General Terms of Sale

 

of KWF Kunststoffwerk Fuerth a. B. GmbH, located in D-96465 Neustadt bei Coburg

- hereinafter referred to as "KWF"

 

• 1 Scope

(1)   The deliveries, services, and offers by KWF are made exclusively on the basis of these General Terms of Sale if the buyer is an entrepreneur, a legal entity of public law, or a public special fund.  

(2)   These terms shall also continue to apply to future deliveries, services, and offers, even if they are not expressly agreed again.

(3)   Deviating, contradictory, or supplementary terms and conditions of the buyer are hereby rejected.

• 2 Offer and conclusion of contract

(1)   The offers by KWF are free and non-binding. 

(2)   The order by the buyer is considered a binding contract offer. Orders by the buyer shall only be deemed accepted if they have been confirmed by KWF in writing. For the purpose of preserving the written form, it is sufficient to submit the declaration by fax or email.

(3)   The confirmation of order, including these general terms of sale, fully reflects all agreements between the contractual parties. Verbal commitments on the part of KWF prior to the conclusion of the contract are legally non-binding and verbal agreements between the contractual parties are replaced by the order confirmation, as far as they are not expressly confirmed to be binding. With the exception of managing directors and authorised signatories, KWF’s employees and agents are not authorised to make verbal collateral agreements or verbal assurances on its behalf.

(4)   Unless expressly otherwise agreed, data on the object of the contract such as dimensions, weights, load capacity, tolerances, and technical data, as well as illustrations such as drawings and figures, are only approximate and do not represent guarantees. In this case too, deviations are permissible if they are common in the industry or are the result of legal

regulations or technical improvements to the extent that the effect of such changes on their usefulness for the intended purpose is not significant. Representations such as drawings and illustrations do not show the products in natural size and are not necessarily to scale.

(5)   In principle, all frame orders has to be taken during twelve months. If such deliveries are not requested in full within twelve months, KWF shall be entitled to deliver the (remaining) quantity to the customer without prior notice. Any requests for delivery after this twelve-month window are subject to price adjustments. Frame orders cannot be reduced or cancelled without KWF’s express consent. KWF is only subject to any other terms of the buyer if they have been expressly acknowledged by KWF in writing.

• 3 Prices and payment terms

(1)   Unless stated otherwise, KWF is bound to the prices stated in the offer in accordance with § 2 para. 1 for 30 days from the date received. Otherwise the prices stated in the order confirmation by KWF are applicable.

(2)   Unless agreed otherwise, the prices are ex works (EXW) plus packing and plus the statutory value-added tax; in the case of export deliveries there are additional customs duties, fees, and other public charges.

(3)   Invoices are to be paid within 30 days of invoicing and delivery without any deduction, unless otherwise agreed in writing. Once this term of payment expires, the buyer will be in default.

(4)   KWF is also entitled, at all times, within the framework of an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment. In this case, KWF will declare the relevant reservation at the latest in the order confirmation.

(5)   The receipt of payment to KWF is decisive for the date of the payment. Checks are accepted only on special agreement and always only on account of payment.

(6)   The buyer is only entitled to set-off or withhold payment insofar as counterclaims are undisputed or legally established.

 

 

• 4 Delivery and delivery time, delay, default

(1)   Deliveries are ex works (EXW) unless otherwise agreed.

(2)   Dates and deadlines for deliveries and services promulgated by KWF are non-binding and are only approximate unless a fixed date or deadline has been expressly agreed. 

(3)   KWF is not liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that could not be foreseen at the point in time the contract was concluded (e.g. operational disruptions of all kinds, difficulties in procuring material or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in obtaining the necessary regulatory approvals, official measures or missing, wrong or late delivery by suppliers), for which KWF is not responsible. If such events substantially complicate the delivery or service for KWF or make the delivery or service impossible to render, and the hindrance is not of only a temporary nature, KWF is entitled to withdraw from the contract. If there are hindrances of a temporary nature, delivery or service deadlines may be extended or the delivery or service dates may be postponed by the period of the delay plus a reasonable start-up period. Insofar as the buyer, as a result of the delay, cannot be expected to accept the delivery of goods or provision of service, it may withdraw from the contract by means of an immediate written notification to the seller.

(4)   If KWF is responsible for the delay in the event of a fixed date or deadline for the delivery or service, the buyer shall be entitled to a lump sum compensation for their default damages of 0.5% of the net price for each completed calendar week of delay up to a maximum of 5% in total of the delivery value of the delayed delivery. Any further claims are excluded unless the delay is due to intent or gross negligence.

(5)   KWF is entitled to partial deliveries if the partial delivery is usable for the buyer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured, and the buyer does not incur substantial additional efforts or additional costs. 

 

• 5 Shipping, packaging, transfer of risk

(1)   If it is agreed that the goods are dispatched to a different destination (dispatch purchase), the shipping method and packaging shall be at the discretion of KWF.

(2)   If dispatch is agreed, delivery periods and delivery dates refer to the date of handing over to the freight forwarder, freight carrier, or other third parties who are responsible for the dispatch.

(3)   The risk of accidental loss and accidental deterioration of the goods as well as the risk of delays are transferred to the buyer at the latest when the delivery item is handed over to the freight forwarder, freight carrier, or other third party to whom the shipment is made, with the commencement of the loading process being decisive. The shipment is only insured by KWF at the explicit request of the buyer and at their expense.

(4)   If transport packages are returned by the buyer to KWF, this shall be free of charge and with carriage paid.

• 6 Warranty, warranty period, examination, and notification of defect

(1)   The warranty period is one year from delivery. This period does not apply to claims for damages resulting from injury to life, body or health or from wilful or grossly negligent breach of duty.

(2)   The delivered items must be carefully inspected immediately after delivery to the buyer or the third party designated by them. They shall be deemed to have been approved by the buyer in the event of obvious defects or other defects which would have been apparent in an immediate and thorough examination if KWF does not receive a written complaint within seven working days after delivery. With regard to other defects, the goods are deemed to have been approved by the customer if the complaint is not received by KWF within seven days after the date of discovery of the defect; if the defect had already been recognised by the customer at an earlier date under normal use, this earlier date is decisive for the start of the notification period. At the request of KWF, an rejected delivery item shall be sent back to KWF without freight charges. In the case of justified complaints, KWF will refund the costs of the most favourable shipping route; this

 

does not apply in the case that the costs increase because the delivery item is located in a place other than the place of the intended use.

(3)   In the event of defects in the delivered goods, KWF shall be obliged and entitled to remedy or replace the goods within a reasonable period of time. In the case of failure, i.e. impossibility, unreasonableness, refusal, or unreasonable delay of the repair or replacement delivery, the buyer can withdraw from the contract or reduce the purchase price appropriately.

(4)   Insofar as KWF is responsible for a defect, the buyer may only demand damages in accordance with § 8.

(5)   The warranty is void if the buyer makes changes to the delivery item or has a third party make it possible to make the defect removal impossible or unacceptable. In any case, the buyer shall bear the additional costs resulting from the alteration of the defect rectification.

• 7Third-party protective rights

(1)   If the delivery item violates an industrial property right or copyright of a third party, KWF is entitled, at their own option and expense, to modify the delivery item in such a way that it no longer infringes third party rights but continues to fulfil the contractually agreed objectives or the buyer by concluding a licence agreement to create the necessary usage rights. If this does not happen within a reasonable period, the buyer is entitled to withdraw from the contract. 

(2)   If KWF produces items according to the buyer's plans, drawings, illustrations, files, or other specifications, or by third parties specified by the buyer, the buyer shall ensure that there is no infringement to an industrial property right or copyright of a third party. The buyer shall indemnify KWF from any damages, including the reasonable costs of legal defence.

(3)   Insofar as KWF is responsible for the infringement of an industrial property right or copyright of a third party, any damages claims of the buyer pursuant to § 8 shall be directed.

 

• 8 Liability for damages due to fault

(1)   The liability of KWF for damages, for whatever reason, as far as a fault is concerned, is limited according to the following provisions. The exclusion or limitation of liability does not apply to liability for intentional conduct, injury to life, body or health, guaranteed characteristics, or claims under the Product Liability Act.

(2)   KWF is not liable in cases of simple negligence of its institutions, legal representatives, employees or other vicarious agents, insofar as it is not a breach of contractual obligations. The obligation are to supply the delivery item in good time, its freedom from defects of rights, as well as such defects as to impair its functional capability or usability, as well as any advisory, protective, and custodial duties which are intended to protect the body or life.

(3)   To the extent KWF is liable for damages, this liability is limited to damages that were foreseen when concluding the contract as a possible consequence of a breach of contract by KWF or the due diligence they should have foreseen when applying. Indirect damages and consequential damages which are the result of defects in the delivered item are only eligible for compensation insofar as such damages are typically to be expected under normal use of the delivered goods.

(4)   Insofar as KWF acts as an adviser or provides technical information and this advice or information does not expressly belong to the agreed service, this shall be without obligation and with the exclusion of any liability.

(5)   The above exclusions and limitations apply to the same extent in favour of bodies, legal representatives, employees and other agents of KWF.

• 9 Retention of title

(1)    Until full payment is made for all present and future claims from the purchase contract and from an ongoing business relationship (secured claims), KWF retains the title to the goods sold.

 

(2)    The goods, subject to retention of title, may not be pledged or assigned as collateral to third parties until full payment of the secured claims is received. The buyer must notify KWF in writing without delay if a request is made to open insolvency proceedings, or if third parties gain access (e.g. seizures) to the goods.

(3)    If the buyer acts in violation of the contract, especially in the case of non-payment of the purchase price due, KWF is entitled to demand the return of the goods on grounds of retention of title and to withdraw from the contract. The requirement to surrender does not include the declaration of withdrawal at the same time; KWF is entitled to demand only the goods and to withhold the withdrawal. If the buyer does not pay the purchase price due, KWF may assert these rights only if they have previously set the buyer an appropriate deadline for payment to no avail or if setting such a deadline may be waived in accordance with the statutory provisions.

(4)    The buyer is authorised, until further notice pursuant to (c) below, to sell the goods subject to retention of title or process them further in the ordinary course of business. If this is the case, the following provisions shall apply.

(a)    The retention of title extends to the full value of the products resulting from the processing, mixing, or combination of the reserved goods, whereby KWF as a manufacturer applies. If third parties retain their title to products used in conjunction with the processing, mixing, or combining of the delivered goods, KWF shall acquire co-ownership in proportion to the invoice value of the processed, mixed, or combined goods. In all other cases, the same shall applies to the resulting product as to the goods delivered subject to retention of title.

(b)    The buyer assigns any claims against third parties arising from the resale of the goods or products, in total or in the amount of the possible co-ownership share, to KWF as a security pursuant to the aforementioned paragraph. KWF shall accept the assignment. The obligations stated in para 2 of the buyer shall also apply in respect of the assigned claims.

(c)    The buyer shall remain authorised to collect the claim in addition to KWF. KWF shall not collect the claim as long as the buyer meets their payment obligations to KWF, there is no shortage of their capacity, and KWF does not enforce the reservation of title by exercising their right pursuant to para. 3. If this is the case, however, KWF can demand that the buyer

 

reports the assigned claims and their debtors, make all the information necessary for collection available, hands over the related documents, and notifies the debtors (third parties) of the assignment. In addition, KWF is entitled in this case to revoke the authority of the buyer to resell and process the goods under retention of title.

(d)    If the realisable value of the collateral exceeds the claims of KWF by more than 20%, KWF shall, at the buyer's request, release collateral at the option of KWF.

• 11 Confidentiality

(1)   Insofar as the buyer is aware of KWF’s expertise, the buyer must keep this confidential.

(2)   Unless expressly agreed otherwise in writing, the information submitted to KWF by the buyer is not considered confidential.

 

• 12 Applicable law, court of jurisdiction, severance clause

(1)   The right of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the Sale of Goods (CISG) applies to these general conditions of sale and the entire legal relationship between KWF and the buyer.

(2)   The place of performance for all obligations arising from the contractual relationship is, unless otherwise specified, D-96465 Neustadt bei Coburg.

(3)   If the buyer is a merchant, a legal person of public law, or a public special fund or if the buyer does not have a general court in the Federal Republic of Germany, then Munich is the only exclusive international jurisdiction for any disputes arising from the business relationship between KWF and the buyer. However, KWF is also entitled to file a suit at the place of fulfilment or at the general court of the buyer.

(4)   The invalidity of individual provisions shall not affect the effectiveness of these General Terms of Sale. Instead of an ineffective regulation, the provision which is closest to the economic purpose of the regulation is deemed agreed.