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Rissland Kunststoffe GmbH


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General Terms and Delivery Conditions of Rissland Kunstoffe GmbH,
As of 01/2008

1. Field of Application, Conclusion of Contract

1.1 The General Terms and Delivery Conditions (GTDC) of Rissland Kunststoffe GmbH (hereinafter called „seller“) shall be valid for all offers submitted by her and for all purchase and delivery contracts concluded with her, as far as the orderer or buyer (hereinafter called „buyer“) is a company in terms of § 310 I BGB1. Conflicting General Terms and Conditions of the buyer shall only be applicable, if they have been expressly confirmed by the seller in writing. Apart from that the seller will not recognize terms and conditions deviating from the following.
1.2 Offers of the seller shall be subject to change and without engagement, unless otherwise expressly agreed upon in writing in particular cases. 1.3 The buyer shall be bound to the order for six weeks.
1.4 The purchase contract shall be considered as concluded when the seller has given her written confirmation of the acceptance of the order of the purchase object indicated in detail within the period according to item 1.3 above or when having delivered. The seller’s invoice shall also be considered as order confirmation.
1.5 All agreements shall be made in writing. This shall also refer to additional agreements, life and provision guarantees as well as to subsequent contract amendments.

2. Prices

2.1 The seller’s prices shall be understood ex works without discount and other abatements and plus VAT, unless otherwise agreed upon. Additional services agreed upon such as transport costs shall be invoiced additionally. The buyer shall be responsible for unloading the goods, even if delivered freight paid.
2.2 The seller shall be bound to the prices and conditions contractually agreed upon for four months from concluding the contract. If the delivery is effected four months after the conclusion of the contract only, the seller shall reserve the right for a corresponding price increase in case of price increases of the purchase prices or in case the production or sale’s prices increased and this not being within the seller’s field of responsibility.

1German Civil Code

3. Terms of Payment, Delayed Payment

3.1 Unless otherwise agreed upon the purchase price shall be completely paid 30 calendar days from the invoice date, but when handing over the purchase object at the latest. If the buyer pays the purchase price within 10 calendar days from the invoice date, the seller will grant a discount of 2%.
3.2 If instalments have been agreed upon between the seller and a buyer, the seller shall be entitled to claim the total outstanding amount including all the accrued interest, if the buyer is partially or completely in delay with at least two successive instalments and the amount delayed corresponds to at least one instalment rate.
3.3 Payment instructions, cheques and bills of exchange shall only be accepted by special agreement and only for fulfilment. Possible discount and bank charges shall be borne by the buyer.
3.4 If the buyer is in default, default interest shall be invoiced to the amount of 8 percentage points over the basis interest rate of the ECB1 (§ 288 II BGB), but at least 12% p.a. Every reminder beyond that which establishes the delay can be charged by the seller with a lump sum compensation of Euro 10.00 each. The seller shall remain entitled to prove a higher damage and the buyer shall remain entitled to prove a lower damage.
3.5 In case of delayed payment or the claim being at risk by impairment of the buyer’s credit standing, the seller shall be entitled to claim his receivables as falling due or to claim securities. This shall also be applicable independently of the validity of possible bills of exchange. In addition, the seller shall also be entitled to effect pending deliveries against advance payment only or on the basis of securities. The credit standing of the buyer will be especially impaired, if one of the commercial credit insurances contracted by the seller is cancelled or the insurance company does not or would not grant cover against the buyer in future. In case the solvency and financial situation of the buyer essentially deteriorate, especially in case that the insurance company refuses cover for a trade credit insurance contracted by the seller, the seller shall be entitled to claim all the receivables due and deferred at once.

2European Central Bank

4. Prohibition of Assignment and Set-off

4.1 The seller shall be entitled to set off all claims against all counterclaims of the buyer. It shall be up to the seller which counterclaims are set off.
4.2 The buyer shall only have the right to set off claims, if his counterclaims have been finally decided, are without dispute or recognized by the seller.
4.3 The buyer shall only be entitled to retention of title, if a counterclaim is based on the same contractual relationship.
4.4 The buyer shall only be entitled to assign rights and claims from contracts to third parties when having the prior approval of the seller. This will not be effective, if the third party is a businessman under the Commercial Law of the Federal Republic of Germany (HGB) and the legal transaction being the basis for the claim is a commercial business for him (§ 354 a clause 1 HGB). But the claim assignment will in this case not be any obligation towards the seller. But the seller shall be able to continue rendering her services to the holder of the claim with a debt clearing effect. This shall also be effective when the seller has been advised on the claim assignment or has otherwise got notice of it.

5. Deliveries, Delay in Delivery

5.1 Delivery periods shall only be binding for the seller when having been confirmed in writing by her. The delivery period shall start with the date of the order confirmation.
5.2 The delivery periods shall only be valid under the condition of having made clear all the details of the order in time and in case that all the obligations of the buyer have been fulfilled in time, such as submitting the required official certificates, especially customs and import certificates, opening of a letter of credit or effecting an agreed down payment or advance payment. The delivery periods agreed upon shall refer to the time of delivering ex works and shall be considered as fulfilled with information on the readiness of dispatch or placing a transport order, if the goods cannot be forwarded in time without the seller’s fault.
5.3 Delays in delivery and services due to Force Majeure and due to events which make it very difficult or impossible for the seller to effect the delivery (e.g. strike, lockout, war, riot, official limitations, considerable shutdowns not being responsible for etc.) shall entitle the seller to postpone the deliveries and services for the period of obstruction plus a proper period of start-up. The same shall be applicable in case the above events have occurred for the seller’s suppliers or their sub-suppliers. If such failures lead to a service delay of more than two months, the seller shall be entitled to partially or completely terminate the contract when having given prior notice to the buyer on not being or partially not being in the position of rendering the service. In case of terminating the purchase contract due to such delays in delivery and services not being responsible for, the seller shall be obliged to immediately pay back an equivalent already received completely or partially.
5.4 If the seller has agreed upon with the buyer in writing that the goods to be delivered shall only be delivered on request of the buyer, the buyer shall request all the goods within six months from the conclusion of the contract. After the expiry of the above period the seller shall be entitled to completely invoice the purchase price contractually agreed upon to the buyer and to deliver the goods to him. The right of the seller according to item 3.1 of the present GTDC to claim the purchase price at an earlier date will not be affected by this stipulation.
5.5. The seller shall be entitled to partial deliveries and services at any time.
5.6 In case the seller has not contractually effected a service due, the buyer will not be entitled to terminate the contract and/or claim damages instead of the service or claim compensation for the vain expenditures, if the breach of duty of the seller is not considerable.
5.7 If the seller does not render a service due or not as agreed upon, the buyer shall be entitled to terminate the contract and provided that there is a culpable breach of an essential contractual obligation by the seller, the buyer shall be entitled to claim damages instead of the service or compensation of his expenditures. Prerequisite for this is that the buyer has stipulated for the seller a proper period for rendering the service or for additional fulfilment in connection with a clear statement that he will reject the delivery after the unsatisfied expiry of the extension of time and that this period has expired without success.
5.8 If the service has already partially been rendered by the seller, the buyer shall only be able to claim damages instead of the complete service, if this is required by his interest in the whole service. It shall only be possible to terminate the contract, in case the buyer is able to prove not being interested in a partial service.
5.9 Further legal claims and rights of the seller shall be reserved.

6. Delay in Acceptance

6.1 The buyer shall be in delay of acceptance, if he does not accept a service offered to him. A service offered shall be considered as not accepted even when the buyer has not picked-up the corresponding goods from the seller’s works within 14 calendar days from the corresponding goods having been announced as ready for dispatch.
6.2 If the buyer is in delay of acceptance, the seller shall – in case of storage of the goods in his own premises - be entitled to charge the buyer with storage costs to the amount of 1% of the net purchase price agreed upon plus VAT for each calendar month started. The storage costs to be invoiced by the seller shall go up or go down, if the seller proves a higher or the buyer a lower damage. Other claims of the seller due to the delay in acceptance of the buyer shall remain unaffected from this stipulation.
6.3 If the buyer is in delay of acceptance, the seller shall be entitled to submit the buyer a proper extension of time in writing for accepting the purchase object. After an unsatisfactory expiry of this extension of time the seller shall be entitled to terminate the purchase contract completely or partially and to claim damages instead of the service. Further rights of the seller shall remain unaffected.
6.4 If the seller claims damages according to the above item 6.3, the damages shall amount to 15% of the purchase price. The damages the seller is entitled to shall go up or go down, if the seller proves a higher or the buyer proves a lower damage.

7. Retention of Title, Goods reserved

7.1 The goods delivered shall remain the property of the seller (goods reserved) until the fulfilment of all claims, also especially of those balance claims, which the seller is entitled to towards the buyer under the business relationship. This means that the property is not assigned to the buyer with handing over the goods to the buyer already, but the seller shall remain the owner of the goods until all payments have been completely effected to the seller. In case the buyer does not comply with the contract, especially delays the payment, the seller shall be entitled, to take the goods back. Taking back the goods does not mean terminating the contract.
7.2 The machining and processing of the goods reserved by the buyer shall be effected as manufacturer for the seller, but without binding the seller. The goods machined and processed shall be considered as goods reserved.
7.3 When the buyer processes, connects and mixes the goods reserved with other goods, the seller shall be entitled to a common ownership of the new object in the ratio of the invoice value of the goods reserved to the invoice value of the other goods used. If the ownership of the seller expires by connecting or mixing, the buyer shall assign his ownership rights of the new stock or object already now, i.e. within the scope of the invoice value of the goods reserved and he shall keep them for the seller free of charge. The common ownership rights of the seller shall be considered as goods reserved.
7.4 The buyer shall be allowed to only resell the goods reserved in common business transactions, under his normal terms and conditions and while not being in delay with his claims towards the seller. Here it is a prerequisite that he agrees upon a retention of title with his clients and buyers and that the claims from this resale shall pass on to the seller according to item 7.5, GTDC. The buyer will not be entitled to other dispositions with regard to the goods reserved. Using the goods reserved for fulfilling works contracts and works supply contracts shall also be considered as resale.
7.5 The buyer’s claims from the resale of the goods reserved shall been assigned to the seller already now. This shall also refer to the amount of the respective balance claims when passing the resale claim into a current account. The assigned claims shall guarantee the goods reserved to the same extent.
7.6 If the goods reserved are resold by the buyer together with other goods not delivered by the seller, the seller shall be assigned the claims from the resale or the respective balance claims in the ratio of the invoice value of the goods reserved to the invoice value of the other goods. In case of resale of goods of which the seller holds common property shares according to item 7.3 GTDC, the seller shall be assigned a share of the claim corresponding to her common property share.
7.7 The buyer shall remain entitled for collecting the claim assigned. But the seller’s right of collecting the claim herself shall remain unaffected. The seller shall undertake not to collect the claims, as long as the buyer fulfils his payment obligations from the revenues agreed upon, does not default in payment and especially has not applied for opening bankruptcy proceedings or composition or insolvency proceedings or there is stoppage of payment. But if this is the case the seller shall have the right to ask the buyer to inform her on the claims assigned and on the defaulting debtors, gives all the information necessary for collecting the claims, hands over the respective documents and informs the debtors on the assignment.
7.8 If the value of the existing securities exceeds the claims secured by more than 10% in total, the seller shall be obliged to release securities according to her choice, if so requested by the buyer.
7.9 The buyer shall be obliged to inform the seller on attachments or other impairments by third parties immediately.
7.10 If it is not possible to agree upon a retention of title with the buyer on the basis of the law to be applied, a lien on the goods, on the goods processed or on the buyer’s claim towards third parties shall be considered as agreed upon. Lien means that the goods shall be considered as security for the seller until the purchase price having been paid completely and thus the buyer shall only be allowed to process or resell these goods when having the seller’s prior approval.

8. Guarantee/Liability

8.1 The quality of the products of the seller depends on the raw materials available. Therefore, quality modifications, differences in colour and weight deviations shall only be the seller’s responsibility for the case that they could have been avoided under the existing conditions. Minor deviations, test deliveries or samples will not be allowed to be objected in principle.
8.2 No guarantee will be granted that the goods are appropriate for a certain use. The buyer shall immediately check the goods received for defects of quality, wrong and missing deliveries. Concerning defects of quality, wrong and missing deliveries, if possible to find them out by acceptable inspections, the buyer shall only be allowed to make complaints in writing within eight days from receiving the goods, but at least before their processing.
8.3 The seller shall grant a guarantee for the goods delivered with excluding further claims as follows:
8.3.1 Wrong or missing deliveries complained in time shall be additionally delivered within 10 calendar days from receiving the complaint in writing. If a supplementary delivery is not effected, not effected in time or effected as wrong or missing delivery again, the buyer shall have the right to terminate the purchase contract or to reduce the purchase price. In case of a supplementary delivery of defective goods the seller shall be entitled to an additional supplementary fulfilment according to item 8.3.2 of these GTDC.
8.3.2 Defective Goods shall be replaced by the seller by goods free of defects within ten calendar days from receiving the complaint in writing. If the replacement delivery is defective as well, the buyer shall be entitled to terminate the purchase contract or to reduce the purchase price.
8.3.3 Measure, weight, performance and other technical data, especially concerning properties or goods shall only be binding within the usual tolerances if expressly guaranteed upon concluding the contract. In no case the buyer will be released from his own obligations for inspections and tests.
8.3.4 The seller will not be liable for damage resulting from the processing of the delivered goods contrary to the indications of the seller.
8.4. All the guarantee claims of the buyer shall become time-barred one year from the transfer of risk, but 15 months from announcing the readiness for dispatch at the latest.
8.5 The risk shall transfer to the buyer as soon as the seller has handed over the goods to the forwarding company, but when leaving the seller’s distributing warehouse at the latest. This shall also be valid, if the seller bears the transport costs.
8.6 The seller will not be liable for transport damage, except damage resulting from the seller’s grossly negligent or deliberate breach of duty.
8.7 The above releases from liability will not be applicable, if the cause of damage is based on a deliberate act and gross negligence. And they will also not be applicable in case of physical injury and/or injury to health as well as in those cases, in which the buyer claims damages because of undertaking a guarantee for the existence of a certain property/condition, unless the purpose of the guarantee of quality only refers to the respective delivery being in accordance with the contract, but not to the risk of consequential damage due to defects. The above regulations will not include a change of the burden of proof to the prejudice of the buyer. The above exclusions of liability will also not be effective for claims according to the Product Liability Act.
8.8 As far as the seller’s liability is limited according to the above regulations, this shall also be effective for the personal liability of her employees, members of staff, representatives and assistants.

9. Data Protection, Schufa3 Clauses

9.1 The buyer shall agree to the fact that the order data are saved and processed according to the Federal Data Protection Act, as far as this is necessary for accounting, customer services and fulfilment of the contract.
9.2 The buyer shall agree that the seller transmits data on the contractual relationship to the Schufa Holding AG or any other recognized trade credit insurance company and asks for information on the buyer in Schufa Holding AG, if so required for safeguarding the legitimate interests of the seller.

3Protection Association for General Credit Security

10. Miscellaneous

10.1 The place of performance shall be the place of business of Rissland Kunststoffe GmbH in Katzhuette.
10.2 The exclusive place of venue for all present and future claims from business relationship including bill and cheque receivables shall be Katzhuette. The place of venue shall remain the same, if (and only if) the buyer has no general venue within the country or if he transfers his residence or usual domicile abroad after the conclusion of the contract.
10.3 The law of the Federal Republic of Germany shall be applicable for all legal relations between the seller and the buyer. The application of the UN Convention on Contracts for the International Sale of Goods of 1980/04/11 (UN Law on the International Sale of Goods, BGBI4. 1989 II, page 588 f) and of the Uncitral Convention on international bank drafts and international promissory notes of 1988/12/09 shall be excluded.
10.4 If one regulation of these GTDC or one regulation of other Agreements is or becomes ineffective, this will not affect the validity of all the other regulations or agreements.

4Federal Law Gazette

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