General Terms and Conditions –General Terms of Sale of European Plastics Processors
I. General provisions
- These terms and conditions of sale apply to all of the supplier's products and services.
- Orders only becoming binding with regard to their nature and scope when the supplier confirms the order. Any amendments and additions must bemade in writing.
- In the case of ongoing business relations these terms and conditions also apply to future transactions in which no express reference is made to them, if they were agreed by both parties with regard to a previous order. If different provisions applied by the customer or the supplier take the place of these general terms and conditions of sale, they must be expressly agreed by both parties. If individual provisions become void the other provisions will not be affected by this.
- The customer’s purchasing terms will only be binding upon the supplier if they are expressly acknowledged by him.
- Unless agreedotherwise prices are quoted ex works exclusive of packing and the applicable rate of VAT/sales tax.
- If it is agreed that the price should be dependent on the weight of the parts, the final price will be based on the weight of the outturn sample released.
- The price of the moulds also includes the costs of providing samples but not the costs of proving and subsequent adjustments,norof any changes requested by the customer.
- If after the quotation or the confirmation of order significant cost factors such as materials, energy or labour change by more than 5 %, either party will have the right to demand a price change in terms of the change in the overall price created by the relevant cost factor.
- In the case of new orders the supplier is not bound by previous prices.
III. Obligations relating to delivery and acceptance
- The delivery period begins after receipt of all the documents needed for the execution of the order, punctual provision of the requisite materials, where applicable, and agreed down payments.
- If an agreed delivery period is not met through the supplier’s fault, the customer is entitled, to the exclusion of any further claims and after an appropriate extension period, to demand appropriate compensation or withdraw from the contract if, when the extension period was agreed, he indicated that the delivery may be rejected.
- Appropriate part deliveries and deviations of up to ± 10 % from the orders are permitted.
- The supplier is obliged to accept follow-on orders with suitable delivery periods, as long as he holds the rights to the moulds, tools and equipment provided by customer and/or his obligation to keep his own order-related moulds, tools and equipment is still effective. This obligation entails no commitment to earlier price agreements. The same applies to ongoing orders if cost factors (e. g. raw material prices, rates of exchange etc.) change to any considerable extent.
- Cases of force majeure affecting the supplier or his sub-contractors will extend the delivery periodcorrespondingly. This also applies to interventions by public authorities, difficulties with power and raw material supplies, strikes, lock-outs and unforeseeable delivery problems insofar as they are not attributable to the supplier. The supplier will notify the customer of these immediately. The supplier must keep the inconvenience to the customer to a minimum, if necessary by releasing the moulds, tools and equipment for the duration of the impediment.
IV. Transfer of risk, packing and dispatch
- The risk is transferred to the customer when goods leave the works, even if the delivery is carriage paid.
- Where there are delays in dispatch attributable to the customer, the risk is transferred as soon as the customer is informed that goods are ready for dispatch.
- Unless otherwise agreed, the supplier is to choose the packing and the method of dispatch to the best of his ability. At the written request of the customer, the goods will be insured at his expense against breakage, transport and fire damage.
V. Provision of materials
- If the materials are provided by the customer, they are to be delivered at the latter’s cost and risk plus an appropriate excess quantity of at least 5 % to compensate for the difficulty of the production, in good time and in accordance with the agreed specification. Unless a different arrangement has been reached with the customer the supplier will have the right to select the raw materials or preliminary materials.
- If he fails to comply with these conditions the delivery period will be extended accordingly. Apart from cases of force majeure the customer is to bear any additional costs which arise,even for the interruptions in production incurred as a result.
VI. Suitability for foodstuffs and recycled materials
- If a product is to be used for foodstuffs the customer is responsible for checking the suitability of the material for the specific foodstuffs.
- Recycled raw materials are selected with care by the supplier. However, reclaimed plastics can vary greatly from batch to batch in surface finish, colour, purity, smell and physical or chemical properties. This will not give the customer the right of making a claim against the supplier. However, on request the supplier will assign to the customer any claims he has on his own suppliers, without providing any liability for the success of such a claim.
VI. Moulds, tools and equipment
- If the supplier is the owner of the moulds, tools and equipment, these are only to be used for the customer’s orders, provided the customer fulfils his payment and acceptance obligations. The supplier’s obligation to keep the moulds, tools and equipment expires 2 years after the last part-delivery and after prior notice has been given to the customer.
- If the customer is the owner of the moulds, tools and equipment the supplier has the right to retain the moulds, tools and equipment until the customer has fulfilled all the conditions of the agreement. The hand-over of the moulds, tools and equipment to the customer is replaced by the supplier’s obligation to store them. Regardless of the customer’s legal claim to hand-over and of the life of the moulds, tools and equipment, the supplier is entitled to sole possession of the moulds, tools and equipment up to acceptance of an agreed minimum unit quantity and/or up to the expiry of a set period. The supplier is to mark the moulds, tools and equipment as someone else’s property and insure them, if the customer so requests, at the latter’s expense. In the case of hand-over of the moulds, tools and equipment and the associated transfer of know-how, the supplier has a right to appropriate compensation.
- In the case of the customer’s own moulds, tools and equipment as per clause 2 and/or moulds, tools and equipment made available on a loan basis by the customer, the supplier’s liability in respect of storage and care is confined to such care as he would take of his own affairs. The supplier’s obligations expire after the order has been completed, if the customer does not collect the moulds, tools and equipment, even after being invited to do so. In this case the supplier is entitled to return the moulds, tools and equipment to the customer at the latter’s expense. As long as the customer has not fulfilled his contractual obligations in full, the supplier has a right of retention to the moulds, tools and equipment.
- All the tools and moulds which we produce or procure on behalf of our customers remain our property, even if the customer has paid a proportion of the tooling costs to us.
- Rights to sole use of the tooling cannot be granted if the customer has only paid a proportion of the tooling costs.
VIII. Retention of title
We supply only on the basis of the retention of title provisions outlined below. This also applies to future deliveries, even if this has not been expressly specified.
- We retain title to the goods until all our claims arising from the contract of supply have been met. If the purchaser is in breach of contract we reserve the right to take possession of the goods again.
- The purchaser has the right to sell the goods in the course of his normal business. He hereby agrees to assign his claims on the third-party purchaser to us to the extent of the agreed invoice amount (incl. VAT). This assignment applies regardless of whether or not the goods are processed before being sold. Even after the assignment the purchaser has the right to assert his claims on his customer, without prejudice to our right to collect the amount ourselves. However, we will not assert the claim provided the purchaser meets his payment obligations from the revenues he collects, is not in arrears with his payments and in particular is not subject to insolvency proceedings or has ceased making payments.
- The same applies to deliveries outside the field of application of these terms of sale, insofar as retention of title is legally possible in the country in which the goods are located at the time the claim is made. Failing this the customer undertakes to endow the supplier with all rights provided for under the legislation of the supplier’s country to protect claims.
IX. Liability for defects / product liability
- Unless the supplier provides the corresponding written undertakingthe customer alone is liable for the design and fitness for purpose of the parts, even if he received advice during the development phase.
- Claims relating to defects are to be lodged immediately, and not later than 2 weeks after receipt of the delivery. In the case of hidden faults this term is extended to 1 week from their detection, but in any case not more than 6 months after receipt of the goods.
- In the case of justified complaints the supplier, at his discretion, undertakes to remedy or to provide a replacement, free of charge. If he does not meet these obligations within a reasonable term, the customer is entitled to declare a reduction of the contract or withdrawal from ist. Further claims are ruled out. Faulty parts which are replaced are to be returned at the supplier’s request and at his expense.
- Liability under national product liability legislation is unaffected.
- Reworking or inappropriate processing by the recipient shall result in the loss of any claims based on faults. The customer is only entitled to rectify the goods in order to avoid unreasonably serious damage and to claim compensation for the appropriate costs, after first notifying the supplier.
X. Terms of payment
- All payments are to be made in the agreed currency exclusively to the supplier.
- Unless otherwise agreed the purchase price is to be paid as follows:
a) For moulds, 50 % payable on order confirmation and 50 % payable 30 days after presentation of the outturn samples agreed in the contract, both without any discount. In cases of amended orders from the customer prior to production of the moulds and confirmation by the supplier all costs incurred prior to that are to be refunded.
b) For finished parts of other work, payment within 30 days from the invoice date. Any discount will only be granted if all earlier invoices due have been settled.
- In the event of delayed payment, default interest is payable without notice at the rate which the bank charges the supplier for current account credit.
- If justified doubts arise as to the customer’s ability to pay, all the supplier’s claims fall due immediately. In addition the supplier is entitled to withdraw from the contract or demand claims for non-performance after an appropriate period.
- The customer is liable towards the supplier for the supplies and services ordered being free from third party property rights.He releases the supplier from any corresponding claims and will be liable himself for any damages incurred.
- The supplier’s design proposals, patterns, models etc. remain his property and may only be used or passed on with his consent. If a delivery contract is not fulfilled owing to the customer’s fault, the supplier is entitled to appropriate compensation for the preliminary work he has done.
XII. Place of performance and jurisdiction
- The place of performance is the location of the supplier’s factory.
- At the discretion of the supplier the place of jurisdiction is the location of the supplier’s factory, the registered office or the headquarters of the customer.
- The law of country in which the supplier’s factory is located shall apply.
Tolges- Kunststoffverarbeitung GmbH & Co. KG Valid from 11/2016