This translation is a courtesy translation only. In case of any inconsistency between this translation and the German original, the German original shall prevail and govern any dispute in, or arising from, the interpretation of any clause contained therein.
General Terms of Sales
Effective as of July 1st, 2012
I. Preface / Area of Application of GT&C
1. These General Terms and Conditions (GT&C) are integral part of any and all supplies delivered and services rendered as well as of all quotations made by Poli-Tape. They apply to any similar current and future business transactions even if they are not expressly stipulated again. These terms shall be deemed as having been accepted by placing an order, or, at the latest, by acceptance of goods or services.
2. Order confirmations referencing the buyer’s own general terms and conditions are hereby rejected. The buyer’s deviating or supplementing general terms and conditions, even if their existence is noted as such, therefore, shall not constitute an integral part of the contract, unless their applicability is expressly agreed upon in writing.
II. Offer and Formation of Contract
1. All Poli-Tape offers are subject to change and non-binding. Poli-Tape reserves the right to reasonable technical alterations. Drawings, images, dimensions, weights and any other performance data are binding only if expressly agreed upon in writing. Poli-Tape sales clerks are not authorized to enter into supplementary oral agreements, or to make verbal representations, beyond the contents of the written agreement.
2. By placing an order, the buyer expresses its binding intent to acquire the goods ordered.
3. Poli-Tape may elect to accept the offer of a contract incorporated in the order within a period of [ … 30 … ] days in writing, by teletype, or by delivery of the goods. If the buyer orders goods electronically, Poli-Tape will promptly acknowledge receipt of the order. This acknowledgement of order receipt shall not amount to a binding acceptance. The acknowledgement may be combined with the notice of acceptance.
4. For electronically placed orders, the wording of the agreement will be stored and, upon request, shall be dispatched to the buyer via e-mail or by mail together with the General Terms and Conditions.
5. The contract is concluded subject to the caveat of good and timely delivery by Poli-Tape’s subcontractors unless Poli-Tape is responsible for the subcontractor’s non-delivery. Poli-Tape will advise the buyer without delay about non-availability of [goods and] services. In this case, any consideration already made by the buyer shall be reimbursed promptly.
1. Unless otherwise agreed, prices are ex works Remagen, including standard commercial packaging plus applicable statutory value added tax, which - in general - will be posted separately.
2. Unless otherwise agreed, Poli-Tape considers itself bound to the prices included in its offers for a period of 30 days starting with the date of the offer. Apart from that, prices quoted in the order confirmation shall prevail.
3. Extra supplies and services will be subject to separate invoicing.
IV. Packaging, Shipment and Transfer of Risk
1. Any shipment of Poli-Tape products shall be at the buyer’s risk, unless otherwise agreed. Mode and manner of shipment as well as packaging, unless otherwise agreed, is at the discretion of Poli-Tape. No liability is assumed for damages in transit that are not Poli-Tape’s responsibility. Any costs for express freight or express deliveries desired by the buyer shall be fully covered by the buyer.
2. The risk of accidental loss and of accidental deterioration of the goods shall pass to the buyer either upon surrender, or for sales by dispatch upon delivery of the goods to the forwarding agent, or to the carrier, or to any other person or organization designated to effect shipment.
3. If shipment is deferred upon the buyer’s request, the risk shall pass to the buyer by written notice of readiness for shipment.
4. If the parties have agreed upon shipment free of transportation charges, Poli-Tape shall merely bear transportation charges to the designated place of destination. This does not effect a change to the assumption of risks as per the above paragraphs 2. and 3.
V. Delivery Dates and Periods
1. Delivery dates or delivery periods that may be agreed upon in binding or non-binding manner require being in writing.
2. Delays in delivery and performance that are due to acts of God, weather disasters or any other unforeseeable circumstances beyond reasonable control, as well as to any event that significantly hinder, or preclude, Poli-Tape’s ability to deliver more than just temporarily, in particular, strikes, lockouts, official directives, shortages in energy or raw materials, operational breakdowns, are not Poli-Tape’s responsibility even when deadlines have been agreed upon bindingly, and even they effect contractors of Poli-Tape, or their subcontractors. In any of these cases, Poli-Tape is entitled either to defer delivery, or performance, respectively, for the duration of the impediment plus reasonable lead time, or to withdraw from the contract, in part or in full, for the portion not yet performed.
3. If the impediment continues to exist for more than 3 months, the buyer, having granted a reasonable grace period, shall be entitled to withdraw from the contract with respect to the portion of contract not yet performed. If the impediment is extended, or if Poli-Tape is discharged of its obligation, the buyer shall not be permitted to deduce any claim for damages therefrom. Poli-Tape may rely on the aforesaid circumstances only if it so promptly advises the buyer regarding the reasons and the anticipated duration of the impediment.
4. At any time, Poli-Tape is eligible to make partial deliveries, and to render partial performance unless partial delivery or partial performance is not in the interest of the buyer, or is unreasonable to it.
5. Poli-Tape’s compliance with delivery and performance obligations implies the buyer’s meeting its obligations in a timely and appropriate manner.
VI. Retention of Title
1. Poli-Tape reserves full title to all goods until payment for the purchasing price including any collateral claims has been received in full. For agreements resulting from continuous on-going business, title is reserved until full payment has been received for all outstanding claims.
2. The buyer is obligated to treat the goods with due care, and, particularly, to store and preserve them in accordance with Poli-Tape requirements.
3. The buyer warrants to immediately inform Poli-Tape in case of attachment, or any other third party seizure, of the goods, as well as of any damage or loss of the goods. This information requirement also continues to exist when ownership to the goods is changing, or the buyer moves its place of business.
4. In case of non-compliance with the aforesaid terms, Poli-Tape is entitled to withdraw from the contract and to reclaim the products.
5. The buyer is authorized to resell the products in the course of regular business transactions. It assigns to Poli-Tape by now any claims that shall become due to the buyer from resale or from any other act of disposal. Poli-Tape expressly accepts this assignment. In furtherance of this assignment and subject to cancellation, the buyer is authorized to collect the claim. Poli-Tape reserves the right to collect the claim directly when the buyer is not in due compliance with its payment obligations, or is in default on a payment. At any time, the buyer handles and processes of the goods on behalf and at the order of Poli-Tape. If assets not owned by Poli-Tape are included in this process, Poli-Tape acquires joint ownership to the new end product at a ratio reflecting the value of the goods delivered by Poli-Tape compared to the other processed assets. The same shall apply if the goods are commingled with other assets not owned by Poli-Tape.
VII. Terms of Payment
1. Unless otherwise agreed, Poli-Tape invoices shall be paid net within 30 days after date of invoice, or with a 2 per cent prompt payment discount within 10 days after date of invoice. Prompt payments discount shall be granted only insofar as no earlier invoice is still unsettled. Regardless of provisions to the contrary on the part of the buyer, Poli-Tape is permitted to setoff payments first against the buyer’s earlier debt. If costs and/or interest have already arisen, Poli-Tape is entitled to setoff payments first against costs, then against interest, and at last against the principal claim. Poli-Tape shall advise the buyer with regards to the allocation applied.
2. Any payment is considered as having been made when Poli-Tape has full access to the amount. Cheques and drafts will be accepted only as conditional payments subject to clearing and without any obligation for timely presentation and lodging of protest. Costs arising therefrom shall be at the buyer’s expense.
3. If the buyer becomes delinquent on a payment, the debt amount in default shall bear interest at the statutory default interest rate, or, if such evidence is provided by Poli-Tape, at the actual rate. The interest rate shall be lowered if the buyer provides evidence for a lesser burden; Poli-Tape’s right to demonstrate a higher loss remains unaffected.
4. If Poli-Tape becomes aware of facts that may question the buyer’s credit rating, in particular, if a cheque is not cleared, or if the buyer ceases to make payments, or if insolvency proceedings covering the buyer’s assets are initiated, Poli-Tape shall be entitled to demand immediate payment of the aggregate debt balance even if Poli-Tape has accepted cheques. In any of these cases Poli-Tape is authorized to call for advance payments or securities.
5. The buyer may setoff Poli-Tape claims only against cross claims that are either undisputed by Poli-Tape or that have been ascertained in a legally binding way. With regard to payment of the purchase price, or of the remuneration, exercising any performance retention right, or a trader’s retention right, is precluded.
VIII. Representations and Warranties
1. Poli-Tape warrants that its merchandize is free of manufacturing and material defects. Poli-Tape does not assume liability for the accuracy of information material, technical data sheets, or of leaflets, instruction manuals or for customer service provided by Poli-Tape. No liability whatsoever is assumed for the Poli-Tape items’ suitability for the use intended by the buyer. The buyer shall comply with specific Poli-Tape processing guidelines; otherwise any warranty shall be precluded. Instruction manuals, recommendations as well as suggestions made by Poli-Tape application engineers are provided to the best of knowledge based on practical experience. They do not relieve the buyer from its test and assessments.
2. Immediately upon receipt the buyer shall check the merchandize delivered for defects and completeness. Patent defects shall be advised to Poli-Tape in writing immediately after receipt of the merchandize by stating the details on the label and, in particular the lot number; if such defect is detected at a later point in time such notice shall likewise be made immediately after its detection (article 377 HGB [Handelsgesetzbuch = German Commercial Code]). Failing this, raising any warranty claim shall be barred. Timely receipt of the notice of defects by Poli-Tape shall be sufficient to serve the deadline. Sales representatives are not authorized to accept notices of defects. The full burden of proof for eligibility for any claim rests with the buyer, especially for the defect itself, for the exact time the defect was detected, and for the timeliness of the notice of defect.
3. The above paragraph 2 applies to excess or wrong deliveries correspondingly. If an excess or wrong delivery is not objected to immediately after receipt of the merchandize, or immediately after its detection, the excess or wrong delivery shall be considered as approved and may be invoiced retroactively by Poli-Tape in accordance with the pricelist in effect on the day of delivery.
4. Should the buyer accept defective merchandize in awareness of the defect, it shall solely be entitled to the rights from warranties for defects in accordance with article 442 BGB [Bürgerliches Gesetzbuch = German Civil Code].
5. Damages in transit shall be notified to the responsible forwarding agent, carrier, or any other person or organization designated to effect shipment immediately after receipt of the merchandize.
6. Notwithstanding the above, Poli-Tape assumes liability for justified and promptly notified defects of the merchandize, initially, at Poli-Tape’s discretion, by remedial action or additional delivery. In this case, Poli-Tape shall bear the costs incurred for this remedial action inasmuch as they reflect reasonable cost rates.
7. If remedial action fails, or if Poli-Tape rejects such action finally and definitely, the buyer in principle is free to demand a reduction of remuneration (abatement), or a rescission of contract (withdrawal) at its discretion. In case of a merely minor infringement of contract, however, especially for minor defects, or for a marginally limited serviceability, the buyer shall not be entitled to withdraw from the contract.
8. If the buyer elects to withdraw from the contract due to a defect of title, or due to a material defect after remedial action has failed, the buyer shall not be entitled to additional claims for damages for the defect.
9. Return shipments of merchandize require prior written agreement. No liability shall be assumed for return shipments that have not been agreed upon. Transportation charges and packaging shall be at the buyer’s expense.
10. Should the buyer elect compensation for damages subsequent to failed remedial action, the merchandize shall remain with the buyer if this can reasonably be expected from it. Compensation for damages shall be limited to the difference between the purchase price and the value of the defective merchandize. This shall not apply if Poli-Tape has fraudulently caused the breach of contract.
11. The warranty period is one year starting with delivery of the merchandize. This shall not apply in cases where the buyer has failed to notify Poli-Tape of the defect in writing in due time (paragraph 2. of this provision).
12. Any warranty claim on the part of the buyer shall become time-barred at the latest 6 months following Poli-Tape’s justified refusal of defects.
IX. Liability, Limitation of Liability
1. Poli-Tape’s liability shall be restricted to wilful and grossly negligent violations of duties. This shall also apply to violations of duties committed by Poli-Tape’s statutory representatives and vicarious agents
2. The above limitation of liability shall not apply in respect of any claims raised by the buyer concerning physical injury or damage to health, or loss of life, for which Poli-Tape is held accountable, as well as in cases of simply negligent violation of significant contractual duties.
3. Claims for damages on the part of the buyer due to a defect shall become time-barred following a year after delivery of the merchandize. This shall not apply inasmuch as Poli-Tape is culpable of grossly negligent fault as well as in case of physical injury or damage to health, or loss of life, for which Poli-Tape is held accountable.
4. Claims for damages based on erroneous information in catalogues, price lists or the like shall be excluded. Should Poli-Tape become aware of any such erroneous information, we will point this out to the buyer prior to filling the order.
5. Poli-Tape’s liability for damages shall be limited to the damage that, due to the circumstances prevailing at this point in time, typically could be anticipated at conclusion of the contract. In this context, in particular, shall be excluded lost profit, indirect as well as collateral damage for defects, and damages arising from third party claims against the buyer.
6. The aforesaid limitation of liability, or liability disclaimers, respectively, shall apply accordingly to the reimbursement of wasted expenses (article 284 BGB).
7. Liability arising from the Product Liability Act or from other claims arising from manufacturer’s liability shall remain unaffected by these stipulations.
8. The aforesaid stipulations do not change the burden of proof.
X. Final Provisions
1. The law of the Federal Republic of Germany shall apply to this contract. The provision of the UN Sales Convention shall not be applied.
2. Provided the buyer has merchant status, or is a legal person under public law or representing special public institutional funds, the sole place of jurisdiction for any disputes arising from this contract shall be the registered official business location of Poli-Tape. The same shall apply if the buyer has no general place of jurisdiction in Germany, or if its domicile address or its regular residence is unknown at the time of filing a law suit. Poli-Tape reserves the right to file a lawsuit at the buyer’s official registered business location.