General Sale and Supply Conditions of PRO-plast Kunststoff GmbH

1. General matters

Our General Sale and Supply Conditions shall apply exclusively; we shall not recognize any conditions on the part of the purchaser which are inconsistent with or different from our General Sale and Supply Conditions, unless we have expressly agreed in writing that they are to apply. Our General Sale and Supply Conditions shall also apply if we effect delivery to the purchaser without reservation in the knowledge of conditions on the part of the purchaser which are inconsistent with or different from our sale conditions.

We shall be entitled to store and to process personal data regarding the purchaser which we have received directly or indirectly, pursuant to the German Federal Data Protection Act (Bundesdatenschutzgesetz).

Our General Sale and Supply Conditions shall apply only in respect of businessmen, legal entities under public law and public-law special funds within the meaning of § 310(1) of the German Civil Code (Bürgerliches Gesetzbuch).

Our General Sale and Supply Conditions shall also apply to all future transactions with the purchaser.

2. Offer - Order - Order confirmation - Dates/transportation/delivery - Purchase obligation

Our offers shall always be subject to alteration until an order is accepted. Oral or telephone orders placed by the purchaser shall be binding on the purchaser. A binding purchase contract shall only come into existence on receipt of our written order confirmation. Agreements made on our part by employees who are not entitled to represent the company shall not however be binding on us unless they are confirmed by a person entitled to represent the company.

In the case of special items and other one-off batches, we reserve the right for the quantities actually delivered to be up to 10% less or more than the confirmed quantities and to charge accordingly. Unless otherwise agreed, the statutory provisions shall apply where the surpluses or deficits are more than 10%.

The qualities, delivery dates and quantities stated by us shall in all cases be subject to the proviso that delivery to us is made correctly, at the proper time and in sufficient quantities. If we are liable for default in delivery, the purchaser may cancel the contract, subject to the statutory requirements.

Our shipments shall be sent at the purchaser’s risk, even in the case of carriage-paid delivery. If the purchaser maintains a consignment store, he shall bear the risk of loss or damage to the goods belonging to us which are stored by him.

The recipient of goods shall immediately check incoming goods for any obvious transport damage. Such damage must be recorded in writing on the delivery documents in the presence of the carrier/driver and must be signed by the carrier/driver.

If the purchaser delays acceptance of goods or is culpably in breach of any other collaboration obligations, we shall be entitled to demand compensation for the loss incurred by us in that respect, including any additional expenditure. Additional claims are reserved.

3. Sample - Technical advice

The samples provided by us and our technical and other information shall serve merely as a general description of the goods. They contain no guarantee as to quality or durability and shall not exempt the purchaser from the obligation to check the individual delivery.

We provide advice as to use to the best of our knowledge. Where we provide such advice free of charge, it is non-binding and shall not exempt the purchaser from examining every delivery before processing to ensure that it is suitable for the intended use.

4. Check on receipt - Claims about defects - Limitation period

The purchaser shall check the goods after receipt of the goods or after the power of disposal has passed to him, if necessary by means of sampling. Apparent defects shall be reported within five working days of delivery, and concealed defects shall be reported within three working days of being discovered. The purchaser must give us the opportunity to check and inspect the defect, in situ if requested. If this is refused, the goods shall be deemed to have been accepted without complaint.

Regrind plastic and pellets basically does not fulfill all kinds of sector-specific regulations and compliances. In case of doubt, it requires any individuell examination

In the case of regrind plastic and pellets, small impurities and slight differences and variations in the shade of color do not constitute a defect and do not justify a complaint.

Where we have reprocessed and then supplied used plastics (regrind/pellets etc.) on a contract basis or on our own account, we shall merely be liable for proper reprocessing. We shall not be additionally liable for defects of any kind in the goods supplied, unless we have previously guaranteed certain qualities in writing.

Goods which are the subject of complaint may not be returned without our express agreement.

Where there is a defect in the purchased item, we shall firstly be entitled and obliged to rectify the defect (rectification of defects) before the purchaser can make any further defect claims. However, we shall in any event be exempt from the obligation to supply non-defective goods (replacement goods) by way of subsequent performance.

The limitation period for defect claims shall be 12 months, calculated from the passing of risk, unless we have fraudulently concealed the defect, caused the defect intentionally or by gross negligence or have given a guarantee in respect of the relevant quality of the goods.

5. Limitation of liability

We shall be liable in the case of intentional acts or fraud, under the German Product Liability Act (Produkthaftungsgesetz) or if the quality guaranteed by us is not present, and we shall be liable for losses arising from death, physical injury or damage to health, in accordance with the statutory provisions.

If we are guilty of gross negligence, our liability shall be restricted to the foreseeable loss which is typical under the contract.

For cases of minor negligence, liability for compensation in place of performance (§ 281 German Civil Code (Bürgerliches Gesetzbuch – BGB)) shall be excluded. In the case of minor negligence, additionally, we shall not be liable for any legal reason whatsoever unless an important contractual obligation is contravened, i.e. an obligation the non performance of which will make the proper conduct of the contract impossible and which the purchaser normally expects, and is entitled to expect, to be maintained (e.g. obligation to deliver the goods without defects in quality and at the proper time). In this case, our liability shall also be limited to the foreseeable loss which is typical under the contract. Notwithstanding this provision, our liability in respect of losses for delay caused by minor negligence shall however be limited, in terms of quantum, to 5% of the value of that part of the total delivery which, as a result of the delay, cannot be used at the proper time or in accordance with the contract.

Unless any provision to the contrary is made above, any further liability to pay compensation or to refund expenditure, for any legal reason whatsoever, shall be excluded.

The above liability provisions shall apply accordingly if the purchaser demands a refund of expenditure in place of compensation.

6. Payment - Credit - Retention of title

Unless otherwise provided in the order confirmation, the purchase price shall be payable immediately without any deduction after receipt of the invoice.

The value-added tax applicable at the time of invoicing shall be added to all prices. If the VAT rate changes within the charging period, the periods with the VAT rates respectively applicable shall be regarded as separate charging periods.

We shall be entitled to refuse to accept cheques and bills of exchange, and we shall accept them only by way of performance. Discounts, taxes and expenses shall be borne by the issuing party.

In the event of delay, we shall be entitled to demand interest for delay at 8% above the respective base interest rate (ECB), unless we have incurred a greater loss. The purchaser shall be entitled to prove that we have incurred no loss or only a slight loss. We shall also be entitled to cease deliveries, even under different contracts. If we thereby suffer a loss, we may demand compensation. At the same time, all other claims shall become payable.

Offsetting shall be excluded except against claims which are undisputed and which have been established with legal finality. The purchaser shall not be entitled to assert a right to refuse payment or a right of retention except on the basis of claims which are undisputed or established with legal finality and which are based on the same contractual relationship.

Rights arising from purchase contracts with us shall not be assigned to third parties. Goods which have not been paid for in full may not be pledged or transferred by way of security; they shall instead be specifically protected against seizure by third-parties. The purchaser shall without undue delay notify us of any seizures, arrests or other third party actions.

The purchaser shall without undue delay notify us in writing in the event of changes in the circumstances of ownership (change of control), the company form or other facts affecting the credit assessment.

Goods which have been delivered shall remain our property until they have been paid for in full. They may be handled or processed on our behalf in such a manner that we are regarded as owners or joint owners of the item (goods subject to reservation of title). If the purchaser resells the item, he hereby assigns to us the corresponding claims arising from the sale. We shall have the right to inspect goods subject to reservation of title or the new item at any time and to mark them accordingly. The purchaser shall permit us to enter his premises for this purpose.

At the purchaser’s request, we shall release the securities to which we are entitled, at our choice, to the extent that the value of our securities exceeds the claims to be secured by more than 20%.

7. Final provisions

Our place of business shall be the place of performance.

Darmstadt shall be the sole venue for jurisdiction in respect of all disputes arising from the contractual relationship.

The law of the Federal Republic of Germany shall apply; the applicability of the UN Convention on the international sale of goods (CISG) shall be excluded.

The present General Sale and Supply Conditions have been drafted in German and in English. For purposes of its interpretation and in case of any possible conflict between German and English text the German version shall be decisive and shall prevail.

PRO-plast Kunststoff GmbH
Feldstrasse 16 D; 64331 Weiterstadt
Tel. +49 6151 3093-0     Fax +49 6151 3093-111  

EV2003 Stand 04/2009