I. General / Coverage
(1) These General Terms and Conditions of Sale and remarks in the contracts to be concluded between us and the customer are applicable exclusively; we shall not recognize contrary conditions from the customer or conditions deviating from these General Terms and Conditions of Sale, except in cases where we have confirmed their validity in writing. These General Terms and Conditions of Sale are also applicable even if despite knowledge of conditions of the customer contrary to or differing from these General Terms and Conditions of Sale, the delivery to the customer is executed without prejudice.
(2) The entirety of all agreements reached between us and the customer relating to the execution of the contract of sale shall be in writing.
(3) Where these General Terms and Conditions of Sale stipulate that matters are in writing, on our part it is sufficient for order confirmations and orders to be sent by telefax or E-mail without a signature.
(4) In the case of contract manufacture, the customer is liable for ensuring that production and/or equipment carried out pursuant to recipes and/or equipment provided by him do not infringe the industrial property rights of third parties. Where applicable, he undertakes to indemnify us from claims made by third parties on first demand.
(5) Our General Terms and Conditions of Sale are only applicable in relation to companies, legal persons under public law and public specific funds as set forth in §14 German Civil Code or respectively § 310 German Civil Code.
II. Product properties, Samples, Manufacturer's Instructions, Consultancy, Offer, Offer Documentation, Contract Conclusion
(1) Our quotations are subject to confirmation, unless the order confirmation contains clauses stipulating otherwise. Based on our General Terms and Conditions of Sale, orders placed with us shall only be deemed contractual after we have confirmed them in writing, or after we have commenced with fulfillment of the contractual work or deliveries. Ancillary agreements and amendments must be confirmed by us in writing.
(2) We are freed of our performance obligation even in case of confirmed orders under circumstances where the delivery or partial delivery is made or becomes impossible by unpredictable obstacles outside our responsibility. Such reasons may be regulatory orders, force majeure or supplies delivered late or faulty.
(3) Documentation relating to offers such as pictures, drawings, as well as weight and measurement specifications, and also samples, in particular liquid and paste samples of materials or granular samples, data in prospectuses or information obtained from any other advertising material does not constitute any agreement on properties within the meaning of §§ 434 paragraph 1 line 1 and line 2 German Civil Code.
Samples are considered to be samples for viewing without obligation. We retain the ownership and copyright of our cost estimates, diagrams and other documentation made available to the customer; they must not be made available to third parties. We agree not to make plans which have been marked as confidential by the customer available to third parties without the customer's consent.
(4) Consultancy provided by our employees and representatives is given upon information and belief. Information and data on the suitability and application of our products for certain processes and purposes are not binding and also do not constitute an agreement on properties within the meaning of §§ 434 paragraph 1 line 1 and line 2 German Civil Code. Due to the different requirements made of our products and the individual conditions they are used in, we can not provide any warranty with regards to the constancy of properties and effectiveness of a product. In any event, the customer is obliged to ascertain the effect and serviceability of the product supplied for his intended use by conducting his own tests.
(5) As the processing conditions and the applications for our products vary greatly, we can only provide general guidelines in our processing instructions. If special requirements are made which are outside the applications and working conditions addressed in the processing instructions, then for the purpose of support, we are prepared to provide further advice; however this does not constitute any legal obligation of any kind on our part. Consumption data in our processing instructions are average figures based on experience.
(6) Polytec PT does not accept any exercise risk, nor furnish any guarantees of any kind, unless an express written agreement pertaining to this has been reached with the customer.
III. Delivery Times
(1) Delivery due dates and delivery times are only binding if they have been expressly agreed. The delivery time commences with the date of our order confirmation, but not before complete clarification of all technical questions pertaining to the order. The latter also applies to delivery dates.
(2) The delivery time shall be considered met if the delivery item has left the factory or if the Customer has been notified of the item being ready for shipment by the delivery due date.
(3) The delivery time shall be extended appropriately in case of labor disputes, especially such as strikes and lockouts, as well as in case of unexpected events outside our influence, provided such hindrances are proven to have a significant influence on the completion or delivery of the delivery item. The same also applies if such circumstances arise affecting our suppliers which have an effect on our supply commitment to the customer. We shall not be held liable for the above circumstances either if they occur during an already existing delay. In important cases we will notify the Customer of the beginning and end of such hindrances as soon as possible.
(4) In case of a delay on our part and after setting a fulfillment period of another 4 weeks, the Customer may rescind the contract or in such cases where the Customer has suffered damages due to a delay caused by us, may claim compensation for the delay excluding any further claims. Such compensation amount to one half of one percent per full week of delay, but may not exceed five percent of the value of that part of the total order which due to the delay could not be used in time or not in the manner contracted for. We are not liable for damages if they would have also occurred in case of timely delivery.
(5) If the shipment is delayed upon request by the Customer, the cost arising in connection with the storage in our factory, but at least one half of one percent of the invoiced amount is charged to him for every month, starting one month after notification of readiness for shipment. If after notifying the Customer of an appropriate waiting period, such time has passed without action, we are entitled to dispose of the delivery item as we see fit and to deliver to the Customer at an appropriately extended delivery time.
(6) Prerequisite for us keeping the delivery time is the Customer's fulfillment of its obligations under the respective contract.
(7) Any claims for damages based on non compliance with delivery times or delivery due dates or non delivery are limited without prejudice to the condition in paragraph (4) to a maximum of twice the net invoice value of the affected merchandise, providing that the Managing Director(s) or one of our employees is negligently culpable for the delay or the inability to deliver.
IV. Pricing, Payment Conditions
(1) Unless otherwise provided for in the order confirmation, our prices exclude shipping and packaging from Waldbronn or - at our discretion - from the nearest airport. Orders which do not explicitly specify prices are calculated on the basis of the list prices valid on the day of delivery. Prices do not include the legally required Value-Added Tax (VAT or "MwSt"). The VAT shall be itemized separately on the bill at the rate in effect on the billing date.
(2) The Customer shall be deemed in default of payment if he fails to remit payments due the latest within 15 days of receipt of the invoice or any payment-due notice equivalent. Contrary to paragraph (1), the customer shall also be in default in such cases where it is agreed that the sales price is to be paid on a specified date and the Customer fails to remit his payment by that date at the latest. Invoices are due for payment without discount or deductions. Delivery may be made against prepayment or COD, especially for first-time orders or after occurrence of late payments.
(3) Payments shall be considered made only at such time when we have actual access to the monies involved.
(4) The Customer may deduct counter claims from its payments only after they have been determined undisputed and legally binding. In such a case the Customer is also entitled to exercise its right to withhold payment to the extent that its counter claim relates to the same contract.
(5) Without prejudice against further claims by us, the Customer in case of payment default shall pay us interest of 8% above the current base rate of the European Central Bank.
(6) Delivery of open orders may be made depending on timely payment of monies due. If after entering into a contract we learn of circumstances reducing the Customer's creditworthiness, we are entitled to withdraw from the contract and/or without regard for any due dates, demand payment for or immediate release of merchandise already delivered.
V. Risk Assignment, Insurance, Packaging
(1) The risk is assigned to the Customer at the latest at the time of shipment of the delivery item; this also applies in case of partial delivery and if we have provided other services, such as paying the shipping cost or have handled delivery and installation. Upon Customer's request and at his expense, we can insure shipment against theft, breakage, freight, fire and water damage and various other coverable risks.
(2) If the shipment is delayed due to circumstances within the Customer's responsibility, the risk is assigned to the Customer beginning with the date the order is ready for shipment; but we must if requested by the Customer at Customer's cost procure such insurance coverage as he demands.
(3) Delivery must be taken of items delivered, even if they have minor flaws, without prejudice to his rights in Article VII.
(4) Partial deliveries shall be permitted unless the Customer can prove that the partial delivery represents an unreasonable imposition.
(5) No transport or any other packaging meeting the German Packaging Act will be taken back. The Customer is obligated to effect the disposal of any such packaging at his own expense.
(1) Up to such time as all monies due from the supply contract have been received, we reserve the right of ownership of the delivery item. This title also remains in case of our receivables arising from any other ongoing business relationship with the Customer and up to such an amount as we are entitled to based on the current purchase has been settled.
(2) Furthermore, the Customer is obliged to insure the delivery item adequately at replacement value at his own expense against fire, water, theft and other damages. If the customer can not provide proof of having purchased the appropriate insurance, we are entitled to insure the delivery item accordingly at the Customer's expense.
(3) The customer may sell the delivery item within the framework of his enterprise in return for payment, however many not mortgage it, nor transfer its ownership as security to third parties or in any other manner dispose of it to the detriment of the retained title.
(4) In the case of liens or any action brought by third parties, the Customer must inform us immediately in writing, in order to enable us to file suit pursuant to §771 Code of Civil Procedure. Inasmuch as such third party is unable to reimburse us for the court or out of court cost of said suit filed pursuant §771 Code of Civil Procedure, the Customer shall be liable for any damages we have thereby incurred.
(5) In the event of the Customer selling the reserved merchandise or the product produced with it, the Customer now at the present time and without the requirement for a separate agreement for each individual occurrence assigns to us the title to the receivables arising against third parties from such sale to the gross amount invoiced (including VAT) for our receivables, regardless of whether the merchandise/product was sold with or without any processing. The Customer shall retain the right to collect such receivables even after the assignment. This shall not preclude our right to collect the receivables ourselves. However, we agree not to collect the receivables as long as Customer meets its payment obligations arising from the income collected and does not incur any delays and especially does not file for insolvency and has not stopped making payments. If this is the case, we can demand that the Customer discloses to us the assigned receivables and the corresponding debtors, provides all data necessary for collecting them, turns over all related documents, and notifies the debtors (third parties) of that assignment.
(6) In case of any violation of the contract through the Customer, especially payment default, after issuing a reminder with a fulfillment period, we are entitled to repossession and the Customer is obligated to release the merchandise. The Customer shall carry any and all cost incurred in the course of such repossession or release. Neither enforcement of a property title by us nor mortgaging the delivery item by us constitutes a withdrawal from the contract.
VII. Warranty claims
We shall be liable for faulty merchandise delivered by us as follows, barring any additional claims and notwithstanding Article VIII:
(1) The delivery item shall be repaired or replaced as we see fit and at our discretion if it proves to be unusable or its usefulness has been severely impaired within 12 months of risk assignment due to a circumstance originating before risk assignment. We must be notified in writing immediately of any such faults being determined. However, to maintain his entitlement to replacement, the Customer must notify us at the latest within 10 days of delivery in writing of obvious faults and such faults apparent by inspecting the delivery item after delivery. The foregoing provisions also apply to partial deliveries. Slight deviations usual in commercial practice in manufacture or coloration do not constitute faults.
(2) If two attempts we make at correction fail, then the customer is, at his discretion, entitled to either demand a price reduction or to withdraw from the contract.
(3) There will be no warranty for damages occurring due to the following reasons:
A. Unsuitable or improper processing or use of the delivery item, careless or improper processing or use by the Customer or a third party leading to damages, as well as chemical, electrochemical or electrical influences or other influences which would have a detrimental effect on the delivery item, provided we have not caused them.
B. Processing or using material which is out of date.
(4) After communicating with us, the Customer must allow us the required time and opportunity for performance of all repair and replacement deemed necessary in our reasonable discretion, otherwise we shall not be liable for any deficiencies.
(5) Measures taken limit damages – such as immediate dispatch of replacement goods in the case of a suspected fault – are not considered to be acknowledgment of a fault. By negotiating on possible claims we do not waive the right to raise the objection that the claim for a fault was not timely, was not factually substantiated or was otherwise inadequate.
(6) Expenses necessarily incurred for repair and/or replacement, such as transport, travel, labor and material are carried by us, whereby it remains within our discretion in each case to determine the most cost effective solution. This obligation does not cover excessive cost caused by the delivery item after its delivery having been moved to a location other than the residence or the business site of the customer, unless such transport corresponds to the intended purpose of the item.
(7) The warranty period for the replacement part extends from the shipment of the replacement part to the end of the original warranty of the delivery item.
(8) The above mentioned limitations to liability for faults do not apply if we have fraudulently concealed a fault or have issued a guarantee, which however can only be effected with express written permission from us.
(9) If a delivery item is returned to us during the warranty period, and within the course of the examination for faults, we ascertain that the fault has not been caused by us, we will make the customer an offer to supply a new delivery item, subject to these General Terms and Conditions of Sale. In this case, the cost of fault diagnosis are to be borne by the customer - providing the case does not fall under the warranty.
(10) The statutory limitation deadline for claims for faults is 1 year without prejudice to §§ 438 line 1 item 1 and item 2 as well as without prejudice to §§ 478, 479 German Civil Code and providing not otherwise expressly agreed. The period of limitation starts with risk assignment.
(1) If based on legal requirements subject to these conditions, we have to accept responsibility for damages caused by simple negligence, our liability shall be limited as follows:
Liability applies only in case of a violation of essential contractual obligations and is limited to typical damages as could be foreseen at the time of entering into the contract, however a maximum of twice the net invoice value of the affected merchandise. This limitation does not apply in case of loss of life, bodily injuries and health damage. Inasmuch as the damages are covered by an insurance purchased by us for that specific incident (except for blanket insurance), we are only liable for disadvantages suffered by the Customer in connection with the damages such as, for example, increased insurance premiums or interest losses up to the payment of damages by the insurance.
No liability shall apply for damages caused by faulty delivery item due to minor negligence.
(2) Independently of whether we are at fault or not, any liability we have in the case of malicious concealment of the fault, in case arising from the assignment of warranty or a procurement risk and pursuant the Law on Product Liability remains unaffected by this.
(3) Liabilities relating to delivery delays are dealt with in their entirety in Paragraph (4) of Article III.
(4) In cases where our liability for damages is excluded or limited this is also applicable for the personal liability of our employees, workforce, staff members, representatives and vicarious agents. In any case, any liability for damages is limited to the predicable, typical damage incurred, however to a maximum of twice the net invoice value of the affected merchandise.
(5) Further claims are excluded, especially claims due to damages causing loss by improper use of the delivered item.
(6) Special information: Polytec PT is not manufacturer, but distributor of adhesives and sealing compounds from Cotronics Corp., AOS Thermal Copounds, Resin Designs LLC and ASI Adhesive Systems Inc. For this reason, Polytec PT does not conduct any tests on the product. The final testing conducted by the manufacturer shall prevail. It is incumbent on the customer to test the product supplied by Polytec PT for the product properties which had been contractually specified and for possible applications. Polytec PT cannot guarantee and advocate that the adhesives and sealing compounds have not been used causing damage.
IX. Export and Customs
(1) Certain goods are subject to German and/or US-American export regulations. It is the Customer's responsibility to abide by such regulations in case of a sale to a foreign country.
(1) If any one or more of the conditions set out in these General Terms and Conditions of Sale should be or become invalid, it shall be replaced by a valid clause or interpretation which corresponds to or most closely resembles the invalid one in its economic result. The validity of our remaining General Terms and Conditions of Sale shall not be affected.
XI. Place of Performance and Jurisdiction, Applicable law
(1) Place of performance for both parties is 76307 Karlsbad, Germany.
(2) For both parties, the place of jurisdiction for all disputes arising directly or indirectly from this contract is Karlsruhe; this also applies to suits filed in conjunction with receivables from bills of exchange and checks. We also reserve the right to file suit at any other place of jurisdiction where the Customer can be sued.
(3) This contract is subject to the laws of the Federal Republic of Germany. UN Commercial Laws (CISG) shall not apply.
Polytec PT GmbH Polymere Technologien
Ettlinger Str. 30, D-76307 Karlsbad
Phone: +49 7243 604-4000
Fax: +49 7243 604-4200
Email [email protected]
Status: February 14, 2018