Terms and Conditions
Terms and Conditions of Sale, Delivery and Payment (Domestic) of M. Faust Kunststoffwerk GmbH & Co. KG Glandorf ("F.") for use vis-à-vis a person who, when concluding the contract, is acting in the exercise of his ordinary or other professional activity (entrepreneur).
1. General Information
1.1 All deliveries and services are subject to these terms and conditions and any other contractual agreements. Deviating terms and conditions of purchase of the customer shall not become part of the contract even if the order is accepted.
1.2 All offers are subject to change. Unless otherwise agreed, a contract shall only come into effect upon written order confirmation by F..
1.3 F. reserves the right of ownership and copyright to drafts, cost estimates, drawings and comparable information of a physical and non-physical nature - including in electronic form. The customer may not make the information accessible to third parties.
1.4 F. undertakes to make information and documents designated as confidential by the customer accessible to third parties only with the customer's consent.
2. Prices
2.1 The prices are ex works Glandorf, excluding freight, customs duties, ancillary import duties and packaging plus VAT at the statutory rate.
2.2 In the event of a change in relevant costs after submission of the offer or order confirmation up to the delivery date, F. and the customer shall agree on an adjustment of the prices and the cost shares for molds.
2.3 If it has been agreed that the price is dependent on the weight of the parts, the final price shall be based on the weight of the approved reference samples.
2.4 F. shall not be bound by previous prices for follow-up orders.
3. Samples, Contract Amendments, and Provisions
3.1 In the case of test samples, F. reserves the right to insignificant deviations upon delivery.
3.2 Subsequent requests for contract amendments by the customer can only be taken into account by F. if it has not yet processed the order. The originally confirmed delivery period shall be extended appropriately in the event of a mutually agreed change. The costs of the change shall be borne by the customer.
3.3 Materials to be provided by the customer shall be delivered on time and in perfect condition at the customer's expense and risk with a reasonable quantity surcharge of at least 5%. If these requirements are not met, the delivery time shall be extended accordingly. With the exception of cases of force majeure, the customer shall also bear the additional costs incurred for interruptions to production.
4. Terms of Payment
4.1 Payment of the delivered goods (except for tools) must be made in Glandorf within eight days less 2% discount or within 30 days of the invoice date without deduction. The granting of a discount requires the settlement of all earlier due, undisputed invoices.
4.2 F. shall not grant a discount for payments by bill of exchange. F. reserves the right to refuse bills of exchange or checks and shall only accept them on account of performance; all associated costs shall be borne by the customer.
4.3 If the agreed payment date is exceeded, interest at the statutory interest rate of 8% above the respective prime rate of the ECB shall be due, unless F. can prove higher damages. The customer reserves the right to prove lower damages.
4.4 The customer shall only be entitled to withhold payments or offset them against counterclaims to the extent that the latter are undisputed or have been legally established.
5. Delivery Time
5.1 Compliance with the agreed delivery time by F. requires that the contracting parties have clarified all commercial and technical issues between them and that the customer has fulfilled all obligations incumbent upon him. Otherwise, the delivery period shall be extended accordingly, unless F. is responsible for the delay.
5.2 Compliance with the delivery period shall be subject to correct and timely delivery to F. by its own suppliers. F. shall inform the customer as soon as possible of any impending delays. Reasonable partial deliveries and reasonable deviations from the order quantities of up to ±10% are permissible.
5.3 The delivery time shall be deemed to have been met if the goods have left the Glandorf factory by the time it expires or readiness for dispatch has been notified. If acceptance is to take place, the acceptance date shall be decisive - apart from justified refusal of acceptance - or alternatively the notification of readiness for acceptance.
5.4 If dispatch or acceptance of the delivery item is delayed for reasons for which the customer is responsible, the customer shall bear the costs incurred as a result of the delay, starting one month after notification of readiness for dispatch or acceptance.
5.5 The delivery time shall be extended appropriately if its non-compliance is due to force majeure, labor disputes or other events beyond F.'s control. F. shall inform the customer as soon as possible of the beginning and end of such circumstances as well as start-up times and other effects on the delivery time.
5.6 The customer may withdraw from the contract without setting a deadline if the entire performance becomes definitively impossible for F. before the transfer of risk. In addition, the customer may withdraw from the contract if the execution of part of the delivery becomes impossible when the order is placed and the customer has a justified interest in refusing the partial delivery. If this is not the case, the customer must pay the contract price attributable to the contractual delivery. The same shall apply in the event of inability of F. In all other respects, clause 10 para. 2 shall apply. If the impossibility or inability occurs during the delay in acceptance or if the customer is solely or largely responsible for the circumstances, he shall remain obliged to provide consideration.
5.7 If F. is in default and the customer suffers damage as a result, it shall be entitled to demand lump-sum compensation for the delay. This shall amount to 0.5% for each full week of delay, but shall not exceed a total of 5% of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay. If the customer sets F. a reasonable deadline for performance after the due date, taking into account the statutory exceptions, and F. fails to meet the deadline, the customer shall be entitled to withdraw from the contract within the framework of the statutory provisions. Further claims arising from delay in delivery shall be determined exclusively in accordance with clause 10, paragraph 2.
6. Call-Off and Acceptance
6.1 Quantities from call-off orders without an agreement on delivery time, production lot sizes and acceptance dates must be called off by the customer in a reasonably uniform manner over the term of the contract. F. may request a binding determination by the customer no later than three months after order confirmation. If he does not comply with this request within three weeks, F. shall be entitled to set a 2-week grace period and to withdraw from the contract and/or claim damages after its expiry.
6.2 If the customer does not fulfill its acceptance obligations, F. shall not be bound by the provisions on self-help sales, notwithstanding other rights, and may sell the delivery item by private treaty after prior notification of the customer.
7. Packaging
7.1 Unless otherwise agreed, F. shall determine the packaging, shipping method, shipping route and protective packaging. F. shall not take back the packaging.
7.2 The risk shall pass to the customer when the goods leave the supplier's works, even in the case of carriage paid delivery.
7.3 If the customer is responsible for the delay in dispatch, the risk shall pass to the customer upon notification of readiness for dispatch.
7.4 F. shall insure the goods against risks to be specified by the customer at the customer's expense if the customer so requests in writing.
8. Liability for Material Defects
8.1 The quality and design of the type samples approved in writing by the Customer shall determine the agreed quality of the products. References to technical standards serve to describe the performance and are not to be interpreted as a guarantee of quality.
8.2 The customer must give notice of defects in writing immediately after discovery.
8.3 If the notice of defects is justified, F. shall be obliged to provide subsequent performance. If it does not fulfill this obligation within a reasonable period of time or if rectification fails despite repeated attempts, the customer shall be entitled to reduce the purchase price or withdraw from the contract. Further claims, in particular claims for reimbursement of expenses or damages due to defects or consequential damages, shall only exist within the scope of 10.2.
8.4 Replaced parts shall be returned to F. upon request.
8.5 The customer shall only have the right to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary expenses from F. after prior notification of F. in urgent cases of danger to operational safety or to prevent disproportionately large damage. If the customer or a third party carries out improper repairs, the customer shall lose its claims for defects.
9. Industrial Property Rights and Legal Deficiencies
9.1 If F. has to deliver according to drawings, models, samples or using parts provided by the customer, the customer shall be responsible for ensuring that the industrial property rights of third parties in the country of destination of the goods are not infringed as a result. F. shall inform the customer of any rights of which it is aware. The customer shall indemnify F. against third-party claims and pay compensation for the damage incurred. F. shall be entitled, without examining the legal situation, to cease work until the legal situation has been clarified by the customer if a third party prohibits the manufacture or delivery with reference to a property right belonging to it. If the continuation of the order is no longer reasonable for F. due to the delay, it shall be entitled to withdraw from the contract.
9.2 F. shall be entitled to the copyrights and industrial property rights, in particular all rights of use and exploitation rights to the models, molds and devices, drafts and drawings designed by it or third parties on its behalf.
9.3 Clause 10 shall apply accordingly to other legal deficiencies.
10. Liability
10.1 If the customer is unable to use the delivery items in accordance with the contract due to the fault of F. as a result of omitted or faulty execution, suggestions and advice made before or after conclusion of the contract or due to breach of other contractual ancillary obligations, sections 8.2 and 10.2 shall apply accordingly to the exclusion of further claims by the customer.
10.2 F. shall only be liable for damage that has not occurred to the delivery item itself - on whatever legal grounds – in the event of
10.2.1 intent;
10.2.2 gross negligence on the part of the owner/the executive bodies or executive employees,
10.2.3 culpable injury to life, limb or health,
10.2.4 defects which they have fraudulently concealed or the absence of which they have guaranteed,
10.2.5 defects in the delivery item, insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used items. In the event of culpable breach of material contractual obligations, F. shall also be liable for gross negligence of non-executive employees and slight negligence, in the latter case limited to reasonably foreseeable damage typical of the contract. Further claims are excluded.
11. Statute of Limitations
All claims of the customer – on whatever legal grounds – shall lapse after 12 months. The statutory periods shall apply to claims for damages in accordance with 10.2.1 to 10.2.5. They shall also apply to delivery items which, when used in a building in accordance with their normal use, cause the building to be defective.
12. Molds (Tools)
12.1 The price for molds (tools) also includes the costs for one-time sampling, but not the costs for testing and processing equipment. Costs for further sampling for which F. is responsible shall be borne by it.
12.2 Subject to the payment terms set out in clause 4, 1/3 of the price shall be payable when the order is placed, 1/3 upon receipt of the first reference samples, 1/3 immediately after they have been approved, but no later than 30 days after receipt of the first reference samples without deduction of discount.
12.3 Changes requested by the customer shall not be binding for F. as long as the parties have not reached an agreement on the adjustment of deadlines and prices due to changes.
12.4 All tools, injection molds, stamping molds or other molds that F. or a third party commissioned by F. manufactures for the customer shall in principle be the property of F. F. shall only use the molds for the customer's orders as long as the customer meets its payment and acceptance obligations. F. shall only be obliged to replace these molds free of charge if they are required to fulfill an output quantity guaranteed to the customer. F.'s obligation to store the molds shall expire two years after the last delivery of parts from the mold and prior notification of the customer by F.
12.5 If, in exceptional cases, the customer is to become the owner of the molds, ownership shall be transferred to the customer after full payment of the purchase price. Storage for the benefit of the customer shall replace the handover of the molds to the customer. Irrespective of the customer's statutory claim to surrender and of the service life of the mold, F. shall be entitled to exclusive possession of the molds until termination of the contract. F. shall mark the molds as third-party property and insure them at the customer's request and expense.
12.6 For molds not owned by F., its liability with regard to storage and care shall be limited to the same care as in its own affairs. Costs for maintenance and insurance shall be borne by the customer. F.'s obligations shall lapse if the customer fails to collect the molds within a reasonable period of time after completion of the order and a corresponding request. As long as the customer has not completely fulfilled his contractual obligations, F. has a right of retention to the molds.
13. Retention of Title
13.1 F. shall retain title to the deliveries until receipt of all payments under the delivery contract. In the case of a current account, the goods subject to retention of title shall serve as security for the balance invoice of F. If F. is liable for bills of exchange in connection with purchase price payments, the retention of title shall not expire before the bill of exchange has been honored by the purchaser as drawee.
13.2 Any treatment or processing of the delivery item by the purchaser shall be carried out on behalf of F. and shall exclude the acquisition of ownership by the purchaser in accordance with § 950 BGB. F. shall become co-owner of the item thus created in proportion to the net invoice value of its goods to the net invoice value of the goods to be treated or processed, which shall serve as reserved goods to secure its claims.
13.3 If the goods are combined or mixed with other goods not belonging to F. in accordance with §§ 947, 948 BGB, the co-ownership share of F. shall be deemed to be reserved goods within the meaning of these provisions.
13.4 The customer may only allow the goods subject to retention of title to be used in the ordinary course of business and on condition that he also agrees a retention of title with his customers in accordance with the preceding paragraphs. The customer shall not be entitled to dispose of the goods in any other way, in particular by pledging them or assigning them as security.
13.5 In the event of resale, the customer hereby assigns to F. all claims arising from the resale and other justified claims against its customers with all ancillary rights until all claims of F. have been satisfied. At the request of F., the customer shall be obliged to immediately provide F. with all information and documents that F. requires to assert its rights against the customer's customer.
13.6 If the customer sells the goods subject to retention of title after processing in accordance with para. 2 and/or 3 together with other goods not belonging to F., the assignment of the purchase price claim in accordance with para. 5 shall only apply to the amount of the invoice value of F.'s goods subject to retention of title.
13.7 If the value of the securities existing for F. exceeds the total claim by more than 10%, F. shall be obliged to release securities to this extent at the request of the customer at the customer's discretion.
13.8 The customer must notify F. immediately of any seizure or confiscation of the reserved goods by third parties. Necessary follow-up measures shall be borne by the customer, unless they are borne by third parties.
13.9 If F. makes use of its retention of title by taking back goods subject to retention of title in accordance with the provisions of this section, it may sell the goods by private treaty or have them auctioned. The assertion of the retention of title and the demand for return shall constitute a withdrawal from the contract. The goods shall be taken back at the proceeds realized, but at most at the agreed delivery prices. Further claims for damages, in particular loss of profit, remain reserved.
14. Place of Performance, Applicable Law, place of Jurisdiction
14.1 The place of performance for all obligations of both parties, including obligations arising from checks and bills of exchange, shall be Glandorf.
14.2 All legal relationships between F. and the customer shall be governed exclusively by the law of the Federal Republic of Germany applicable to legal relationships between domestic parties.
14.3 The place of jurisdiction shall be Osnabrück. However, F. shall be entitled to bring an action at the customer's head office.
General Terms and Conditions of Purchase and Ordering (GTCP) of M. Faust Kunststoffwerk GmbH u. Co. KG ("F.") between companies
1. General Information
1.1 These General Terms and Conditions of Purchase (GTCP) shall apply exclusively to all orders placed by F.. F. does not recognize any conflicting or deviating terms and conditions of the supplier, unless F. has expressly agreed to their validity. These Terms and Conditions of Purchase shall also apply if F. accepts the supplier's delivery without reservation in the knowledge that the supplier's terms and conditions conflict with or deviate from these Terms and Conditions of Purchase.
1.2 All agreements made between F. and the supplier in the execution of this contract must be recorded in writing. The purchasing department, complete order number, order date and reference of the Purchaser shall be stated in all documents.
1.3 These GPC shall only apply to companies within the meaning of § 14 BGB (German Civil Code).
1.4 The GPC of F. shall also apply to future business relations with the Purchaser, even if they are not expressly agreed again.
2. Offer and Documents
2.1 The Supplier shall notify F. of any deviations in its offer from inquiries made by F.
2.2 F. shall be bound to an order for two weeks.
2.3 F. reserves the property rights and copyrights to all drawings, illustrations, analysis methods and other developments. They shall be used exclusively for production on the basis of the order and shall be returned to F. without request after completion of the order.
2.4 Documents of all kinds which F. requires for the use, installation, assembly, processing, storage, operation, maintenance (servicing, inspection, repair) of the delivery item shall be provided by the supplier in good time and without being requested to do so, free of charge.
3. Prices, Invoices and Payment
3.1 The price stated in the order is binding. It includes delivery "free domicile" and packaging, unless otherwise agreed in writing.
3.2 The price includes the applicable statutory value added tax.
3.3 Invoices must correspond to the order in terms of wording, text sequence and prices. Any additional or reduced services must be listed separately in the invoice.
3.4 Unless otherwise agreed in writing, F. shall, at its discretion and after receipt of the invoice and receipt of the goods, pay the purchase price within 30 days with a 3% discount or within 90 days net cash.
3.5 In the case of tools, 1/3 of the payment shall be made when the order is placed, 1/3 after inspection of the samples produced from this tool, 1/3 after final completion of the tool ready for production and inspection and approval by F. in writing.
3.6 F. shall be fully entitled to the statutory rights of set-off and retention.
3.7 All payments shall be made subject to a later review and possible assertion of reclaims plus interest claims.
4. Delivery and Acceptance
4.1 The delivery time stated in the order is binding.
4.2 The supplier is obliged to inform F. immediately of any circumstances that have occurred or are recognizable which jeopardize the agreed delivery time.
4.3 All dispatch notes, delivery bills, packing slips, consignment notes, invoices and the outer packaging must state the order reference and details of the unloading point prescribed by F.
4.4 In the event of a delay in delivery, F. shall be entitled to the statutory claims. If F. claims damages, the supplier shall be entitled to prove that it is not responsible for the breach of duty.
4.5 As soon as the supplier has reason to believe that it will not be able to make the delivery on time in whole or in part, it must inform F. of this immediately.
5. Inspection of Defects and Liability for Defects
5.1 F. is obliged to inspect the delivery item for deviations in quality and quantity within a reasonable period of time after delivery by the seller.
5.2 Notification of obvious defects shall be deemed to have been made in good time if F. raises it within 14 days of delivery of the delivery item and it is subsequently received by the supplier. Notification of hidden defects shall be deemed timely if F. raises it within 14 days of their discovery and it is subsequently received by the supplier.
5.3 F. shall have the statutory claims for defects against the supplier. The supplier shall be liable to F. to the statutory extent. F. expressly reserves the right to claim damages, in particular damages in lieu of performance. In the event of imminent danger or in the event of urgency, F. shall be entitled to remedy the defect itself at the supplier's expense.
5.4 The limitation period shall be 24 months from the transfer of risk.
6. Retention of Title
6.1 F. shall retain title to parts and objects provided by it to the Supplier. Processing or transformation shall be carried out by the supplier for F. If the reserved goods are processed with other items not belonging to F., F. shall thereby acquire ownership of the new items in the ratio of the value of the item belonging to F. (purchase price plus VAT) to the other processed items at the time of the agreement.
6.2 If the item provided by F. is inseparably mixed with other items not belonging to F., F. shall acquire co-ownership of the new item in the ratio of the value of the item subject to retention of title (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the supplier's item is to be regarded as the main item, it is agreed that the supplier shall transfer co-ownership to F. on a pro rata basis. The supplier shall keep the sole ownership or co-ownership for F.
6.3 Insofar as the security interests arising in favor of F. from para. 1 and/or 2 exceed the purchase price of the goods subject to retention of title not yet paid for by F. by more than 10%, the supplier may demand release of the security interests from F. at its discretion.
7. Means of production
7.1 All drawings, models and calculations provided to the Supplier for the execution of orders shall remain the property of F. and shall be returned immediately upon request.
7.2 The molds, models, tools, lithographs, clichés, etc. produced by the Supplier for the execution of the order shall be produced by the Supplier for F.. It shall retain title thereto. The Supplier shall be obliged to use these items exclusively for the manufacture of the goods ordered by F.
7.3 The supplier is obliged to insure the items belonging to F. at replacement value against fire, water damage and theft at its own expense. At the same time, the supplier hereby assigns all claims for compensation arising from this insurance. F. hereby accepts the assignment.
7.4 The Supplier shall be obliged to carry out any necessary maintenance measures (inspection, servicing, repair) on tools at its own expense and in good time. The Supplier shall notify F. immediately of any malfunctions. If he culpably fails to do so, claims for damages shall remain unaffected.
8. Non-Disclosure
The Supplier is obliged to keep the order itself and the commercial and technical details associated with it, in particular all drawings, illustrations, analysis methods, calculations and similar documents and information provided by the Purchaser, strictly confidential. The Supplier may only disclose them to third parties with express consent. The confidentiality obligation shall also apply after completion of the contract. It shall expire if and insofar as the manufacturing knowledge contained in the material provided has become generally known.
9. Third-Party Property Rights
9.1 The Supplier warrants that no rights of third parties within the Federal Republic of Germany are infringed in connection with its delivery.
9.2 If a third party nevertheless asserts a claim against F., the supplier shall be obliged to indemnify F. against its claims upon first written request. F. is not entitled to make any agreements with the third party without the consent of the supplier, in particular to conclude a settlement.
9.3 The supplier's obligation to indemnify shall extend to all expenses necessarily incurred by F. from or in connection with the claim by a third party.
9.4 The limitation period is 10 years, calculated from the conclusion of the contract.
10. Tests
10.1 If tests are planned for the delivery item, each party shall bear the personnel costs incurred by it as a result of the test. The material costs of the inspection shall be borne by the Supplier.
10.2 The Supplier shall give F. binding notice of readiness for testing at least one week in advance and agree a test date with him. If the delivery item is not presented on this date, the Supplier shall compensate F. for all damages incurred as a result. If repeated or further inspections are necessary as a result of defects found, the supplier shall bear all material and personal costs for this. The Supplier shall bear the material and personnel costs for the material certificates or primary materials.
11. Insurance
11.1 With regard to liability for personal injury, property damage and financial loss arising from the performance of the contract, the Supplier shall ensure that it has adequate insurance cover in terms of reason and amount and shall provide evidence of this on request.
11.2 The conclusion of insurance policies shall not limit the Supplier's liability.
12. Shipping Instructions, Costs, Transfer of Risk
12.1 F. reserves the right to determine the shipping route and the shipping method as well as the means of transportation and packaging. Unless otherwise agreed, deliveries shall be made free F.'s place of disposal. All trade terms shall be governed by the Incoterms in the version applicable at the time of conclusion of the contract.
12.2 Tools and equipment may not be loaded together with delivery items.
13. Advertising Material
The Supplier may only refer to the existing business relationship with F. in information and advertising material with F.'s express written consent.
14 Applicable Law, Place of Performance, Place of Jurisdiction
14.1 The contract is subject to German law. The application of the UN Convention on Contracts for the International Sale of Goods of April 11, 1980 is excluded.
14.2 The place of performance for all obligations of both parties, including obligations arising from checks and bills of exchange, is Glandorf.
14.3 The place of jurisdiction is Osnabrück, unless another place of jurisdiction is prescribed by law.