All present and future legal relations between Mitsubishi Polyester Film GmbH (hereinafter, the “Supplier”) and the Customer shall comply with these Terms and Conditions, unless the wording of the order confirmation or other enclosed special terms and conditions contain provisions to the contrary. The Supplier hereby expressly objects to any other general terms and conditions of business of the Customer. The INCOTERMS of the International Chamber of Commerce in Paris as effective on the date of delivery or performance shall apply additionally in cross-border business transactions.
All agreements concluded between the Supplier and the Customer for the performance of this Agreement must be made in writing; this shall also apply to any waiver of this requirement for the written form.
In the event any provision of the written agreements individually arranged upon the conclusion of the Agreement or in the individual orders and/or the provisions merely affecting the subject, type, scope, quantity and quality of the contractual deliveries and performances as well as agreements regarding price are or become invalid or impracticable, any invalid or impracticable provision shall be replaced with retroactive effect by the provision which approximates closest in terms of contents and economic intent to the invalid or impracticable provision.
The offers of the Supplier shall be non-binding and subject to change. Dates shall only be binding if recorded in writing.
The Supplier hereby reserves the title and copyright to cost estimates, designs, illustrations and other documents; such items may only be made accessible to third parties upon the prior written approval of the Supplier.
Unless stated otherwise in the order confirmation, all prices shall be free on the receiving point and shall also include packaging costs. Prices shall not include the statutory value added tax; such taxes shall be shown separately in the invoice on the date invoices are issued. The deduction of a discount shall require separate written approval.
The Supplier hereby reserves the right to correspondingly modify prices in the event of cost increases after the conclusion of this Agreement in particular due to the conclusion of collective agreements or increases in material costs. Evidence of such increases shall be provided to the Customer upon request.
Payment orders, checks and bills of exchange shall only be accepted upon separate arrangements and only on account of performance while charging all collection and discount charges.
The Customer shall only be entitled to setoff or retention rights in the event of having counterclaims which are finally adjudged, uncontested or acknowledged by the Supplier. The Customer shall furthermore only be authorized to exercise a retention right to the extent to which his counterclaim arises from the same contractual relationship.
In the event of delay in payment or in the event that legitimate doubt exists regarding the Customer’s solvency or creditworthiness, the Supplier shall without prejudice to any other rights be authorized to demand advance payment for deliveries not yet made and to declare all claims from the business relationship to be due for immediate payment.
In the event of delayed payment, the Supplier shall be entitled to charge interest at a rate of 8% above the base interest rate of the European Central Bank.
Deliveries shall be made on the dates stipulated in the confirmation. Force majeure, industrial disputes, unrest, administrative measures and any other unforeseen and significant events for which the Supplier is not responsible and which the Supplier cannot prevent shall release the Supplier from its duty to perform for the duration of the disruption and in the scope of its effects. This shall also apply in the event the circumstances arise at contractors of the Supplier. The Supplier shall also not be responsible for the above-mentioned circumstances in the event such arise during an existing delay. The Supplier shall inform the Customer as soon as possible of the commencement and cessation of such hindrances in important cases.
If the Supplier fails to provide a due performance or fails to do so in compliance with the agreement (“breach of duties”) the Customer shall only be entitled to rescind the agreement or to receive damages in place of the performance,
a) if the breach of duties committed by the Supplier was not insignificant,
b) if it demands from the Supplier in writing to provide the performance within a reasonable period of not less than 14 days, and
c) the Supplier failed regardless to perform within the set period.
§§ 323 paras. 2 to 6 , 326 para. 5 of the Civil Code as well as § 281 paras. 2 to 5 of the Civil Code remain unaffected. In setting the deadline especially that due performance is to be designated precisely for which the deadline is set (qualified setting of deadlines).
If the Supplier failed to provide the performance or failed to do so in accordance with the agreement within the deadline set by the Customer, the Supplier may demand while setting a reasonably deadline from the Customer that the latter should declare whether he continues to insist on the provision of the performance. Up to the point of time at which the Customer decides this the Supplier is under no obligation to provide the performance.
The claims of the Customer based on defects shall require that the Customer properly fulfilled its inspection duty in accordance with §§ 377 and 378 of the Commercial Code and gave the Supplier notice of any defects arising as quickly as possible in writing.
The Supplier shall perform its duties with the due diligence of a prudent businessman. The Supplier shall be liable for the flawless condition of the contracted goods for a period of 12 months, starting with the delivery. § 438 sec. 3 of the Civil Code remains unaffected.
Claims of the Customer due to defects shall be excluded in the event of unsubstantial quality defects. An unsubstantial quality defect shall be deemed to exist in particular in the event the value or suitability for a common use is only insubstantially reduced. In the event of defects in the delivered goods, the Supplier may first either make a subsequent delivery or rectify the defective goods (subsequent performance). Subsequent performance shall be excluded in the event if this leads to disproportionate costs being incurred by the Supplier.
In the event the subsequent performance fails, is refused, or cannot be reasonably expected or the Customer has unsuccessfully set the Supplier a deadline for subsequent performance or if the setting of a deadline is superfluous, the Customer shall be entitled to demand a reduction of the price or withdraw from the Agreement. This will not affect the right to demand damages or compensation for futile expenses.
The Supplier shall only be liable – regardless of legal grounds – in the event that the damage is caused by the negligent breach of a material contractual duty in a fashion which prejudices the achievement of the contractual objective or in the event that such damage is attributable to the gross negligence or willful conduct by the Supplier.
In the event the Supplier is liable for the breach of a material contractual duty in absence of gross negligence or willful conduct the Supplier’s liability shall be limited to the extent of damage which the Supplier must typically expect upon the conclusion of the Agreement due to the circumstances known at that time. The foreseeable, typically arising damage shall amount to the value of the good delivered within the framework of the contractual relationship.
Damage claims in accordance with the Product Liability Act and due to the loss of life, personal injury or prejudice to health shall remain unaffected.
The Supplier hereby reserves the title to the goods delivered until all payments from the business relationship with the Customer have been received. The Supplier’s title shall also extend to new products arising from the processing of the reserved goods. The goods shall be deemed to have been processed for the Supplier as manufacturer. In the event the goods are processed, connected or blended with items not belonging to the Supplier, the Supplier shall obtain joint title to the new goods in the proportion of the invoice amount of the good retained by the Supplier to the invoice values of the other materials.
In the event the Customer acts in breach of contract, in particular in the event of delayed payment, the Supplier shall be entitled to recover the goods. Recovering the goods shall not constitute rescission of the Agreement unless the Supplier expressly declares this in writing. The pledging of the good by the Supplier shall always be equated with the rescission of the Agreement. The Supplier shall be authorized to sell the recovered goods after recovering them and the proceeds from such disposal shall be offset against the liabilities of the Customer after the deduction of reasonable sales costs.
The Customer shall be obligated to treat the purchased good with due care until paid for in full as provided in No. 8.1; the Customer shall in particular be obligated to sufficiently insure such good against damage by fire, water and theft at its own cost at replacement value.
The Customer must inform the Supplier without delay in writing in the event of any pledges or other third-party interference so that the Supplier can file an action pursuant to § 771 of the Code of Civil Procedure. In the event that the third party is not in the position to reimburse the Supplier for the costs of action in or out of court pursuant to § 771 of the Code of Civil Procedure, the Customer shall be liable for the Supplier’s loss.
The Customer shall be entitled to sell the good in the ordinary course of business; however, the Customer assigns already now all receivables from the sale of the good including bills of exchange and checks in the amount of the invoice value (including value-added tax) in order to secure the respective claims. In the event goods to which the Supplier holds a joint title are sold, the assignment shall be limited to that portion of the receivables which correspond to the portion in joint ownership. The Customer shall continue to be entitled to collect such receivables after the claims have been assigned. The authority of the Supplier to collect the receivables shall remain unaffected. The Supplier shall, however, be obligated to not collect the receivables as long as the Customer fulfills its payment obligations from the proceeds received, does not defaults in payment and in particular, no petition has been filed to commence insolvency proceedings, or payments have not been suspended. In the latter event, the Supplier shall be entitled to demand that the Customer notify the Supplier of the assignment of the receivables and their debtors, provides all information necessary for collection, surrender all related documents and inform the third party of the assignment.
In the event the value of the securities more than temporarily exceeds the accounts receivable to be secured by more than 10%, the Supplier shall release securities at its discretion on being requested to do so.
The risk of accidental damage or accidental loss of the goods shall be transferred to the Customer upon the delivery of the goods to the shipping agent, the carrier or any other person appointed to send the goods.
Inasmuch as the Customer so desires, the Supplier shall cover the delivery by transport insurance. The Supplier shall bear the costs of transport insurance. The Customer must have damages to the shipment confirmed immediately by the transport company in writing.
Reusable packaging (e.g., plastic winding cores, packaging frames, end plates and pallets) shall be the property of the Supplier and shall only be lent to the Customer. Such reusable packaging is to be treated with due care and must be made available to the Supplier for return no later than three months from the invoice date in respect of domestic deliveries and not later than six months from the invoice date in respect of deliveries abroad. The Supplier shall assume the collection and return of the packaging in accordance with the return system set up at the Supplier at its own expense after notifying the Customer. The Supplier hereby expressly reserves the right to claim damages due to the late or absent availability of the packaging materials for return as well as the damaging or soiling of reusable packaging.
No other packaging material shall be taken back. The Customer shall be obligated to ensure the proper disposal of such packaging at its own expense.
The Parties hereby agree to keep all information designated as confidential or recognizable as trade or business secrets made accessible to them in connection with this Agreement or for other reasons confidential for an unlimited period of time and to neither record or otherwise utilize such information unless required for the purposes of this Agreement.
The legal relationship of the Parties arising from or related to this Agreement shall be subject to the laws of the Federal Republic of Germany.
The place of performance shall be Wiesbaden.
The place of jurisdiction for legal disputes arising from or related to this Agreement shall be Wiesbaden.