General terms of sale and delivery of the mk Plast GmbH & Co KG
1. Area of application
These terms of sale and delivery shall be exclusively valid towards enterprises, legal entities of public law and special funds under public law. Conflicting conditions or conditions deviating from these terms of sale and delivery of the buyer are only binding, if we consent to their validity expressively in writing.
Our terms of sale and delivery shall also be valid for all future transactions with the buyer, as far as it is the case of legal transactions of a related kind.
2. Offers and conclusion of contract
As far as nothing deviating is expressively indicated, our offers are always subject to confirmation. A binding offer concerning the conclusion of a contract is therefore only given by the buyer by means of its order.
A contract will only be reached by our confirmation of the order, which shall be made by means of email, telecopy or in writing. Provided that the buyer does not immediately contradict to possible amendments or deviations of its order, the contents and terms taken down in the confirmation of the order shall moreover apply as agreed upon. As far as nothing deviating is expressively indicated in the confirmation of the order, the contract shall only materialize subject to sufficient own raw material supply.
3. Left documents, drafts, printing blocks
To all documents left to the buyer in connection with the passing of the order as for example calculations, price lists, drawings, data sheets etc as well as to all our drafts and printing blocks, we reserve us ownership interests and copyrights. These documents may not be made accessible to third parties without our expressive written consent. As far as a contract shall not materialize, these documents have to be immediately resent to us. As far as the buyer puts models and ideas to disposal, our rights refer however only the the part, that has been created by us.
Draft and printing block costs shall be, as far as not expressively been agreed otherwise in writing, not included in the price and shall be additionally charged at cost. As far as the buyer takes over the production costs for the drafts, fair drawings or printed blocks manufactured by us, ownership shall however transfer with the payment.
4. Prices, terms of payment, dispatch of invoice
As far as nothing deviating will be agreed in writing, our prices ex works shall be valid including packaging and plus value added tax to the respective valid statutory amount. The calculation takes place on the basis of the prices confirmed by us, according to the actually delivered quantities determined by us in EURO. On this occasion, confirmed quantities will be delivered as exactly as possible, deviations of quantities of up to 10 % of the confirmed quantity shall however apply as approved. Coils shall be charged including packaging. Cores belong to the net weight and will not be taken back. The charging of special packaging is made according to particular agreement.
Provided that a fixed price agreement is expressively made in writing, reasonable price changes remain reserved because of changed wage, material, production and distributions costs for all orders, whose delivery takes place 3 months or later after the date of the confirmation of the order. We will immediately inform the buyer in case of such price change. The buyer is entitled to withdraw from the corresponding order by a written declaration within the fixed term of one week as from the information. In case of price agreements, which expressively include a variable raw material price, such a withdrawal right because of raw material price change does however not exist. Reciprocal rights because of the non-execution of the order do not exist in the case of a withdrawal.
Provided that nothing deviating will be agreed upon in writing, our invoices have to be paid within 10 days as from the date of invoice with 2 % discount or within 30 days as from the date of invoice without deduction. In the case of delayed payment, default interest will be charged to the amount of 8 percent points above the respective basic interest rate p. a. The assertion of a damage of a larger extent shall remain reserved.
In case of an agreed payment by means of sepa direct debiting system, the fixed term for our pre-notification of the buyer amounts to at least 5 working days.
The acceptance of bills of exchanges or cheques lies in our discretion and takes place in every case only subject to the possiblity of discounting and only on account of performance. Accruing discounting costs have to be paid immediately by the buyer. We do not assume any guarantee for the timely presentation.
If the buyer has a bill of exchange or cheque protested, or if he comes into default with a claim for more than a week, then all claims resulting from the business relation shall become due immediately. In addition, we are entitled in this case, to declare the withdrawal from existing contracts or to postpone their further execution until the settlement of all claims (right of retention).
Invoices are in principle sent by us in electronic form. Only when the buyer demands it expressively, this shall take place alternatively by post.
5. Set-off and rights of retention
The right to set-off or detention is only due to the buyer regarding such counterclaims, which have been established in an uncontested manner, due for decision or finally and absolutely.
6. Delivery time, partial deliveries
The terms for delivery and dates of delivery indicated by us consider the manufacturing possibilities given at the time of confirmation of the order and are therefore no fixed dates. If however no change notification is made by us, the commodity shall be delivered at the delivery date/delivery period (calendar week) indicated in the confirmation of the order. If an indicated delivery date or a delivery period is exceeded, then the buyer has however the right after the expuration of a fruitless grace period set by him/it of at least 3 weeks, to withdraw from the involved contract.
The buyer may postpone the planned delivery date/delivery period once free of cost up to at most 4 weeks. Precondition for this is however, that corresponding wish for change of the buyer is reached by us at the latest 10 days before the originally planned delivery date/delivery period. In all other cases, in which the delivery of the goods is delayed by the buyer at the at last agreed delivery date/delivery period, costs of storage shall accrue as from the 8th day of the delay to the amount of 0.25 € per day per pallet.
We are at any time entitled to make independent partial deliveries, when the partial delivery is usable for the buyer within the framework of the contractual purpose of determination, the delivery of the remaining commodity is ensured and no considerable additional expenditure or additional costs acrrue by this for the buyer. (unless we declare us prepared for the assumption of these costs).
7. Passing of risk
If the commodity is sent to him/it on his/its request, then the risk of the fortuitous perishing or of the deterioration of the commodity passes to the buyer at the latest with the handing over to the forwarding agent, carrier or third party otherwise determined for the execution of the dispatch
8. Characteristics of the commodity, allowable deviations, print release
Our commodity corresponds to the specifications determined in the confirmation of the order. For the rest, it corresponds to the usual requirements and is appropriate for the usual purpose of use. We are however only liable for the suitability of our commodity for specific purposes of use of the buyer, especially for the employment on packaging machines, as well as the compatibility of the packaging material delivered by us with the filling material, provided that we expressively warranted this suitability or compatibility in writing.
We neither assume a guarantee in that case for a perfect durability and authenticity characteristics of the colours and prints, when these characteristics are indicated by the colour factories. For all print works, colour deviations within the framework of the permissible, especially also the differences between proof and output print conditioned by the printing technique, remain reserved. Small variations of the print position as well as a reject of 3 % at print works, bags and sacks are usual in the trade and do not represent a defect. Counting differences of an allowable deviation of up to +/- 3 % are permissible. Measure deviations and allowable foil thickness deviations within the parameters of the all-German plastic association, e. V. (registered association) (GKV) are permissible and do neither represent a defect.
Approvals of proofs and galley proofs by the buyer shall exclude a warrany because of overlooked printing errors. Printing corrections given by phone or orally or other changes require for effectiveness the written confirmation by the buyer.
The warranty period amounts to one year as from the occurred delivery of the commodity at the buyer or a third party determined by him/it.
The commodity has to be examined carefully immediately after delivery to the buyer or a third party determined by him/it. If required, a trial processing has to take place, in order to examine, whether the delivered commodity is unobjectionable and suitable for the provided purpose. It is deemed as approved, when we do not receive a written notice of defect regarding obvious defects or other defects, that were perceptible at an immediate, careful examination, within seven working days after the delivery of the commodity or otherwise within seven working days after the discovery of the defect or every earlier time, in which the defect was perceptible at a normal use of the commodity without a detailed examination.
In case of a written notice of defect, the buyer shall have to give us the opportunity for the immediate inspection and examination of the commodity under practice conditions. As far as the written notice of defect is justified, we are at first entitled and obliged, according to our choice, to make within a reasonable fixed term a rectification of defect or substitute delivery. In the case of failing, i. e. of the impossibility, unreasonableness, refusal or unreasonable delay of the rectification of defect or substitute delivery, the buyer may withdraw from the contract or reasonably lower the purchase price.
If the defect is based on a fault for our part, the buyer can also demand damages under the preconditions determined in sub-paragraph 10.
Defect claims do not exist in case of a mere irrelevant deviation from an agreed nautre, in case of a mere irrelevant impairment of the usability, in case of normal wear and tear or loss in value from normal use, in case of damages, that occur after the transfer of risk as a result of incorrect or negligent treatment, excessive strain, unsuitable means of operation or due to particular exterior influences, which are not presumed according to contract.
The warranty fails, if the buyer changes the commodity or has it changed by third parties without our consent and the removal of defects will become impossible or unreasonably complicated by this. The buyer shall have to bear anyway the additional costs of a removal of defect accrued due to the change.
Claims of the buyer because of the expenses necessary for the purpose of the subsequent performance, particularly haulage, transport, labour and material costs are excluded, as far as the expenses increase, because the commodity delivered by us is located at another place than the place of the use in accordance with the purpose.
Rights of recourse of the buyer against us shall anyway exist only insofar, as the buyer has not made, as far as he is concerned, any agreements with his/its taker going beyond the statutory imperative defect claims arising from defects.
Objected commodity may be sent back only with our expressive consent as well as according to a more detailed instruction. Until the definite decision about the justification of a written notice of defect, the objected commodity shall have to be stored by the buyer properly and free of charge.
10. Liability for damages
Our liability for damages, for whatever legal ground whatsoever, particularly resulting from impossibility, default, defective or false delivery, violation of contract, violation of duties at contract negotiations and tortuous act shall be restricted in accordance with this sub-paragraph 10, as far as it depends then on the occasion on a fault.
We shall not be liable in the case of simple negligence of our executive bodies, legal representatives, employees or other persons employed by the debtor in the performance of his obligations, as far as it is not the case of a violation of substantial duties. Substantial are the obligation for the timely delivery of the commodity free from material defects as well as advisory, protection or care obligations, which shall enable the buyer to use the commodity according to contract or aim at bringing about the protection of body or life of personnel of the buyer or the protection of his/its property against considerable damages.
As far as we are liable for damages in terms of reason according to the preceding paragraph, this liability is limited to damages, which the buyer has foreseen at the conclusion of the contract as a possible consequence of a violation of the contract or which he would have had to foresee in case of exercise of ordinary care. Indirect or consequential damages, which are consequences of defects of the commodity, are apart from that only redressible, as far as such damages are typically to be expected at a use of the commodity according to the purpose.
In the case of a liability for simple negligence, our obligation to compensate for damages to property and further pecuniary damages resulting from this is limited to an amount of 5 million Euros per occurrence of damage, even if it is the case of the violation of substantial duties.
The preceding exclusions of or limitations on liability shall apply in the same extent in favour of our executive bodies, legal representatives, employees and other persons employed by the debtor in the performance of his obligations.
As far as we give information or act as consultants and these information and consultation do not belong to the scope of services owed by us and contractually agreed upon, this takes place free of charge and under exclusion of any liability.
The restrictions of this sup-paragraph 10 shall not apply for our liabilites because of intent, for guaranteed characteristics of nature, because of injury of life, of the body or of the health or according to the product liability law.
11. Force majeure
Should a party be hindered by force majeure wholly or partially to perform its duties, the duties are suspended for the duration of the disturbances and to the extent of their effect, provided the hindrance has been removed.
As force majeure within the sense of these terms of sale and delivery shall apply all unforeseeable events or such events, that - even if they were foreseeable - are outside the sphere of influence of the contracting parties and whose impacts on the performance of the contract cannot be prevented by reasonable efforts of the parties. To this belong particularly war, terrorist acts, embargo, government orders, sabotage, strike or lock-outs, fire, floods, thunderstorms of the degree of a catastrophe, earthquakes, volcanic eruptions, general materials scarcity and severe transport accidents.
If the delay resulting from the force majeure the period of time of three months, then the contracting parties are entitled to withdraw with immediate effect from the orders outstanding at this time and involved by the force majeure. For effectiveness, the withdrawal requires the written form and has to be declared by means of a registered mail letter. Reciprocal claims shall be excluded in such cases.
12. Reservation of ownership
We deliver only on the bais of the below more detailed described reservation of ownership.
We reserve us the ownership of the delivered commodity until the complete payment of all claims towards the buyer resulting from all deliveries of goods, which have been made as well as will still be made to him. In case of current account, the reserved goods serve as securing of our current ac- count receivable. We are entitled to take back the bought object, if the purchaser behaves contrary to the contract.
The buyer shall be obliged, provided that the ownership has not yet passed to him, to treat the bought object carefully. Provided that the ownership has not yet passed, the buyer has to notify us immediately in writing, when the commodity delivered is endangered or exposed to other interventions of third parties. As far as the third party is not able to reimburse us the judicial and extra-judicial costs of a legal action according to § 771 of the code of civil procedure (ZPO), the buyer is liable for the arisen deficiency.
The buyer shall be entitled to the alienation of the reserved goods in the normal course of business. The claims of the taker resulting from the resale of the reserved goods shall already now be assigned to us to the amount of the final invoice amount agreed with us (including value-added tax). This assignment shall be valid independently of the fact, whether the commodity has been resold without or after processing. The buyer shall remain entitled to the collection of the claim even after the assignment. Our power to collect the claim ourselves shall remain unaffected by this. We will however not collect the claim, provided that the buyer meets its payment obligations resulting from the received proceeds, is not in default of payment and particularly no application for the opening of an insolvency procedure has been made or a cessation of payment has arrived. The buyer shall have however to communicate the debtors and shall have to notify them the assignment.
The treatment and processing or transformation of the bought object by the buyer takes always place in the name and on behalf for us. In this case, the expectant right of the buyer at the bought object shall continue to the transformed object. As far as the commodity is processed with objects not belonging to us, we acquire the co-ownership at the new object in the proportion of the objective value of our commodity to the other treated objects at the time of the processing. The same applies for the case of the mixture. Provided that the mixture takes place in such a way, that the object of the buyer has to be regarded as main object, it is considered as agreed, that the buyer shall transfer co-ownership to us on a pro rata basis and shall hold for us the so created sole property or co-ownership in safe custody. For the securing of our claim against the buyer, the buyer shall assign even such claims to us, which accrue to him towards a third party he reserved goods with a piece of land; we accept this assignment already now.
We oblige ourselves, to release the collaterals due to us upon demand of the buyer, as far as their value exceeds the claims to be secured by more than 20 %. The choice of the collaterals to be released is subject to our discretion.
13. Applicable law, place of performance and jurisdiction
All contracts and the entire business relationship with us as well as rights and obligations of the parties resulting from this are subject to the law of the Federal Republic of Germany. The convention of the United Nations on contracts for the international sale of goods dated 11th April 1980 (CISG) shall not apply.
The place of performance for both parties is Monschau.
Jurisdiction for all disputes between us and the buyer shall be upon our choice Monschau or the seat of the buyer. For legal actions against us, Monschau shall however be the exclusive jurisdiction. Imperative statutory regulations about exclusive jurisdiction shall remain unaffected by this regulation.
14. Ineffectiveness of individual provisions
If one or several provisions of these terms of sale and delivery should be wholly or partially ineffective, then the effectiveness of the terms of sale and delivery remains for the rest unaffected from this.
12/2013 mk Plast GmbH & Co. KG, 52156 Monschau