General Terms and Conditions of Sale and Delivery
(1) All deliveries, services and offers of Plast-Control GmbH (hereinafter referred to as Plast-Control) shall be made exclusively on the basis of these General Terms and Conditions of Sale and Delivery. They shall form an integral part of all contracts concluded by Plast-Control with its contractual partners for the deliveries or services offered by it. They shall also apply - in the respective current version - to all future deliveries, services or offers to the Buyer, even if they are not separately agreed again.
Notwithstanding paragraph 1 of this clause I.1 above, these General Terms and Conditions of Sale and Delivery shall not apply to contracts with/deliveries by Plast-Control to consumers within the meaning of § 13 BGB (German Civil Code).
2. the buyer's general terms and conditions of business shall not apply to the supply relationship unless Plast-Control has expressly agreed to their application in writing. The General Terms and Conditions of Sale and Delivery of Plast-Control shall also apply if Plast-Control carries out the delivery to the Purchaser without reservation in the knowledge that the Purchaser's terms and conditions conflict with or deviate from the General Terms and Conditions of Sale and Delivery of Plast-Control.
II Conclusion of contract and subject matter of delivery
(1) All offers made by Plast-Control are subject to change without notice and are non-binding unless they are expressly marked as binding or contain a specific acceptance period.
A binding contract shall only be concluded upon written or electronic confirmation of the order by Plast-Control. In this case, the Buyer shall be bound to its order for a period of four weeks.
The written or electronic order confirmation shall be decisive for the scope of delivery. Subsidiary agreements or amendments shall require written or electronic confirmation by Plast-Control in order to be effective.
(2) Plast-Control reserves the right to make changes to the design and shape of the delivery item unless (i) the delivery item is substantially changed and the changes are unreasonable for the Purchaser or (ii) the binding nature of information provided by Plast-Control on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances, technical data) as well as representations thereof (e.g. drawings, illustrations) have been expressly agreed with the Purchaser as binding. The aforementioned information provided by Plast-Control on the subject matter of the delivery or service as well as the representations based thereon are neither guaranteed nor do they constitute a description of the target condition without an express written or electronic promise by Plast-Control. In the absence of any other written or electronic promise by Plast-Control, they are rather merely non-binding descriptions or markings of the delivery or service from which deviations are permissible in accordance with the first sentence of this Clause II. 2. In the event that the target quality of the delivery or service has been bindingly agreed with the Purchaser, changes by Plast-Control shall remain permissible insofar as they are made on the basis of mandatory legal provisions and are reasonable for the Purchaser. In the event of unreasonableness, the Buyer shall be entitled to withdraw from the contract. Any further claims shall be excluded.
Plast-Control shall retain all rights, in particular ownership and copyright, to all documents, software, drawings, illustrations, specifications, samples, etc. made available to the Buyer. The Purchaser may use these exclusively within the scope of the contractually intended purpose. They shall be treated as strictly confidential and may not be made available to third parties without the prior written consent of Plast-Control.
4. transactions which are not concluded by organs of Plast-Control with power of representation shall require the approval of the authorized sales representative or the managing directors of Plast-Control in order to be effective.
III Prices and payment
(1) The prices shall apply to the scope of performance and delivery specified in the order confirmations of Plast-Control. Any additional or special services shall be charged separately. Unless the parties expressly agree otherwise, prices are quoted in Euro EXW (Incoterms 2020) plus packaging and statutory value added tax. Any customs duties, taxes, fees or similar levies shall be charged separately insofar as they are to be borne by Plast-Control. 2.
(2) If, after Plast-Control has submitted the offer, after Plast-Control has confirmed the order or after Plast-Control has concluded a framework agreement with a fixed price, significant cost factors such as, in particular, prices for purchased components, energy, wage, transport or insurance costs change significantly (i.e. by at least 10%), Plast-Control shall be entitled to increase the prices appropriately, taking into account the interests of the Purchaser, in particular with regard to any obligations already entered into by the Purchaser for the further delivery of the goods at a certain price.
Invoice amounts shall be paid upon receipt of the invoice by the Purchaser, in cash without any deductions, free Plast-Control's payment office, unless expressly agreed otherwise in writing. In the latter case, the receipt of the payment by Plast-Control shall be decisive for the timeliness of the payment.
If the Purchaser fails to make payment when due, interest of 5% p.a. shall be payable on the outstanding amounts from the due date; in the event of default in payment, the Purchaser shall pay Plast-Control default interest of 9 percentage points above the prime rate. Plast-Control reserves the right to prove that it has suffered greater damage as a result of the delay in payment. Plast-Control shall also be entitled to payment of a lump sum in the amount of EUR 40 in accordance with the provisions of Section 288 (5) BGB.
5. the buyer shall only be entitled to set-off if his counterclaims have been legally established, are undisputed or have been acknowledged by Plast-Control. Furthermore, the buyer shall only be entitled to exercise a right of retention to the extent that his counterclaim is due and based on the same contractual relationship.
(6) Plast-Control shall be entitled to make outstanding deliveries only against advance payment or provision of security if circumstances become known which are likely to substantially reduce the creditworthiness of the Purchaser and as a result of which the payment of Plast-Control's outstanding claims by the Purchaser arising from the respective contractual relationship, including those arising from other individual orders to which the same framework agreement applies, is jeopardized at Plast-Control's due discretion.
(7) In the event of default in payment by the Buyer, we shall be entitled to withdraw from the contract in accordance with the statutory provisions.
(8) Unless otherwise expressly agreed with the Buyer, all payments shall be made in € (Euro) and exclusively to Plast-Control.
IV. Delivery and delivery period
1. the confirmation of order by Plast-Control shall be decisive for the delivery periods, insofar as a fixed period or a fixed date has been expressly promised or agreed therein. Periods and dates otherwise promised by Plast-Control shall always be approximate. The delivery period shall not commence before the Purchaser has provided any documents, approvals, releases to be obtained and before receipt of any agreed advance payment.
The delivery period shall be deemed to have been complied with if the goods have been made available by Plast-Control at its own works and Plast-Control has notified the Purchaser that the goods are ready for dispatch by the expiry of the delivery period. 2.
(2) Reasonable partial deliveries to a reasonable extent shall be permissible if such partial delivery is usable for the Purchaser within the scope of the contractual purpose, the delivery of the remaining goods is ensured and the Purchaser does not incur any additional costs or considerable additional expenditure as a result.
If dispatch or delivery is delayed at the request of the Purchaser or for other reasons for which the Purchaser is responsible after notification of readiness for dispatch, Plast-Control may charge the Purchaser storage costs amounting to 0.5% of the price of the items of the Supplies for each month or part thereof, but not exceeding a total of 5%. The contracting parties shall be at liberty to prove higher or lower damages due to the delay.
4. the delivery is subject to timely and proper self-delivery.
If a delivery becomes impossible for Plast-Control, the Buyer shall be entitled to withdraw from the contract in accordance with the statutory provisions. If Plast-Control is in default with a delivery, the customer may withdraw from the contract after fruitless expiry of a reasonable grace period for delivery of at least 60 days. The grace period must be set in text form.
In the event of delay or impossibility of performance, Plast-Control shall only be liable for damages in accordance with the provisions of Section VIII of these General Terms and Conditions of Sale and Delivery. 6.
6. events of force majeure shall entitle Plast-Control to postpone delivery for the duration of the hindrance and a reasonable start-up period, or to withdraw from the contract in whole or in part on account of the part not yet performed. Force majeure shall include strikes, lockouts, political unrest or unforeseen circumstances, e.g. operational disruptions, which make it impossible for Plast-Control to deliver on time despite reasonable efforts. This shall also apply if the aforementioned impediments occur during a delay or at a sub-supplier. Plast-Control shall notify the Purchaser without delay if a case of force majeure within the meaning of this Clause IV. 6 occurs. The Purchaser may request Plast-Control to declare within six weeks whether Plast-Control will withdraw from the contract in whole or in part in respect of the part of the contract not yet performed or will deliver within a reasonable period of grace. If Plast-Control does not make a declaration within the period set by the Buyer, the Buyer may withdraw from the unfulfilled part of the contract.
V. Packaging, shipment, transfer of risk and acceptance of the goods by the buyer
(1) Unless expressly agreed otherwise, Plast-Control shall choose the type of packaging at its own discretion. Plast-Control shall not be obliged vis-à-vis the Purchaser to take back packaging materials. 2.
2. the risk shall pass to the buyer at the latest as soon as the delivery item has been handed over to the transport person named by the buyer. This shall also apply to deliveries made by employees of Plast-Control, to deliveries made carriage and packaging paid and in cases where assembly, installation or other services are undertaken by Plast-Control. This shall also apply in the case of partial deliveries. In addition, the Buyer shall be in default of acceptance if Plast-Control has notified the Buyer that the goods are ready for dispatch but the Buyer refuses to take delivery of the goods on the date stated or does not collect the goods on the date stated or does not have them collected by a transport person. 3.
If the buyer is in default of acceptance or violates other duties to cooperate, Plast-Control shall be entitled to demand compensation from the buyer for the damage it has suffered as a result, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the delivery item shall also pass to the purchaser. After setting and fruitless expiry of a reasonable deadline, Plast-Control shall also be entitled to dispose otherwise of the delivery item and to supply the Buyer within a reasonably extended period. 4.
4. the delivery item shall only be insured against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the buyer and at the buyer's expense.
5. delivered items shall be accepted by the purchaser, even if they have insignificant defects, without prejudice to the purchaser's rights under Section VII of these General Terms and Conditions of Sale and Delivery, and shall not be returned prior to any entitlement of the purchaser to withdraw from the contract pursuant to Section VII. 3.
VI Retention of title
1. Plast-Control retains title to the delivery item until all claims against the Buyer arising from the business relationship have been settled, including claims arising in the future, also from contracts concluded at the same time or later. This shall also apply if individual or all claims of Plast-Control have been included in a current account and the balance has been struck and accepted.
If Plast-Control withdraws from the contract due to breach of contract by the Buyer, in particular due to late payment, the Buyer shall bear all costs of repossession of the delivery item. In the event of seizure or other interventions by third parties, the Purchaser shall immediately notify Plast-Control in writing and provide all necessary clarifications and inform the third party of the existing ownership situation. The buyer may not pledge the delivery item or assign it as security. The purchaser is obliged to treat the delivery item with care; in particular, he is obliged to insure it adequately at his own expense against fire, water and theft damage at replacement value.
The Purchaser shall be obliged to carry out any necessary maintenance and inspection work at its own expense and in good time (i.e. in particular in accordance with the intervals provided for the product concerned). 3.
The Purchaser shall be entitled to resell the delivery item in the ordinary course of business. However, the purchaser hereby assigns to Plast-Control all claims, including all ancillary rights, accruing to it against the purchaser or third parties from the resale, irrespective of whether the goods subject to retention of title are resold without or after processing. The buyer shall be entitled to collect these claims even after assignment. This shall not affect Plast-Control's right to collect the claims itself; however, Plast-Control undertakes not to collect the claim as long as the Buyer duly meets its payment obligations, is not in default of payment and, in particular, no petition for the institution of insolvency proceedings against the Buyer's assets has been filed or the Buyer has not suspended payments. Plast-Control may demand that the Buyer informs it of the assigned claims and debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment. 4.
Plast-Control shall be obliged to release the securities to which it is entitled at the request of the Purchaser if their realizable value, taking into account customary bank valuation discounts, exceeds the claim to be secured by more than 20%. The purchase prices for goods and the nominal value of receivables shall be used as a basis.
(1) The Buyer's claims for defects shall be subject to the condition that the Buyer has duly complied with its statutory obligations to inspect the goods and to give notice of defects. Any notice of defect must be given by the Purchaser to Plast-Control in writing, stating the exact nature and extent of the defect, so that Plast-Control is able to examine the justification for the notice of defect.
The buyer must also inspect the delivered goods for transport damage immediately upon arrival and note any damage found in writing on the consignment note, have this complaint countersigned by the transport person and inform Plast-Control of this in writing.
If the delivery item is to be installed in another item or attached to another item in accordance with its type and intended use, the Buyer shall also be obliged, prior to the intended use, to check by means of appropriate tests whether the delivery item is suitable for installation in another item or attachment to another item and is free of defects after installation or attachment. 2.
(2) If the delivery item is defective, Plast-Control shall be entitled, at its own discretion, to remedy the defect or to make a replacement delivery.
Plast-Control shall bear the costs associated with the subsequent performance in accordance with the statutory provisions. If the purchaser justifiably claims costs against Plast-Control in this connection which have arisen from the use of its own employees or its own objects, the purchaser's claims for reimbursement shall be limited to its own costs in this respect. If the costs associated with subsequent performance increase due to the fact that the goods have been taken to a place other than the agreed place of delivery at the request of the Purchaser, the Purchaser shall bear all additional costs arising therefrom. The buyer shall be obliged to return replaced parts to Plast-Control free of charge.
In the event that the buyer has installed the goods in or attached them to another item, the buyer shall be obliged to provide Plast-Control in advance with a cost estimate for the removal of the defective goods and the assembly / installation of the repaired / newly delivered goods. The buyer shall only be entitled to reimbursement of those costs for removal of the defective goods and assembly / installation of the repaired goods / newly delivered goods which are necessary and reasonable. 3.
(3) If Plast-Control is not willing or able to remedy the defect or make a replacement delivery, or if Plast-Control refuses to do so or delays such remedy or replacement delivery beyond a reasonable period of time for reasons for which Plast-Control is responsible, or if the remedy fails at least twice for other reasons, the Buyer shall be entitled, at its option, to withdraw from the contract or to demand a corresponding reduction of the purchase price.
4. the buyer's right to withdraw from the contract in case of defects of the goods shall be excluded in cases where the buyer is unable to return the goods received and this is not due to the fact that the return is not possible due to the nature of the goods received, Plast-Control is responsible for this or a defect has only become apparent during processing or transformation of the goods. In the case of delivery of defective goods or partial deliveries, the Buyer shall only be entitled to withdraw from the entire contract or to claim damages in lieu of the entire performance in accordance with the following provisions if, applying an objective standard, it has no interest in the performance rendered. 5.
(5) For essential third-party products, the liability of Plast-Control shall be limited to the assignment of the claims to which Plast-Control is entitled against the supplier of the third-party product. If a claim against the supplier of the third-party product fails for reasons for which the buyer is not responsible (e.g. due to insolvency of the supplier), the buyer shall be entitled to claims for defects against Plast-Control in accordance with the provisions of this Clause VII.
The Purchaser shall be entitled to claim damages solely in accordance with the provisions of Clause VIII of these General Terms and Conditions of Sale and Delivery. 7.
(7) The warranty shall not apply if the buyer reworks the goods without the consent of Plast-Control or has them reworked by third parties and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the buyer shall bear the additional costs of remedying the defect resulting from the processing. Furthermore, no liability will be assumed for damages caused by the following reasons:
- unsuitable or improper use,
- damage resulting from incomplete or incorrect information provided by the purchaser about the working materials used by the purchaser
- faulty assembly, commissioning by the Purchaser or third parties, unless any assembly instructions provided by Plast-Control are faulty,
- modifications to the delivery item by the buyer or third parties,
- natural wear and tear, unless Plast-Control expressly guarantees otherwise,
- faulty or negligent handling or storage,
- unsuitable operating materials, replacement materials,
- chemical, electrochemical or electrical influences, insofar as they are not the fault of Plast-Control;
- faulty or incomplete documents, in particular samples or drawings, which the Purchaser has provided to Plast-Control for the manufacture of the products or which Plast-Control is required to observe during manufacture in accordance with the Purchaser's specifications. Plast-Control shall not be obliged to examine the documents provided by the Purchaser for correctness and completeness.
8. the period of limitation for claims for subsequent performance, rescission and reduction due to defects of the delivery item shall be one year from the passing of risk. This shall also apply to claims for reimbursement of expenses by the Buyer in the event of recourse by the Buyer pursuant to Section 445a of the German Civil Code (BGB); the provision of Section 445b (2) of the German Civil Code (BGB) shall remain unaffected. The following provision of Section VIII. 10. shall apply to the limitation of claims for damages based on defects of the delivery item. 9.
9. if the purchaser wrongfully asserts claims for defects, it shall reimburse Plast-Control for the costs incurred by it as a result. This applies in particular to inspection, shipping and packaging costs. Plast-Control may, at its option, also charge a lump sum of € 25 for these costs. Both parties to the contract shall be free to prove higher or lower costs.
1. Plast-Control shall be liable for damages, irrespective of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties in contract negotiations or tort, exclusively in accordance with the provisions of this Clause VIII. In all other respects, any liability for damages shall be excluded. 2.
(2) Plast-Control shall be liable within the scope of the statutory provisions for intentional and grossly negligent conduct of the legal representatives or executive employees of Plast-Control, for injury to life, limb and health as well as for guaranteed characteristics and in accordance with the provisions of the Product Liability Act.
3. in addition Plast-Control shall be liable
- for damages resulting from a negligent breach of material contractual obligations by its legal representatives, executive employees and other vicarious agents;
- for damage caused by its ordinary vicarious agents through gross negligence or wilful misconduct without breach of material contractual obligations.
Material contractual obligations are those obligations the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely.
The liability of Plast-Control for damages in cases of this clause VIII.3 is limited in accordance with the following clauses VIII. 4, 5 and 6.
(4) The liability of Plast-Control for damages under Clause VIII.3 above shall be limited to the amount of the foreseeable damage typical of the contract.
(5) The liability of Plast-Control under Clause VIII. 3 shall be excluded insofar as the Purchaser for its part has effectively limited its liability vis-à-vis its customer. In this respect, the Purchaser shall use its best endeavours to agree limitations of liability with its customers itself to the extent legally permissible - also to the benefit of Plast-Control.
(6) Within the scope of Plast-Control's liability under Clause VIII.3, indirect damage and consequential damage resulting from defects in the delivery item shall only be compensable if such damage is typically to be expected when the delivery item is used as intended.
(7) Insofar as Plast-Control provides technical information or acts in an advisory capacity and such information or advice is not part of the contractually agreed scope of services owed by Plast-Control, this shall be done free of charge and to the exclusion of any liability.
8. the Buyer shall inform and consult Plast-Control immediately and comprehensively if the Buyer wishes to make use of Plast-Control's services in accordance with the above provisions. The Purchaser shall give Plast-Control the opportunity to investigate the claim. The parties to the contract shall agree on the measures to be taken, in particular in the case of settlement negotiations.
(9) The provision on the exclusion of warranty in Section VII. 7 of these General Terms and Conditions of Sale and Delivery shall apply mutatis mutandis to claims for damages.
The limitation period for claims for damages due to defective delivery shall be one year from the transfer of risk. In the event of recourse by the Buyer pursuant to Section 445a of the German Civil Code (BGB), claims for damages due to defects in the goods shall not become statute-barred before the expiry of the periods specified in Section 445b (2) of the German Civil Code (BGB). The limitation period for claims for damages due to the breach of other contractual obligations shall be one year from the end of the year in which the claim arose and the Buyer became aware of the circumstances giving rise to the claim and the person of the debtor or should have become aware without gross negligence.
In the event of injury to life, limb or health, for damage under the Product Liability Act and for damage caused by fraudulent conduct, intent, gross negligence or negligent breach of material contractual obligations within the meaning of Clause VIII. 3 of these General Terms and Conditions of Sale and Delivery by the legal representatives of Plast-Control, its executives or vicarious agents, the statutory limitation period shall apply in deviation from the first paragraph of this Clause VIII. 10.
IX. Product safety - obligations of the Purchaser; supply of spare parts
1. Plast-Control warrants that the goods delivered by Plast-Control comply with the relevant product safety requirements in Germany at the time they are placed on the market.
If the products are to be used outside Germany, Plast-Control does not warrant that the goods supplied also comply with the product safety or other regulations applicable at the place of use, unless the parties have expressly agreed in writing that Plast-Control shall be responsible for such compliance.
If Plast-Control supplies only individual components of a complete system, the responsibility of Plast-Control with regard to compliance with the relevant provisions of public law shall be limited to the components supplied by Plast-Control. In this case, the purchaser shall be solely responsible for ensuring that the overall system complies with the relevant product safety and other regulations.
For the avoidance of doubt, any warranty claims or claims for damages of the Buyer shall also exist in the case of defects under product safety law of the goods delivered by Plast-Control exclusively in accordance with the above Clauses VII. and VIII.
1. processed and hazardous materials: The Buyer is obliged to answer the questionnaire of Plast-Control regarding the nature of the materials to be processed completely and truthfully.
2. standard machines are manufactured by Plast-Control in accordance with rules of noise reduction technology proven in practice. Should the operation of the machines nevertheless result in permissible limit values being exceeded, the Buyer shall bring about compliance with the limit values by taking noise-reducing measures in the plant environment (e.g. structural measures). This shall not apply if Plast-Control has expressly assumed responsibility for compliance with the relevant limit values, i.e. has assumed planning responsibility in this respect and has taken the plant environment into account in the design/manufacture of the product concerned. 3.
3. Plast-Control shall ensure that the Purchaser can obtain spare parts for the delivery item purchased by the Purchaser from Plast-Control at the respective valid prices for a period of max. 5 years from delivery of the respective delivery item concerned. Plast-Control shall have no further obligation to keep spare parts in stock.
X. Further obligations of the Purchaser to cooperate, assistance with the commissioning of delivery items / deployment of Plast-Control employees on the Purchaser's premises
1. if - e.g. within the scope of commissioning of delivery items - Plast-Control employees are employed on the Buyer's premises, the Buyer shall ensure that all occupational safety requirements are met at the place of employment. For the avoidance of doubt, this shall not constitute any right of the Purchaser to issue instructions to Plast-Control's employees.
The Buyer shall in particular ensure that all plant, machinery, equipment and other items provided by the Buyer at the place of use are in perfect condition. The Buyer shall expressly draw the attention of Plast-Control's employees to any particular sources of danger. If the Buyer's occupational health and safety regulations have to be observed at the place of use, the Buyer shall instruct the employees in these in a suitable manner. 2.
2. if, in the course of the performance of the contract by Plast-Control, work is also required on third-party equipment, such work shall be carried out by the Buyer without separate agreement between the parties; such work shall be deemed to be necessary preparatory work by the Buyer. If it is also agreed that Plast-Control shall carry out the work concerned on third-party equipment, the Buyer shall provide Plast-Control with all relevant information required to enable Plast-Control to carry out the work properly. If necessary, the Buyer shall also instruct Plast-Control's employees in the operation of the plant. 3.
The Buyer shall ensure that its own IT infrastructure is protected against external interference in accordance with the state of the art. In particular, the Purchaser is obliged to ensure that no unauthorized intervention/access by third parties can take place if Plast-Control carries out work by way of remote maintenance. The Purchaser shall be fully liable to Plast-Control in the event that Plast-Control suffers damage due to insufficient security of the Purchaser's IT infrastructure.
XI. Industrial property rights
(1) Unless expressly agreed otherwise, Plast-Control only warrants that the goods do not infringe any industrial property rights of third parties (hereinafter referred to as "property rights") in the country of the place of delivery, unless Plast-Control is positively aware of infringements of property rights at the Purchaser's place of business or in such other country of which the Purchaser has notified Plast-Control in writing that the delivery item is to be taken there for the intended purpose. If a third party asserts justified claims against the Buyer on the grounds of infringement of property rights by products supplied by Plast-Control and used in accordance with the contract, Plast-Control shall be liable to the Buyer within the scope of the provision in sentence 1 as follows:
(a) The Buyer shall inform Plast-Control without delay in writing of any infringement of property rights asserted by the third party. Plast-Control shall, at its own discretion and at its own expense, satisfy or defend against such claims or terminate the dispute by settlement. For this purpose, the Purchaser grants Plast-Control the sole authority to decide on the legal defense and settlement negotiations and shall grant Plast-Control the necessary powers of attorney in the individual case, including the right to grant corresponding sub-authorizations.
b) If the delivery constitutes an infringement of property rights within the meaning of sentence 1, Plast-Control shall remedy the cause of the infringement within a reasonable period. For this purpose, Plast-Control shall, at its option, either obtain a right of use for the deliveries concerned at its own expense, modify the delivery item in such a way that the property right is not infringed, or replace the delivery item.
c) If the removal of the infringement of the property right fails or is not possible under reasonable conditions or is unreasonable for the Purchaser, the Purchaser shall be entitled to the statutory rights of rescission or reduction. The obligation of Plast-Control to pay damages shall be governed by Clause VIII of these General Conditions of Sale and Delivery.
d) Plast-Control shall not be liable for claims of third parties for infringement of industrial property rights, if such infringement is caused by special specifications of the Purchaser, by an application not foreseeable by Plast-Control or by the fact that the delivery item is modified by the Purchaser or an unauthorized third party or is not used under the conditions of use recommended by Plast-Control or the agreed conditions or is used together with products not supplied by Plast-Control. Plast-Control shall generally not be liable for claims of third parties due to infringements of property rights, insofar as the Buyer is responsible for such infringements. Should third parties assert claims against Plast-Control in this respect, the buyer shall indemnify Plast-Control against such claims.
e) Plast-Control shall also not be liable vis-à-vis the Purchaser if the Purchaser acknowledges the infringement vis-à-vis the third party without the consent of Plast-Control or, in the event of discontinuation of use of the product by the Purchaser, fails to point out to the third party that such discontinuation of use does not constitute an acknowledgement of an infringement of property rights. 2.
In the event of an infringement of property rights, the provisions of Clauses VII. 2 and 5 shall apply accordingly. 3.
The provisions on the statute of limitations in Clause VII. 8 and in VIII. 10 shall apply accordingly.
XII. Export rights - Prerequisite for delivery by Plast-Control
Delivery by Plast-Control shall be subject to the proviso that any export licences which may be required are granted or that the delivery is not prevented by any other obstacles due to export or shipment regulations to be observed by Plast-Control as exporter/shipper or by a supplier of Plast-Control.
XIII Final provisions
(1) If the Purchaser is a merchant, the place of jurisdiction shall be the place of business of Plast-Control. However, Plast-Control shall also be entitled to sue the Buyer at another place of jurisdiction.
2. place of performance for all obligations arising from the business relationship shall be Wuppertal, unless expressly agreed otherwise in writing.
3 The law of the Federal Republic of Germany shall apply. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) is excluded.
(4) Should any provision of these General Terms and Conditions of Sale and Delivery be or become invalid, this shall not affect the validity of the remaining provisions. The contracting parties are obligated to replace the invalid provision by a provision that comes as close as possible to the invalid provision in terms of economic success. This provision shall also apply to any loopholes in the provisions of these General Terms and Conditions of Sale and Delivery.