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Conditions Générales de Ventes
for Proplast Fahrzeugbeleuchtung GmbH, dated 01/11/2014
§ 1 General information – scope
(1) Proplast Fahrzeugbeleuchtung GmbH ("Proplast") processes orders for customers based on these General Terms and Conditions.
(2) Customers within the meaning of these General Terms and Conditions are economic operators as defined by § 14 BGB (German Civil Code), i.e. all natural or legal persons who enter into a business relationship with Proplast and who are exercising a commercial or independent professional activity. If provisions in these GTC are valid abroad, they shall apply for international customers without restriction.
(3) Deliveries, services and offers provided by Proplast are exclusively based on these General Terms and Conditions. They apply to all current and future business relationships between Proplast and the Customer. These General Terms and Conditions are deemed to be accepted by the Customer upon receipt of the goods or services at the latest.
(4) All agreements that are reached between Proplast and the Customer for the purpose of executing contracts must be set out in writing.
(5) Proplast shall only collect customer data in order to execute its contracts. The statutory provisions, especially the German Telemedia Act (TMG) and the Federal Data Protection Act (BDSG) must be complied with in this regard. Customer data shall only be collected, processed and used if this is required to implement the contractual relationship.
(6) We are only obliged to comply with differing terms and conditions if we have expressly accepted them in writing.
§ 2 Offer and conclusion of the contract – design changes – offer documents
(1) Proplast offers are always subject to confirmation and are non-binding. Offers and all Customer orders are only binding for Proplast if Proplast has provided written confirmation (incl. by fax or email) or sends the goods to the Customer. An order confirmation may also take the form of an invoice.
(2) The product description information, such as notes, drawings, figures, descriptions, dimensions, weight, consumption and other performance data, received from Proplast in catalogues, brochures, advertisements, offers, order confirmations and other sales documents, as well as information regarding use, is only binding if this has been expressly agreed with Proplast in writing.
(3) Proplast employees, sales agents and representatives are not authorised to reach verbal ancillary agreements or to provide verbal assurances that go beyond the content of the written contract.
(4) Proplast reserves the right to make changes to the structure and design of products sold by Proplast made due to improvements in technology or requirements stipulated by the legislator, if this does not result in a significant change to the goods and the changes are reasonable for the Customer. Proplast is not obliged to make these kinds of changes to products that have already been delivered.
(5) Proplast reserves the right of ownership and copyright to all catalogues, figures, drawings, calculations, samples and similar tangible and intangible information, including in electronic form. This also applies to written documents that are marked "confidential". The Customer must obtain Proplast's express written consent before forwarding this on to third parties.
§ 3 Prices
(1) Unless otherwise provided for by Proplast's order confirmation, the prices are deemed to be ex warehouse in Rosbach, in euros, excluding packaging, postage and transport costs; these shall be invoiced separately (see § 4); any required insurances or other ancillary services shall also be invoiced separately. The statutory value added tax applicable on the day of invoicing is also added. Any customs duties and customs clearance charges for international deliveries shall also be borne by the Customer.
(2) If the agreed delivery date is more than 4 months after the conclusion of the contract, Proplast also reserves the right to make appropriate adjustments to its prices, even after the conclusion of the contract, until the delivery is made. Proplast reserves the right to appropriately adjust its prices if unintended and unforeseeable cost reductions or cost increases due to Proplast employee wage rises or material price changes, import duties or taxes arise during this period and this leads to a significant change in Proplast's calculation that results in a price increase or decrease of at least 10%. Proplast shall provide evidence of the cost reductions and cost increases to the Customer on request. The Customer shall be entitled to withdraw from the contract, if the price increase significantly exceeds the rise in general living costs in the period between the conclusion of the contract and delivery (significant increases that exceed the rise in the general cost of living).
(3) Orders with a net value of under EUR 50.00 are subject to a minimum order surcharge of EUR 10.00 if shipment is expressly desired.
(4) Only the amounts, weights, and number of items calculated by us upon shipment are taken into account in this regard.
§ 4 Shipment, transfer of risk, transport and packaging costs
(1) Proplast is free to select the transport route and means of transport. In principle, shipment is made at the Customer's risk and expense. The Customer also bears the transport risk even if the shipping costs are borne by Proplast in exceptional cases. Acceptance of the goods by the carrier or freight forwarder without objection constitutes sufficient proof of flawless packaging.
(2) The risk of the accidental deterioration or accidental loss of the goods sold shall transfer to the Customer as soon as Proplast has transferred the shipment to the carrier or freight forwarder responsible for the transport, the postal service or an assigned company, another parcel service or another person responsible for the shipment; however, as soon as it leaves our warehouse. If the goods are ready to be shipped and the Customer has been notified of this, but the shipment or acceptance is delayed for reasons for which the Customer is responsible, the risk shall transfer to the Customer on receipt of the notification that the goods are ready for shipping.
(3) The rights under Section 6 notwithstanding, delivered items must be accepted by the Buyer, even if they have insignificant defects.
§ 5 Period of delivery – delay in delivery – partial delivery
(1) Delivery deadlines or periods are specified in the agreements between Proplast and the Customer. Compliance with these deadlines by Proplast requires that all commercial and technical issues between Proplast and the Customer have been clarified and that the Customer has fulfilled all their obligations. (These include the provision of any necessary official certificates or permits or the transferral of any agreed advance payment or deposit). If this is not the case, the delivery period shall be extended accordingly. This does not apply if Proplast is responsible for the delay in delivery.
(2) The compliance with the delivery period is subject to the requirement that the deliveries Proplast receives from its suppliers are correct and on time. This does not apply if Proplast is responsible for non-delivery. The Customer shall immediately be informed if a service is not available.
(3) The delivery period is deemed to have been complied with if the goods have left the warehouse or have been reported as ready for shipping by the delivery deadline.
(4) If the Customer is in default of acceptance or culpably breaches another duty of cooperation, Proplast is entitled to demand compensation for any losses they suffer as a result, including any additional expenses. The risk of an accidental loss or accidental deterioration of the purchase item shall transfer to the Customer upon default of acceptance.
(5) Proplast is not responsible for delays in delivery and performance as a result of force majeure and unforeseeable events, which are outside of Proplast's control and which make a delivery by Proplast considerably more difficult or impossible for a prolonged period, even for binding periods or deadlines. This also applies if these events occur for a Proplast supplier or their subcontractors. Examples of these kinds of impediments are: operational disruptions, strikes, lockouts, government interventions, energy supply difficulties, natural catastrophes, war, etc. In these cases, Proplast is entitled to defer the delivery or service by the duration of the impediment plus an appropriate ramp-up time, or partially or completely withdraw from the contract due to the outstanding section. Proplast shall inform the Customer of the start and end of these kinds of circumstances as soon as possible.
(6) The Customer may withdraw from the contract without notice if Proplast is unable to provide their full performance prior to the transfer of risk. In the event that Proplast provides reasonable partial deliveries, the Customer is also entitled to withdraw from the contract if the performance of part of the delivery of an order becomes impossible and they have a legitimate interest in rejecting the partial delivery. If this is not the case, the Customer must pay the applicable contract price for the partial delivery. The same applies in the event that Proplast is unable to execute the delivery. In all other respects, the Customer's rights are covered by § 9 of these General Terms and Conditions (§ 9 Limitations of liability).
(7) If the Customer specifies an adequate deadline for Proplast to provide their service after the due date (in consideration of statutory exceptions) and Proplast does not comply with this deadline, the Customer is entitled to withdraw from the contract in line with the statutory provisions. The assertion of compensation instead of performance or damages as a result of delay by the Customer shall exclusive be based on § 9 of these General Terms and Conditions (§ 9 Limitations of liability).
§ 6 Customer rights in case of defects
(1) Proplast shall provide a warranty for material defects and defects of title in relation to deliveries by Proplast to the exclusion of additional claims – subject to the regulations in § 9 – in accordance with the following regulations.
(2) All items and products that are listed separately in an invoice or order confirmation by Proplast with an individual price are deemed to be independent items to which any warranty rights apply separately.
(3) Proplast is not liable for natural wear. If Proplast goods are used inappropriately or not as intended, if the goods are treated incorrectly or negligently, in particular, if the operating and maintenance instructions supplied by Proplast are not complied with, if changes are made to the products, parts are replaced or consumables that do not comply with the original specification are used, claims for defects to the goods shall lapse if the Customer does not refute a substantiated assertion by Proplast that the defect is due to one of the above circumstance.
(4) If a defect exists on goods delivered by Proplast, Proplast is entitled to provide supplementary performance in the form of the removal of defects (= subsequent improvement), to deliver a new item that is free of defects (= replacement delivery), or to issue a credit, at its discretion.
(5) The Customer's rights relating to defects require that the Customer has duly fulfilled their inspection and notification duties in accordance with § 377 HGB (German Commercial Code). If Proplast enters into negotiations regarding a complaint, this does not represent a waiver of the objection of delayed, inadequate or unjustified notifications of defects.
(6) If the subsequent improvement or replacement delivery fails within an appropriate period, the Customer may either reduce the purchase price or withdraw from the contract at their discretion. However, the Customer is not entitled to withdraw from the contract in the event of a negligible contravention of the contract, especially for minor defects. Further Customer claims are defined in accordance with § 9 of these General Terms and Conditions.
(7) The limitation period for claims for defects (warranty claims) against Proplast amounts to 12 months from the delivery of the goods.
(8) The limitation period in the event of recourse against the supplier in accordance with §§ 478, 479 BGB shall remain unaffected.
(9) Only the direct Customer is entitled to raise claims against Proplast due to defects, these cannot be assigned.
§ 7 Retention of title
(1) Proplast shall retain ownership of the purchase item (goods subject to the retention of title) until Proplast receives full payment of all receivables (including any current account receivables) from the business relationship with the Customer. If Proplast agrees to the payment of the purchase price based on the cheque/bill of exchange method with the Customer, the retention of title shall also extend to the redemption of the bill of exchange accepted by Proplast by the Customer and shall not expire when the cheque received by Proplast is credited to its account.
If we accept bills of exchange as a means of payment, our retention of title remains valid until it is certain that claims can no longer be asserted against us under such bill of exchange.
Bills of exchange received by the Customer are hereby assigned to us and endorsed in our favour as a result of the assigned claims. The Customer must hold the endorsed bills of exchange in safekeeping for us.
(2) The Customer is obliged to handle the goods subject to the retention of title with care.
(3) The Customer is entitled to sell the goods, subject to the retention of title during the ordinary course of business; pledging or assignment as security is not permitted. The Customer must immediately inform Proplast in the event of third party attachments, especially pledging and seizure. The third party must immediately be notified of the retention of title by Proplast. The Customer hereby assigns any receivables regarding the goods subject to the retention of title (including any current account receivables) from the Customer's own buyers or third parties (e.g. insurers, party at fault) relating to the resale of the goods subject to the retention of title or another legal basis (e.g. insurance, tortious actions) in the amount of the final invoice (including value added tax) of our receivable from the Purchase Contract to Proplast. Proplast accepts this assignment. This also applies if the purchase item is processed and then resold. The Customer remains entitled to collect the receivables from their buyer or a third party even after the assignment. This shall not affect Proplast's entitlement to collect these receivables independently. However, Proplast shall not collect these receivables as long as the Customer is able to fully meet their payment obligations towards Proplast, does not default on payment and, in particular, as long as no application is made to open composition or insolvency proceedings on the Customer's assets. However, if one of the above cases does occur, Proplast may demand that the Customer notify it of the assigned receivables and the associated debtors, that the Customer provides Proplast with the information necessary to collect the assigned receivables, submits the associated documents and informs the debtor (or the third party) of the assignment. In this case the Customer is obliged, in particular, to inform Proplast of the name and address of the debtor (or the third party) as well as the amount of their receivables together with the associated specific legal basis.
(4) Any processing or conversion of the goods subject to the retention of title by the Customer always takes place on behalf of Proplast without resulting in any obligations for Proplast. If Proplast's goods are processed, mixed or combined with other items that do not belong to Proplast, Proplast shall acquire joint ownership of the new item in proportion to the value of the goods subject to the retention of title (final invoice amount including value added tax) to the other processed items at the time of processing, combination or mixing.
(5) If the processing, mixing or combination takes place in a manner that results in the Customer acquiring sole ownership of the new item, it is hereby agreed that the Customer shall grant Proplast joint ownership of the new item in proportion to the value (final invoice amount plus VAT) of the goods subject to the retention of title processed, combined or mixed by Proplast and that the Customer shall store this item for Proplast free of charge.
(6) If Proplast's goods are sold together with other goods, regardless of whether this took place before or after processing, combination or mixing, the advance assignment agreed above shall only apply in relation to the value of Proplast's goods subject to the retention of title (final invoice amount plus value added tax).
(7) Proplast shall release the securities assigned to it in accordance with the above provisions at the Customer's request, if the realisable value of the securities held by Proplast exceed the receivables secured by Proplast (if these have not been settled) by more than 20%; Proplast is entitled to select which securities are released.
(8) The Customer must immediately inform Proplast of compulsory enforcement measures in writing, especially pledges or other third party attachments to the goods subject to the retention of title, or the receivables assigned by Proplast in advance and must transfer all the documents and information necessary for an intervention or an action to oppose enforcement. If the third party is not in a position to reimburse the resulting court and out-of-court costs to Proplast, the Customer shall be liable for these costs.
(9) If the Customer's behaviour is in breach of contract, especially in the event of a default of payment or the suspension of payments, or if it becomes evident that Proplast's claims for payment are at risk due to the Customer's lack of solvency, particularly in the event of protested cheques or if composition or insolvency proceedings are opened over the Customer's assets, this shall result in the expiration of the Customer's authorisation to dispose of Proplast's goods subject to the retention of title and to collect the assigned receivables. Moreover, in this case Proplast is entitled to redeem the goods due to the retention of title, even without setting a deadline in accordance with § 323 BGB. The redemption of the purchase item by Proplast represents a withdrawal from the contract. In these cases, the Customer is obliged to surrender the goods subject to the retention of title. After redemption, Proplast is entitled to sell the goods and the proceeds of sale shall be credited against the Customer's liabilities, less appropriate costs of sale.
§ 8 Terms of payment
(1) Invoices are payable within 14 days of the invoice date with a 2% discount or net within 30 days, unless otherwise indicated in the order confirmation.
No discount is provided if other Buyer invoices are outstanding.
Bills of exchange or cheques are only accepted with our consent and do not constitute cash payment, meaning that discounting, charges for bills of exchange and collection fees are borne by the Buyer.
(2) Proplast is entitled to first offset Customer payments against their previous debts, despite any provisions to the contrary. In this case, Proplast shall inform the Customer of the type of offset that has taken place. If expenses and interest have been incurred, Proplast is entitled to first credit the payment towards the expenses, then to the interest and finally to the main payment.
(3) A payment is only deemed to have been completed once Proplast is able to dispose of the amount. In case of cheques, the payment is only deemed to have been completed once the cheque has been redeemed.
(4) In the event of a default of payment, Proplast reserves the right to withhold deliveries of goods and other services until complete payment of the outstanding receivables.
(5) Instalment payments require the express written consent of Proplast and are only possible with a partial payment surcharge (interest and expenses) to be agreed. In the event that Proplast agrees to instalment payments, the outstanding amount is payable immediately and in full if the Customer is more than 14 days in arrears with an instalment payment.
(6) The Customer is only entitled to offset amounts if their counterclaim is established in law or is undisputed or recognised by Proplast. The Customer is entitled to exercise a right of retention or to claim non-performance of the contract within the respective contractual relationship.
§ 9 Limitations of liability
(1) Compensation claims raised against Proplast are excluded, regardless of the type of breach of duty, including tortious acts, and compensation claims due to pre- and post-contractual obligations as well as due to a breach of ancillary contractual obligations, if this is not due to intent or gross negligence by Proplast.
(2) Proplast shall also be liable for typical contractual damages that arise for the Customer as a result of a material breach of contractual duty by Proplast if this is due only to slight negligence. Our liability for slight negligence is excluded in all other respects. A material contractual duty in the above sense is a duty whose fulfilment makes the proper implementation of the contract possible in the first place and on whose compliance the contract partner can regularly trust and rely.
(3) Claims for loss of profit, expenses saved from third party compensation claims as well as other indirect and consequential damages cannot be asserted, unless a quality characteristic guaranteed by Proplast is aimed at protecting the Customer against these kinds of damages.
(4) The limitations and exclusions of liability specified in subsections 1 and 2 do not apply for claims due to malicious conduct by Proplast as well as for claims in accordance with the Product Liability Act in the event of a liability for guaranteed quality characteristics and damages relating to the loss of life, physical injury or damage to health.
(5) If our liability is excluded or limited, this also applies for Proplast employees, representatives and agents.
§ 10 Reservation of performance
If a significant deterioration in the Customer's financial circumstances is identified following the conclusion of the contract, which make it appear that Proplast's receivables are at risk, especially if the Buyer does not immediately pay invoices, despite a reminder, Proplast is entitled to refuse to fulfil its outstanding services.
§ 11 Final provisions
(1) The law of the Federal Republic of Germany applies for these General Terms and Conditions and all contracts between Proplast and the Customer to the exclusion of the UN Convention on Contracts for the International Sale of Goods as well as the international conflict of laws regulation, with the exception of mandatory safeguards enacted by the government in which the Customer has their usual place of residence.
(2) The place of performance for delivery is the shipping location, while the place of performance for all other rights and obligation is the production site.
(3) The exclusive place of jurisdiction is Bad Homburg vor der Höhe or the Buyer’s registered office, at our discretion.
(4) If individual provisions of the contract or these General Terms and Conditions are or become partially or completely invalid, this shall not affect the validity of the remaining provisions or agreements. These Terms and Conditions shall remain binding, even if individual points are legally invalid. The partially or completely invalid regulation shall be replaced by a regulation whose economic success most closely resembles that of the invalid regulation.