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General Terms and Conditions

1. Validity and written form

a) Deliveries and services performed by BK – Kunststoffe Bernau GmbH shall be based exclusively on the following terms of delivery (General Terms and Conditions of Delivery and Payment - L 2013). Deviations from these general terms and conditions of delivery and payment shall be valid only if expressly agreed in writing. Any opposing terms and conditions – in particular our contracting partner’s purchasing conditions – are hereby expressly excluded.

b) The conditions shall apply to semi-finished products and their processing.

c) Any personal data that may have been given by the Buyer is to be processed by us in accordance with § 28 I No 1 of the Federal Data Protection Act [BDSG].

2. Purchase orders

All orders must be validated by our written confirmation. A contract only comes into effect after written confirmation is given. The contents of the confirmation are exclusively authoritative. Verbal or telephone agreements shall only be legally binding if they have been confirmed by us in writing.

3. Delivery

a) For all deliveries we shall be entitled to exceed or fall short of the requested specifications by a maximum of 10%. We shall also be entitled to supply more or less than the ordered amount based on notified defects, the supply of replacements, etc.

b) The standard regulations applicable to the product in question shall also apply for dimension discrepancies.

4. Packaging

a) We shall invoice all packaging at cost. We reserve the right to decide which type of packaging to use.

b) Packaged goods for commercial transactions within Germany will be delivered to the place of fulfilment (as stated in the delivery note) free of charge.

c) We shall not assume the disposal costs for transport packaging.

5. Special delivery

a) If goods are to be delivered to a place other than the place of fulfilment, the following shall apply:
aa) The costs of dispatch from the destination station onwards shall be added to the Buyer’s account.
ab) We shall reserve the right to choose the dispatch route and type of dispatch.
ac) If delivery has been agreed free of charge, the Buyer shall consequently have to pay the freight and the secondary costs directly associated with it in advance; he may deduct these costs from the invoiced amount. The freight shall be reimbursed in accordance with the freight rates applicable on the date of invoice. If the cost of freight increases as a result of subsequent changes in the method of shipment, choice of shipping route, destination or similar circumstances having an impact upon the cost of freight, the Buyer shall consequently have to pay these additional costs. If costs in freight are saved as a result of a change in destination or other circumstances having an impact upon the cost of freight, this shall not result in a credit for the Buyer.

b) If the Buyer reserves the right to specify the full particulars in detail concerning shape, dimensions or similar factors when the goods are delivered, he shall have to assert his rights no later than 4 weeks prior to production. This arrangement shall also apply for re-call orders.

c) If goods from our stores are held for the Buyer’s sole use, or are sold for manufacture without a destination having been specified, the Buyer must consequently accept delivery of the goods within 1 week of receiving notice that the goods are ready.

6. Default of acceptance

If the Buyer does not accept the delivery of the goods within 1 week from being notified that they have been completed and are ready for collection at the place of fulfilment and / or if he does not name a haulier, who is to collect the goods from the place of fulfilment within this period of time, he shall consequently be in default with taking delivery of the goods. In this case we shall be entitled to take the goods and store them in the factory stores at the Buyer’s expense or put them into storage via a haulier. The goods will then be invoiced. It is our duty to store the goods with the due diligence of a prudent businessman and to insure them at the Buyer’s expense. Our obligation to supply will be fulfilled by putting the goods into storage.

7. Warranty

a) Our warranty for products we supply from other parties shall be limited to the assignment of claims that we have against the supplier of third party products. In the event that the Buyer is unable to enforce his warranty claims against the supplier of the third party products, we shall furnish a warranty in keeping with these terms and conditions.

b) The Buyer shall have to allow us the necessary time and opportunity by mutual arrangement to be able to rectify defects or supply a replacement.

c) Otherwise we shall not be obliged to rectify defects or supply a replacement if this is only possible at disproportionate expense. Such costs shall be disproportionate if they exceed 25% of the purchase price of the supplied item.

d) Any parts that may have been replaced under the warranty shall become our property.

e) If the notified defect was unjustified, we shall be entitled to demand the reimbursement by the Buyer of the costs incurred by us.

h) We shall not furnish any warranty for discrepancies from agreed conditions and features if they are no more than minor and if the reduction in usability is minor as well as for damage which can be attributed to the following in particular: unsuitable, improper or incorrect use by the Buyer or third party, natural wear and tear, incorrect or negligent handling – in particular excessive loads, alternative materials, chemical or electrical action. In the event of discrepancies in volume, dimensions and thickness the following shall apply:
A defect shall not exist if the average value relating to the delivery as a whole is within the specified tolerances, individual measurements are less than twice the tolerance allowed or are in excess of 10% of the agreed figure and the parts of the consignment differing from the specified figure or tolerance do not exceed 5% of the overall consignment.

i) If the goods have been moved to a location other than the Buyer’s branch, and if, as a result, expenditure is increased, in particular transport costs, travelling expenses, labour costs and the cost of materials for subsequent performance or replacement, these increased costs do not have to be refunded to the customer as a result unless the goods have been taken to another location to be used for their intended purpose.

8. Force majeure

a) We shall not be responsible for unforeseen consequences, caused by force majeure (industrial action, unforeseen operational breakdowns not resulting from our organisational shortcomings, unforeseeable shortages in raw materials, export restrictions). We shall not be liable for resultant or impossibility of performance. If a condition of force majeure exists for more than 3 months we shall consequently be entitled to withdraw from contracts.

b) We have to notify the Buyer if force majeure occurs in accordance with 8 a) of our own accord and upon request as soon as this is possible.

9. Reservation of ownership

The goods shall remain our property until all the accounts already created during the business relationship have been paid; regardless of on whatever legal reason they were based. In so far as according to the law of the country in which the goods subject to reservation of title are located specific regulations have to be observed for the reservation of title to be valid, the Buyer shall be responsible to comply with these regulations. If, according to the law of the country in which the goods subject to reservation of title are located, it is not possible to supply goods and retain title to them, the Buyer shall consequently ensure that we are granted the supplier’s assurances to the goods subject to reservation of title normal in that country. We shall be under no obligation to supply for as long as in the latter case stated above there is no proof that reservation of title or the supplier’s assurance normal in the country concerned has been effectively granted to us.

The Buyer shall be allowed to process the goods and sell them in a normal business transaction while taking into consideration the following provisions:

a) The Buyer’s authority to process and resell the goods subject to reservation of title shall lapse if he stops making his payments, or if a petition is filed to initiate bankruptcy or composition proceedings.

b) The Buyer processing the goods for us shall not acquire ownership of the new thing in accordance with § 950 of the German Civil Code [BGB] by processing the goods subject to reservation of title. If the goods subject to the reservation of title are processed, mixed or combined with other things belonging to the Buyer or a third party, we shall consequently acquire the co-ownership of the new thing in proportion to the invoiced value of the goods subject to reservation of title to the invoiced value of the other processed items. If, as a result of processing, mixing or combining our title to the goods subject to the reservation of title is adversely affected under the law of the country in which the goods subject to reservation of title are located, the Buyer shall undertake here and now in keeping with his power of disposal to procure co-ownership of the new product for us amounting to the value of the goods subject to reservation of title taking into consideration all the regulations applicable for such a legal change and in particular to ensure that our rights are properly registered, in so far as this is required for these rights and their seniority to be valid against third parties.

c) The Buyer shall hereby assign the accounts with all secondary rights created by a resale of the goods subject to reservation of title to us, and to be more precise, as a proportion, also in so far as the goods have been processed, mixed and combined and we have acquired co-ownership to the invoiced value. We shall be entitled to part of this assignment equal to a fraction of the purchase price account in proportion to the ratio between the invoiced value of the goods subject to reservation of title and the invoiced value of the item. We hereby accept these assignments. If under the law of the country applicable to the Buyer’s account created by a resale specific regulations have to be observed for the assignment to be valid against third parties, in particular with regard to registration and / or notification, the Buyer shall consequently be responsible for compliance with these regulations.

d) The Buyer is entitled to collect the accounts assigned to us until this authorisation is revoked. The collection authorisation shall also lapse without express revocation if the Buyer stops making his payments. Upon request the Buyer is obliged to give us a precise list of the accounts to which he is entitled with the names and addresses of his buyers, the amount of the individual accounts, invoice date etc. and show his buyers the assignment and pass over to us all the information required to assert a claim for the assigned accounts.

e) The reservation of title shall also continue to exist in those cases in which individual accounts have been put into a current account and the balance is struck and recognised. We shall not only be entitled to a reservation of title for the recognised and separate final balance of account but also for the individual items entered in the current account.

f) The Buyer must not pledge the supplied item nor assign it by bill of sale as a security. The Buyer must notify us straight away in the event of levy of execution, confiscation or other disposals by third parties.

g) The buyer shall store the goods for us. The buyer must ensure that the goods are protected against fire, theft and water damage. The Buyer hereby cedes his claims to damages from the above-mentioned risks against insurance companies or other parties liable for damages to the seller to the amount of the invoiced value of the goods. We herewith accept such a cession.

10. Plea of uncertainty, compensation and right of retention

a) If we become aware of a significant deterioration in the financial status of the Buyer or if the Buyer falls into arrears with a payment, we shall consequently be entitled to demand that all outstanding invoices, including those which are not yet due for payment, are paid immediately and to ask for payment in cash before goods are delivered for all outstanding consignments. The Buyer is entitled to avert the demand for payment in advance by providing an appropriate deposit. If the payment demanded is not made and no deposit is provided we shall consequently be entitled to reject the fulfilment of the contract or to withdraw from the contract having set an appropriate period of time for either payment to be made or for a security to be rendered.

b) We shall be under no obligation to supply any more consignments under any current contract before all invoiced amounts payable have been paid in full. In addition to this we shall reserve all rights.

c) The Buyer is not entitled to set off counterclaims unless they have been contested or legally established. The buyer shall be entitled to a right of retention only if it is based on the same contractual relationship as our claims.

11. Liability limitations in the event of damage

We shall only be liable to the Buyer

  • in the event of gross negligence and intent by our executive bodies, senior employees and ordinary assistants for the full amount of the damages;
  • depending upon the reason for each breach of important contractual obligations (cardinal obligations) caused by intent or negligence, i.e. contractual duties the fulfilment alone of which makes it possible to fulfil the contract properly and upon compliance with which the Buyer may normally rely,
  • in the event of breach of cardinal obligations attributable to ordinary negligence only for the actual reimbursement of damage typically foreseeable; otherwise we shall be liable for the full amount of damage.

Otherwise we shall have no liability. Liability on account of intent, malice and loss of life, physical harm and personal injury as well as under the German Product Liability Act shall not be affected.

12. Payments

a) In the absence of a specific agreement payment shall have to be made within 14 days to qualify for a prompt payment discount of 2% or within 30 days straight net. The period allowed for payment shall in each case start on the date of invoice.

b) The acceptance of drafts shall be subject to our prior consent and shall only be allowed on account of payment. Discount fees and other charges are to be remitted by the Buyer immediately upon presentation of the draft. We shall not accept any liability for drafts, cheques, or other papers submitted on account of payment being presented on time or being protested.

13. Applicable law / lNCOTERMS

a) The contract shall be governed by the law of the Federal Republic of Germany. The United Nations convention on contracts concerning the International sale of goods dated 11.04.1980 shall not apply.

b) The latest version of INCOTERMS in force shall apply.

14. Place of jurisdiction

a) The place of fulfilment shall be the registered office responsible in a specific case for a delivery and stated by us on the order confirmation (Bernau near Berlin).
b) The courts having jurisdiction where our head office (Bernau near Berlin) is based shall have sole jurisdiction for all disputes arising from this contract entered into by registered businesses or disputes concerning the validity of this contract. The Plaintiff may also take legal action at the courts having jurisdiction where the Defendant is based.

July 2013

© BK - Kunststoffe Bernau GmbH

Wandlitzer Chaussee 54, D-16321 Bernau
Fon: +49 (0) 3338 39 37 0 // Fax: +49 (0) 3338 39 37 18