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GTC

General Terms and Conditions of Sale and Delivery for the Plastics Processing Industry (AGB of the KVI)

Non-binding Conditions Recommendation by the Gesamtverband kunststoffverarbeitende Industrie e.V. from April 29, 2002

The following General Terms and Conditions of Sale and Delivery for the plastics processing industry are non-bindingly recommended by the Gesamtverband kunststoffverarbeitende Industrie e.V., Frankfurt. Therefore, it is up to the association members and their contracting parties to use different terms and conditions.

Scope The following conditions apply only to entrepreneurs, legal entities under public law, or a special fund under public law.

I. Application

  1. Orders become binding only upon the supplier’s order confirmation. Changes and additions should be made in text form. All offers are non-binding unless designated as fixed offers.
  2. These conditions apply to future transactions in ongoing business relationships, even if they are not explicitly referred to, provided they were received by the buyer in a previously confirmed order from the supplier.
  3. The buyer’s terms and conditions do not apply unless expressly acknowledged by the supplier.
  4. Should individual provisions be or become invalid, the remaining conditions remain unaffected.

II. Prices

  1. Prices are ex-works, excluding freight, customs, import duties, and packaging, plus VAT at the statutory rate.
  2. If the relevant cost factors change significantly after the offer is made or after the order confirmation until delivery, the supplier and buyer will agree on an adjustment of prices and cost shares for molds.
  3. If the price depends on the part weight, the final price is determined by the weight of the approved sample parts.
  4. The supplier is not bound by previous prices for new orders (= follow-up orders).

III. Delivery and Acceptance Obligations

  1. Delivery periods begin after receipt of all documents required for order execution, the down payment, and timely material provision, if agreed. The delivery period is met with the notification of readiness for dispatch if dispatch is delayed or impossible without the supplier’s fault.
  2. If a delivery period is not met due to the supplier’s fault, the buyer is entitled to demand compensation for delay or withdraw from the contract after a reasonable grace period, excluding further claims, unless the supplier acted with gross negligence or intent. The delay compensation is limited to a maximum of 5% of the part of the delivery that was not made in accordance with the contract. Withdrawal is excluded if the buyer is in default of acceptance.
  3. Reasonable partial deliveries and deviations from order quantities up to plus/minus 10% are permissible.
  4. For call-off orders without an agreement on duration, production lot sizes, and acceptance dates, the supplier can demand a binding determination at the latest three months after order confirmation. If the buyer does not comply within three weeks, the supplier is entitled to set a two-week grace period and, after its expiration, withdraw from the contract and/or demand compensation.
  5. If the buyer does not fulfill his acceptance obligations, the supplier, without prejudice to other rights, is not bound by the regulations on self-help sale and can sell the delivery item freely after prior notification of the buyer.
  6. Events of force majeure entitle the supplier to postpone delivery for the duration of the hindrance and a reasonable start-up time or to withdraw from the contract in whole or in part for the unfulfilled part. Force majeure includes strikes, lockouts, or unforeseeable, unavoidable circumstances, such as operational disruptions, that make timely delivery impossible despite reasonable efforts; the supplier must provide proof. This also applies if the aforementioned hindrances occur during a delay or at a subcontractor. The buyer can request the supplier to declare within two weeks whether he will withdraw or deliver within a reasonable grace period. If he does not declare, the buyer can withdraw from the unfulfilled part of the contract. The supplier will notify the buyer immediately if a case of force majeure occurs. He must keep the buyer’s impairments as low as possible, if necessary, by releasing the molds for the duration of the hindrance.

IV. Packaging, Shipping, Transfer of Risk, and Default of Acceptance

  1. Unless otherwise agreed, the supplier chooses the packaging, shipping method, and shipping route.
  2. The risk passes to the buyer upon leaving the supplier’s works, even in the case of freight-free delivery. In the event of delays in dispatch due to the buyer’s fault, the risk passes with the notification of readiness for dispatch.
  3. At the buyer’s written request, the goods will be insured at his expense against risks specified by him.

V. Retention of Title

  1. The deliveries remain the property of the supplier until all claims against the buyer are fulfilled, even if the purchase price for specifically designated claims has been paid. In the case of an open account, the retained ownership of the deliveries (reserved goods) serves as security for the supplier’s balance claim. If the supplier’s liability is established in connection with the payment of the purchase price, the retention of title does not expire before the bill of exchange is honored by the buyer as the drawee.
  2. Processing by the buyer is carried out on behalf of the supplier, excluding the acquisition of ownership according to § 950 BGB; the supplier becomes co-owner of the resulting item in proportion to the net invoice value of his goods to the net invoice value of the processed goods, which serves as reserved goods to secure the supplier’s claims according to paragraph 1.
  3. In the case of processing (combination/mixing) with other goods not belonging to the supplier by the buyer, the provisions of §§ 947, 948 BGB apply, with the result that the supplier’s co-ownership share in the new item now applies as reserved goods within the meaning of these conditions.
  4. The buyer is only permitted to resell the reserved goods in the ordinary course of business and under the condition that he also agrees on a retention of title with his customers according to paragraphs 1 to 3. Other dispositions of the reserved goods, especially pledges and transfers by way of security, are not permitted.
  5. In the event of resale, the buyer hereby assigns to the supplier all claims and other justified claims against his customers arising from the resale, including all ancillary rights, until all the supplier’s claims are fulfilled. At the supplier’s request, the buyer is obliged to provide the supplier with all information and documents necessary to assert the supplier’s rights against the buyer’s customers.
  6. If the reserved goods are resold by the buyer after processing according to paragraph 2 and/or 3 together with other goods not belonging to the supplier, the assignment of the purchase price claim according to paragraph 5 only applies to the amount of the invoice value of the supplier’s reserved goods.
  7. If the value of the securities existing for the supplier exceeds his total claims by more than 10%, the supplier is obliged to release securities of his choice at the buyer’s request.
  8. The buyer must notify the supplier immediately of any seizures or other interventions by third parties. The buyer bears all costs incurred by such interventions, provided they are not borne by third parties.
  9. If the supplier exercises his retention of title by taking back the reserved goods, he is entitled to sell them freely or have them auctioned. The assertion of the retention of title and especially the demand for return constitutes a withdrawal from the contract. The return of the reserved goods is made at the achieved proceeds, but at most at the agreed delivery prices. Further claims for damages, especially for lost profits, remain reserved.

VI. Warranty for Defects

  1. The quality and execution of the products are determined by the sample parts submitted to the buyer for inspection upon request. The reference to technical standards serves as a performance description and is not to be interpreted as a quality guarantee.
  2. If the supplier advises the buyer outside his contractual performance, he is only liable for the functionality and suitability of the delivery item with an express prior assurance.
  3. Complaints about defects must be made in writing immediately. In the case of hidden defects, the complaint must be made immediately after discovery. In both cases, all claims for defects expire twelve months after the transfer of risk, unless otherwise agreed. Longer statutory periods according to § 438 Abs. 1 Nr. 2 BGB, § 479 Abs. 1 BGB, and § 634a Abs. 1 Nr. 2 BGB remain unaffected.
  4. In the case of a justified complaint – whereby the sample parts approved in writing by the buyer determine the expected quality and execution – the supplier is obliged to provide subsequent performance. If he does not fulfill this obligation within a reasonable period or if the rectification fails despite repeated attempts, the buyer is entitled to reduce the purchase price or withdraw from the contract. Further claims, especially for reimbursement of expenses or damages due to defects or consequential damages, exist only within the framework of the regulations in VII. Replaced parts must be returned to the supplier carriage paid upon request.
  5. Unauthorized reworking and improper handling result in the loss of all claims for defects. Only to prevent disproportionately large damages or in the event of delay in defect rectification by the supplier is the buyer entitled to rectify the defect himself after prior notification of the supplier and demand reimbursement of the reasonable costs.
  6. Wear and tear or deterioration due to contractual use do not give rise to warranty claims.
  7. Recourse claims according to §§ 478, 479 BGB exist only if the consumer’s claim was justified and only to the statutory extent, not for goodwill arrangements not agreed with the supplier, and require compliance with the recourse claimant’s own obligations, especially the obligation to give notice of defects.

VII. General Liability Limitations In all cases where the supplier is liable for damages or reimbursement of expenses based on contractual or statutory grounds, the supplier is only liable if there is intent, gross negligence, or a breach of life, body, or health by the supplier, its senior executives, or vicarious agents. The strict liability under the Product Liability Act and the liability for fulfilling a quality guarantee remain unaffected. The liability for the culpable breach of essential contractual obligations also remains unaffected; however, except in the cases of sentence 1, the liability is limited to the foreseeable, contract-typical damage. These provisions do not involve a change in the burden of proof to the detriment of the buyer.

VIII. Payment Terms

  1. All payments are to be made exclusively in € (EURO) to the supplier.
  2. Unless otherwise agreed, the purchase price for deliveries or other services is payable with a 2% discount within 14 days and without deduction within 30 days of the invoice date. A discount is only granted if all previous due, undisputed invoices have been settled. No discount is granted for payments by bill of exchange.
  3. In case of exceeding the agreed payment term, interest at the statutory rate of 8 percentage points above the respective base rate of the ECB will be charged, unless the supplier proves higher damage. The buyer is entitled to prove lower damage.
  4. The rejection of checks or bills of exchange remains reserved. Checks and rediscountable bills of exchange are only accepted on account of performance, and all associated costs are borne by the buyer.
  5. The buyer can only offset or assert a right of retention if his claims are undisputed or legally established.
  6. The persistent non-compliance with payment terms or circumstances that raise serious doubts about the buyer’s creditworthiness result in the immediate maturity of all the supplier’s claims. In this case, the supplier is also entitled to demand advance payments for outstanding deliveries and to withdraw from the contract after a reasonable grace period.

IX. Molds (Tools)

  1. The price for molds includes the costs for a one-time sampling but not the costs for testing and processing devices or changes requested by the buyer. Costs for further samplings, which the supplier is responsible for, are borne by the supplier.
  2. Unless otherwise agreed, the supplier remains the owner of the molds manufactured for the buyer by the supplier or a third party commissioned by the supplier. Molds are only used for the buyer’s orders as long as the buyer meets his payment and acceptance obligations. The supplier is only obliged to replace these molds free of charge if they are required to fulfill a quantity guaranteed to the buyer. The supplier’s obligation to store the molds expires two years after the last part delivery from the mold and prior notification to the buyer.
  3. If it is agreed that the buyer becomes the owner of the molds, ownership passes to the buyer after full payment of the purchase price. The handover of the molds to the buyer is replaced by storage for the benefit of the buyer. Regardless of the buyer’s statutory right to demand the return of the molds and the lifespan of the molds, the supplier is entitled to exclusive possession of the molds until the contract is terminated. The supplier must mark the molds as third-party property and insure them at the buyer’s request and expense.
  4. For buyer-owned molds according to paragraph 3 and/or molds provided by the buyer on loan, the supplier’s liability for storage and care is limited to the care taken in his own affairs. The buyer bears the costs for maintenance and insurance. The supplier’s obligations expire if the buyer does not collect the molds within a reasonable period after the order is completed and the buyer is requested to do so. As long as the buyer has not fully met his contractual obligations, the supplier has a right of retention on the molds in any case.

X. Material Provisions

  1. If materials are provided by the buyer, they must be delivered at the buyer’s expense and risk with a reasonable quantity surcharge of at least 5% in a timely manner and in perfect condition.
  2. If these conditions are not met, the delivery time is extended accordingly. Except in cases of force majeure, the buyer bears the additional costs incurred, including for production interruptions.

XI. Industrial Property Rights and Legal Defects

  1. If the supplier has to deliver according to drawings, models, samples, or using parts provided by the buyer, the buyer is responsible for ensuring that third-party property rights in the destination country of the goods are not violated. The supplier will inform the buyer of any known rights. The buyer must indemnify the supplier against third-party claims and compensate for any damage incurred. If a third party prohibits the supplier from manufacturing or delivering by invoking a property right, the supplier is entitled to stop the work until the legal situation is clarified by the buyer and the third party, without examining the legal situation. If the delay makes it unreasonable for the supplier to continue the order, the supplier is entitled to withdraw.
  2. Drawings and samples provided to the supplier that did not lead to an order will be returned upon request; otherwise, the supplier is entitled to destroy them three months after the offer is submitted. This obligation applies correspondingly to the buyer. The party entitled to destruction must inform the contractual partner of the intention to destroy in good time.
  3. The supplier retains copyright and, if applicable, industrial property rights, especially all usage and exploitation rights, to models, molds, devices, designs, and drawings created by him or by third parties on his behalf.
  4. In the case of other legal defects, the provisions of section VI apply accordingly.

XII. Place of Performance and Jurisdiction

  1. The place of performance is the location of the supplier’s works.
  2. The place of jurisdiction is, at the supplier’s option, the supplier’s registered office or the buyer’s registered office, including for document, bill of exchange, and check processes.
  3. German law exclusively applies. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) from April 11, 1980, is excluded.