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General Terms and Conditions of Sales and Delivery

No. 02/2018
PSG Plastic Service GmbH (hereinafter: PSG)
As per: January 2018

I. General

1. The present General Sales- and Delivery Terms No 02/2018 will apply exclusively to all business relations between PSG and the purchaser, including future business relations. Any other purchase terms or general business terms by the purchaser are rejected and will not apply. PSG has the right to amend its General Sales and Supply TermsNo 02/2018 after prior notification, to apply to all future business relations with the purchaser.
2. Where there is a framework agreement between the purchaser and PSG the present General Sales and Supply Terms will apply both to the framework agreement and the individual order.
3. Unless otherwise concluded from the terms of the present contract, the terms and definitions of INCOTERMS 2010 will apply.

II. Conclusion of the Contract

1. All offers by PSG will be non-binding and will remain tentative until PSG makes a written tentative offer. Price changes are admissible where there are more than four months between the date of conclusion of the contract and the agreed date of delivery. Where wages, the cost of materials or market-related cost prices increase thereafter until completion of the consignment PSG will have the right to adequately increase the agreed prices in accordance with the increased costs. The purchaser will only have the right of rescission where the price increase considerably exceeds the increase of the general costs of living in the period between the order and the delivery. Where the purchaser is a businessman, legal entity in public law or a public law estate price increases according to the above terms will be admissible where there are more than six weeks between the date of conclusion of the contract and the agreed delivery date.Documents belonging to the offer such as illustrations, drawings, weight and measure figures are only approximate values unless they are explicitly declared by PSG to be binding. Where PSG provides the purchaser with drawings or technical documents on the technical purchase item, they will remain the property of PSG.
2. PSG retains the right to carry out design and form changes at any time in particular, where such changes are necessary due to legal requirements; however, PSG is not obligated to also carry out such changes on products that have already been delivered.
3. Order confirmations will be subject to the proviso of credit insurance coverage, which will in part only apply after a written order confirmation. 

4. Orders by the purchaser will be binding for him. Where there is no other written confirmation by PSG, the delivery or invoice will be regarded as the order confirmation.
5. The written confirmation by PSG will exclusively be authoritative for orders and agreements insofar as the purchaser does not immediately object in writing. This applies in particular to orders and agreements placed or made verbally or by telephone. A report to PSG will no longer be regarded as immediate if it is not received by PSG within seven days.
6. PSG reserves the copyrights for illustrations, drawings, calculations or other documents. PSG retains the right to change delivery and performance as far as it reasonable for the purchaser.
7. The products shown by PSG in the online shop are not a binding offer of PSG, but a non-binding online-catalogue display. Within input of personal data by customers or by clicking the button "order" in the completing step of the order process, the purchaser places a binding order of the products within the shopping basket. The confirmation on receipt of the order will follow immediately by PSG after sending the order. A contract will only be accomplished by sending the certificate of delivery or after delivery of the goods. As far as PSG does not send a certificate of delivery or makes a delivery within 2 weeks after order, the purchaser is no longer committed to his order.
The PSG online shop only enables entitled personnel in pursuance of their vocation to order (entrepreneurs). A withdrawal of the order is therefore not possible and the order is irreversible. Therefore, confinements of the Distance Selling Act are not applicable within the PSG online shop and the purchaser confirms by sending the order that the order is placed in the line of his commercial and independent duties.

III. Delivery Date, Delivery Volume, Delayed Delivery

1. PSG Delivery dates and deadlines are regarded as only approximate where PSG has not given explicit confirmation in writing that they are binding. If all details of the order are not settled in due time by the purchaser and the purchaser does not perform all preliminary work on time, the delivery dates will be delayed accordingly. Delivery dates will be regarded as having been complied with upon notification of readiness for dispatch.
2. PSG has the right to make partial deliveries provided that this does not fall below the reasonable minimum quantity. For custom-made orders PSG reserves an extra volume or shortfall of maximum 10 %, which has to be accepted by the customer as ordered from PSG and will be invoiced by PSG.
3. The purchaser must inspect the delivery note and provide a receipt. Any objections are to be made to PSG immediately in writing. This failing, the delivery volume for which the receipt was given will be regarded as having been accepted.
4. In the case of delayed delivery due to operational breakdown, official measures, absence of supplies to PSG or force majeure the delivery deadline will be adequately extended. There is also a case of force majeure in the case of labour disputes including strikes and legal lockouts at PSG enterprise or PSG owned supplier companies. Claims by the purchaser to damage compensation are excluded in these cases to the extent set out in paragraph VII (General Limitation of Liability).
5. Where damage is incurred to the purchaser by a delivery delay caused by PSG the purchaser may demand damage compensation, excluding further-reaching damage compensation claims, to the amount of 0.5 % for each week of delay, but at maximum 5% of the value of the affected part of the total consignment. In the case of delayed delivery, the purchaser may rescind the contract after stipulation of an adequate period of grace and with the explicit declaration that after lapse of this period he will not accept performance if performance does not occur within the period of grace. Further-reaching claims in the case of delayed delivery, in particular damage compensation claims are excluded according to the terms set out in paragraph VII (General Limitation of Liability).

IV. Prices, Terms of Payment 

1. Prices exclude VAT, shipping, customs duties, postage, packaging, insurance and other expenses. Return of the packaging is excluded.
PSG will only be obligated to ensure the goods against insurable risks at his own expense upon the explicit written request of the purchaser.
2. Unless otherwise agreed, service invoices will be due for payment immediately. In case of payment of invoices for standard products, net payment after 30 days. The date of receipt of payment by PSG will be decisive.
In the case of invoices on custom-made orders, 50 % of the purchase price will be due upon placement of the order, 40% upon delivery and 10% after inspection or use, but by the latest 30 days after delivery.
3. Where the purchaser is in arrears with payment, PSG has the right to charge default interest of 8% above the basic interest rate. Claims on the basis of specific default damage are not excluded.
4. The purchaser will only have rights of set-off if his counterclaims are res judicata, uncontested or recognized by PSG. Moreover, he will only be entitled to exercise a right of retention where his claim is based on the same contract.

V. Passing of Risk, inspection 

1. Risk will pass to the purchaser upon commencement of loading or dispatch of the delivery item, namely also where partial deliveries are made or PSG has assumed other services such as shipping expenses or delivery and assembly and/or operation.
2. Where dispatch or inspection is delayed on grounds for which PSG is not liable, risk will pass to the purchaser from the date of notification of readiness for dispatch and inspection.

VI. Guarantee, Complaint

PSG will be liable as follows for delivery defects, excluding further-reaching claims:
1. The guarantee terms are 12 months on delivery of the goods to the purchaser.
2. The term set out in paragraph 1 will not apply in the case of guaranteed features or willful breach of cardinal contractual duties. Such claims by the purchaser as well as claims based on damage not incurred to the delivery item itself are excluded in accordance with the terms in Section VII (General Limitation of Liability) to the extent permitted by law. Where the defect is rectified or a replacement provided within the framework of the guarantee, the guarantee period will not commence anew.
3. Features are only guaranteed where they have explicitly been defined as guaranteed in the contract. Verbal statements and statements in PSG's documents do not contain any guarantees, including samples, measurement, DIN-regulations, specs and other data on the make of the delivery item. Where the materials to be used by PSG are specified in the contract, this only guarantees compliance with the specification and not suitability of the materials for the contractual purpose. PSG is only obligated to give notices where they are obviously unsuitable.
4. Damage of goods which were not criticized on delivery by the purchaser, incurred by external impact, improper assembly and handling, defective operation or repair, corrosion is excluded from the guarantee.
5. The purchaser must duly inspect the consignment immediately after receipt at his own expense and report any defects, wrong deliveries, evident non-approvable wrong deliveries or shortfalls to PSG immediately in writing. A limitation period of seven days as from receipt of the consignment will apply to the deadline to report a complaint. Hidden defects are to be reported to PSG in writing immediately after detection. In other respects, §§ 377 HGB will remain unaffected.
6. Any quality defects in a partial delivery do not entitle the purchaser to reject the rest of the agreed volume unless the purchaser can prove that acceptance of only part of the consignment would be unacceptable for him if the circumstances are taken into account.
7. Where the purchaser detects a defect he may not modify or process the item or provide it to third parties but must give PSG adequate opportunity for verifying the existence of the defect and providing any necessary make-up performance (rectification or replacement); this failing, no claims can be made on the basis of defects. For make-up performance, PSG may choose between rectification or replacement. The purchaser will have the right to rectify the defect personally or have third parties rectify it and demand compensation of the expenses incurred only in urgent cases of jeopardy of operational safety or for prevention of disproportionately great damage; PSG must be informed immediately in such cases. Irregardless of the existence of a defect, the guarantee claims will be extinguished where the purchaser or a third party carries out modification or repair work without the consent of PSG.
8. Damage during transport must be reported immediately to PSG. The purchaser must settle the necessary formalities with the shipping agent, in particular all necessary conclusions for the safeguarding of rights of regress toward third parties.
9. In the case of a legitimate complaint, PSG may opt to rectify defective goods or to provide a replacement. Multiple rectifications are admissible.
10. In the case of rectification of a defect PSG will be obligated to bear all expenses necessary for defect rectification including transport, travel, work and material costs provided that they do not increase by transfer of the purchase item to a place other than the place of performance.
11. Where PSG fails to observe an adequate period of grace for make-up performance as defined by § 439 BGB without rectifying the defect or providing a replacement or it is unable to carry out a rectification or provide a replacement or the rectification or replacement fails or is otherwise denied by PSG the purchaser will only have the right to rescind the contract or have the purchase price reduced, excluding all further-reaching claims regarding the delivery item.

VII. General Limitation of Liability

1. Where the delivery item cannot be used by the purchaser in accordance with the contractual purpose due to the fault of PSG because of failure to provide advice or faulty advice before or after conclusion of the contract or by breach of other contractual ancillary duties (e.g. operating or servicing instructions, the terms set out in paragraphs VI and VII.2 will apply accordingly, further-reaching claims by the purchaser are excluded.
2. For damage not incurred to the delivery item itself PSG will only be liable, irregardless of the legal grounds
- in case of intentionality,
- in case of gross negligence of the owner/the executive bodies or executives,
- in case of culpable injury to life, limb, health,
- in case PSG willfully conceals defects or explicitly guarantees no existence of
defects.
- in case of defects of the delivery item where PSG is liable for personal or material damage to privately used items according to the Product Liability Act. In case of culpable breach of cardinal contractual duties, PSG will also be liable in the case of gross negligence by non-executive employees and in the case of minor negligence; in the latter case limited to the typical, reasonably foreseeable damage;
further-reaching claims are excluded.
3. If the purchaser leaves an item to PSG for wage work, PSG is not liable for the ceded item in case of damages caused during adaption by PSG, nor is PSG liable for secondary failures which cause the item to become unserviceable, irrespective of the legal basis. PSG assumes liability only the maximum amount of the wage work excluding tax. The before mentioned liability for wage work on ceded items
does not apply for damages deliberately or grossly negligent caused by owners, organs or executive staff of PSG.

VIII. Retention of Title, Securities

1. Ownership of the delivered goods will be retained until all claims by PSG against the ordering party from the business relationship including any future claims from contracts concluded at the same time or later have been settled. This will also apply where claims are incorporated into a current invoice and the balance has been struck and accredited. Where there is a current account the delivery item will remain the property of PSG until the account has been fully balanced. In the case of a breach of contract by the purchaser, in particular delayed payment and in the case where insolvency is filed
for, PSG will be obligated to take back the delivery item after a warning and the purchaser will be obligated to release the item. In the case of assignments or other intervention by third parties, the purchaser must inform PSG in writing immediately.
2. The purchaser must adequately insure the goods subject to the retention of title against damage caused by theft, breakage, fire, water and other damage. Where the purchaser did not take out the insurance policy or fails to provide proof despite a request by PSG, PSG will have the right to insure the delivery item personally at the expense of the purchaser.
3. The purchaser has the right to resell the item within the proper course of business provided that he is not in arrears with payment of the purchase price. However, he is already assigning all claims against the purchaser or third parties arising from the resale to PSG, irregardless of whether the goods subject to the retention of title are resold in unprocessed or processed form. He is not exceptionally authorized to carry out assignments or transfer by way of security to third parties. The purchaser
is also authorized to collect these claims after the assignment. PSG authorization to collect the claims itself will remain unaffected by this but PSG will be obligated not to collect the claims as long as the purchaser is duly complying with his payment obligations. The collection authorization will be extinguished when the purchaser ceases payment, files for or instates insolvency proceedings or in any other case of financial deterioration. PSG may demand that the purchaser disclose the assigned
claims and their debtors, provide all necessary information for collection, submit the corresponding documents and notify the debtors of the assignment. Where the delivery item is resold together with other goods not belonging to PSG the purchaser's claim against the customer to the amount of the delivery price agreed on between PSG and the purchaser will be regarded as having been assigned.
4. The processing or reshaping of the items subject to retention of title is always carried out by the purchaser for PSG. Where the item subject to the retention of title is processed or inseparably mixed with other items not belonging to PSG, PSG will acquire co-ownership of the new item on the basis of the ratio of the value of the item subject to the retention of title to the other processed or mixed items at the time of processing or mixing. Where goods by PSG are combined with other movable items to form a uniform item or are inseparably mixed and the other item is to be regarded as the main item it is agreed that the purchaser proportionally assigns co-ownership insofar as the main item belongs to him. The purchaser will safeguard the ownership or co-ownership for PSG. The same as for the goods subject to the retention of title will apply to items produced from processing, restructuring, combination and mixing.
5. PSG has the right to demand adequate security for satisfaction of the purchaser's obligations. PSG will be obligated to release the securities it is entitled to where the realizable value exceeds the claims to be secured by more than 20% insofar as they have not yet been settled.

IX. Performance Duty, Infeasibility and Non-Performance

1. PSG delivery duty and delivery deadline are subject to the proviso of proper, complete and timely delivery of supplies and raw materials.
2. If PSG is unable to perform the entire contract prior to the passing of the risk due to a circumstance for which it is not liable the purchaser may rescind the contract. In the case of partial infeasibility the above provision will only apply to the respective part. In this case the purchaser may only rescind the contract if he can prove a legitimate interest in rejecting the partial delivery.
Further-reaching claims by the purchaser, in particular damage compensation claims, are excluded according to the provisions in Sections VI and VII.
3. Where the infeasibility occurs during the delayed acceptance without the fault of the purchaser, the latter will still be obligated to fulfillment.
4. After PSG rescinds the contract or after stipulation of a period of grace with warning or a rejection PSG will have the right to use the goods taken back as it chooses.

X. Place of Performance, Place of Jurisdiction, Choice of Law

1. Unless otherwise contractually agreed, PSG business domicile is the place of performance for payment and delivery of the goods.
2. The place of jurisdiction for all litigation, including litigation regarding bills of exchange and checks, is PSG business domicile, currently Viernheim (local court Darmstadt). Lawsuits against PSG may only be instated there.
3. The laws of the Federal Republic of Germany will apply exclusively, excluding international private law, standard international law and the UN Sales Convention.

XI. Legal Validity, Data Protection

1. Should a term of the present General Sales and Delivery Terms be or become invalid this will not affect the general validity of the contract. The invalid term is to be replaced by the intention of the parties and in other respects by the provision of the law. In no case will the respective term in the present General Sales and Delivery Terms be replaced by the purchaser's business terms.
2. Any amendments of or addenda to the present contract must be confirmed in writing by PSG in order to be valid; this also applies to a waiver of the contractual writing requirement itself.
3. Legally relevant declarations of intent such as cancellations, notices of rescission, demands for a purchase price reduction or damage compensation will only be valid if made in writing.
4. The handling of all data is carried out within the framework of the effective legal data protection regulations.
The customer is hereby informed, in accordance with Section 33 Para. 1 of the German Data Protection Act, that personal customer information is solely collected, handled, stored and used for internal market research and marketing purposes during the performance of this contract. If necessary, personal customer information is only transferred to participating subsidiaries or business partners for
essential order processing purposes. This also applies to credit check purposes. Beyond this, transfers to a third party do not take place.

PSG Plastic Service GmbH
Voltastraße 2, 68519 Viernheim, Germany
Tel.: +49 6204 6069-0
E-mail: info@psg-online.de www.psg-online.de
CFO: Bettina Steuber
CEO: Udo Fuchslocher
Tax number 005 241 46423
Local court Darmstadt, HRB 95899