General Terms and Conditions of HC Kunststoffwerk Rülzheim GmbH
§ 1 General definitions
1.1 In the following General Terms and Conditions
HC Kunststoffwerk Rülzheim GmbH, Rheinzabernerstrasse 7, 76761 Rülzheim, is referred to by the term “User”. The contractual partner of the User is the “Customer”, the contractual relationship to be concluded the “Contract”.
1.2 The subject of the contractual obligations of the User, also insofar as this is directed towards the sale and delivery of items, is the “Performance”.
§ 2 Validity of the conditions
2.1 The User’s services and offers are provided exclusively on the basis of these General Terms and Conditions. These are an integral part of all contracts concluded by the User with its customers for the services offered by it. They therefore also apply to all future business relations, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted at the latest upon acceptance of the service.
2.2 Counter-confirmations of the customer with reference to his terms and conditions of business or purchase are hereby objected to. Terms and conditions of the customer or third parties shall therefore not apply, even if the seller does not object to their validity in individual cases. Even if the Seller refers to a letter containing or referring to the terms and conditions of the Customer or a third party, this shall not constitute an agreement to the validity of those terms and conditions.
2.3 All agreements made between the User and the Customer for the purpose of executing this Agreement shall be in writing. Amendments and supplements to the contract and/or its annexes as well as the waiver of the written form requirement must be in writing. Verbal collateral agreements do not exist.
§ 3 Orders and acceptance of orders
3.1 Offers of the User are subject to change and non-binding. The User is entitled to resell the service to a third party between offer and acceptance. Orders placed by the Customer are only binding for the User if they have been confirmed expressly and in writing by the User or if the User has provided the service. A confirmed order may be modified by the Customer only with written consent and subject to any conditions imposed by the User. This applies accordingly to the modification of these General Terms and Conditions.
3.2 The performance must only have the quality which is stated in writing in the contract. The performance is conclusively described by these quality features. The User shall be entitled to unilaterally change the quality if this is done on the basis of statutory provisions or represents a technical improvement and the use presumed under the contract is not impaired thereby.
3.3 If the User provides the Customer with a sample or a specimen before or after conclusion of the contract, these do not have to have the quality as in the contract. Sentence 1 shall apply mutatis mutandis to drawings, illustrations, dimensions, weights and other data which the User makes available to the Customer before or after conclusion of the contract.
3.4 The User reserves all rights without restriction to all cost estimates, drawings, samples, specimens, illustrations or other documents (“Documents”) which it makes available to the Customer. Without the prior written consent of the User, the Customer shall not be entitled to make the Documents themselves or their contents available to third parties. Upon the User’s request, the Customer shall be obliged to return all Documents to the User immediately and in full if they are no longer required by the Customer in the ordinary course of business or if an order is finally not placed by the Customer.
§ 4 Advertising, Labeling
In the case of public statements by the manufacturer, the user, an employee or other vicarious agent regarding the quality of the service or the object of purchase (e.g. weights, dimensions, utility values, load capacity,
tolerances and technical data), especially in advertising or labeling, it is assumed that these statements were not causal for the conclusion of the contract by the customer.
§ 5 Prices
5.1 The prices of the user are net prices. Freight costs, sales tax and other costs associated with the performance of the contract (“Additional Costs”) are not included. If and insofar as not otherwise regulated in the contract, all prices quoted by the User are in euros.
5.2 If the User has incurred Additional Costs, the User may claim reimbursement from the Customer.
5.3 The price is the price stated by the User or, where this has not been done in detail, the price stated in the User’s current price lists at the time of the order. The User is entitled, after timely notification of the Customer and prior to the performance of the service, to increase the agreed price in such a way as is necessary due to the general price development beyond the control of the User (such as exchange rate fluctuations, currency regulations, changes in customs duties, increase in material or manufacturing costs) or due to the change of suppliers.
5.4 If the User takes back a service provided as a gesture of goodwill without acknowledging a legal obligation, the User shall be entitled to an expense allowance in the amount of 10% of the invoice value of the respective service. The amount shall be reduced if the customer proves that the actual expense is lower than the lump sum according to sentence 1.
§ 6 Performance/Delay in performance
6.1 Performance dates or deadlines may be agreed as binding or non-binding.
6.2 An agreement on performance dates is only binding if the User expressly declares in writing that it intends to be liable for exceeding the agreed date/period.
6.3 The User shall not be responsible for delays in performance due to force majeure or due to events that make performance significantly more difficult or impossible for the User, not only temporarily – this includes in particular strikes, lockouts and official orders, even if they occur at the User’s suppliers or their sub-suppliers – even in the case of bindingly agreed deadlines and dates. They entitle the User to postpone the performance for the duration of the hindrance plus a reasonable start-up period or to withdraw from the contract in whole or in part due to the part not yet fulfilled. Sentences 1 and 2 shall apply accordingly in the event of delays in performance due to documents and information not being made available to the User in good time by the Customer prior to the performance of the service, which in the view of the User are necessary for the performance of the service.
6.4 If the delay in performance lasts longer than one month, the Customer shall be entitled, after setting a reasonable deadline, to withdraw from the contract with respect to the part not yet performed.
6.5 If the User is responsible for the non-compliance with bindingly agreed deadlines and dates and is in default, the Customer shall be entitled to compensation for default in the amount of 0.5% of the invoice value of the respective service for each full week of default, but in total not more than 5% of the invoice value of the respective service. The amount is to be reduced if the User proves that the actual damage is lower than the lump sum according to sentence 1. Further claims are excluded unless the delay is due to intent or gross negligence of the User.
6.6 The User is entitled to partial performance at any time, unless the partial performance is not of interest to the Customer. The User is entitled to transfer the rights and obligations arising from the contract, including the provision of the service, to a third party.
6.7 If a service is provided on demand by the Customer, the Customer is obligated to notify the User in writing of the demand, including a concrete description of the service and the date of the service, at least four weeks before the service is provided.
6.8 The place of delivery is generally the respective plant or the respective distribution warehouse of the User (“ex works”). If the goods are delivered ex works, the risk of loss shall pass to the Customer at the time the User informs the Customer that the goods are ready for collection.
6.9 If services are provided free carrier (“FCA”), the place of delivery shall be the User’s registered office.
6.10 If the User ships the goods at the Customer’s request, the risks of transport shall be borne by the Customer, regardless of who bears the freight costs. This applies in particular to shipment or transport by the User, without this constituting a debt to be discharged at the expense of the Customer. If the shipment is delayed due to a circumstance for which the Customer is responsible, the risk of loss shall pass to the Customer from the day the goods are made available for shipment. If the Customer is in default of acceptance, the risk of loss shall pass to the Customer at the time the User offers to hand over the goods.
6.11 If the User bears the freight costs in whole or in part, the User is entitled to determine both the shipping route and the shipping method. If the Customer requests a different shipping route and/or a different shipping method, and if the User complies with this request, the Customer shall bear the difference in costs between the shipping method or shipping route requested by the Customer and the shipping method or shipping route determined by the User.
In all other respects paragraph 6.10 shall apply accordingly.
6.12 In the cases of Paragraph 6.10, the User shall store the goods at the risk and expense of the Customer.
§ 7 Retention of title
7.1 Until all claims (including all current account balance claims) to which the User is entitled against the Customer for any legal reason now or in the future have been satisfied, the User shall be granted the securities listed in the following paragraphs, which shall be released after full payment of all secured claims.
7.2 The User shall remain the owner of delivered goods until all secured claims have been paid in full. Processing or transformation shall always be carried out for the User as manufacturer, but without any obligation for the User. If the User’s ownership expires as a result of combination, it is hereby agreed that the Customer’s ownership of the unified item shall pass to the User on a pro rata basis (invoice value). The customer shall store the user’s property free of charge. Goods to which the User is entitled to ownership are hereinafter referred to as “Reserved Goods”.
7.3 The Customer is entitled to process and sell the Reserved Goods in the ordinary course of business as long as the Customer is not in default vis-à-vis the User. Pledges or transfers of ownership by way of security are not permitted. The Customer hereby assigns to the User by way of security all claims arising from the resale or any other legal reason (insurance, tort) with respect to the reserved goods (including all current account balance claims). The User revocably authorizes the
revocably to collect the claims assigned to the User for the User’s account in its own name. This collection authorization can only be revoked if the Customer does not properly meet its payment obligations. Upon request by the User, the Customer shall disclose the assignment and provide the User with the necessary information.
7.4 In the event of access by third parties to the reserved goods, the Customer shall point out the User’s ownership and notify the User immediately. Costs and damages shall be borne by the customer.
7.5 In the event of conduct by the Customer in breach of its obligations – in particular
default of payment – the User shall be entitled to take back the goods subject to retention of title or, if applicable, to demand assignment of the Customer’s claims for return against third parties. The taking back or seizure of the reserved goods by the User shall not constitute a rescission of the contract, unless §§ 488 – 507 BGB (German Civil Code) apply.
7.6 If and to the extent that goods subject to retention of title are installed by the Customer as an essential component in the real property of a third party, the Customer hereby assigns the claims for payment arising against the third party or the party to whom it relates in the amount of the value of the goods subject to retention of title with all ancillary rights including such for the granting of a security mortgage with priority over the rest; the User accepts the assignment. The Customer is authorized to obtain the registration of a security mortgage itself, but is obligated to transfer the rights to the User upon the User’s request (cf. §§ 1153, 1154 Para. 3, 873 BGB). Cash payments, bank transfers or check payments made against the sending of a bill of exchange issued by the User and accepted by the Customer shall only be deemed to be fulfillment according to sentence 1 when the bill of exchange has been honored by the drawee and the User is thus released from the liability for the bill of exchange. The agreed retention of title (notwithstanding any further agreements) shall therefore remain in favor of the User until the bill of exchange has been honored.
§ 8 Terms of payment
8.1 The Customer shall pay for the User’s services after they have been performed within 30 days of the invoice date.
8.2 Payment shall be made by bank transfer to the User. The User is not obliged to accept payment by check or bill of exchange; in any case, the presentation of a check or bill of exchange is only on account of performance. The surrender does not lead to a deferral of the claim. The costs associated with the utilization of a check or bill of exchange shall be borne by the customer. If payments are made by the customer with means of payment which the customer has procured by discounting an acceptor’s bill of exchange, the claim to payment shall not expire until the bill of exchange has been honored by the customer.
8.3 If the Customer does not meet its payment obligation within the period specified in Paragraph 8.1 (“late payment”), the User may demand interest on arrears in the amount of 8% above the applicable base interest rate last published by the Bundesbank in the Bundesanzeiger (Federal Gazette) from the expiry of the period.
8.4 If the Customer defaults on any payment obligation or if circumstances arise as a result of which the Customer’s financial situation deteriorates or its creditworthiness is impaired, all other claims of the User against the Customer shall become due at the same time. In this case, the User is entitled to withdraw from the contract and/or, after prior written notice to the Customer, to withhold the provision of further services until full payment has been made or until the circumstances according to sentence 1 have changed.
8.6 Unless otherwise provided by law, the Customer may set off claims of the User only against counterclaims that are undisputed, have been finally adjudicated or are ready for adjudication. The same shall apply to the exercise of the right of retention, including the rights under § 369 of the German Commercial Code.
8.7 The User may also demand payment prior to performance of the service in deviation from para. 8.1. In this case, para. 8.3 shall not apply.
§ 9 Liability for material defects and acceptance
9.1 The liability for material defects for services of the User shall be governed by the statutory provisions, unless otherwise provided below.
9.2 The Customer’s claims for material defects shall become statute-barred 12 months after performance. The period shall commence from the time of handover to the customer irrespective of the customer’s knowledge of a defect in the performance.
9.3 The period for asserting claims for material defects for spare parts shall be limited to three months.
9.4 The customer shall be obliged to inspect the performance immediately after handover. The Customer shall notify the User in writing without delay of any defects that are identifiable during the inspection of the performance after handover, and of any other defects without delay after their discovery, in each case giving a descriptive description of the defect and the time of discovery. If the Customer fails to comply with this duty of notification properly and in a timely manner, the performance shall be deemed to have been approved by the Customer. The Customer may initially only demand subsequent performance from the User. The User may choose to remedy the defect or to deliver a defect-free item as supplementary performance. If the subsequent performance by the User fails, the statutory provisions shall apply with the proviso that the Customer shall only be entitled to withdraw from the contract if and to the extent that the goods have not yet been installed as an integral part of a property. In this case the customer is only entitled to a reduction of the purchase price. In the event of an insignificant defect, the right to subsequent performance shall be excluded.
9.5 In the event of a breach of a performance obligation by the User which does not consist of a defect in the performance itself, the Customer shall only be entitled to withdraw from the contract if the User is responsible for the breach of the performance obligation. The User does not guarantee that the service will work faultlessly in combination with other products.
9.6 Unless otherwise provided by law, claims for material defects by the User are excluded in particular in the following cases:
a) The Customer has had modifications made to the performance by a third party or has processed the performance;
b) The customer disregards certain instructions for use of the user associated with the service, in particular the enclosed or affixed processing and/or assembly instructions, or he uses accessories or spare parts in connection with services of the user which are not associated with the user;
c) The customer does not use the service for the contractually presumed use or for the usual use, does not install it properly or does not commission the service properly in accordance with the current state of science and technology.
9.7 If the performance is defective, the Customer may, unless otherwise provided by law, only assert a claim for damages against the User under the following additional conditions:
a) If and to the extent that the User does not perform a due service or does not perform it as contractually owed, the Customer must set the User a reasonable deadline for performance in writing. The setting of the deadline must contain the statement that the customer will
refuses to accept the service after the expiry of the deadline. Upon fruitless expiration of the deadline set by the customer, the claim to performance is excluded;
b) If the Customer withdraws from the contract with the User due to a defect in the performance, the User may require the Customer to declare to the User in writing within a period of 2 weeks from the assertion of the withdrawal whether it will adhere to the withdrawal from the contract or demand compensation instead. If the Customer does not exercise its right of choice vis-à-vis the User in due time, the Customer’s claim for damages shall be excluded.
9.8 Insofar as an acceptance has been agreed, the Customer is obligated to carry out this acceptance within one week after notification of completion by the User. The Customer shall also be obligated to accept the performance if there are insignificant defects that do not particularly impede use.
9.9 In the event that the Customer does not accept the service for reasons for which it is responsible or accepts the service and does not give notice of any material defects within ten days after use, the service shall be deemed to have been accepted.
§ 10 Amount of damage
10.1 Irrespective of the legal ground, the User shall be liable for damages attributable to a defect in the performance itself or to an act or omission only to the extent of the damage typical for the contract and foreseeable and only within the following limits:
(a) in the case of intent or gross negligence on the part of legal representatives, an employee or other vicarious agents of the user, without limitation;
b) in case of culpable violation of essential contractual obligations (cardinal obligations) by the User, its legal representative or other vicarious agents without intent or gross negligence limited to the invoice value of the service.
10.2 The User shall only be liable for damage attributable to the conduct of an employee or vicarious agent if these persons have acted in the performance of their duties. The User shall also be exempt from this liability if the damage is due to circumstances which it could not avoid even with the greatest care and the consequences of which it could not avert (e.g. strike, force majeure).
10.3 For risks insured by the User, the User’s liability per damage event is limited to the liability sum of the business liability insurance taken out by the User.
10.4 The User shall also only be liable for the loss of data and programs or their recovery to the extent set out in Sections 10.1 and 10.2 and only to the extent that this loss could not have been avoided by reasonable precautionary measures on the part of the Customer, in particular the daily creation of backup copies of all data and programs.
10.5 Furthermore, any liability of the User is excluded unless mandatory legal provisions to the contrary apply. In particular, the User shall not be liable for breaches of ancillary obligations, lack of economic success, loss of profit, indirect damages, consequential damages and damages from claims of third parties against the Customer.
10.6 The limitation of liability according to para. 10.1 to para. 10.5 shall not apply to intentional conduct, guaranteed characteristics, injury to life, body or health or liability of the User according to the Product Liability Act.
§ 11 Industrial property rights and copyrights
11.1 If and to the extent that a third party asserts justified claims against the Customer due to the infringement of an industrial property right or copyright (hereinafter “Property Rights”) by a service developed and/or provided by the User, the User shall be liable as follows, unless otherwise provided by law:
a) The User shall, at its option and expense, either obtain a right of use for the developed and/or provided service, modify the service in such a way that the property right is no longer infringed or replace the service, if the use of the service presumed under the contract is no longer possible.
use of the service as provided for in the contract is not impaired thereby. If and to the extent that the User cannot finally grant the Customer the contractually owed right of use by means of the measures mentioned in sentence 1, the Customer shall be entitled to withdraw from the contract after setting a reasonable deadline;
b) The User shall only be obligated to take the measures specified in a) sentence 1 if the Customer immediately notifies the User in writing of the claims asserted by the third party, describing the infringement, does not acknowledge an infringement, and the Customer grants the User all decision-making powers regarding the legal defense and the conduct of settlement negotiations without restriction. If the Customer discontinues the use of the Service for reasons of mitigation of damages or other important reasons, it shall be obliged to point out to the third party that the discontinuation of use does not constitute an acknowledgement of an infringement of property rights.
11.2 Claims of the customer according to para. 11.1 shall be excluded if and to the extent that the customer is responsible for the infringement of the property right. Claims of the Customer shall also be excluded if and to the extent that the infringement of the property right is caused by special specifications of the Customer, by an application not foreseeable by the User or by the fact that the performance is modified by the Customer or used together with performances not provided by the User.
11.3 The Customer is obliged to support the User to the best of its ability in the defense against the infringement of the industrial property right.
11.4 Conversely, the Customer shall indemnify the User against all claims made by third parties against the User due to an infringement of an industrial property right or copyright if the infringement results from an explicit instruction given by the Customer to the User or if the Customer modifies the performance or integrates it into a system of a third party.
11.5 Programs and associated documentation provided by the User are intended only for the Customer’s own use within the scope of a simple, non-transferable license, and exclusively on Services delivered by the User. The Customer may not make these programs and documentation available to third parties without the prior written consent of the User, not even in the event of resale of the User’s hardware. Copies may be made – without assumption of costs or liability by the User – only for archiving purposes, as replacements or for troubleshooting. Insofar as originals bear a notice indicating copyright protection, the customer shall also affix this notice to copies.
§ 12 Place of jurisdiction, applicable law, severability clause
12.1 Without the prior written consent of the User, the Customer may not transfer the rights and obligations arising from the contract existing with the User to third parties.
12.2 For all disputes arising from or in connection with the contract and its performance, the place of jurisdiction shall be Rülzheim.
12.3 The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between the Customer and the User. The application of the UN Convention on Contracts for the International Sale of Goods of April 11, 1980 is excluded.
12.4 Should any provision of these General Terms and Conditions be or become invalid, unenforceable or incomplete, this shall not affect the validity of the remaining provisions. In place of the invalid, impracticable or missing provision, the provision shall be deemed agreed which the parties would have reasonably agreed if they had been aware of the invalidity, impracticability or incompleteness.
The customer acknowledges that the user stores data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transmit the data to third parties (e.g. insurance companies), insofar as this is necessary for the fulfillment of the contract.