amount. We reserve the inclusion of acceptances (own or of third parties). Expenses and discount charges will be charged to the customer. We do not accept guarantee for presentation or protest. Lodging of protest of the customer's own bills of exchange or lack of immediate provision for protested bills of exchange of third parties give us the right to return all still current bills of exchange. At the same time all our other claims become due. Predated cheques will not be accepted.
5. On expiry of the due date we are entitled to claim interest of 4% above the prevailing discount rate of the Deutsche Bundesbank. Our right to claim compensation due to delay remains unaffected.
6. We retain the right at any time to annul granting of credit even in as far as it is within the allowance of time of payment within the framework of these conditions. We are also entitled at any time to demand sufficient security at our discretion for an existing claim. If our request is not complied with, all our claims become due immediately.
7. Interest is not paid on advance payments or part payments.
8. The customer is only entitled to balancing of accounts or retention of payments if his counterclaim is undisputed or has been legally established. Deductions which have not been expressly agreed will not be recognised.
9. A right to payment or settlement of an agreed bonus only exists if the customer has paid all claims which form the basis for the calculation of the bonus to us.
[D. Liability conditions]
1. We provide a guarantee for the products delivered by us only according to the following conditions:
a) For not insignificant defects we will compensate by means of improvement or replacement. A right to cancellation or abatement is only given if according to our decision improvement or replacement delivery cannot be carried out or the time period for the same is not kept.
In the case of failure of improvement or replacement delivery as well as absence of promised characteristics the customer can demand reduction of payment or, according to his choice, cancellation of the contract.
Further claims, in particular compensation claims of all kinds are excluded as far as legally permissible.
In as far as we can deliver replacement in any form, in total or in part, the goods subject to the claim become our property.
b) The technical details given by us on the object of the performance, intended purpose etc. (e.g. dimensions, weights, hardness, service value) refer to the approximate character and type of the goods. They are descriptions and not guaranteed characteristics. Deviations from patterns or from previous deliveries will be avoided as far as technically possible. Only considerable deviations justify a guarantee claim according to D.1.a).
Manufacture and delivery are carried out in general within the framework of the deviations permissible according to DIN 40631.
We are only bound to fall below the permissible tolerances in as far as we have assured this in writing.
c) We are not responsible for natural wear, damage from improper usage, insufficient storage or defects caused by a special usage not made known to us on completion of the contract.
d) Claims of any kind must be made within 10 days of receipt, in the case of hidden defects within 10 days of detection. The goods must be returned to us freight free Wuppertal, if we do not expressly forgo the same.
e) Guarantee is excluded for seconds or lot goods
2. In accordance with a long-standing practice in our branch of industry, compensation claims of all kinds against us, our agents and assistants, no matter for which legal reason, also for negligence during completion of contract, for positive breach of contract and for unauthorised action acc. to §§ 823 ff. BGB, are excluded as far as legally permissible. This regulation of liability is also valid for our advice in word, writing, through tests or in any other way; in particular, the customer is not released from the obligation to test the suitability for the intended applications.
[E. Place of fulfilment, place of jurisdiction, other agreements]
1. Place of fulfilment and place of jurisdiction for all claims from the business connections, in particular our deliveries, is Wuppertal. This place of jurisdiction is also valid for conflicts concerning the emergence and validity of the contractual relationship. As chosen by us, we also reserve the right to take legal action at the court responsible for the seat of the customer. The law of the Federal Republic of Germany is exclusively valid under exclusion of the Standard Purchase Laws.
2. Our Terms and Conditions which form the basis of all agreements and offers are considered to be accepted by placing of order or acceptance of delivery. They can be altered by us at any time. Conditions to the contrary are invalid also if we do not expressly contradict them; they are only valid if they are recognised by us in individual cases in writing.
Invalidity of individual regulations does not affect the validity of the remainder of these regulations.
3. Agreements made verbally or by telephone must be confirmed in writing to become legally valid.
Date of information: 15/02