General Terms and Conditions

I. General information and conclusion of contract

a) These General Terms and Conditions of Delivery apply exclusively to all – also future – deliveries and services of Frötek Kunststofftechnik GmbH.
Any conflicting terms and conditions of the purchaser are hereby expressly rejected.

b) Our offers are always subject to change.
Declarations of acceptance and orders require our written confirmation to be effective.
Our employees are not authorized to make verbal collateral agreements that go beyond the content of the written contract. The written form can also only be revoked in writing.

c) Drawings, illustrations, technical data, weight, dimension and performance descriptions are only approximate unless they are expressly designated as binding in the order confirmation. We reserve the property rights and copyrights to these documents; they may not be made accessible to third parties without our written consent.

d) Unless otherwise agreed, the latest version of the “INCOTERMS” defined by the International Chamber of Commerce shall apply to the customary contractual formulas (e.g. ex works).

e) The buyer is not entitled to assign claims arising from the contractual relationship to third parties.

II Prices and additional costs

a) Our prices are net ex warehouse.

b) Metal-containing products are sold on the basis of a base price. The base prices stated in the offers are updated monthly on the basis of the current stock market quotations (e.g. copper DEL / MK).

c) If we arrange the shipment for the buyer, the buyer shall bear all costs incurred in this connection. Shipment shall be made in the customary commercial manner without responsibility for the cheapest transportation, unless special instructions have been given. Upon receipt of a damaged or lost consignment, the buyer is obliged to make all necessary determinations for the proof of damage and to notify us immediately in writing.

III Delivery

a) All delivery dates, including those stated in writing, are always non-binding. We shall not be responsible for delays due to force majeure – including in particular strikes, lockouts, operational disruptions or official orders – even if they occur at our suppliers or their subcontractors, even in the case of bindingly agreed dates and deadlines. They entitle us to postpone the delivery for the duration of the hindrance plus a reasonable start-up time or to withdraw from the unfulfilled contract in whole or in part. The same applies to all other cases in which delivery is delayed or impossible due to hindrances for which we are not responsible. The buyer can only withdraw from the contract if he has expressly agreed a delivery deadline as binding, this is not met by us, he has set a grace period of at least four weeks in writing and this period, which begins with the receipt of the grace period by us, has elapsed fruitlessly.

b) We are entitled to make partial deliveries insofar as these are reasonable for the buyer.

IV. Transfer of risk

The risk shall pass to the Buyer as soon as the consignment has been handed over to the person carrying out the transportation or has left our warehouse or that of a subcontractor for the purpose of shipment. If shipment is delayed at the buyer’s request, the risk shall pass to the buyer upon notification of readiness for shipment. The same applies to our assertion of rights of retention.

V. Transfer by way of security / retention of title

a) The delivery item shall remain our property until all claims arising from the contract, as well as current account balance claims, regardless of their legal basis, have been fulfilled.

b) Processing or transformation shall always be carried out for us as manufacturer, but without any obligation for us. If our (co-)ownership expires due to combination, it is hereby agreed that the buyer’s (co-)ownership of the uniform item shall pass to us in proportion to its value (invoice value). The buyer shall store our (co-)property free of charge. Goods to which we are entitled to (co-)ownership are hereinafter referred to as reserved goods.

c) The buyer may only sell or process the goods subject to retention of title in the ordinary course of business under his normal terms and conditions and as long as he is not in default.

d) The Buyer’s claims arising from the resale of the goods subject to retention of title, irrespective of the legal grounds (insurance, tort), together with all ancillary rights, are hereby assigned to us in full or to the value of our co-ownership share.

e) The buyer is entitled to collect the claims from the resale until our revocation, which is permissible at any time, as long as he is not in default towards us. At our request, which is admissible at any time, he is obliged to inform his customers immediately of the assignment to us and to provide us with the information necessary for collection.

f) The customer must inform us immediately of any seizure or other impairment of the reserved goods by third parties. He shall indemnify us against the extrajudicial and judicial costs incurred in the assertion of our property, insofar as the third party is not in a position to pay.

VI Warranty, limitation of liability and exclusion of liability

a) The customer must inspect the delivery item immediately upon receipt with the diligence of a prudent businessman. Obvious defects must be reported in writing within two weeks of receipt, other defects immediately after discovery. If no proper notice of defects is given, all claims for defects are excluded.

b) There is no warranty obligation:

  • in the event of non-compliance with the handling instructions, which are enclosed with the delivery or can be requested from us or our branches,
  • in the event of improper design, stress or handling,
  • in the event of improper repair by the customer or third parties.

c) Only our specification shall apply for the assessment of the conformity of the goods. This shall be deemed to be the lead specification unless it is amended in writing by agreement.

d) In the event of justified, immediate notification of defects, the warranty shall be limited to repair or replacement at our discretion.

e) Warranty claims for defects shall expire 12 months after delivery.

VII Terms of payment

a) All invoices of the Seller shall be payable immediately upon receipt without deduction. The granting of a discount requires our express written confirmation. We are not obliged to accept checks or bills of exchange, but acceptance is always only on account of payment. Discount and bill charges are to be borne by the buyer and are to be paid immediately

b) We are entitled to change, adapt or revoke existing credit terms at any time and without prior notice and to demand the provision of guarantees, securities or advance payment, insofar as there are objective reasons for this, such as default or deterioration in the financial circumstances of the buyer.

c) Incoming payments shall be offset in accordance with §§ 366 II, 367 BGB.

d) The assertion of rights of retention or offsetting with counterclaims of any kind, irrespective of the legal grounds, or other deductions are not permitted. This shall not apply if the counterclaim has been legally established or is undisputed. However, the buyer is also entitled to withhold payment due to counterclaims arising from the same contractual relationship.

VIII. Limitation of liability

All claims for damages against us as well as against our vicarious agents for whatever legal reason are excluded, unless they are based on:

  • Breach of primary performance obligations
  • Intent or gross negligence
  • Injury to life, body or health

In any case, the liability is limited to the foreseeable damage. This is generally based on the respective value of the delivery.

IX. Force majeure

a) The Seller shall not be liable for any delay or failure to perform its obligations to the extent caused by events or circumstances beyond its reasonable control, including but not limited to (a) fire and explosions, floods, storms, earthquakes, tsunamis, wars, military action, national emergency, civil commotion, terrorism or similar events (b) pandemics, epidemics, diseases, epidemics (including subsequent outbreaks), quarantine measures or public health emergencies (c) strikes or other disputes with employees (with the party concerned or a third party) or trade unions (regardless of whether the respective demands of the employees or trade unions are reasonable), (d) compliance with laws, regulations, directives, export bans, permits, orders, official measures or similar requirements ( e ) lack of means of transportation or delays in transportation (f) non-delivery, incorrect or untimely delivery by suppliers or difficulties in obtaining necessary raw materials, raw materials, labor, services, energy, tools, machinery or equipment, and (g) operational disruptions or failure of systems (hereinafter “force majeure”).

b) If, due to force majeure, the Seller’s available delivery quantity is not sufficient to fulfill its delivery obligations under the delivery contracts entered into, it shall be entitled to allocate the remaining products among its customers at its reasonable discretion. The Seller shall not be obliged to procure the Products on the open market or from other manufacturers or suppliers, including other companies in the Group. To the extent that the Seller purchases or receives Products after a Force Majeure Event, the Seller shall be entitled to use or distribute them at its own discretion.

X. Property rights

For goods that are not manufactured according to the buyer’s designs, descriptions or instructions, we warrant that, to the best of our knowledge, they do not infringe any existing patents in the United States or Europe for the goods themselves. However, the warranty does not apply to the use of the goods in combination with other goods or other materials or when used in processes or the manufacture of products. If Buyer becomes aware of any claim that the goods infringe existing patents in the United States or Europe, Buyer shall promptly notify us in writing and provide us with information and assistance and assign to us exclusive responsibility for the evaluation, defense and settlement of the claim.

The buyer shall indemnify us against all claims, irrespective of their legal basis, for alleged infringements of third-party rights and claims based on product liability or warranty, insofar as the items produced or sold by us have been manufactured according to designs, descriptions or instructions of the buyer. This also applies to the necessary costs of legal defense.

XI. Confidentiality, molds and tools, contractual penalty

The Buyer is prohibited from disclosing confidential information about the subject matter of the contract to third parties without our prior written consent. All product descriptions, drawings, designs, information materials, manufacturing and processing information and other information are our sole and exclusive property. The buyer undertakes not to duplicate or pass on any documents / information without our prior written consent. Documents must be returned to us without being asked during the course of production or after performance of the service. This also applies in the event of revocation, fulfillment or termination of a specific contract.

All molds, tools and equipment for the manufacture of FRÖTEK-Kunststofftechnik GmbH products, regardless of whether payment is made by the purchaser or the supplier, are trade secrets and protected technology of the supplier, who has the exclusive right of use. Tools used for the manufacture of FRÖTEK-Kunststofftechnik GmbH products may not be removed from our production facility. The Buyer shall not receive any information regarding the use, size, production etc. of tools before, during or after ordering the subject matter of the contract. The design and manufacturing method of FRÖTEK-Kunststofftechnik GmbH products remain our property. At the request of the buyer, tools for the manufacture of products of FRÖTEK-Kunststofftechnik GmbH, which have been paid for or provided by the buyer, shall be destroyed and a notarized certification of the destruction shall be handed over to the buyer upon request. Culpable breach of this agreement shall result in a contractual penalty.

XII Place of performance, place of jurisdiction and applicable law

a) The place of performance for our deliveries is the location of the supplying plant or warehouse. The place of performance for all other obligations is Osterode am Harz.

b) The exclusive place of jurisdiction is Osterode am Harz. However, the exclusive jurisdiction shall not prevent us from taking legal action in other courts if necessary.

c) The law of the Federal Republic of Germany applies.

Terms and conditions date: 01.11.2021