General terms and conditions

General terms and conditions of supply EC Europ Coating GmbH (EC) and MC Europ Coating GmbH (MC)

1. General

1.1 The conclusion and handling of all contracts shall be subject exclusively to the present Terms and Conditions. The customer accepts these Terms and Conditions as binding for the present contract, at the latest upon commencement of the execution of the contract. We do not accept deviating terms and conditions used by the customer.

1.2 Offers shall be subject to confirmation. Supply commitments shall be made under reservation of timely receipt of delivery from our suppliers.

1.3 Any changes of, and modifications to, the contract must be effected in writing; other verbal agreements require prompt written confirmation.

1.4 The legal relations shall exclusively be governed by the law of the Federal Republic of Germany, to the exclusion of the uniform UN sales law provisions (CISG).

2. Supply and shipping

2.1 Should a delivery be impaired, delayed or become partially impossible due to reasons beyond EC/MC’s scope of influence, EC/MC shall have the right to withdraw from the contract, entirely or in part, or to reasonably postpone such delivery. Should the customer in the event of a partial withdrawal not be interested in the performance of the remainder of the contract, he shall have the right to withdraw from the contract.

2.2 Should in the event of a delay in delivery an adequate period of grace set by the customer have expired, the customer shall have the right to withdraw from the affected part of the contract and, if applicable, also to claim damages in lieu of performance, subject to clause 6.2. Should the customer not be interested in a partial performance, the above rights shall apply with regard to the entire contract.

2.3 Upon receipt, the customer shall promptly examine the goods with regard to completeness and visible defects, shall acknowledge receipt on the EC/MC delivery note, and shall register complaints, if any, on the delivery note.

2.4 The customer shall immediately report any transport damage to the forwarding agent, and shall have such damage acknowledged by the forwarding agent. Certificates/ damage protocols shall be promptly transmitted to EC/MC, as otherwise the insurance company may refuse payment.

3. Warranty, examination obligation, notification of defects

3.1 EC/MC shall warrant that the delivery complies with state-of-the-art technology and other relevant provisions. A guarantee for certain characteristics of the delivery shall only be valid if it has been confirmed by EC/MC in writing.

3.2 EC/MC shall have the right to avert claims for damages by replacement or rectification. Should replacement or rectification fail twice, the customer shall have the right to reduce the price or, at his choice, to withdraw from the contract. Beyond this, the customer shall only hold the claims pursuant to clauses 2.3 and 6.

4. Prices and payment

4.1 Invoices shall be due for payment immediately upon receipt.

4.2 The customer shall only be entitled to set off such counter-claims which are uncontested or have been established as final.

4.3 As minimum default damages, EC/MC shall have the right to request default interest of 8 percentage points above the current basic interest rate, at least 11 % p.a., unless the customer can prove that the damage incurred was lower.

5. Prolonged and extended reservation of title

5.1 EC/MC reserves its title to the supplied goods (reserved-title goods), up until all claims from the ongoing business relations have been settled (current account reservation). The customer shall keep the reserved-title goods free of charge, and shall adequately insure them at his own cost. The customer shall promptly notify EC/MC of any interventions by third parties, and shall avert such interventions at his own cost.

5.2 Should the customer process reserved-title goods, EC/MC shall be considered as the manufacturer of the new object and shall obtain ownership in this object. If ownership in the reserved-title goods mandatorily transfers by law to the customer, due to combining or blending with a principal object, the customer hereby declares to transfer ownership in this principal object to EC/MC as security. The new object or the principal object shall then once more constitute reserved-title goods.

5.3 The customer may sell reserved-title goods in the course of his due business operations. The customer shall assign any purchase price claims arising from such sales to EC/MC, up to the sum of EC/MC’s overall claim. EC/MC hereby accepts this assignment.

5.4 The customer shall have the right to collect such receivables. Should the customer suspend payments, this authorisation shall expire; in the event of default of payment, this authorisation may be revoked.

5.5 In the event of a suspension of payments, default of payment in spite of expiry of an adequate period of grace, or an insolvency application for the customer’s assets, the customer shall immediately cease any dispositions regarding the goods, their processing etc., as well as the collection of the assigned receivables. Reserved-title goods shall immediately be stored separately and shall be labelled as EC/MC property. EC/MC shall have the right to request that the reserved-title goods be returned and to re-possess such goods, provided that this appears to be required in order to cover the open claims. For this purpose, EC/MC representatives shall have the right to enter the premises where the goods are stored. The customer hereby assigns any claims for surrender against third parties, including associated access right for such cases, to EC/MC. EC/MC hereby accepts this assignment.

5.6 Upon a corresponding request, EC/MC shall release securities at its discretion, provided that their market value exceeds the open claim by more than 20 %

6. Product liability, damages

6.1 EC/MC shall be liable for claims under the Produkthaftungsgesetz (German product liability act) – if applicable – which result from faults in the supplied goods.

6.2 Otherwise, the customer’s claims for damages, irrespective of their cause in law, shall be limited to the following cases:

Lack of guaranteed characteristics of the goods

Culpable breach of essential contractual obligations

Default or impossibility of performance for which EC/MC is responsible; however, in the event of simple negligence, limited to 10 % of the invoice value of the affected partial delivery

Intentional or grossly negligent breach of other obligations

Culpable bodily injuries, adverse health effects or death

7. Miscellaneous

7.1 Utilisation of the supplied goods shall be carried out under the customer’s own responsibility. He shall in particular comply with any applicable rules and regulations.

7.2 The place of performance shall be the respective EC/MC production plant or the respective EC/MC dispatching warehouse. EC/MC’s registered place of business shall be the place of jurisdiction. However, EC/MC shall, at its option, also have the right to file a law suit against the supplier at other applicable places of jurisdiction.

General Terms and Conditions of Purchase EC Europ Coating GmbH (EC) and MC Europ Coating GmbH (MC)

1. General

1.1 The conclusion and handling of all contracts shall be subject exclusively to the present Terms and Conditions. The supplier accepts these Terms and Conditions as binding for the present contract, at the latest upon commencement of the execution of the contract. We do not accept deviating terms and conditions used by the seller.

1.2 Any changes of, and modifications to, the contract must be effected in writing; other verbal agreements require prompt written confirmation.

1.3 The legal relations shall exclusively be governed by the law of the Federal Republic of Germany, to the exclusion of the uniform UN sales law provisions (CISG).

1.4 EC/MC shall have the right to revoke the order without incurring any costs, unless EC/MC receives the confirmed copy of the order or a separate order confirmation within two weeks from the date of receipt of the order by the supplier.

2. Shipment and transfer of risk

2.1 Delivery shall be effected to the destination specified by EC/MC.

2.2 Unless agreed otherwise, shipping and packaging costs shall be borne by the supplier. If prices are quoted ex supplier’s works or ex supplier’s warehouse, shipping shall always be effected at the lowest possible cost, unless EC/MC has requested a specific type of transport. Additional costs incurred due to non-compliance with a shipping or packaging requirement shall be borne by the supplier. Additional costs incurred for express transport required in order to comply with the delivery date shall also be borne by the supplier.

2.3 The supplied goods shall be delivered packed, if their nature requires packaging for transport. Packaging must be safe for transport and must comply with the shipping terms applicable to the selected type of transport and with the packaging rules specified by EC/MC upon submission of the order, if any. EC/MC shall only return packaging material if it is identifiable as rented equipment by means of owner’s labelling.

2.4 Packaging material covered by the invoice can be returned after prior agreement, against payment of a handling fee and of freight costs.

2.5 Up until receipt at the destination, the goods shall travel at the supplier’s risk, unless transport is being carried out by EC/MC-owned vehicles or by a forwarding agent specified by EC/MC. Should the goods arrive at the destination in damaged packaging, or should they be handed over to our driver or to a forwarding agent specified by EC/MC in damaged packaging, EC/MC shall have the right to reject the shipment without examining its contents. The supplier shall bear the costs for a return shipment, if any.

2.6 Every shipment must be accompanied by a delivery note containing information on the product description and the order and product numbers specified in the EC/MC order.

3. Acceptance

3.1 Acceptance shall always be under reservation of all applicable rights, in particular any rights due to inadequate or delayed delivery.

3.2 Should acceptance be prevented or materially impaired due to circumstances outside EC/MC’s sphere of influence, EC/MC shall have the right to postpone acceptance while such circumstances prevail. The term “circumstances” as used above shall in particular include: any interventions by a higher authority, such as import and export restrictions, which have an effect on the course of operations at EC/MC, the processing, sale or other utilisation of the goods; natural disasters, such as damage through fire or water; lack of raw materials or means of transport; disruption of operations through strikes and work stoppages; restrictions on the supply of energy and any other circumstances which lead to a stoppage or substantial impairment of production at EC/MC. Should such circumstances last for more than four weeks, the supplier shall have the right to withdraw from the contract, provided that we continue to refuse acceptance of the goods. Any claims going beyond the aforesaid shall be excluded.

4. Payment

4.1 The invoice – which shall indicate the value added tax amounted included and shall contain information on the order number and/or material number as well as an exact list of contents and weights – shall be sent separately and in duplicate to EC/MC on the day of shipment. An invoice which does not fulfil the above requirements or which deviates from EC/MC’s order shall not trigger the commencement of a deadline for the deduction of discounts.

4.2 Unless agreed otherwise, payment shall be made within fourteen days less a 2% discount, or net within thirty days from the receipt of the goods and the invoice. Set-offs shall be considered as payment. Under no circumstances shall the payment period commence prior to the agreed delivery date.

4.3 Claims under the contracts entered into with EC/MC may only be assigned to a third party with EC/MC’s written consent.

4.4 The supplier warrants that the supplied goods feature the contractually agreed characteristics, comply with the statutory provisions and generally accepted rules, and are free from defects. The supplier furthermore warrants that the properties of the supplied goods have not been changed in comparison to previous similar deliveries which had been free from defects, unless such changes were agreed with EC/MC prior to the conclusion of the contract.

4.5 If notifications of defects, including notifications relating to deviations in quantity, are submitted within four weeks from receipt of the goods at the destination, the supplier shall be precluded from invoking that such notification was belated. The timely dispatch of the notification of defects shall suffice in order to secure EC/MC’s rights.

4.6 In the event of an inadequate delivery, EC/MC may request either rectification or a substitute delivery. In urgent cases, EC/MC shall have the right to either rectify the inadequate delivery itself or have it rectified by a third party, or to procure goods from a third party, all of the aforesaid at the supplier’s cost.

4.7 If one attempt at rectification by the supplier has failed, EC/MC shall have the right to withdraw from the contract and/or request damages in lieu of performance; the supplier shall not be entitled to make further attempts at rectification. If the supplier’s performance is only partly inadequate, EC/MC shall have the option to exercise the rights to withdraw from the contract and/or to request damages in lieu of performance either with regard to this part or with regard to the entire contract.

4.8 For purposes of rectification, the supplier shall be provided with the defective goods, at EC/MC’s choice either at the place where the goods were located when the defect was detected, or at the destination as defined in clause 2 above. Should rectification not be possible at such location, the supplier shall be obligated to collect the goods, and to subsequently return them to this location.

4.9 Should a defect be found within six months from the transfer of risk, it shall be assumed that the goods had already been defective at the time of the passing of the risk, except if this assumption is unreasonable in view of the nature of the goods or of the defect.

4.10 The supplier shall bear the rectification costs. The warranty periods shall be suspended throughout the rectification period.

4.11 The above provisions shall apply correspondingly to cases of delayed delivery. Should the supplier foresee that the agreed delivery period or the agreed delivery date will be exceeded, the supplier shall promptly inform EC/MC of the anticipated duration of the delay, notwithstanding his other obligations. Receipt at the destination specified by EC/MC shall be the decisive date for the timeliness of a delivery.

5. Production equipment

5.1 All production equipment, such as drafts, drawings, models, samples, measurement and testing provisions, artwork etc., as well as tools provided to the supplier by EC/MC for the fulfilment of the order shall remain EC/MC’s property.

5.2 The production equipment produced and invoiced by the supplier in the course of the fulfilment of the order shall become EC/MC’s property upon its production. The supplier shall keep such equipment on behalf of EC/MC up until it is returned to EC/MC.

5.3 The above mentioned production equipment and the objects produced with the help of this equipment may not be used for other purposes, copied or surrendered to third parties, except with EC/MC’s written consent. Such equipment and objects shall be secured against unauthorised access and use, and shall be returned to EC/MC by the supplier unsolicited once the supplier no longer requires such equipment or objects for the delivery or performance, unless EC/MC expressly decides to leave such equipment or objects with the supplier. EC/MC shall have the exclusive right to exploit any developments and resulting further developments originating in connection with the order.

6. Property rights

The supplier warrants that the supplied goods and their utilisation do not infringe upon industrial property rights or other third party rights. Should such rights nevertheless exist, the supplier shall compensate EC/MC for any damage incurred, irrespective of the supplier’s or EC/MC’s knowledge of such rights. Furthermore, the supplier shall be obligated to hold EC/MC harmless against any claims asserted by third parties based on industrial property rights.

7. Reservation of title

A reservation of title on the part of the supplier shall be excluded, unless such reservation is covered by an expressed written approval by EC/MC.

8. Place of performance

The place of performance for the delivery shall be the place of the transfer of the risk. The place of performance for payment shall be EC/MC’s registered place of business.

9. Place of jurisdiction

EC/MC’s registered place of business shall be the place of jurisdiction. However, EC/MC shall, at its option, also have the right to file a law suit against the supplier at other applicable places of jurisdiction.