General Terms and Conditions
Valid as of 1 January 2002
I. General
1. These General Business Conditions apply exclusively for all products, goods and services of Poli-Tape. They apply for all current or future business relations, even if agreement with them is not explicitly re-stated at the time. The terms and conditions shall be deemed to have been accepted by the time the goods or services are accepted at the latest. Counterclaims on the part of the purchaser, referring to its own general terms and conditions, are hereby rejected. Divergent purchase terms on the customer side are therefore invalid.
2. Divergent terms and conditions on the customer side, even if merely supplementary or general in nature, and even if we are aware of them, do not constitute part of the agreement. Our express, written approval is required before such conditions shall apply.
II. Offers and contract conclusion
1. Our offers are subject to change without notice and are non-binding. We reserve the right to make any reasonable technical alterations.
2. Once the customer has placed an order for goods, it has made a binding declaration that it wishes to purchase the ordered products.
3. Written or typewritten confirmation by Poli-Tape is required before any declarations of acceptance or orders can become legally effective, and Poli-Tape reserves the exclusive right to withdraw from the agreement, without stating the reasons, within 10 days of receipt of a declaration of acceptance. Claims for compensation by the purchaser are expressly excluded. Should the customer order goods via an electronic medium, Poli--Tape shall confirm receipt of the order immediately. The confirmation of receipt, however, does not constitute any binding acceptance on our part. The confirmation of receipt may be combined with the declaration of acceptance.
4. If an electronic order is placed, the agreement text shall be stored and should the customer so request, the General Terms and Conditions shall be sent to it by e-mail or by post.
5. The conclusion of the contract is made subject to the reservation that the goods are properly and punctually delivered by Poli-Tape's suppliers. This reservation shall not apply if Poli-Tape is responsible for the supplier's failure to deliver. Poli-Tape shall inform the customer immediately that the service cannot be effected. Any services that have already been performed by the customer shall in such case be refunded without delay.
6. Unless otherwise agreed, Poli-Tape considers itself bound to abide by the prices stated in its offers for a period of 30 days from the date of the offer. In all other cases, the prices given in the order confirmation shall be authoritative. Prices in all cases do not include the current legal rate of value added tax, which will generally be shown as a separate item. Any additional goods or services shall be invoiced separately.
7. Drawings, illustrations, weights, measurements and all other service information shall only be binding if this has been expressly agreed in writing.
8. Sales staff at Poli-Tape are not authorised to make any verbal, collateral agreements or to give verbal assurances that exceed the contents of the written agreement.
III. Prices
1. Unless otherwise agreed, prices are ex works Remagen, including standard packaging.
2. Unless otherwise agreed, all shipments of its products by Poli-Tape shall be at the purchaser's risk. We assume no liability for transport damage that is not demonstrably the result of defects in the packaging and that Poli-Tape is responsible for. Unless otherwise agreed, the method of shipment shall be at Poli-Tape's discretion. Where a freight-paid delivery has been agreed between the contractual parties, this shall mean freight-free delivery to the destination specified, while costs for express delivery requested by the purchaser must be paid in full by it.
IV. Transfer of risk
1. In the case of sale by delivery, the risk of fortuitous destruction or fortuitous deterioration of the goods transfers to the customer when the goods are handed over to the forwarder, the carrier, or to the person or organisation charged with effecting shipment.
2. If the shipment is postponed at the request of the purchaser, the risk shall transfer to the purchaser when it is informed that the goods are ready for shipment.
V. Delivery and performance period
1. Any agreements on delivery deadlines or delivery periods, whether binding or non-binding, must be in writing.
2. Even in the case of binding and agreed deadlines, Poli-Tape shall not be responsible for delays in delivery or performance due to acts of God, or to events that render delivery by Poli-Tape more difficult or impossible on a more than temporary basis. Such events inc1ude specifically strikes, lockouts, official decrees, shortages of energy or raw materials, interruption of operations, etc., even if these should arise at Poli-Tape's suppliers or the latters' sub-contractors. Instead, Poli-Tape shall be entitled to postpone the delivery or service for the duration of the hindrance in question, with the addition of an appropriate start-up period, or to withdraw from the agreement, in full or in part, because of the part of the agreement that has not yet been executed.
3. If the hindrance lasts longer than 3 months, the purchaser is entitled, following a suitable extension of the deadline, to withdraw from the agreement with respect to the part of the agreement that has not yet been executed. Lf the deadline is exceeded, or if Poli-Tape is freed of its obligation, this shall not give the purchaser any right to compensation claims. Poli-Tape may only invoke the above-mentioned circumstances if it has informed the purchaser without delay.
4. Poli-Tape is entitled to make partial deliveries and perform part services at any time, except where the customer does not desire such deliveries or services.
5. A precondition for compliance with delivery and service obligations by Poli-Tape is that the purchaser meets its obligations properly and punctually.
VI. Reservation of title
1. Poli-Tape reserves ownership of the goods until full payment of the purchase price. In the case of agreements covered under current business relations, the reservation of title applies until full payment of all outstanding debts.
2. The customer is obliged to treat the goods with due care, and in particular to store and preserve them in accordance with Poli-Tape's instructions.
3. The customer is obliged to inform Poli-Tape immediately in the event of attachment or any other legal claim to the goods by third parties, and to inform it without delay of any damage to or destruction of the goods. The duty of information also applies if the goods change ownership, or the customer changes the location of its business.
4. If the above provisions are violated, Poli-Tape is entitled to withdraw from the agreement and to demand the return of the goods.
5. The customer is entitled to on-sell the goods in the normal course of business. It hereby assigns to Poli-Tape all claims against third parties that may accrue to it from the resale of the goods up to the amount of the invoice. Poli-Tape duly accepts the assignment. After assignment, the customer is entitled to recover the debt. Poli-Tape reserves the right to collect the debt itself if the customer fails to meet its payment obligations properly and falls into arrears with payment. Any processing or reconditioning of the goods by the customer shall always be in the name of and on behalf of Poli-Tape. If processing is carried out with items that do not belong to Poli-Tape, the latter shall acquire co-ownership of the new items in the same proportion as the value of the goods it delivered is in to the other processed items. The same provision shall apply if the goods are combined with other items that do not belong to Poli-Tape.
VII. Payment
1. Unless otherwise agreed, Poli-Tape invoices must be paid net within 30 days of the invoice date, or within 10 days of the invoice date with a 2% discount. Discounts shall only be granted if there are no earlier invoices for which payment is outstanding. Poli--Tape is entitled, irrespective of contrary provisions on the purchaser's side, to first offset any payments against earlier debts. It will inform the purchaser of the details of the clearing transaction. If costs and interest have already been incurred, Poli-Tape is entitled to first offset any payments against the costs, then against the interest and finally against the principal service.
2. A payment shall be deemed to have been effected once Poli-Tape has access to the funds. In the case of cheques, payment shall be deemed to have been made when the cheque has been fully cleared.
3. If the purchaser falls in arrears with payment, it must pay Poli-Tape annual interest on the debt for the period of the arrears amounting to 5% above the basic interest rate in accordance with Section I of the Discount Rate Transfer Act of 9 June 1998 (Federal Law Gazette - BGBl. I Page 1242). The interest rates shall be set at a lower amount if the purchaser can show that the debt burden is lower. Proof by Poli-Tape that the loss is higher is permissible.
4. If Poli-Tape becomes aware of circumstances that could cast doubt on the purchaser's credit standing, in particular if a cheque cannot be c1eared, or the purchaser stops payments, or proceedings for insolvency or composition proceedings are instituted against it, or Poli-Tape becomes aware of other circumstances that cast doubt on the purchaser's credit standing, it is entitled to demand payment of the full remaining debt, even if it has already accepted cheques. In such a case, Poli-Tape is further entitled to demand advance payments or securities.
5. The purchaser is only entitled to offset, hold back or reduce the amount owed, even where notice of defects or counterclaims have been made, if the counterclaims have been legally upheld or are undisputed.
VIII. Warranty
1. Poli-Tape guarantees that its products are free from manufacturing or material defect; the period of warranty begins on the date of delivery. Poli-Tape assumes no liability for the accuracy of promotional material, technical specifications, brochures, instructions for use, or customer advice issued by it. The purchaser is obliged for its part to inspect the products immediately to ensure they are suitable for the intended use.
2. No warranty is assumed for the suitability of the Poli-Tape products for the use intended by the purchaser. If the purchaser reprocesses the Poli-Tape products without following special processing guidelines from Poli-Tape, the warranty is void if the purchaser fails to disprove a substantiated assertion that these circumstances were the cause of the defect. Instructions for use, recommendations and suggestions from our application engineers are given in accordance with personal knowledge and are based on practical experience. They do not discharge the purchaser from the duty of carrying out its own tests and inspections.
3. The purchaser must inform Poli-Tape of any defects immediately and in writing, at the latest within one week of receipt of the delivery item, giving the details on the product label, and in particular the batch number. Poli-Tape must be informed in writing of any defects that were not discovered within this period, even after careful inspection, immediately after they have been established.
4. In the case of justified notice of defects, the purchaser may either reduce the payment amount, return the goods and ask for a replacement delivery at no charge or a credit note. Any additional claims on the part of the purchaser are expressly excluded. Our prior written agreement is required before the return of any goods. No liability is assumed for return shipments that have not been agreed to. Transport costs and packaging shall be borne by the purchaser.
5. Warranty claims against Poli-Tape are only due to the direct purchaser and may not be assigned to third parties.
6. The preceding sections contain all warranty provisions in respect of the product and exclude warranty claims of any other kind. This does not apply for claims for compensation relating to guaranteed qualities.
IX. Limitation of liability
1. Compensation claims arising from the positive violation of a claim or from tortious acts are hereby excluded, both against Poli-Tape, its representatives or vicarious agents, unless intent or gross negligence is involved. This also applies for compensation claims arising from non-performance, but only insofar as compensation is demanded for indirect or consequential losses resulting from defects, unless liability rests on an assurance intended to protect the purchaser against the risk of such damage. All liability is restricted to losses that were foreseeable at the time the agreement was concluded. This does not affect Poli-Tape's liability under product liability regulations or other claims under manufacturer's liability.
X. Final provisions
1. The laws of the Federal Republic of Germany shall apply exclusively to this agreement to the exclusion of the UN CISG.
2. If the customer is a registered trader, a legal person under public law, or a special government fund, the sole place of jurisdiction for disputes arising from this agreement is the registered business address of Poli-Tape. The same shall apply if the customer has no general place of jurisdiction in Germany, or where the domicile or usual residence is unknown at the time the suit is filed.
3. If one or more of the conditions in the agreement with the customer, including these General Terms and Conditions, should be or prove to be null and void, in full or in part, this shall not affect the validity of the remaining provisions. The fully or partially invalid provision shall be replaced with one that most closely approximates the economic sense and intention of the first.
