GTCSD / General Terms and Conditions of Sale and Delivery (“Terms and Conditions of Sale”)
Version as of: 07/2023
Section 1 Applicability
Our Terms and Conditions apply to all current (and future) business relationships and contracts, in particular, with merchants and also with legal entities under public law or special funds under public law (hereinafter referred to as “the customer”).
Deviating, conflicting or supplementary general terms and conditions of business shall not become part of the contract, even if we carry out deliveries without reservation in the knowledge of said conflicting or deviating terms and conditions of the customer, unless their validity is expressly agreed in writing.
Section 2 Conclusion of contract
2.1. Our offers are subject to change, and are non-binding. Details and descriptions – such as illustrations, drawings, weights and dimensions – shall only be approximate until they are expressly designated by us in writing as binding within the framework of the conclusion of the contract.
2.2. By placing an order for goods – which must be in writing – the customer bindingly declares that he wishes to purchase the ordered goods.
2.3. A contract is only concluded by our written or pre-printed order confirmation. Ordered and confirmed quantity/products are binding, and must be accepted or paid for in the event of non-acceptance.
2.4. The conclusion of a contract is subject to correct and timely delivery by our suppliers. The customer shall be informed immediately of the non-availability of our performance. The consideration shall be refunded without delay.
2.5. We reserve the right of ownership and copyright to cost estimates, drawings and other documents; they may not be made accessible to third parties. We undertake to make documents designated as confidential by the customer accessible to third parties only with the customer’s consent
Section 3 Formal requirement:
Declarations and notifications by the customer subsequent to the conclusion of the contract (e.g. setting of a deadline, notification of defects, withdrawal or price reduction) shall only be effective if they are made in writing. Legal formal requirements and further instances of proof, in particular, in case of doubt concerning the legitimacy of the declaring party, shall remain unaffected.
Section 4 Prices:
The price stated by us is binding and, in the absence of a special agreement, applies ex works (Marsberg) including loading at the factory and packaging (FCA INCOTERMS 2020). All ancillary charges, public levies, any newly added taxes, freight charges, as well as their increases, by which the delivery is directly (or indirectly) affected and rendered more expensive, are to be borne by the customer, insofar as there are no statutory provisions to the contrary. Value added tax shall be payable in addition at the legally applicable rate on the date of invoicing.
Section 5 Payment, set-off:
5.1. Unless otherwise agreed in writing, the customer shall pay the purchase price to us 14 days from the invoice date. Payments must be received in Centroplast’s account on the last day of the payment period. Payments, the deadlines of which fall on a weekend or public holiday, shall be paid on the last banking day before the respective weekend or public holiday. Payments are to be made to Centroplast’s account as shown on the invoices and, unless otherwise agreed, without deductions.
5.2. The deduction of a discount requires a separate written agreement. Value added tax shall be payable in addition at the statutory rate applicable on the date of invoicing.
5.3. Should claims not be settled on time (or only partially), interest will be charged on late payment amounts from the due date at a rate of 9 percentage points per year above the applicable base interest rate pursuant to Section 247 German Civil Code (BGB), as well as a processing fee of EUR 10.00 (ten) per reminder from the second reminder onwards, provided that the customer is responsible for the late payment. These provisions on additional reminder fees are not to be taken as an indication of our willingness to grant extended credit and are without prejudice to any rights and remedies Centroplast may have (or otherwise assert) under the contract or otherwise. Expenses incurred by Centroplast due to late payment or non-payment of the amount due by the customer – such as, but not limited to, reasonable attorney’s fees, court costs and collection fees – shall be paid by the customer. The customer may only offset against undisputed or legally established claims.
Section 6 Retention of title
6.1. We retain title to the goods (the “retained goods”) until all claims arising from an ongoing business relationship have been settled in full. The customer is obliged to treat the reserved goods with care. The customer is obliged to inform us immediately of any access by third parties to the reserved goods, for example, in the event of seizure, as well as any damage to or destruction of the reserved goods. The customer must notify us immediately of any change in ownership of the reserved goods and of his own change of residence. We shall be entitled to withdraw from the contract and demand the return of the goods subject to retention of title in the event of the customer’s conduct in breach of the contract, in particular, in the event of default in payment or breach of an obligation under Clauses 2 and 3 of this provision.
6.2. The customer is entitled to resell the reserved goods in the ordinary course of business. He hereby assigns to us all claims in the amount of the invoice amount which accrue to him against a third party through the resale. If the goods subject to retention of title are sold by the customer together with other goods not belonging to us, the assignment of the purchase price claim shall only apply to the amount of the value of the goods subject to retention of title which, together with these goods, are the subject of the purchase contract or part of the object of purchase. If the reserved goods are used by the customer to fulfil a contract for work and services or a contract for work and materials, the claim arising from the contract for work and services (or the contract for work and materials) shall be assigned to us to the same extent as is determined for the purchase price claim. We hereby accept said assignment. After the assignment, the customer is authorised to collect the claim as long as he meets his payment obligations. The customer, on the other hand, may not dispose of such claims by way of assignment. We reserve the right to collect the claim ourselves as soon as the customer does not properly fulfil his payment obligations and is in default of payment.
6.3. We are entitled to notify the third-party debtor of the assignment. The handling and processing of the reserved goods by the customer shall always be carried out in our name and on our behalf. If processing is carried out with items not belonging to us, we shall acquire co-proprietorship of the new item in the ratio of the value of the reserved goods delivered by us to the other processed items. The same shall apply if the goods subject to retention of title are mixed with other items not belonging to us. The customer shall store these for us free of charge. We undertake to release the securities to which we are entitled at the customer’s request insofar as the realisable value of our securities exceeds the claims to be secured by more than 20%; the choice of the securities to be released shall be at our discretion.
Section 7 Place of performance, dispatch, delivery conditions
7.1 Unless expressly agreed otherwise in writing, the place of performance for the delivery or service shall be the location of our delivery works or warehouse (Marsberg).
7.2 Unless otherwise agreed in writing, the FCA Terms of Delivery (INCOTERMS 2020), Marsberg shall apply to all deliveries.
7.3. If (and to the extent that) shipment of the goods by us has been agreed, we shall ship the goods at the customer’s risk ex works (Marsberg); in doing so, we shall determine the mode of shipment, shipping route and carrier.
Section 8. Partial deliveries and services
8.1. Compliance with our delivery obligation shall require the timely and proper fulfilment of the customer’s obligations. The start of the delivery period stated by us presupposes the clarification of all technical questions. Delivery periods and dates stated by us are approximate unless we have expressly given a binding commitment in writing. It shall commence with the dispatch of the order confirmation, but not before the provision of the documents, approvals, releases to be procured by the customer and before receipt of any agreed down payment. The delivery period shall be deemed to have been met if the delivery item has left the factory, or notification of readiness for dispatch has been given by the time the delivery period expires. Delivery times are subject to correct and timely delivery to us by our suppliers
8.2. If possible, our delivery or service shall be provided in one single delivery or service. We shall be entitled to carry out partial deliveries or services to a reasonable extent. Each partial delivery shall be deemed an independent transaction.
8.3. If delivery is made by us by way of exception, then deliveries must be unloaded within two hours of notification at the customer’s unloading point. Should there be delays in unloading beyond the 2 hours owed to the customer, any standing costs incurred will be passed on to the customer in the amount of EUR 60 per hour or part thereof.
Section 9. Delivery dates; delay and delivery costs
9.1 If an agreed delivery or performance date is exceeded or another contractual obligation is not fulfilled by us in due time, the customer shall set us a reasonable grace period in writing. This grace period shall be at least two weeks.
9.2 If the delivery or service does not take place by the expiry of the grace period, and if the customer, therefore, wishes to exercise his right to withdraw from the contract or to claim damages in lieu of performance, he shall be obliged to notify us of this in writing beforehand, setting a further reasonable grace period and requesting delivery or performance. At our request, the customer shall be obliged to declare in writing within a reasonable period of time whether he will withdraw from the contract due to the delay and/or demand damages instead of performance or insist on delivery/service.
9.3 The customer may only withdraw from the contract within the framework of the statutory provisions if we are responsible for the delay in delivery. This does not imply a change in the burden of proof to the detriment of the customer.
9.4. In the case of overseas transport operations, the transport costs communicated in advance as non-binding information based on current daily prices may change up until the day of transport; in the case of overseas transport operations, the transport costs applicable on the day of transport shall be borne by the customer. Insofar as compensation for damage caused by delay, compensation in lieu of performance or reimbursement of expenses is concerned, the provisions of Clause 16 shall apply. Insofar as we expressly promise binding fixed dates in writing and are responsible for their non-observance or we are deemed to be in default, the customer shall be entitled – insofar as he can credibly show that he has suffered damage as a result – to compensation for default, but not more than up to 0.5% of the invoice value of the deliveries and services affected by the default for each full week of the default, up to a maximum of 5% in total. Claims beyond this – in particular, claims for damages – are excluded, unless liability is mandatory in cases of intent, gross negligence or bodily injury.
9.5. For custom-made products, excess- or shortfall-deliveries of up to 10% of the order quantity are permissible. If a tighter limit is to be imposed, a separate written agreement shall be concluded to this effect. Deviations in terms of dimensions, contents, weights and colour shades due to production are permitted within the scope of what is customary in the trade (mass production); the same applies to deviations due to technical progress and the corresponding further development of the product.
Section 10 Transfer of risk
10.1. Unless otherwise stated in the order confirmation via the corresponding INCOTERMS deposited there, the risk of accidental loss (and deterioration) of the goods shall pass to the customer upon handover, in the case of sale by delivery to a place other than the place of performance upon delivery of the item to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment – even if partial deliveries are made or we have assumed other services, e.g. the shipping costs or delivery and installation. If the customer is in default of acceptance the handover is deemed made.
10.2. We are entitled to take out appropriate transport insurance on behalf (and at the expense) of the customer, at least to the amount of the invoice value of the goods.
Section 11 Force majeure
11.1. In the event of force majeure, our delivery and performance obligations shall be suspended. Force majeure shall be deemed to include, in particular, natural disasters, fire, flood, storm and thunderstorm damage, pandemics or quarantine restrictions, war, shortage of energy or raw materials, fire and explosion damage, industrial disputes, official decrees, traffic or operational disruptions or if sub-suppliers do not supply us, do not supply us on time or do not supply us properly due to events of force majeure, in particular, for the aforementioned reasons.
11.2. In the event of force majeure, we undertake to inform the customer within 10 (ten) days of the circumstance and duration of the force majeure. In the event that the prevailing condition of force majeure continues without interruption for a period of 30 days, the customer and the supplier shall agree, at the request of one of the parties, to work out a mutually equivalent solution.
Section 12 Product information
Unless expressly agreed otherwise in writing, the contractually owed quality of the goods results exclusively from our respectively applicable product specifications. Statements of condition, durability and other information do not constitute guarantees. All other information – be it written and verbal – regarding our products, equipment, systems and processes and process instructions is based on research work and application technology experience. We provide this information to the best of our knowledge, subject to change and further development, but without any obligation. However, this information does not release the customer from the obligation to test our products and processes for their own use. This also applies with regard to the protection of third party property rights and to applications and procedures.
Section 13 Quality
Centroplast delivers all goods in accordance with the product specifications. These are available at www.centroplast.de. If requested by the customer at the time of ordering, all products are delivered with a works certificate according to EN-1204-2.1 or EN-1204-2.2. Any analysis costs for additional test parameters expressly requested by the customer shall be borne by the customer.
Section 14 Warranty
14.1. The warranty period is one year.
14.2. The warranty period shall commence in each case on the date of the invoice, but no earlier than the date of the transfer of risk to the customer. The decisive date for the contractual condition of the goods is the time at which the goods leave our factory or delivery warehouse. The customer is obliged to check the goods for specification conformity upon receipt of the goods. Notifications of defects must be made immediately – and in writing – and are excluded if they are not received by us within two (2) working days after receipt of the delivery. Defects that could not be discovered within this period even after careful inspection must be reported to us immediately, but no later than two (2) working days after their discovery.
14.3. If the customer fails to issue a notice of defects within the aforementioned period, the delivered product shall be deemed accepted.
14.4. The customer shall bear the full burden of proof for all prerequisites for a claim, in particular, for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect.
14.5. Complaints regarding defects do not entitle the customer to withhold the purchase price or a part thereof or to offset counter-claims, unless their justification has been acknowledged by us in writing or has been established by a court of law.
14.6. Defective goods shall be made available immediately for return transport to the supplier.
14.7. We may refuse to remedy the defects as long as the customer does not fulfil his obligations vis-a-vis us.
Section 15 Rights of the customer in the event of defects
15.1. Insofar as our delivery and/or service is defective and the customer justifiably lodges a complaint in this regard, we shall – at our discretion – make a subsequent delivery or rectify the defect (subsequent performance). We must always be given the opportunity to do so within a reasonable period of time. If we allow the reasonable period of grace granted to us for subsequent delivery or rectification to elapse fruitlessly, or if the subsequent performance fails, the customer may in, principle, demand a reduction in the remuneration (abatement) or rescission of the contract (withdrawal) at his discretion. However, in the event of only a minor breach of contract – in particular, in the event of only minor defects – the customer shall not be entitled to withdraw from the contract. Compensation for damages may only be claimed in accordance with Clause 16.
15.2. Subsequent performance by Centroplast requires that the goods declared to be defective have been returned.
15.3. If the customer chooses to withdraw from the contract, he shall not be entitled to any additional claim for damages due to the defect.
15.4. Any recourse of the customer against us under Section 445a German Civil Code (BGB) is excluded.
Section 16 Liability and compensation
16.1. Our liability for claims for damages – irrespective of the legal grounds – is limited in accordance with this Clause 16.
16.2. We shall only be liable for damages and reimbursement of futile expenses (Section 284 German Civil Code [BGB]) due to breach of contractual or non-contractual obligations, or due to tort (a) in the event of intentional or grossly negligent conduct (b) in the event of intentional or negligent injury to life, limb or health (c) due to the fraudulent concealment of a defect or in the event of the assumption of a quality guarantee, and (d) in the event of liability due to hazardous circumstances (in particular, under the Product Liability Act).
16.3. In the event of a breach of essential contractual obligations (cardinal obligations), we shall be liable for any negligence, but only up to the amount of the foreseeable damage typical for the contract.
16.4. Insofar as our liability is excluded or limited, this shall also apply to employees, representatives and vicarious agents.
16.5. Essential contractual obligations (so-called “cardinal obligations”) are i.e. those obligations which give the contract its character and on which the contractual partner may rely; they are
thus the essential rights and obligations which create the conditions for the performance of the contract, and are indispensable for the achievement of the purpose of the contract.
16.6. None of the above Clauses is intended to change the statutory or judicial distribution of the burden of proof.
Section 17 Limitation
Warranty claims, claims for damages and claims for reimbursement of expenses of the customer shall become statute-barred one year after the statutory commencement of the limitation period, unless it concerns claims for defects for goods which have been used for a building in accordance with their customary use and have caused its defectiveness – in this case, the limitation period shall be 5 years. The aforementioned limitation periods shall not apply if we have acted intentionally, or if our liability is mandatory under the Product Liability Act or for other reasons in the event of injury to life, limb or health or for damage to privately used items.
Section 18 Tools and moulds
Tools and moulds are our property, even if the customer has assumed the acquisition costs in whole or in part.
Section 19 Compliance with statutory provisions
19.1. The customer shall be responsible for compliance with all pertinent legal and official regulations for import, transport, storage and use and resale and export of the goods, all in accordance with the agreed terms of delivery. In particular, the customer undertakes not to sell, deliver or use these goods itself for the purpose of developing or manufacturing biological, chemical or nuclear weapons; for the purpose of the illegal manufacture of drugs; in breach of embargoes; in breach of statutory registration or reporting obligations; or without the authorisations required under the applicable statutory regulations. The customer will compensate us for all losses and damages and indemnify us against all claims under civil, administrative and criminal law resulting from his breach of the aforementioned obligations.
19.2. If, at the time of delivery/service, a statutory or official authorisation requirement exists for the purpose of exporting our delivery/service and the authorisation for export applied for in this respect is not granted, we shall be entitled to withdraw from the contract. In this case the customer is not entitled to any form of compensation. In the event of delayed issuance on the part of the authorities, there shall be no entitlement to compensation.
19.3. We shall also be entitled to withdraw from the contract if, at the time of delivery/service, an existing trade ban prohibits this or if, in the case of a product registration obligation, registration has not been applied for or granted at the time of delivery/service. In this case the customer is not entitled to any form of compensation.
19.4. If preferential forms of facilitation can be granted for goods, we reserve the right to issue a declaration of preferential status (supplier’s declaration, declaration of origin on the invoice) in automated form without a separate signature if the legal requirements are met. We confirm that any preferential declaration made is in accordance with Regulations (EU) No 2015/2447 and No 2017/989.
Section 20 Compliance
20.1. Centroplast would like to draw attention to the Code of Conduct applicable to its parent company CENTROTEC SE and any subordinate affiliated companies, to which it is solely committed. 20.2. Furthermore, the parties are obliged to comply with all anti-corruption laws applicable to the legal relationship between Centroplast GmbH and the customer. Any breach of these laws in connection with this contract constitutes a breach of contract which, irrespective of any further claims by the other party, shall give rise to the right to extraordinary written termination of the contractual relationship without notice.
Section 21 Trade terms
Insofar as trade terms in accordance with the International Commercial Terms (INCOTERMS) have been agreed, INCOTERMS 2020 shall apply to their application and interpretation.
Section 22 Completeness
Unless expressly stated otherwise in these Terms and Conditions of Sale, Centroplast has not expressed any promises to the customer. There are no other verbal or written agreements or understandings between the parties relating to this contract or any of the matters governed herein.
Section 23 Final provisions
All legal relations between the customer and us shall be governed by the laws of the Federal Republic of Germany, excluding the conflict of laws rules of private international law and the UN Convention on Contracts for the International Sale of Goods (CISG). If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from this contract shall – at our discretion – be our registered office in Brilon. The same shall apply if the customer does not have a general place of jurisdiction in Germany, or if the customer’s place of residence or habitual abode is unknown at the time the action is brought. However, we are also entitled to sue at the customer’s place of business.
Section 24 Partial ineffectiveness
Should individual provisions of the contract with the customer – including these General Terms and Conditions – be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Any wholly or partially ineffective provision shall be replaced by a provision whose economic success comes as close as possible to that of said ineffective provision.