General Terms and Conditions
KIGA Kunststofftechnik GmbH, Wilnsdorf, Germany
I. General Range of Application
- The subsequent General Terms and Conditions of KIGA Kunststofftechnik GmbH ("Seller") apply to all business connections with their customers ("Buyer") established so far. The General Terms and Conditions only apply to such companies (§ 14 BGB - German Civil Code), legal persons of public right or special fund under public law for the sale of products ("Products") of the Seller.
- Offers, order confirmations, deliveries and services of the seller are carried out exclusively on the basis of these General Terms and Conditions.
- The General Terms and Conditions also apply to any further business transactions even if not again explicitly agreed upon.
- The General Terms and Conditions of the seller shall exclusively apply. Deviating, contradictory or supplementary General Terms and Conditions and General Conditions of Purchase of the buyer shall only form contractual parts of the contract if the seller has explicitly accepted their application. This consent requirement does apply in any case even if the seller - despite knowing about the General Terms and Conditions of the buyer - supplies him without reservation. As a precautionary measure, the General Terms and Conditions of the buyer are also expressly rejected independent from the fact that these conditions are being sent in writing either by fax or via electronic data interchange or within the frame of electronic business operations.
- Primarily those conditions related and agreed with the buyer in the given case (including additional agreements, supplements and changes) are given precedence to the General Terms and Conditions of KIGA Kunstofftechnik GmbH. A written contract or a written confirmation of the application by the seller is the basis for such individual agreements.
II. Offer and formation of contract
- The offers of the seller are without engagement and non-binding. A purchase order is only concluded upon expressed written confirmation by the seller. The confirmation can also be made by email.
- The descriptions, weights and measurements as well as attached pictures and drawings included in the offers of the seller do not represent guaranteed features of the object of purchase.
- The seller expressly reserves the right of property and copyright for both the offer and estimates of cost, drawings and other documents. They shall not be made accessible to third persons.
- Assignments of rights and duties of the seller from the purchase contract require the explicit written consent of the seller.
III. Prices, Payment and Conditions of Payment
- All prices mentioned by the seller are to be understood excluding statutory VAT as well as cost for packing and shipping and excluding possible fees, duties, additional expenses etc.
- The prices mentioned in the seller's quotations are non-binding, except for the fact that they are marked as binding.
- In case of change in market conditions as for example a change in exchange rates, increases of costs for energy and work or the prices for raw materials the supplier expressly reserves the right to adapt prices or to raise surcharges. Same applies if substantial cost factors change after placing the quotation or after order confirmation before the supply of the goods.
- If a dependence of the price from the weight of the part is agreed the final price results from the weight of the approved pattern.
- In case of new orders, especially in case of follow-up orders the supplier is not bound to former prices.
- The conditions of payment are agreed upon in writing between the parties within the frame of the concluded contract. Any payments must be carried out in Euro (EUR) and exclusively to the seller.
- Payments of the buyer are exclusively settled according to § 366 BGB (German Civil Code).
- Buyer's payment by remittance or by cheque is only deemed settled on the day of unconditional credit entry to the business account of the seller. Bills of exchange are only accepted by the seller upon expressive agreement and at any time exclusively for processing. Value date of a bill of exchange will be made for the day on which the counter-value is actually at the disposal of the seller. Collection fees as well as discount charges and all further costs to be borne by the buyer. They are immediately due for payment.
- If the buyer is in default with his payment obligations the seller is entitled to charge the buyer with delay charges amounting to 9% above the basic interest rate. The enforcement of a higher damage caused by delay remains reserved. Furthermore, the seller is also entitled to demand for other securities.
- The price for forms does not include the costs for single sampling and the costs for test and processing devices as well as for changes induced by the buyer. Cost for further sampling to be borne by the buyer is at his expense.
IV. Compensation, right of withholding, non-assignment clause
- The buyer is only entitled for compensation and withholding regarding his claims which have undoubtedly or legally been fixed. Deterioration caused by notice of defects is subject to the same restrictions. The buyer declares that he agrees to a set-off by the seller against the seller's claims. In the same way, claims and liabilities of the buyer against the seller can be offset.
- The rights of the buyer under the contract and these terms and conditions are not assignable.
V. Delivery, delay in delivery and obligation to accept
- Unless otherwise agreed in writing the dates and deadlines quoted by the seller are non-binding. On-demand and framework contracts require individual delivery agreements.
- Delivery periods begin after receipt of all documents required for the execution of the order, the down payment and the timely ordering of materials, insofar as these have been agreed. Compliance with this obligation of the seller requires in particular the lawful and proper fulfillment of the obligation of the buyer.
- Adequate partial deliveries and partial services are permitted to a reasonable extent.
- In the case of call orders without an agreement on duration, production lot sizes and acceptance date, the seller can demand a binding determination of this no later than three months after the order confirmation. If the buyer does not comply with this demand within three weeks, the seller is entitled to set a two-week period of extra time and to withdraw from the contract after the expiration of the contract and / or demand damages.
- The buyer may set a reasonable deadline for delivery in writing four weeks after exceeding a non-binding delivery date. After unsuccessful expiry of the period, he can withdraw from the contract by written declaration, as far as the buyer has caused the delay. If the customer delays the shipment, the seller has to pay storage costs of 0.5 percent of the invoice amount monthly from the beginning of the second month to the seller.
- Claims of the buyer for damages in case of slight negligence are excluded.
- The limitations of liability and the disclaimer of this section shall not apply to damages resulting from a grossly negligent or intentional breach of obligations of the seller, their legal representative or their vicarious agents as well as injury to life, body or health.
- Insofar as and as long as the seller is not supplied by her suppliers for reasons for which she is not responsible, the seller is entitled to withdraw from the contract if she does not agree with the buyer on a different procedure, such as the postponement of the delivery date. The seller will inform the buyer immediately about missing or delayed deliveries of the subcontractor. In the case of resignation by the seller, this compensation already paid to the buyer will be refunded immediately in accordance with the statutory provisions.
- If the seller is temporarily prevented from delivering the products by the agreed deadline or within the agreed deadline through no fault of his own due to force majeure or operational disruptions occurring to the seller or its supplier, the agreed or notified delivery dates and deadlines shall be extended by the duration of the delivery these circumstances caused performance problems. If, however, faults occur that lead to a performance call of more than four months, the purchaser is entitled to withdraw from the contract. Other rights of withdrawal remain unaffected.
VI. Transfer of risk, acceptance, default of acceptance
- The place of fulfillment is always at the seller's domicile.
- The buyer must receive the products at the seller's domicile and pick them up there.
- The buyer is obliged to accept the products within eight days from receipt of the notification of availability. In case of non-acceptance, the seller can make use of her legal rights.
- If the seller requires indemnity, this amounts to ten percent of the purchase price. The indemnity is to be set higher or lower if the seller proves a higher damage, or the buyer proves that a damage was little or there was even no damage.
- If a shipment purchase has been agreed, the risk of accidental loss and accidental deterioration of the goods or the object of purchase passes to the buyer upon delivery to the freight forwarder, the carrier or the person or institution otherwise intended to carry out the shipment. In the case of delays for dispatch attributable to the seller, the risk already passes to the notification of readiness for dispatch.
- Unless otherwise agreed, the seller is entitled to determine the type of shipment (in particular transport company, shipping route, packaging). The seller only concludes a transport insurance upon written instruction of the buyer and only at his expense.
- If the buyer is in default of acceptance, the risk of accidental loss and accidental deterioration passes to the buyer.
- In addition, the seller, unless the buyer meets his acceptance obligations, without prejudice to other rights, is not bound by the rules on self-help sales, but rather can sell the products freehand after prior notification to the buyer.
- The seller may hand over the later object of purchase to the buyer for a trial. The risk of accidental loss or accidental deterioration of the object of purchase is then transferred to the buyer at the time of the trial delivery of the product to the buyer.
VII. Retention of title, prolonged retention of title
- The retention of title also remains for claims of the seller against the buyer from the current business relationship until the settlement of claims in connection with the contractual agreement. The right of property also remains for demands of the seller against the buyer resulting from current business connection until the settlement of claims in connection with the contract.
- Upon the request of the buyer, the seller is obliged to waive the reservation of title if the buyer has fulfilled all the claims associated with the products without any reservations and if there is adequate security for the other claims arising from the current business relations.
- Any processing or mixing of products subject to retention of title shall always be for the seller as the manufacturer, but without any obligation on her part. If the co-ownership of the seller expires by mixing or combining products, it is already agreed that the co-ownership of the buyer of the products or end products in the amount of the invoice value will be transferred to the seller in proportion to the value. The buyer holds the ownership or co-ownership of the seller in the products or end products free of charge.
- The buyer undertakes to protect the ownership / co-ownership of the seller of the products or end products with the diligence of a prudent businessman from spoiling, depreciation or loss, even to his buyers.
- The purchaser is entitled to process or to sell goodssubject to retention of title within proper business operations. Pledges or assignments of these products are inadmissible. Like the claims resulting from the resale on the other legal basis with regard to the products, which are subject to retention of title, the purchaser hereby assigns them to the seller in full and with all ancillary rights already for security reasons.
- In the case of third party access to the products subject to retention of title, the buyer will point out the property of the seller and notify him immediately. Costs and damages to be borne by the buyer.
- In case of delay in payment of the buyer the seller is entitled to restrain from the contract and to withdraw the products or the object of purchase subject to retention of title at the expense of the buyer or, if necessary demand for the demand assignment of the customer's claims against third parties. The right of the seller to claim for compensation remains untouched. The same applies to any other breach of contract by the buyer.
- The buyer undertakes to inform the seller at any time upon request of the whereabouts of the products or of the goods, to grant them access thereto and to disclose to them all contractual documents relating to the business with the third party.
- In the event that a debt collection against the third party should be necessary and this should not lead to complete satisfaction of the seller, the buyer is liable to the seller for the costs incurred by the prosecution.
- The seller undertakes to release the securities due to her at the request of the buyer to the extent that the realizable value of her securities exceeds the claim to be secured by more than 20 percent. The choice of securities to be released is incumbent on the seller.
VIII. Assignment as security
The seller is entitled to claim from the buyer to secure the current and future claims arising from the business relationship the transfer of security goods up to the amount of 120 percent of the outstanding claim it has against the buyer, if the fulfillment of the claims due to lack of performance the buyer is at risk.
IX. Liability for material defects
- Claims of the buyer due to defects that they have duly fulfilled their inspection and complaint obligations owed according to § 377 HGB (German Commercial Code).
- Decisive for the quality and execution of the products are the samples of defects, which are presented to the buyer for inspection at the request of the seller. The reference to technical standards serves the purpose of the specification and is not to be construed as a guarantee of quality and / or assurance.
- If the seller has advised the buyer outside of her contractual performance, she is liable for the functionality and suitability of the product or delivery item only with explicit prior assurance or agreement.
- Deviations customary in this line of business will only be deemed a defect if this has been explicitly agreed in writing by the parties. Unless otherwise stated in the order confirmation or for the contractually agreed purpose agreed by the parties only descriptions, markings or reference values represent the seller's information on the product in its catalogues, brochures and price lists. Minor negligible deviations from the catalogues or previously delivered products are no defects.
- If the product has not yet been delivered to an end user, justified and properly complained defects shall oblige the seller, at their discretion, to remedy the defects by repair or to re-deliver the products or parts thereof. If additional deliveries or remedies should fail the buyer is only entitled to claim decrease of payment or, at his discretion, withdraw from the contract. The right of withdrawal and a claim for damages instead of a whole performance do only exist as far as the defect is not insignificant.
- If the product has already been delivered to an end customer, the buyer is only entitled to assert claims for defects against the seller to the extent that his end customer has asserted against him.
- The buyer must notify the seller in writing without delay of the supplementary performance request of its end customer and to inform them of any intended type of supplementary performance and the approximate costs involved. The buyer is held and obligated, in the interests of the seller, to keep the sum of the expenditures within the meaning of § 439 para. 2 BGB (German Civil Code) as low as possible and to comply with corresponding suggestions of the seller, which provide for a cheaper version of the supplementary performance.
- In case of a justified defect, the seller is obliged in the case of removal of the defect, to pay all necessary expenses for the purpose of remedying the defect at the original place of performance, in particular transport, travel, labor and material costs. For the avoidance of doubt, it is agreed that these costs are excluded if and to the extent that they are based on the products being moved to a location other than the original place of delivery or place of performance.
- Claims for defects expire within twelve months from the date of delivery of the product.
- Wear due to wear and tear in the context of normal use is not a defect.
- When using recycling plastics colour deviations of the product regarding quotations, samples, trial shipments and previous deliveries are possible. Small inclusions of non-melted hard plastic parts or other non-melting residues as well as rolling mill equipment resulting from the production process are no defects in terms of warranty. This also applies to slight deviations in dimension caused by twisting or shrinking of the plastics.
X Liability for other damages
- The seller is liable without limitation for intent and gross negligence, culpable injury to life, body and health, defects that the seller has fraudulently concealed or in the delivery of a texture and durability guarantee. The seller is also liable without limitation within the frame of product liability as well as within the frame of other compulsory commercial regulations.
- Liability in case of simple or slight negligence is excluded.
- In the event of culpable breach of essential contractual obligations, the seller is also liable for simple negligence, however, limited to the contractually typical, reasonably foreseeable damage upon conclusion of the contract. Significant contractual obligations are those whose infringement jeopardizes the purpose of the contract, because the buyer is thereby deprived of rights or rights which are to be granted to him by the seller according to the contractual content or purpose of the contract.
- Claims for damage going beyond, especially due to financial losses are excluded.
- The aforementioned limitations of liability also apply to employees, representatives and vicarious agents of the seller.
XI. Forms / Tools
- Unless otherwise agreed, the seller is and remains the owner of the forms manufactured for the buyer by the seller himself or a commissioned third person. The forms are only used for purchase orders of the buyer as long as the buyer fulfills his obligations for payment and acceptance. The seller is only obligated to replace this form free of charge if it is necessary to fulfill an order quantity guaranteed by the buyer. The obligation of the seller to keep storage expires two years after the last parts delivery from the form and prior notification of the buyer.
- In case the buyer is to become the owner according to the contract the transfer of ownership is effected upon complete payment of the contractually agreed price for the forms. Handing over of the forms to the buyer is replaced by the storage in favour of the buyer. Irrespective of the Buyer's statutory right of surrender and the life of the molds, the Seller is entitled to its exclusive possession until the end of the contract. The seller has to mark the molds as foreign property. The buyer must insure the molds at his expense.
- In the case of buyer's own molds according to the aforementioned number and / or molds provided by the buyer on loan, the liability of the seller for storage and care is limited to the care as well as to their own affairs. Costs for maintenance and insurance to be borne by the buyer. The obligations of the seller expire if upon fulfillment of the purchase order and respective request the buyer does not collect the molds within reasonable time. The seller has the right of retention of the molds as long as the buyer has not fulfilled his contractual duties in full.
XII. Material / Provision by the buyer
- If materials are delivered by the buyer, they must be delivered on time and in perfect condition at his own expense and risk with a reasonable quantity surcharge of at least five percent.
- In case of non-fulfillment of the prerequisite acc. to cipher 1 the delivery period is reasonably prolonged. Even in cases of force majeure the buyer also bears the additional costs incurred for production interruptions.
XIII. Right of use and exploitation rights, property rights
- If the seller produces on the basis of information provided by buyer, drawings, models, samples, designs or parts provided by the buyer, the buyer shall be liable to the seller for the freedom of the products and services of third-party property rights. The buyer indemnifies the seller to the fullest extent from all applicable claims and has to reimburse her for the damage incurred.
- Insofar as the seller has provided him with models, samples, drawings or other documents together with the product, the seller hereby reserves ownership and all rights of protection and use. The buyer is only entitled to make use of within the framework of the contractual relationship. The buyer is especially not entitled to duplicate products or make them accessible to third parties.
- Drawings and samples handed over to the seller not having led to a purchase order must be returned upon request. If not, the seller is entitled to destroy them three months after submittal of the proposal. This obligation accordingly applies to the buyer. The person entitled to destroy must notify the other party of his intent to destroy in good time.
- Unless expressly agreed otherwise in writing all information obtained from the buyer in connection with the contractual relationship is confidential.
- The obligation of secrecy does not apply for information
- already publicly known or accessible to the receiving party at the time of their disclosure, or which become publicly known or accessible after disclosure, without this being due to a breach of the contract by the receiving party;
- the disclosure to third parties of the disclosing party has been previously permitted in writing or
- with regard to the disclosing party is mandatorily or by way of judical or administrative ordinance is obliged or whether they are obliged to disclosure.
- This obligation of secrecy even applies beyond the termination of the contractual relationship.
XV. Partial efficacy
Should any provision of these Terms and Conditions or any provision of any other agreement be or become invalid or contain any omission, this shall not affect the validity of any other provision or agreement. In order to fill in the gaps, those effective regulations that the contracting parties would have agreed according to the economic objectives of the contract and the terms of the business conditions, if they had recognized the regulatory gap, are deemed to have been agreed.
XVI. Place of jurisdiction, place of fulfillment
Exclusive jurisdiction for all disputes arising out of or in connection with these Terms and Conditions (including those relating to tort-related claims) between the parties for which no other exclusive place of jurisdiction exists is Wilnsdorf. However, the seller is entitled to sue the buyer also at his place of business. Unless otherwise stated in the order confirmation, the place of fulfillment is the place of business of the seller.
XVII. Applicable Law
The supply contract is exclusively subject to the jurisdiction of the Federal Republic of Germany. The regulations of UN Convention on Contracts for the International Sale of Goods (CISG) do not apply.
XVIII. Data privacy
The seller collects, processes and stores personal data within the scope of these general terms and conditions for the purposes of contract fulfillment and processing as responsible person in the sense of article 4 no. 4 DS-GVO. The data is collected in accordance with the relevant data protection regulations from the General Data Protection Regulation (EU 2016/679 "DS-GVO") and the EU Data Protection Adaptation and Implementation Act ("BDSG-Neu"). In particular, these personal data include address data and payment processing data. The seller has commissioned an external IT service provider with the support and maintenance of her IT systems. Within the framework of this commission, the seller has fulfilled all legal requirements for a data protection compliant provision of the service.
Furthermore, it is pointed out to the buyer is further that he has his own rights under data protection law against the seller. This especially includes:
- law of information acc. to article 13 et seqq. DS-GVO,
- right to information acc. to article 15 DS-GVO,
- right to correction, cancellation, restriction of processing acc. to article 16 et seqq. DS-GVO as well as
- right to transferability of data acc. to article 20 DS-GVO.
The buyer may assert these rights to the seller at any time.
KIGA Kunststofftechnik GmbH
Gießener Straße 3