General Terms and Conditions of Sale and Delivery of Polypipe GmbH
I. General / Scope
The following General Terms and Conditions of Sale and Delivery apply to all agreements with enterprises, legal entities under public law and special funds under public law.
Deviating or conflicting terms and conditions of purchase / terms and conditions of business or other restrictions of the buyer do not become part of the contract unless we expressly consent to them. Consent must be given in writing, so that silence or delivery are not sufficient.
II. Offer and conclusion of contract
Offers of the seller are non-binding regarding price, quantity, delivery period and delivery options.
Orders of the buyer become binding to the seller by written or printed confirmation of the seller (also invoice or delivery note).
III. Invoicing, prices
The prices of the seller valid at the time of delivery are invoiced.
Should the seller generally increase its prices during the period between conclusion of the agreement and delivery, the buyer has the right to withdraw from the contract within a period of 2 weeks after notification of the price increase, unless the price increase is based exclusively on an increase in freight rates. The right of withdrawal does not apply to long-term supply contracts (contracts that establish recurring obligations).
Subject to special agreement, prices are ex works, excluding loading, packaging and unloading plus statutory VAT.
Where payment in a currency other than Euro (EUR) is agreed (foreign currency), the seller reserves the right to reduce or increase its purchase price claim in foreign currency for invoicing purposes so that the amount shown on the invoice corresponds to the euro equivalent as calculated on the basis of the foreign currency debt at the time the contract was concluded.
The relevant weight for invoicing is determined at the shipping point of the seller's delivery plant, unless the buyer demands weighing by the official railroad scale at the departure station at its own expense.
The customer agrees to receive invoices electronically if possible. Electronic invoices will be sent to the customer by e-mail in PDF format.
If the buyer / customer encounters payment difficulties after conclusion of the contract, is in default of payment or if check or bill of exchange proceedings are instituted against it, we are entitled to make further deliveries only against advance payment and to demand immediate payment of all receivables. In this case, we may return bills of exchange accepted on account of payment and demand cash payment or security in another form instead.
IV. Payment, set-off, right of retention
Payment by way of bills of exchange requires the seller's consent; such payment is provided on account of payment. The maximum term for bills of exchange is 90 days after the invoice date. Discount, bill charges, bill tax, and similar charges from 30 days after the invoice date are to be borne by the buyer.
If reasonable doubts as to the buyer's solvency or creditworthiness exist and if the buyer is not willing to make advance payment or provide appropriate collateral for the payments to be made by the buyer despite being asked to do so, the seller is entitled to withdraw from the contract except for services already provided by the seller.
Payments are only deemed effected if the amount is finally available on an account of the seller.
The Seller reserves the right to use received payments to settle the oldest due invoice items plus any accrued default interest and costs in the following order: costs, interest, principal claim.
Retention on the part of the buyer is excluded. The Buyer may only set off with uncontested claims or claims that are recognized by declaratory judgment.
V. Delivery
The seller endeavors at all times to deliver as quickly as possible. There are no fixed delivery times.
Where in deviation from the above provision a fixed delivery date has been agreed, the buyer is obligated to set a reasonable grace period in the event of a delay in delivery. If non-compliance with the delivery time is caused by force majeure, labor disputes or other events beyond the seller's sphere of control and for which the seller is not at fault, the delivery time is to be extended accordingly. The seller will notify the customer of the beginning and end of such external circumstances as soon as possible.
The fulfillment of the contract is subject to the seller's correct and timely delivery by the suppliers of the seller.
The day of delivery is the day on which the goods leave the factory or a warehouse and, if this day cannot be determined, the day on which the goods are made available to the buyer.
Special conditions apply to the provision of packaging materials by the seller, including the provision of tank wagons and tank containers.
The Seller is entitled to partial deliveries if they are reasonable to the buyer.
VI. Force majeure, contractual impediments
Force majeure of any kind, unforeseeable operational, traffic or shipping disruptions, war, acts of terrorism, pandemics, fire damages, floods, unforeseeable shortages of labor, energy, raw materials or auxiliary materials, strikes, lockouts, official orders or other impediments for which the party obligated to perform is not at fault and which reduce, delay, prevent or make unreasonable the production, shipping, acceptance or consumption, release for the duration and scope of the disruption from the obligation to deliver or accept. Where, as a result of the disruption, delay of delivery and/or acceptance is exceeded by more than 8 weeks, both parties are entitled to withdrawal. In the event of partial or incomplete loss of the seller's sources of supply, the seller is not obligated to procure goods or materials from other upstream suppliers. In this case, the seller is entitled to distribute the available quantities of goods considering the goods for its own use.
VII. Shipping
The Seller reserves the right to choose shipping route and shipping method. Additional costs caused by special shipping requests of the buyer are to be borne by the buyer. The same applies to freight rate increases after the conclusion of the contract, any additional costs for redirection, storage costs, etc., unless carriage paid delivery has been agreed.
The risk of destruction, loss or damage to the goods passes to the buyer upon shipping or, in the case of pick-up by the buyer, upon provision of the goods for pick-up.
VIII. Reservation of title
The ownership in the goods passes to the buyer only at that point in time when the buyer has met all of its liabilities from the business relationship with the seller, including ancillary claims, claims for damages and honoring of checks and bills of exchange. The reservation of title remains in effect even if individual claims of the seller are included in a current account and the balance is stricken and acknowledged.
The seller is entitled to demand the return of reserved goods from the buyer without setting a grace period and without withdrawal from the contract if the buyer is in default with the fulfillment of its obligation to the seller. The taking back of the goods constitutes a withdrawal from the contract only if the seller expressly declares withdrawal from the contract in writing. If the seller withdraws from the agreement, the seller may demand reasonable remuneration for the period during which the goods were made available for use.
If goods subject to reservation of title are processed, the buyer is acting on behalf of the seller without, however, acquiring any claims against the seller due to the processing. Accordingly, the seller's reservation of title also extends to the products created by this processing. If the goods subject to reservation of title are processed together with goods owned by third parties or if the goods subject to reservation of title are mixed or combined with goods owned by third parties, the seller acquires co-ownership to the products hereby created proportionate to the ratio between the invoice value of the goods subject to reservation of title and the invoice value of the goods owned by third parties. If the goods subject to reservation of title are combined or mixed as subordinated components with an main object [Hauptsache] of the buyer, the buyer hereby assigns to the seller its legal title to the new object.
The buyer is obligated to store the goods subject to reservation of title for the seller with due care and to maintain and repair the goods subject to reservation of title at its own expense and to insure the goods subject to reservation of title against loss and damage at its own expense as it would be required by a prudent businessperson. The buyer hereby assigns to the seller in advance its claims arising from the insurance contracts.
As long as the buyer properly meets its obligations to the seller, the seller has the right to dispose of the goods subject to reservation of title in the ordinary course of business; this does, however, not apply if and to the extent a prohibition of assignment has been agreed between the buyer and its customers regarding the purchase price claim. The buyer is not authorized to pledge, transfer by way of security or otherwise encumber the goods. In the case of resale, the buyer must make the transfer of title dependent on full payment of the goods by its customers.
The buyer hereby assigns to the seller in advance all claims arising from the resale of the goods subject to reservation of title together with all ancillary and security rights, including bills of exchange and checks, to secure all claims arising to the seller against the buyer from the business relationship. If goods subject to reservation of title are sold together with other goods at a total price, the assignment is limited to the pro rata amount of the Seller's invoice for the goods subject to reservation of title that are also sold. If goods are sold in which the seller has a co-ownership share in accordance with Section 3 above, the assignment is limited to that part of the claim which corresponds to the seller's co-ownership share. If the buyer uses the goods subject to reservation of title for the processing of goods owned by a third party against payment, the buyer hereby assigns to the seller in advance its claim for remuneration against the third party for the aforementioned security purpose. As long as the buyer meets its payment obligations in due time, the buyer is entitled to collect claims from a resale or refinement. The buyer is not authorized to pledge or make any assignments.
If the seller is of the opinion that the realization of its claims is at risk, the buyer is obligated to inform its customers of the assignment upon request and provide the seller with all necessary information and documents. The buyer must inform the seller without undue delay of any access by third parties to the goods subject to reservation of title and the assigned claims.
If the value of the securities to which the seller is entitled exceeds the to be secured claims of the seller against the buyer by more than 20%, the seller is obligated to release securities to this extent at the buyer's request. The seller selects the security to be released.
IX. Damages, liability
Claims for damages by the buyer - also of a non-contractual nature - against the seller, its employees and other vicarious agents are excluded in the event of a slightly negligent breach of duty by the seller, its employees and other vicarious agents, unless the breach relates to an obligation that is essential for achieving the purpose of the contract.
The Seller is only liable for indirect damages and for damages that are not foreseeable at the time of the conclusion of the contract if the seller, its officers or other vicarious agents are at fault for gross negligence.
The above limitations do not apply to damages resulting from injury to life, limb or health. Mandatory statutory liability provisions, such as e.g. liability for the assumption of a guarantee or the German Product Liability Act, remain unaffected.
The amount of damages is limited to the value of the goods delivered.
For a breach of duty by the seller that is not a defect, the buyer does only have a right of withdrawal or termination if the seller is at fault for the breach of duty. The buyer does not have a free right of termination. Otherwise, the statutory requirements and legal consequences apply.
X. Notification of defects
Complaints are only acknowledged if they are made in writing without undue delay, at the latest however within 7 days of receipt of the goods, enclosing receipts, samples, packing slips and providing invoice number, invoice date and the signature on the packaging.
In the case of hidden defects, a written complaint must be made without undue delay after the defect is discovered. The burden of proof that the defect is a hidden defect lies with the buyer.
Rejected goods may only be returned with the seller's express consent.
XI. Rights of the buyer in the event of defects
The buyer's claims for defects are limited to the right to subsequent performance. If the seller's subsequent performance fails, the buyer may reduce the purchase price or, at the buyer's discretion, withdraw from the contract. Claims for damages in accordance with Section IX remain unaffected by this provision. Claims of the buyer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded if expenses are increased because the object of the delivery has been moved subsequently to a location other than the buyer's site, unless the transfer is in accordance with its intended use.
Where the warranty involves recourse on the part of the buyer after a successful claim has been made against the buyer in accordance with the provisions on the sale of consumer goods, the recourse claims based on the provisions on the sale of consumer goods remain unaffected. Section IX applies to the claim for damages.
The Buyer is obligated to promptly notify the seller of any occurring case of recourse within the supply chain as soon as the buyer becomes aware of such a case. The buyer's statutory rights of recourse against the seller only exist to the extent that the buyer has not made any arrangements with its customer that exceed statutory claims for defects.
The agreement of a guarantee requires the written form. A guarantee is only effective if it sufficiently describes the content of the guarantee, as well as the duration and territorial scope of the protection provided by the guarantee.
If subsequent performance has failed or a reasonable period to be set by the buyer for subsequent performance has expired without success or such period is not required according to statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, the buyer is, however, not entitled to withdraw from the contract.
Claims of the buyer for damages or compensation for futile expenses, also in the case of defects, only exist in accordance with these terms and conditions and are otherwise excluded.
XII. Limitation period
Claims for defects become statute-barred 1 year after the start of the statutory statute of limitations, unless the goods are an object that has been used for a building in accordance with its normal use and has caused its defectiveness. In this case, claims for defects become statute-barred 2 years after the start of the statutory limitation period. Mandatory statutory statutes of limitations and liability regulations, such as liability for the assumption of a guarantee, liability for willful intent and gross negligence, for injury to life, limb or health, for the breach of material contractual obligations, liability under the German Product Liability Act and the provisions on the sale of consumer goods remain unaffected.
XIII. Quality of the goods, technical advice, use and processing
The quality of the goods is, in general, only the quality described in the seller's product descriptions, specifications and designations. Public statements, e-mails, promotions or advertising do not constitute quality descriptions of the purchased product.
The seller's technical advice on the application of the purchased products, whether verbal, in writing or by means of tests, is given in good faith, but is only deemed to be non-binding information, also with respect to any third-party property rights, and does not release the buyer from its own obligation to test the products supplied by the seller for their suitability for the intended processes and purposes. The application, use and processing of the products are beyond the seller's control and are therefore the sole responsibility of the buyer.
XIV. Trademarks / industrial property rights
It is unlawful to offer and supply instead of the products of the seller with reference to the seller's products, substitute products to third parties, as well as to associate product designations of the seller, whether protected or not, with the word "substitute" in price lists and similar business documents or to present product designations of the seller side-by-side with the product designations of substitute products.
When using the seller's products for manufacturing purposes or for further processing, it is furthermore unlawful, to use the seller's designations, in particular the seller's trademarks and/or industrial property rights, on such goods or their packaging or in associated printed matter and advertising material without the prior written consent of the seller, in particular as a component specification. The delivery of products under a trademark or industrial property right should not be regarded as a consent to the use of this trademark or property right for the products manufactured from it.
XV. Governing Law, interpretation of clauses, etc.
This contract is governed by the laws of the Federal Republic of Germany. The application of the uniform laws on the international purchase of movable goods and on the conclusion of international sales contracts for movable goods - both dated 07/17/1973 - as well as the UN Convention on Contracts for the International Sale of Goods dated 04/11/1980 is excluded.
Customary commercial clauses are to be interpreted in accordance with the Incoterms as amended.
If it is agreed that the seller bears customs and import duties of the country of destination, any increases in such duties that come into force between the date of order confirmation and delivery of the goods are to be borne by the buyer. All other fees, taxes and costs associated with the purchase contract are also to be borne by the buyer.
XVI. Place of performance and jurisdiction; validity clause
The place of performance for delivery is the respective shipping point, for payment 57078 Siegen.
Place of jurisdiction for both parties is 57078 Siegen. The seller is also entitled to assert its claims at the buyer's general place of jurisdiction.
Should individual clauses of these Terms and Conditions of Sale and Delivery be invalid, in whole or in part, this does not affect the validity of the remaining clauses or the remaining parts of such clauses. The parties are obligated to replace an invalid provision with an effective provision that comes closest to the economic purpose of the invalid provision.
Status: June 2024