Terms and Conditions ("Terms") of ClickPlastics AG


1. Application:

All our offers, orders, goods or services – including those provided in the future – are provided subject exclusively to our Terms, which can be accessed on our website. The Terms form part of all contracts made with us; they apply even if not specifically referenced.

Our Terms only apply to companies ["Unternehmer"] (German Civil Code [BGB] § 14, § 310). Our Terms apply exclusively. If the customer's terms and conditions contradict or deviate from our Terms, the customer's terms and conditions do not apply even if we do not object to them. They do not become part of the contract even if the order is accepted or filled without reservation. 

 


2. Formation of Contract:

Our offers are non-binding and subject to change unless expressly stated otherwise. The purchase order constitutes the customer's binding contract offer. We may accept purchase orders within two weeks of receipt. Orders only become binding if and when we issue an order confirmation. Oral and phone agreements are only legally valid if we confirm them in writing.

Our order confirmation or, if the order is filled immediately, the delivery note governs the scope and subject-matter of the delivery. If our order confirmation or delivery note contains changes to the customer's purchase order, the customer is deemed to have consented to them if the customer unconditionally accepts the goods and does not object in writing within 10 days of receiving the order confirmation.

The customer bears the utility risk and the fitness for purpose risk. We only assume liability for a particular intended use or a specific technical fitness if expressly agreed upon in writing. Any reference to technical standards only describes our goods or services and does not guarantee certain characteristics. Information, samples, specimens or illustrations in catalogs, price lists or other advertising materials are only non-binding approximations (e.g. weights, dimensions, values in use, allowable loads, tolerances or technical data) unless exact conformity is necessary for the goods to be used for the contracted purpose.

We assume no liability for obvious mistakes or printing, spelling, arithmetical or costing errors. We only undertake contractual guarantees ["Garantie"] that we have explicitly identified as such in writing.

Unless otherwise agreed, we are not liable to provide instruction or advice. If we provide advice or technical information that is not included in the scope of the agreed-upon scope of service, the advice or information will be provided without any liability whatsoever.

 


3. Prices and Payment:

The prices shall be our quoted prices as they apply at the time of delivery, plus the sales tax required by law. All prices are quoted in EUR or Dollar and are "ex works" without additional services such as packaging, loading, freight, unloading, transport insurance, customs, out-of-pocket expenses, travel costs or other expenditures.

Unless otherwise agreed, invoices are due immediately without discounts; in case of foreign transactions, payment must be made with a 100% irrevocable letter of credit confirmed by a German bank. In determining timeliness, payment is deemed to be made when our account is credited.

A default in payment automatically voids any rebates, cash discounts and other incentives; interest amounting to 8 percentage points above the base interest rate (German Civil Code [BGB] § 288) will also become due.

We can demand advance payment and/or exercise a right of retention with respect to further performance in the event of a default in payment or reasonable doubt as to the customer's ability to perform. The customer may only exercise a right of retention or a right of set-off if his claims against us are undisputed or upheld by final and absolute judgment or if his claims are based on defects.

If the agreed delivery deadline exceeds four months, we reserve the right to make reasonable adjustments to our prices with one month's prior notice if there are cost reductions or increases after the contract has been formed, including, but not limited to, reductions or increases resulting from collective bargaining agreements, changes in raw material or production costs, or changes in market prices for comparable products. We will document the factors that led to the cost increase at the customer's request. The customer can rescind the contract if the price rises more than 20 %.

 


4. Delivery and Passage:

Delivery times are non-binding unless otherwise expressly agreed in writing. The agreed-upon delivery deadline is deemed to be met if the shipment is picked up for shipping by the deadline. We assume no liability for any delays caused by the carrier.

The customer bears the costs and risks of shipping. Risk of accidental loss and deterioration passes to the customer no later than upon acceptance or handover to the carrier. If the acceptance or shipment is delayed due to circumstances beyond our control, risk will pass to the customer upon issuing the ready-to-accept or ready-to-ship notice. We will insure the shipment at the customer's expense if so instructed.

Delivery deadlines or delivery dates promised verbally or in writing are only approximate and non-binding unless we have agreed to a fixed delivery deadline in writing. Delivery deadlines begin upon receipt of the order confirmation, but not before all technical and commercial questions have been resolved or a required advance payment has been credited.

We will comply with an agreed delivery deadline subject to timely delivery by our own suppliers. We are not liable for faults of our suppliers; any claims for damages against these suppliers will be assigned to the customer. After a non-binding delivery deadline expires, the customer may only rescind the contract after he has fixed in writing an additional reasonable period of at least 30 days for us to perform our obligations and warns us that he will refuse performance if we do not perform within this additional period.

In the event of a culpable delay in delivery due to slight negligence, our liability for liquidated damages for each completed week of delay is 0.5% up to a maximum of 5% of the amount invoiced for the goods or services affected by the delay. We may furnish proof that the damages are smaller. In all other regards, our liability is governed by the liability provisions of these Terms.

 


5. Retention

The customer will grant us the following security until the settlement of all the claims (including any and all outstanding balances on running accounts) that the customer may owe to us now or in the future on any legal grounds whatsoever; we will release the security at our option on request insofar as its realizable value exceeds the secured claims by more than 10%:

We retain title to the goods we have delivered until all payments owed under the business relationship have been received. The following applies while we retain title:

- The goods remain our property. Goods are always processed or modified for us as the manufacturer, without us incurring any obligation thereby. If our ownership ceases to exist due to combination, the contracting parties now hereby agree that our resulting (co-)ownership in the unitary item will transfer to us in proportion to the pre-tax invoiced value. The customer holds our (co-owned) property in safe custody free of charge.

- The customer shall keep the goods in good condition. The customer shall insure the goods for our benefit at his expense against theft, breakage, fire, water and other risks to the extent that the customer can be reasonably expected to do so. Proof of insurance must be presented on request.

- The customer has a revocable right to sell and process the goods in the ordinary course of business, provided he is not in default. The goods may not be pledged or assigned as security.

- The customer now hereby assigns to us, as security, claims arising from the resale of the goods, in lieu of the goods, or otherwise in respect of the goods (e.g. insurance, tort), including all ancillary rights, regardless of whether or not the goods are processed before they are resold. We hereby accept the assignment.

The customer has a revocable right to collect claims assigned to us in his own name and for our account. Our right to collect the claims ourselves remains unaffected thereby. We have the right of disclosure.

- If third parties attempt to attach the goods, including, but not limited to, by means of enforcement measures, the customer will inform the third party of our ownership interest and notify us forthwith. The customer will reimburse us for the costs of our intervention if we cannot recover the costs from third parties.

We may rescind the contract and require the customer to immediately restore the goods to us or, if applicable, assign his rights of restoration against third parties if the customer breaches the contract by, without limitation, defaulting on payments or filing for bankruptcy (enforcement event). The customer has no right of retention in this case. This is without prejudice to claims for damages, including claims for compensation of lost profits. We can satisfy the debt owed by selling the repossessed goods by private contract.

 


6. Defects:

We must be notified of defects in writing within 14 days of the handover of the goods or, for hidden defects, within 14 days of their discovery. Damages sustained in transit or during shipping must be documented vis-à-vis the carrier. German Commercial Code [HGB] § 377 applies in all other regards. Our field service employees are not authorized to accept oral notices of defects. Any negotiation on our part about notices of defects does not constitute a waiver of the defense that the notices were late, unsubstantiated or otherwise insufficient. Damage reduction measures do not constitute an acknowledgement of defects.

We extend no guarantee of compliance with any special regulations that apply to the customer's business or to imports and exports, nor do we guarantee that any necessary permits or approvals have been obtained. The goods may only be used in the country for which they have been ordered. Unless otherwise agreed upon, the customer bears the responsibility, liability and costs of any exports. With regard to exports, the customer agrees to comply with legal provisions (e.g. dual use),  including, but not limited to, the provisions of German foreign trade law. Liability for infringements of intellectual property rights outside Germany will only be assumed under a separate written agreement.

We are entitled to deviate from the stipulated quality or quantity standards due to the materials, or to modify the goods to reflect technical progress in terms of construction, design, dimensions, weight or color within the customary industry tolerances, provided (a) this does not restrict the usability of the goods for the contracted purpose, (b) no contractual guarantee exists, and (c) the customer can be reasonably expected to accept the change(s) and/or deviation(s) in light of an objective assessment of all circumstances.

 


7. Liability

We have unlimited liability as provided for by statute for personal injuries, or in accordance with the German Product Liability Act [Produkthaftungsgesetz], or if we have guaranteed certain characteristics or have concealed defects with intent to deceive, or if losses are based on willful misconduct or are covered by our commercial general liability insurance.

We are also liable for grossly negligent breaches of duty as provided for by statute; only if the grossly negligent breach of duty pertains to an immaterial contractual obligation is our liability limited to the foreseeable losses which are typical for the contract.

In the case of slight negligence, we are liable for breaches of material contractual obligations, but only for the foreseeable losses which are typical for the contract and which could be expected to occur.

We assume no liability whatsoever in any other case.

The customer's indemnity claims are expressly excluded.

The statutory provisions will exclusively govern any reimbursement claims brought by the customer for expenses incurred due to a recall caused by a product defect. It is within our discretion to take out or not take out product liability and product recall insurance.

Material contractual obligations are obligations (a) whose satisfaction is essential to the proper performance of the contract and (b) upon whose satisfaction the customer does and may reasonably rely. The customer shall maintain insurance in the scope customary for the customer’s industry and structure (e.g., business interruption insurance).

 


8. Liability Limitation, Limitation Period

Where liability is limited to the foreseeable losses which are typical for the contract, liability is limited to EUR 100,000.00 for property damage and EUR 200,000.00 for other types of damage per loss occurrence; the total liability for all damages within a given calendar year is limited to twice these amounts. This limitation does not apply if greater losses are covered by commercial general liability insurance.

The limitation period for the customer's warranty claims expires within one year of the handover of the goods unless the law prescribes longer periods.

 


9. Non-disclosure, References

The customer will keep all the contents of the contract strictly confidential, including, but not limited to, prices, discounts, know-how and other business secrets, and will refrain from disclosing or otherwise making available to third parties any information, documentation, drawings or other documents without our express written approval. This does not, however, apply to contents which are publicly known without violating the non-disclosure obligation. The customer will impose the same non-disclosure obligation on his employees and associate companies and on third parties to whom the contents are disclosed.

We may use the customer (including his logo, brand) and the project as a reference as long as the customer does not object giving good cause.

 


10. Final Provisions

German law applies in case of exclusion from the UN Sales  Convention. Unless agreed otherwise, and irrespective of the agreed Incoterms, our registered office is the place of fulfilment of warranty claims. Wether the customer is a merchant or a legal person under public law, the location of our registered office is the place of jurisdiction. However, we are entitled to sue the customer at their place of residence. 


April 2015.

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