General terms and conditions of sale, delivery and payment

I. Conclusion of agreement:
Quotations and orders shall not be binding until confirmed by the seller. Only such provisions as are contained in the written confirmation of the seller as well as hereunder shall form part of the content of the aforementioned agreement. Oral ancillary agreements shall only come into force upon written confirmation thereof. Insofar as the counter-confirmation of the Purchaser or the conditions of purchase of the aforesaid contain deviating provisions, such provisions shall not form part of the aforementioned agreement, even in instances where such conditions of purchase do not contradict the General Terms and Conditions of Sale, Delivery and Payment of the seller but serve as supplementation thereof. Recognition of such aforementioned conditions of purchase shall only be effected in writing by the seller. By virtue of accepting the ordered delivery, the Purchaser shall recognise the terms and conditions of delivery of the seller, regardless of references to the conditions of purchase of the Purchaser by the aforesaid.

II. Shipping and bearing of risk:
The method of shipping shall be at the discretion of the seller insofar as a specific method of shipment has not been expressly specified. The place of delivery and performance for deliveries shall be the plant or warehouse of the seller. In the event that the applicable goods leave the plant or warehouse of the seller, the Purchaser shall bear the risk of loss/destruction and deterioration pertaining thereto. Insurance of delivery as aforementioned at the request of the Purchaser shall be at the expense of the aforesaid.

III. Delivery period:
1. The delivery period shall commence upon dispatch of the order confirmation, but not prior to the procurement of documentation, authorisations and releases as may have to be obtained by the Purchaser, nor prior to the payment of any agreed deposit.

2. The delivery period shall be deemed to have been fulfilled if upon the expiry thereof notification of readiness for shipment has been provided, or the delivery item has left the plant.

3. In the event of a delay in delivery, the Purchaser shall, upon the unsuccessful expiry of an appropriate grace period – of not less than 3 weeks – have the right to rescission hereof. Entitlements to damages, notwithstanding sub-clause 4 hereof, are hereby excluded.

4. The exclusion of liability as specified under sub-clause 3 hereof shall not apply insofar as an exclusion or limitation of liability for damages on the basis of harm to life, body or health that results from the intentional or unintentional neglect of duties on the part of the seller or the legal representative or vicarious agent of the aforesaid has been agreed. The aforesaid exclusion shall also not apply insofar as an exclusion or a limitation of liability has been agreed for other damages based on intentional or grossly negligent breach of duty on the part of the seller or the legal representative or vicarious agent of the aforesaid.
Insofar as the seller culpably neglects an essential contractual duty or a Cardinal Duty, liability shall not be excluded insofar as the aforesaid is limited to foreseeable damages typical for this type of contract.

5. The limitations of liability as stipulated in sub-clauses 3 and 4 hereof shall not apply insofar as a commercial fixed transaction has been agreed. The same shall apply in the event that the Purchaser is able to assert that the fulfilment hereof is no longer in the interest of the aforesaid as a result of a delay for which the seller bears responsibility.

6. In the event of unforeseen obstacles beyond the control of the seller and not avertable by the aforesaid despite reasonable and due care based on the particular circumstances – irrespective of whether occurring at the seller or a subcontracted deliverer – as in the case of an Act of God (war, natural catastrophes, delays in the delivery of essential raw materials etc.) – the seller shall be entitled to rescission hereof in whole or in part or to extend the aforementioned delivery period by the duration of such obstacle. The seller shall be entitled to the same rights in the event of strikes and lockouts either at the seller or the suppliers of the aforesaid. The seller undertakes to notify the Purchaser of such circumstances without delay.

IV. Acceptance
1. The Purchaser undertakes to examine goods upon receipt with respect to the conformant condition thereof. Notice of quality and quantity based non-conformities shall be provided to the seller in writing within 8 days after delivery; failing this, the Purchaser shall forfeit all rights under warranty.

2. The seller only undertakes to provide such samples for correction and outturn samples as expressly agreed and confirmed in writing. The period between the dispatch of the correction item or outturn sample and return thereof by the recipient shall be deemed to be an interruption of the delivery period. The agreed delivery deadlines shall also be extended by this period.
Samples for correction and outturn samples shall be examined without delay. Notice of non-conformity shall also be rendered in writing within 8 days. In the event of the absence of any aforesaid notice of non-conformity of delivered samples, the construction and design of the relevant tool shall be deemed to have been accepted. Any complaints may then only be lodged insofar as damages have arisen through the hardening of the aforesaid tool, or insofar as the acceptance of specific work after samples for correction and outturn samples have been sent has been reserved in writing.

3. Delivered tools shall also be examined without delay. Notice of non-conformity shall be furnished in writing within 8 days.

4. The obligation to furnish written notice of non-conformity shall also apply in the event that rectifications of non-conformities have been carried out, which are then once again rejected.

5. The punctuality of the non-conformity notice shall be determined by the time of receipt at the seller. There shall also be no waiver of the objection of unpunctual notice of non-conformity, even in the event that the seller initially pursues the aforementioned notice of non-conformity, examines the goods and corresponds on the basis of an ex gratia arrangement.

V. Warranty
In the event of the proper fulfilment of the duties of examination and notice of non-conformity pursuant to § 377 of the German Commercial Code by the Purchaser, the liability of the seller shall be as follows:
1. Insofar as non-conformity of the purchase object exists, the seller shall at the discretion of the aforesaid either be entitled to remedy such non-conformity or to deliver a conformant item (subsequent fulfilment). The prerequisite for the aforementioned shall be that the non-conformity is substantial. In the event that one or both of the methods of subsequent fulfilment are not possible or unreasonable, the seller shall have the right of refusal thereof.
The seller shall be entitled to refuse subsequent fulfilment for such periods during which the Purchaser does not fulfil the payment obligations of the aforesaid in relation to the seller to an extent that corresponds to the conformant portion of the service.

2. Should subsequent fulfilment pursuant to sub-clause 1 hereof not be possible or fail, the Purchaser shall be entitled, at the discretion of the aforesaid, to lower the purchase price or to rescission hereof pursuant to legal regulations. This shall in particular apply in the event of culpable delay or refusal of subsequent fulfilment (remedy), in particular when the aforementioned fails for a second time. Insofar as not precluded elsewhere hereunder, additional claims by the Purchaser, irrespective of the legal basis thereof (in particular claims on the basis of the infringement of cardinal and collateral duties, the reimbursement of expenditures, except as pursuant to § 439 II of the German Civil Code, tortious acts and other tortious liability) are hereby excluded. This shall apply in particular to claims not included within the purchase object, as well as entitlement to compensation for lost profits. Also covered hereby shall be claims that do not result from the non-conformance of the purchase object.

3. The aforementioned provisions shall also apply in the event that an alternative item or a lower quantity is delivered. However, the seller shall be entitled to perform over-deliveries or under-deliveries of up to 10%: such quantity deviations shall not be deemed to be non-conformant. In the event of sample and small-scale production runs, more extensive over-deliveries and under-deliveries shall also be permissible.

4. The exclusion of liability as specified under sub-clause 2 hereof shall not apply insofar as an exclusion or limitation of liability for damages based on harm to life, body or health that results from the intentional or unintentional neglect of duties on the part of the seller or the legal representative or vicarious agent of the aforesaid has been agreed. The aforesaid exclusion shall also not apply insofar as an exclusion or a limitation of liability has been agreed for other damages based on the intentional or gross neglect of duties on the part of the seller or the legal representative or vicarious agent of the aforesaid.
Insofar as the seller culpably neglects an essential contractual duty or a Cardinal Duty, liability shall not be excluded, but shall be limited to foreseeable damages typical for this type of contract.
The exclusion of liability shall in addition not apply in the event of the assignment of a warranty.
The preceding shall apply to the reimbursement of expenditures where appropriate.

5. No responsibility is accepted for damages on the basis of the following:
unsuitable or inappropriate use, incorrect installation by the Purchaser or third parties, ordinary wear and tear, incorrect or negligent handling, inappropriate resources, chemical, electro-chemical or electrical influences, inappropriate modifications or maintenance work carried out by the Purchaser or third parties without the prior consent of the seller.

6. Entitlements to subsequent performance, damages and usage replacement shall expire one year after delivery of the purchase item. Entitlements to reductions and to exercise the right of rescission are excluded once the entitlement to subsequent performance has expired. The Purchaser shall, however, in such an instance have the right to refuse payment of the purchase price insofar as entitled thereto on the basis of rescission hereof or the aforementioned reduction. In the event of rescission being excluded and a subsequent payment refusal, the seller shall be entitled to rescission hereof.

(Froli Kunststoffwerk Fromme GmbH, effective from 07/02)