General terms and conditions
(Status: November 2020)
1 Scope of application
1.1 The following terms and conditions shall apply exclusively to all business relations between BARLOG Plastics GmbH or a company affiliated with it under company law within the meaning of §§ 15 ff. AktG on the one hand (hereinafter referred to as “we” or “us”) and an entrepreneur within the meaning of § 14 BGB (German Civil Code), a legal person under public of public law or a special fund under public law on the other hand (hereinafter “Customer”). The Terms and Conditions shall also apply to all future transactions, even if they are not expressly agreed again.
1.2 Any deviating, conflicting or supplementary general terms and conditions or terms and conditions of purchase of the of the Customer shall not become part of the contract, even if we do not expressly object to them again, unless their validity is expressly agreed to in writing.
1.3 We shall be entitled to amend or supplement these General Terms and Conditions at any time. For contracts concluded prior to an amendment of these General Terms and Conditions, the General Terms and Conditions valid at the time of the conclusion of the contract.
2 Conclusion of contract
2.1 Our offers are subject to change. The presentation of our product range in our respective current brochures, catalogues or lists of goods shall not constitute a binding offer of contract.
2.2 Drawings, illustrations, dimensions, weights or other performance data are only binding if this is expressly agreed in writing.
2.3 We reserve all proprietary rights and copyrights to offer documents, illustrations, drawings, calculations and other documents.
and copyrights; they may not be made accessible to third parties. This shall apply in particular to written documents designated as “confidential”; the customer shall require our express written consent prior to consent before passing them on to third parties.
2.4 Insofar as we quote part prices in an offer of Rapid Tooling tools, these are indicative prices. If, after completion of the Rapid Tooling tool, we determine that the cycle time of the tool deviates significantly from the cycle time previously estimated, we hereby expressly reserve the right to adjust the parts prices and to issue a new quotation for this purpose.
2.5 By placing an order, the customer bindingly declares its intention to purchase the ordered product.
2.6 We shall be entitled to accept the contractual offer contained in the order within two weeks of receipt by us. The binding contract shall only be concluded upon our acceptance. The acceptance can be either in writing – order confirmation – or by delivery of the products to the customer.
2.7 If an order exceeds customary quantities or if it is not fully available, we reserve the right to impose a corresponding restriction. Our order confirmation shall then constitute an offer to conclude a new contract. The customer shall be expressly informed of the deviation from his order in the order confirmation. The customer accepts the offer by unhesitatingly accepting the order confirmation, at the latest by
acceptance of the delivered products without reservation.In all other respects, the customer must check our written order confirmation immediately after it has been sent and must inform us immediately of any deviations from the order. If the order confirmation contains an explicit reference to a deviation from the order, the customer must immediately object to the confirmation in writing. Any claims made by us due to missing or late notice or
late notice of defects or objection, or damages resulting therefrom, shall be borne by the customer. The customer shall be entitled to prove that we did not incur any useless expenses or damage resulting useless expenses or that we have incurred no or only minor damage.
2.8 If the customer orders our products electronically, the receipt of the order can be confirmed immediately. The confirmation of receipt shall not constitute a binding acceptance of the order. The confirmation of receipt can be combined with the declaration of acceptance.
2.9 The conclusion of the contract shall be subject to correct and timely delivery to us by any suppliers, unless we are able to establish our ability to deliver through a reasonable congruent hedging transaction with another supplier. The customer shall be informed immediately of the non-availability of the service. Any consideration already paid by the customer shall be refunded without delay.
2.10 If the customer orders our products electronically, the text of the contract shall be stored by us and sent to the customer by e-mail upon request together with these GTC.
3.1 All prices shall be ex works (EXW) plus the respective statutory value added tax, unless another currency or currency unit is specified, in Euro. The prices valid on the day of the conclusion of the contract shall apply.
3.2 Unless otherwise stated, we shall be bound by prices and delivery dates in the offer for four weeks from the date of the offer.
3.3 Notwithstanding Section 3.2, all price quotations shall be based on the cost factors applicable at the time of conclusion of the contract (currency ratio, price of raw materials, wages, freight, customs duties, etc.). Significant changes in cost factors for which we are not responsible and which are not culpably caused shall entitle us to withdraw from the contract until the agreed delivery time or to submit a new offer to the customer. A change in a cost factor is deemed to be significant if it has changed by more than 5% compared to the cost factor valid at the time of conclusion of the contract.
All quantities and weights stated in the order confirmation are to be understood with a tolerance of ± 10 %. Unless official weighing has been expressly agreed or prescribed, the weight determined by us at the time of shipment shall be the basis of the price calculation.
5 Delivery time – force majeure
5.1 We shall be entitled to make partial deliveries and render partial services at any time.
5.2 Unless otherwise agreed, delivery dates are subject to change. Compliance with bindingly agreed delivery and service obligations shall be subject to the timely and proper fulfillment of the customer’s obligations. In the event of late delivery, the customer’s written reminder shall result in default, whereby we must be granted a reasonable period of grace.
5.3 Delays due to force majeure of any kind, unforeseeable operational, traffic or shipping disruptions, fire damage, floods, epidemics, unforeseeable shortages of labor, energy, raw materials or auxiliary materials, strikes, lockouts, official decrees or other obstacles for which we are not responsible, which (partially) delay or prevent the production or shipment or make it economically unreasonable, shall be excluded from for the duration and scope of the disruption as well as a transitional period after the end of the disruption, unless the occurrence would have been known to us prior to the conclusion of the contract.
5.4 Until the end of the disruption, the party obliged to perform shall be released from the obligation to make (partial) delivery. The
parties to the contract undertake to provide the necessary information without delay within the scope of what is reasonably and to adjust their obligation to the changed circumstances in good faith.
5.5 If, upon occurrence of a case according to clause 5.3, the obligation to deliver becomes unreasonable or impossible for a period of four months, the parties may rescind the contract in whole or in part without being entitled to claim damages. In the event of withdrawal, the contracting parties shall immediately return to each other what they have received from the other contracting party.
5.6 If the delay relates only to a part of the delivery, we shall be obliged to deliver and the customer shall be obliged to accept the part of the delivery not affected by the delay. The customer may refuse acceptance of the partial delivery if he demonstrates that the partial delivery without delivery of the remaining products is of no economic benefit to him. If the customer accepts the partial delivery, he can no longer plead afterwards that the partial delivery is partial delivery was of no economic benefit to him.
6 Condition – technical advice
6.1 The quality of the product shall be deemed to be only that described in our technical specification. We shall only be liable for this.
6.2 Public statements, promotions or advertising, whether by us or by a third party, shall not constitute quality specifications for our products.
6.3 Samples provided prior to or in the course of the conclusion of a contract are merely illustrative samples.. The provision of samples before or in the course of the conclusion of a contract does not constitute a warranty or a “purchase by sample”. Certain properties are not agreed by the provision of samples.
6.4 The agreement of a guarantee or a warranty going beyond our technical specifications shall require the written form and the consent of the supplier. A guarantee shall only be effective if it specifies the content of the warranty as well as the duration and the territorial scope of the warranty protection.
6.5 The use, application and processing of the products are beyond our control and are therefore the sole responsibility of the customer.
and therefore exclusively under the customer’s own responsibility.
6.6 The customer shall be responsible for compliance with statutory or official regulations in the use, application and processing of the products.
6.7 All suggestions, data, information and other consulting services with regard to the suitability and application of our products shall be made to the best of our knowledge, but are not binding without express written warranty 6.4 and shall not release the customer from its obligation to convince itself of the suitability of the products for the processes and purposes intended by it by means of its own test procedures and trials.
6.8 The quality of the products can only be guaranteed if they are stored properly and in accordance with the specifications of the product.
7 Shipment – Transfer of Risk
7.1 Products shall be shipped at our discretion ex works or ex warehouse for the account of the customer. We reserve the right to choose the shipping route and the shipping method.
7.2 Upon handover of the products – in the case of sale by delivery to a place other than the place of performance – to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment, the risk of accidental loss and accidental deterioration of the products shall pass to the customer.
7.3 The handover shall be deemed to have taken place if the customer is in default of acceptance. Any goods not accepted shall be stored for the account and at the risk of the customer. The same shall apply if the shipment is delayed or becomes impossible for reasons for which we are not responsible.
7.4 If the delivery is made carriage paid, duty paid, franco, CIP or FOB, the customer shall bear the additional costs incurred by the special shipping request, by the increase in freight charges since the conclusion of the contract and by other shipping difficulties.
7.5 Irrespective of the mode of shipment and the rules of commercial purchase according to §§ 372 ff HGB (German Commercial Code) or the obligations to give notice of defects according to clause 10, the customer shall immediately inspect the delivered containers for intactness and have any damage confirmed in writing by the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. Damage in transit which is only discovered after the products have been unpacked must be reported to us in writing immediately after discovery.
7.6 After notification, the customer shall grant us the right to entrust a third party commissioned by us with the assessment of the damage within 24 hours after notification.
7.7 Any damages or additional expenses incurred by us due to missing or delayed notification shall be borne by the customer. The customer shall be entitled to prove that we have incurred no or only minor damage.
8 Terms of payment – Default in payment
8.1 Unless otherwise agreed, the invoice amount shall be due and payable without deduction within 14 days of the invoice date.
8.2 The customer shall check the invoice within 10 days of receipt. After expiry of this period the invoice shall be deemed to have been accepted.
8.3 If, after the conclusion of the contract, justified doubts arise as to the customer’s ability to pay, in particular in the event of default of payment or a significant deterioration of the creditworthiness index, we shall be entitled to make further deliveries dependent on advance payment or the provision of collateral.
8.4 If the customer is in default with the fulfillment of a payment obligation for more than 7 days, we shall be entitled to immediately revoke all payment terms granted to the customer for deliveries and to make all invoices from deliveries due for immediate payment. Furthermore, we shall be entitled to immediately stop further deliveries, even if such deliveries are already in transit, and to withdraw from the contract and/or to claim damages for non-performance after the unsuccessful expiry of a reasonable grace period set by us.
8.5 We reserve the right to use payments made by the customer to settle the oldest invoice items due plus the default interest and costs accrued thereon, in the order: costs, interest, principal claim.
8.6 Subject to further claims, we shall be entitled to charge default interest of 9 percentage points above the base interest rate in the event of default in payment. Furthermore, we shall be entitled to a lump-sum compensation in the amount of EUR of EUR 10.00 per demand for payment. We reserve the right to assert further claims for damages.
8.7 We reserve the right to require a down payment for orders with a value of goods of EUR 8,000.00 or more (in words: eight thousand euros). comma zero) to issue a down payment invoice.
9 Retention of title
9.1 We retain title to our products (hereinafter referred to as “Retained Goods”) until all claims arising from the current business relationship with the customer have been settled in full. In the case of a current account, the retained title shall serve as security for a balance claim.
9.2 The customer is obliged to treat the reserved goods with care and to notify us immediately of any access by third parties to the reserved goods or assigned claims, for example in the event of seizure, as well as of any damage to or destruction of the reserved goods. The customer shall notify us without delay of any change in ownership of the reserved goods and of its own change of domicile. Any pledging, transfer by way of security or assignment of claims, including by way of sale of receivables, shall require our prior written consent.
9.3 We shall be entitled to withdraw from the contract and demand the return of the reserved goods in the event of a breach of contract by the customer, in particular in the event of a default in payment or a breach of an obligation pursuant to clause 9.2 of this provision.
9.4 The customer shall be entitled to process or resell the reserved goods in the ordinary course of business. He hereby assigns to us all claims in the amount of the invoice which accrue to him against a third party as a result of the resale. We accept the assignment. After the assignment, the customer shall be authorized to collect the collection of the claim. We reserve the right to collect the claim ourselves as soon as the customer does not duly meet his payment
9.5 The processing of the reserved goods by the entrepreneur shall always be carried out in our name and on our behalf. The customer shall not be entitled to any claims against us arising from the further processing. If the goods are processed with items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods delivered by us subject to retention of title to the other processed items, and the customer hereby also assigns to us in advance the claims against its customers arising from the sale, including all ancillary rights, until all claims have been settled in full. We accept the assignment. The same shall apply if the goods subject to retention of title mixed with other objects not belonging to us.
9.6 If justified doubts arise as to the realization of our claims against the customer, we shall be entitled to demand from the customer to disclose the assignment to his customer. This shall also include the consent of the customer to obtain information and documents.
9.7 Notwithstanding the foregoing, we shall release the securities held to the extent that they exceed the claims to be secured by more than 15 %.
9.8 If the law of the country in which the delivered products are located does not provide for the retention of title, we shall be entitled to request the customer to order other demand from the customer the provision of other equivalent securities.
10 Obligations to give notice of defects – rights of the customer in case of defects
10.1 Immediately upon receipt, the customer shall inspect the delivery item and assert any defects in writing without delay.
10.2 Prior to further processing, the customer shall carry out an examination of the compatibility of the delivered product with the requirement profile required by it. Furthermore, the customer shall subject the product to a detailed inspection prior to series production and shall carry out a test run of the product under series production conditions followed by a detailed inspection of the workpiece produced. Should this reveal defects which are attributable to a deviation of the delivered product from our technical specifications, the customer shall notify us of the defect in writing without delay, stating the procedure selected by him, the test set-up and the measurement results obtained therefrom. At the latest with the start of the series production run, the product shall be deemed to have been accepted with the delivered quality, insofar as the defect was not recognizable even with proper implementation of the aforementioned requirements.
10.3 The customer shall inspect the delivered products immediately after delivery by us, insofar as this is feasible in the ordinary course of business, and shall notify us immediately if a defect becomes apparent. If the customer fails to make such notification, the goods shall be deemed to have been approved, unless the defect is a defect which was not recognizable during the inspection. If such a defect becomes apparent at a later date, the notification must be made immediately otherwise the goods shall be deemed to have been approved also in view of this defect. The timely dispatch of the notification shall be sufficient to preserve the rights of the customer.
10.4 In the case of justified defects, we shall initially provide warranty at our discretion by rectifying the defect or supplying a replacement. If the subsequent performance fails, the customer may reduce the purchase price within the scope of the statutory provisions or, at his option, withdraw from the contract.
10.5 Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs as well as costs for removal, installation or mounting, shall be excluded if the expenses increase because the subject matter of the delivery has subsequently been taken to a place other than the customer’s place of business, unless the transfer is in accordance with its intended use.
10.6 The expenses of subsequent performance shall be kept as low as possible by the customer. Irrespective of this, the claim for reimbursement of expenses incurred for the purpose of subsequent performance shall be excluded if the can only be achieved with disproportionate costs. This shall in any case be the case if (1) the costs of the supplementary performance exceed 50% of the purchase price of the respective defective item and the defect affects the (2) the costs of the supplementary performance exceed 50% of the purchase price of the respective defective item and the defect alone impairs the functionality, or (3) the costs of the supplementary performance exceed 70% of the purchase price of the respective defective item and the defect affects the optics/haptics or the like and the functionality is impaired.
10.7 If the customer chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, he shall not be entitled to any additional claim for damages due to the defect. If the customer chooses compensation for damages after failed subsequent performance, the goods shall remain with the customer if this is reasonable for him. The claim for damages shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply if we have fraudulently have fraudulently caused the breach of contract.
10.8 In the case of insignificant defects, a claim for rescission of the contract shall be excluded.
10.9 If our operating or maintenance instructions are not followed, if modifications are made to the supplies or services, if parts are replaced or if consumables are used which do not comply with the original specifications, any claims based on defects shall become null and void.
10.10 If the asserted claims for defects are a recourse of the customer after the customer has successfully made a claim under the provisions on the sale of consumer goods, the recourse claims based on the provisions on the sale of consumer goods shall remain unaffected. Clause 10.7 shall apply to the claim for damages.
10.11 The customer is obligated to notify us immediately upon becoming aware of any case of recourse occurring in the supply chain.
The customer’s statutory rights of recourse against us shall only exist to the extent that the customer has not customer has not made any agreements with its customer that go beyond the statutory claims for defects.
10.12 The warranty period shall be one year from delivery of the goods due to a defect pursuant to Section 438 (1) No. 3 BGB. If we have fraudulently concealed the defect or in the event of a case pursuant to Section 438 (1) No. 2 BGB, the statutory warranty periods shall apply.
10.13 If the impossibility of delivery is due to technical circumstances of the documents and data sets provided by the customer, both we and the customer may withdraw from the contract if the agreed delivery date is exceeded by more than one month. Alternatively, we may prepare a new offer, the acceptance of which the customer shall decide separately.
11 Limitation of liability
11.1 In the event of negligent breaches of cardinal obligations, our liability shall be limited to the foreseeable damage typical for the contract according to the type of goods. Costs in connection with a subsequent performance (in particular expenses within the meaning of Clause 10.5) shall be reimbursable up to a maximum of the amounts stipulated in Clause 10.6. Sentences 1 and 2 shall also apply to negligent breaches of duty by our legal representatives or vicarious agents. Claims against us in this respect shall become statute-barred in accordance with Clause 10.12.
11.2 Our liability shall be excluded in the event of negligent breach of immaterial contractual obligations.
11.3 In cases of intent or gross negligence on the part of our executives or other vicarious agents, claims on the part of the customer under the Product Liability Act and in the event of bodily injury, damage to health or loss of the customer’s damage to health or loss of life, we shall be liable without limitation in accordance with the statutory provisions.
12.1 Without our written consent, the customer shall not be entitled to use our product designations, in particular our trademarks, in the use of our products for manufacturing purposes or in further processing, or to use them as a component indication on such goods or their packaging or in the associated printed matter and advertising material. The delivery of our branded products shall not be construed as consent to the use of the brands for the use of the trademarks for the products to be manufactured.
12.2 The customer is not permitted to refer to substitute products by naming our products and brands, to offer or deliver such products or to associate such products with a substitute product.
13 Industrial property rights and copyrights
13.1 If, within one year from delivery of the goods, claims are asserted against the customer for infringement of an industrial right or copyright because he uses our delivery/service, we undertake to procure the right of further use for the customer.undertake to procure for the customer the right to continue to use the goods/services.
13.2 A prerequisite for this is that the customer informs us immediately in writing of such claims of third parties and we reserve the right to take all defensive and extrajudicial measures.
13.3 If, under these conditions, further use of our delivery/service is not possible under economically justifiable conditions, it shall be deemed agreed that we, at our discretion, either modify or replace the delivery/service to remedy the defect of title or take back the delivery/service and reimburse the purchase price paid to us.
13.4 Claims against us shall be excluded if infringements of rights are based on the fact that our delivery/service was used in a manner not offered by us or used together with other deliveries/services than ours.
13.5 If the goods are manufactured for the customer, in particular if this is done according to the customer’s specifications and requirements, we shall not assume any liability for infringements of rights, in particular with regard to industrial property rights and copyrights of third parties. It is not part of our scope of services to check the goods to be manufactured for the customer for a possible infringement of the rights of third parties, unless an order to this effect is explicitly placed with us in writing. The customer shall indemnify us against claims of third parties due to an infringement of rights upon first first request.
14 Secrecy and Intellectual Property
14.1 The contracting parties shall be obliged to keep secret any business and trade secrets received from the respective other party within the scope of the contractual relations, not to disclose or make them accessible to third parties and to use them only for the contractually intended purposes. Third parties shall not include companies which are affiliated with a party under company law within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG). AktG (German Stock Corporation Act), provided that a corresponding confidentiality obligation was imposed on them prior to disclosure of the secret.
14.2 The obligations under Section 14.1 shall not apply to such information which can be proven (i) to have been publicly known or accessible prior to disclosure, (ii) to have been already known to the other Party or to have been disclosed by a third party without a
third party without any breach of confidentiality, or (iii) which is disclosed pursuant to a statutory or regulatory or instruction.
14.3 We shall be entitled to engage subcontractors or other third parties for the performance of tasks of the customer and forward to them the confidential information provided to us, to the extent necessary for the performance of the contract. These partners shall be subject to the same confidentiality obligations.
15 Services (laboratory, simulations, consulting, training, etc.)
15.1 If we provide laboratory services to the Customer, we reserve our rights to all test methods and/or procedures as well as to all devices and/or equipment which we have developed ourselves or which are generally used, unless these have been developed exclusively for the customer within the scope of the provision of the services in accordance with a written agreement.
15.2 We reserve the property rights and copyrights to offer documents, illustrations, drawings, calculations, laboratory reports as well as analyses and other documents; they may not be made accessible to third parties. This applies in particular to written documents marked as “confidential”; the customer must obtain our express consent before third parties,
15.3 If the contract does not come into effect, is cancelled or rescinded, or if the contract is executed otherwise terminated, all documents owned by us pursuant to Clauses 15.1 and 15.2 shall be returned to us immediately and shall be returned to us without request and without delay.
15.4 Investigation reports shall be prepared on the basis of the information provided by or on behalf of the customer, documents and/or samples provided by the customer or on its behalf and shall serve exclusively for the benefit of the customer.
15.5 The customer shall draw the necessary conclusions from the investigation reports on its own responsibility. Neither we nor our executives, employees, subcontractors or other third parties engaged by us for the performance of the contract shall be liable to the customer or third parties for any actions taken or omitted on the basis of such investigation reports, as well as for faulty inspections based on unclear, incorrect, incomplete or misleading information provided by the customer.This shall not apply if and to the extent that we have expressly assumed guarantees.
15.6 Unless otherwise stipulated in the agreement between the parties, the statutory provisions of the law on service contracts (§§ 611 et seq. BGB) shall apply to the services to be provided by us.
16 Other provisions
16.1 The place of performance for delivery and payment shall be our registered office.
16.2 The customer may only set off counterclaims that have been legally established, are undisputed or have been acknowledged by us. The customer may only assert a right of retention on the basis of counterclaims that are based on the same contractual relationship.
16.3 The law of the Federal Republic of Germany shall apply. The Uniform Law on the International Sale of Goods based on the Hague Sales Convention of 01.07.1964 and the UN Sales Convention of 11.04.1980 shall not apply.
16.4 The exclusive place of jurisdiction for all disputes arising from this contract shall be our registered office. In addition, we shall also be entitled to sue the supplier at his place of residence or business.
16.5 The customer is not permitted to assign rights arising from purchase and delivery contracts without our prior written consent.
16.6 Agreements between the parties – including amendments to agreements made – must be in writing to be effective.
16.7 If the written form is required in these General Terms and Conditions for the validity of declarations, the transmission of the declaration in text form (fax, e-mail) shall also be sufficient for this purpose.