General Terms of Delivery

§ 1 Validity
(1) All deliveries, services and offers of kcd Kunststoffe, Additive und Beratung GmbH (hereinafter referred to as “kcd GmbH”) are made exclusively on the basis of these General Terms of Delivery. These are an integral part of all contracts concluded by kcd GmbH with its contractual partners (hereinafter referred to as the “Customer”) regarding the deliveries or services it offers. They shall also apply to all future deliveries, services or offers to the Customer, even if they are not agreed again separately.
(2) The terms of business of the Customer or third party shall not apply, even if kcd GmbH does not otherwise object to their validity in individual cases. Even if kcd GmbH refers to a letter, which contains or refers to the terms of business of the Customer or a third party, this shall not constitute any agreements to the validity of these terms and conditions.

§ 2 Offer and conclusion of contract
(1) All offers made by kcd GmbH are without obligation and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Orders or contracts may be accepted by kcd GmbH within fourteen days of receipt.
(2) The sole authoritative document for the legal relations between kcd GmbH and the Customer is the Purchase Contract concluded in writing, including these General Terms of Delivery.
(3) Supplements and amendments to the agreements made, including these General Terms of Delivery, require the written form in order to be valid. With the exception of managing directors or authorised signatories, the employees of kcd GmbH are not entitled to make any verbal agreements that differ from this. To comply with the written form, transmission by telecommunications is sufficient, in particular by fax or by email, provided that the copy of the signed declaration is transmitted.
(4) The information provided by kcd GmbH on the subject of the delivery or service (e.g. weights, dimensions, practical values, load-bearing capacity, tolerances and technical data) are only approximate, except where usability for the contractual purpose requires full conformity. They are not guaranteed characteristics, but descriptions or designations of the delivery or service. Any customary deviations and deviations resulting from legal provisions, as well as the replacement by equivalent parts, are permissible insofar as they do not impair the usability for the purpose intended by the contract.
(5) kcd GmbH retains the ownership or copyright for all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and tools made available to the Customer. The Customer may not make these objects, or the content of them, accessible to third parties or make them known to third parties, or have them used or reproduced, either by himself or by third parties without the express permission of kcd GmbH. At the request of kcd GmbH, the Customer shall return all such items in their entirety and destroy any copies produced if they are no longer required by him in the normal course of business or if negotiations do not lead to the conclusion of a contract.

§ 3 Payment
(1) Invoices shall be paid within thirty days without any deductions, unless otherwise agreed in writing. The date of payment is deemed to be the date the payment is received by kcd GmbH. If the Customer does not pay by the due date, the outstanding amounts shall incur interest at a rate of 5% p. a. from the due date.
(2) A 2% discount shall be granted if payment is made in cash or within 10 days. However, discounts shall only be granted if all outstanding payment obligations arising from the respective contractual relationship (including other individual orders for which the same framework agreement applies) have been met and the invoice amount is paid in cash to kcd GmbH or paid into the account of kcd GmbH by the aforementioned due date.
(3) The offsetting of counterclaims by the Customer or the withholding of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established.
(4) kcd GmbH is entitled only to carry out outstanding deliveries or services against prior payment or deposit if, after the conclusion of the contract, it becomes aware of circumstances which substantially reduce the creditworthiness of the Customer and by which the payment of the outstanding claims of kcd GmbH by the Customer from the respective contractual relationship (including those from other individual orders for which the same framework agreement applies) is put at risk.

§ 4 Delivery and delivery time
(1) Deliveries are made ex works or from another place.
(2) Deadlines and dates for deliveries and services proposed by kcd GmbH are only approximate unless a fixed deadline or a fixed date has been explicitly confirmed or agreed upon. If dispatch has been agreed, delivery deadlines and delivery dates refer to the date of handing over to the forwarding agent, carrier or other third party responsible for transport.
(3) Notwithstanding their rights arising from any default by the Customer, kcd GmbH may demand from the Customer an extension of the delivery and service deadlines or postponement of the delivery and service dates by the period for which the Customer fails to meet its contractual obligations with respect to kcd GmbH.
(4) kcd GmbH shall not be liable for deliveries that are not possible or for delays to deliveries as a result of force majeure or other events that were not foreseeable at the time the contract was concluded and for which kcd GmbH is not responsible (e.g. operational disruptions of any kind, difficulties with the supply of materials or energy, transport delays, strikes, lawful lockouts, shortages in labour, energy or raw materials, difficulties in acquiring the necessary official permits, measures imposed by official bodies or failure by suppliers to deliver or to deliver promptly or to deliver correctly). Insofar as such events make the delivery or service substantially more difficult or impossible for kcd GmbH and the hindrance is not just of a temporary duration, kcd GmbH shall be entitled to withdraw from the contract. In the case of hindrances of a temporary duration, the delivery or service deadlines shall be extended, or the delivery or service dates shall be postponed by the period of the hindrance plus an appropriate lead time. If, as a result of the delay, the Customer cannot be expected to accept the delivery or service, he can withdraw from the contract by means of an immediate written declaration to kcd GmbH.
(5) kcd GmbH shall only be entitled to make partial deliveries if
• the partial delivery can be used by the Customer within the scope of the contractually intended purpose,
• the delivery of the remaining ordered goods is guaranteed and
• the Customer does not incur any significant additional expenses or additional costs (unless kcd GmbH is willing to accept these costs).

§ 5 Place of fulfilment, shipping, packaging, transfer of risk, acceptance
(1) The place of fulfilment for all obligations arising from the contractual relationship is Weimar, Germany, unless otherwise specified.
(2) The shipping method and packaging are subject to the dutiful discretion of kcd GmbH.
(3) In the case of packaging costs, the following conditions apply: Disposable packaging shall not be remunerated separately. All other packaging costs, e.g. container rental, special packaging as well as boxes and seaworthy packaging will be invoiced to the Customer by kcd GmbH at cost price.
(4) The risk shall pass to the Customer at the latest upon handover of the item supplied (whereby the commencement of the loading process is decisive) to the forwarding agent, carrier or other third party designated to execute the shipment. This shall also apply if partial deliveries are made or if kcd GmbH has taken over other services (e.g. shipping or installation). If the dispatch or handover is delayed due to circumstances for which the Customer is responsible, the risk shall transfer to the Customer from the day on which the item supplied is ready for dispatch and kcd GmbH has indicated this to the Customer.
(5) Storage costs after transfer of risk shall be borne by the Customer. In the case of storage by kcd GmbH, the storage costs shall amount to 0.25% of the invoice amount of the goods to be stored for each full week. The right to pursue and provide evidence of additional or lower costs is reserved.

§ 6 Warranty, material defects
(1) The warranty period shall be one year from the date of delivery or, if acceptance is required, from the date of acceptance.
(2) The delivered items must be carefully inspected immediately after delivery to the Customer or to the third party designated by it. They shall be deemed to have been approved by the Customer if kcd GmbH has not received written notice of obvious defects or other defects found in the course of a prompt, thorough examination within ten working days of delivery. With regard to other defects, the items supplied shall be deemed to have been approved by the Customer if kcd GmbH does not receive the notice of defects within ten working days of the defect being detected; if the defect was already detected by the Customer under normal application at an earlier date, this earlier date shall constitute the start of the complaint period. At the request of kcd GmbH, defective items must be returned to kcd GmbH freight paid. In the event of a justified complaint, kcd GmbH shall pay the costs of the cheapest shipping route; this shall not apply if the costs increase because the item supplied is located in a place other than the place of the intended use.
(3) In the case of material defects of the delivered goods, kcd GmbH shall first be obliged and entitled to rectify or replace the goods at its own discretion within a reasonable period of time. In the event of a failure, i.e. the impossibility, unreasonableness, refusal or unreasonable delay in repairing or replacing the goods, the Customer can withdraw from the contract or reduce the purchase price appropriately.
(4) If a defect is the fault of kcd GmbH, the Customer may demand compensation under the conditions stipulated in § 8.
(5) In the case of defects by other manufacturers which kcd GmbH cannot rectify due to licensing or other de facto reasons, kcd GmbH will, at its discretion, assert its warranty claims against the manufacturers and suppliers on behalf of the Customer or assign them to the Customer. Warranty claims against kcd GmbH only exist for defects of this kind under other conditions and in accordance with these General Terms of Delivery if the legal enforcement of the aforementioned claims against the manufacturer and suppliers was unsuccessful or is futile, e.g., due to insolvency. During the period of litigation, the limitation of the Customer's warranty claims against kcd GmbH shall be suspended.
(6) The warranty shall not apply if the Customer modifies the item supplied without the consent of kcd GmbH or allows it to be altered by a third party, making any repair impossible or unreasonably difficult. In such cases, the Customer shall bear the additional costs of remedying defects caused by the modification.

§ 7 Intellectual property rights
(1) In accordance with this § 7, kcd GmbH shall ensure that the item supplied is free from industrial property rights or copyrights of third parties. Each contractual partner shall immediately notify the other contractual partner in writing in the event that claims are made against him due to the infringement of such rights.
(2) In the event that the item supplied infringes an industrial property right or copyright of a third party, kcd GmbH shall, at its own discretion and expense, alter or replace the item supplied in such a way that no further rights of third parties are infringed, but so that the item supplied continues to fulfil its contractually agreed functions, or obtain right of use on behalf of the Customer through the conclusion of a licensing agreement. If this is not done within a reasonable period of time, the Customer shall be entitled to withdraw from the contract or reduce the purchase price appropriately. Any claims for damages by the Customer are subject to the limitations of § 8 of these General Terms of Delivery.
(3) In the case of infringements of products from other manufacturers supplied by kcd GmbH, kcd GmbH will, at its discretion, assert its claims against the manufacturers and upstream suppliers on behalf of the Customer or assign them to the Customer. Claims against kcd GmbH only exist in accordance with the provisions of this § 7 if the legal enforcement of the aforementioned claims against the manufacturers and suppliers was unsuccessful or is futile, e.g., due to insolvency.

§ 8 Liability for damages caused by fault
(1) The liability of kcd GmbH for damages, irrespective of the legal basis, in particular, due to impossibility, delay, defective or incorrect deliveries, breach of contract, breach of obligations during contractual negotiations and tort, shall be limited in accordance with this § 8, insofar as it is at fault in each case.
(2) kcd GmbH shall not be liable in the event of ordinary negligence on the part of its bodies, legal representatives, employees or other vicarious agents, insofar as this is not a violation of contractual obligations. Essential contractual obligations include the obligation to promptly deliver the item, free of defects which impair its functionality or usability more than insignificantly, as well as advisory, protective and custodial duties, which are intended to enable the Customer to use the item supplied in the contractually prescribed manner or which serve the purpose of protecting the life and limb of the Customer’s personnel or protecting the Customer’s property against considerable damage.
(3) Insofar as kcd GmbH is liable for damages on the grounds of and in accordance with § 8 (2), this liability is limited to damages which kcd GmbH has foreseen at the time of conclusion of the contract as a possible consequence of a breach of contract or which it should have foreseen in the course of application by applying due diligence. Indirect damage and consequential damage resulting from defects in the item supplied are only eligible for replacement, insofar as such damage is typically expected when using the item supplied as stipulated.
(4) In the event of liability for ordinary negligence, kcd GmbH’s obligation to compensate for damage to property and the resulting loss of profits is limited to an amount of EUR 3 million per claim (corresponding to the current coverage of product liability insurance or third party liability insurance), even if this is a breach of contractual obligations.
(5) The aforementioned exclusions and limitations of liability shall apply equally to the bodies, legal representatives, employees and other vicarious agents of kcd GmbH.
(6) The limitations set out here under § 8 shall not apply to the liability of kcd GmbH in respect of wilful conduct, guaranteed characteristics, damage to life, body or health or according to the Product Liability Act.

§ 9 Retention of title
(1) The delivered goods (goods subject to retention of title) shall remain the property of kcd GmbH until all claims against the Customer, to which kcd GmbH is entitled now or in the future, including all current account balance claims, have been settled. If the Customer acts contrary to the terms of the contract – in particular, if he defaults on a demand for payment, kcd GmbH has the right to withdraw the goods subject to retention of title after kcd GmbH has set a reasonable deadline. If kcd GmbH withdraws the goods subject to retention of title, this constitutes a withdrawal from the contract. The transport costs for returning the goods shall be borne by the Customer. It also represents a withdrawal from the contract if kcd GmbH seizes the goods subject to retention of title. Any goods subject to retention of title withdrawn by kcd GmbH may be sold. The proceeds from the sale shall be offset against the amounts owed by the Customer to kcd GmbH after kcd GmbH has deducted a reasonable amount for the costs of the sale.
(2) The Customer shall treat the goods subject to retention of title with care. He must insure them at his own expense against any damages arising from fire, water and theft according to the replacement value.
(3) In the case of seizure of the goods subject to retention of title by third parties or in the case of other interventions by third parties, the Customer must point out the property of kcd GmbH and must inform kcd GmbH immediately in writing so that kcd GmbH can enforce its property rights. If the third party is unable to reimburse the judicial or extrajudicial costs incurred by kcd GmbH in this connection, the Customer shall be liable for this.
(4) If the Customer requests this, kcd GmbH is obliged to release the securities granted to kcd GmbH insofar as its realisable value exceeds the value of the outstanding claims of kcd GmbH against the Customer by more than 10%. However, kcd GmbH may choose the securities to be released.

§ 10 Final provisions
(1) If the Customer is a merchant, a legal entity under public law or a special fund under public law or has no place of general jurisdiction in the Federal Republic of Germany, then the place of jurisdiction for any disputes arising from the business relationship between kcd GmbH and the Customer shall be at the discretion of kcd GmbH Erfurt or the registered office of the Customer. However, for claims against kcd GmbH, Erfurt shall be the exclusive place of jurisdiction. Mandatory legal provisions regarding exclusive jurisdictions shall remain unaffected by this regulation.
(2) Insofar as the contract or these General Terms of Delivery contain any loopholes, those legally effective provisions which the contracting partners would have agreed according to the commercial aims of the contract and the purpose of these General Terms of Delivery if they had been aware of the loopholes are considered to be agreed for filling these loopholes.