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Terms & Conditions
General
1. We conclude contracts on the basis of the following conditions. These are components of every business. Other terms and conditions shall apply only when we do not object to these in writing on a case-by-case basis. Any business terms and conditions that deviate from our own only apply once these have been expressly confirmed in writing to apply.
2. We are legally empowered to store and process directly and indirectly collected data regarding the purchaser pursuant to the data protection regulations that apply in Germany.
3. The laws of the Federal Republic of Germany shall apply.
4. In all cases of dispute arising from the contractual relationship, the place of jurisdiction is Heilbronn in cases where the client is a business person, a legally recognised person or a special entity under public law.
Should one of our conditions be, or become, invalid, the remaining conditions shall however continue to be applicable.
AURORA’s General Terms & Conditions of Purchase (as of 08/2019)
1. Scope of application
1.1 These general terms and conditions of purchase apply to us for your supplies and services, unless expressly agreed otherwise in writing.
1.2 In the event that a supplier objects to our business conditions, the business conditions of the supplier apply only insofar as we have expressly agreed to them in writing.
2. Orders
2.1 Our orders, and alterations or additions to the orders, must be set out in writing or in text format.
2.2 We are legally entitled to cancel our order in cases when you have not confirmed without modification the said order within two weeks.
3. Deadlines and overdue deadlines
3.1 Contractually agreed deadlines for supplies and services are binding. If delays are expected or occur, you must inform us of this immediately in writing. Claims for compensation as a result of this are not excluded.
3.2 In cases where you do not deliver or perform a service within a grace period that we have consented to, we are legally entitled, without giving notice, to refuse acceptance, withdraw from the contract or demand compensation on the grounds of non-fulfilment of the order. We are further entitled to rescind from the contract in cases where you are not responsible for the delay. Any additional costs arising as a result of the delay, particularly those arising from other arrangements made necessary because of this, shall be borne by you.
3.3 We reserve the right to demand payment of a contractually agreed penalty in the event of non-fulfilment (pursuant to para. 341 of the Bürgerliches Gesetzbuch, the BGB, which is the German Civil Code) until such time as final payment has been made.
4. Prices
The prices are fixed prices. They include all expenditure in connection with the deliveries rendered and the services performed by you.
5. Processing and delivery
5.1 Subcontracting on the part of the supplier shall only occur with our consent, unless the reason for doing so is merely to provide parts commonly available on the market. Partial deliveries require our consent.
5.2 Each delivery shall be accompanied by a delivery note that includes our order number, article number and description of the type and quantity of the content of the delivery.
5.3 Supply of goods shall in general be shipped in single-use standard packaging. In cases when reusable packaging is used, you are responsible for making the packaging material available free of charge. You bear the costs and risks when return of packaging occurs. In the event that, in exceptional cases, we consent to bear the costs relating to packaging, we do so on receipt of proof that the invoiced amount is in fact the cost price.
5.4 For devices, a technical description and user manual shall also be delivered with them. For items of software, the supplier’s statutory duty is fulfilled only when the complete (system-technical and user-related) information is handed over. For programs that have been specially designed for us, the source-code format for the program shall also be supplied.
5.5. For the delivery and collection of plastic waste materials, the weighing operation is conducted by us and the amount agreed shall be binding. The notified weight comprises the recyclable material after deduction of foreign bodies, waste materials or adulterating substances.
5.6. While you are conducting deliveries and performing services on our premises, you are obliged to comply with the regulations and guidelines governing safety, environmental safeguarding and fire prevention as these are set out in the applicable codes.
6. Invoicing, payments
6.1 Invoices shall be sent to us in a separate letter; you must include the order number on the invoice.
6.2 Your claim to remuneration is due 90 days after the receipt of goods and your billing statement, at our discretion, after 30 days with a 3% Skonto (“smart account”) commission. The time of payment shall be deemed to be the day on which our bank has received the transfer order.
6.3 Payments do not presuppose that we recognise the deliveries or services as being in accordance with the terms of the contract. In the event of defective or incomplete deliveries or services, we are entitled – without detriment to our other rights – to hold back payments to a reasonable extent for claimed amounts arising from the business relationship until such time as the obligations have been properly fulfilled.
6.4 The assigning to a third party of any claims against us is excluded.
7. Safety, environmental safeguarding
7.1 Your deliveries and services must comply with legal requirements, particularly those governing safety and environmental protection, including the regulations covering hazardous materials; the stipulations of the German Electrical Equipment Act (“ElektroG”); the laws covering compensatory levies (the Ausgleichsabgabeverordnung, or AAVO); the safety recommendations of the responsible German professional bodies and associations (such as the Verband Deutscher Techniker [VDE], the Verein Deutscher Ingenieure [VDI], and the German body responsible for setting and certifying norms, the Deutsches Institut für Normung [DIN]); and the extensive provisions relating to recyclable material contained in the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (known as “RoHS”) regulations, and the rules governing the Registration, Evaluation, and Authorization of Chemicals (REACH) framework. The respective certifications, testing certificates and other documentary evidence shall be appended free of charge to the deliveries.
7.2 You are legally obliged to identify and adhere to the rules and regulations currently applicable to your component materials with regard to restricted substances (pursuant in particular to the REACH stipulations). You are obliged not to use prohibited substances. You shall indicate in the specifications any hazardous substances and substances whose use should be avoided according to the pertinent laws and regulations. Where applicable, safety data sheets shall be appended to the initial offer and added (at the minimum in German or English) to the first corresponding delivery together with the delivery note. We must be immediately informed of any indications of transgressions of substance restrictions and of cases where banned materials are being delivered.
7.3 When delivering and when performing services, you are solely responsible for adhering to the accident prevention regulations. Protective equipment and possible manufacturers’ instructions pertinent to these regulations are to be made available free of charge.
8. Stipulations governing imports and exports, duty on goods and services
8.1 In the context of deliveries and services carried out by a provider from an EU member state other than Germany, your EU-recognised added-tax identification number as well as your tax number must be submitted.
8.2 Imported goods must be delivered duty-paid. You are legally obliged, according to the stipulations of Regulation (EC) No. 1207/2001, at your own expense to provide requested explanations and information, to allow inspections by the customs authorities and to supply the necessary official confirmations.
8.3 In cases where goods are being re-exported, you are legally obliged to inform us, in detail and in writing, of any possible approval requirements pertaining to German, EU and US export-control law and customs provisions, as well as of the laws governing exports and the customs provisions pertaining in the country of origin of the goods and services.
9. Transfer of risk, approval, ownership rights
9.1 Irrespective of the agreed-upon price, the risk transfers to us in the case of delivery without installation or assembly to the delivery address we have stipulated and, in the case of delivery with installation or assembly, upon successful completion of our approval processes. Putting into operation or use shall not substitute for our declaration of approval.
9.2 Upon successful payment, the ownership of the delivered goods transfers to us. Any extended or expanded right of retention on the part of the supplier is excluded.
10. Obligations governing inspections and complaints, inspection costs
10.1 With regard to checking for obvious defects, a control procedure at the point of initial delivery occurs. Hidden defects shall be reported as soon as they are identified, subject to the usual operations of business. You waive any objection to a delayed notification of defects for all reports of defects within 14 days of the defect being reported.
10.2 In cases where we send back defective goods, we are legally entitled to charge the invoiced amount plus a fee for processing of 5% of the price of the defective good. We reserve the right to provide proof of any higher expenditure we incur. You maintain the right to provide proof of lower, or no, expenditure incurred.
11. Warranty for defects in quality and title
11.1 Defective deliveries shall be replaced by deliveries without defects, and faulty performance shall be repeated without defect. In cases of failure in development or construction, we are entitled to apply the stipulation set out in clause 11.3 below.
11.2 Rectification of defective goods or services is subject to our approval. During the time period when the subject of the delivery or performed service is not in our safekeeping, you shall bear the risk.
11.3 In the event that you do not remedy the defect or defects within a reasonable grace period, we can on our own initiative withdraw from the contractual agreement or reduce payment, and in each case demand additional compensation.
11.4 In urgent cases (particularly pertaining to a jeopardising of operational safety or to avoid unreasonably or extraordinarily high damages), in eliminating minor defects and in cases where you delay in remedying the defect, we are entitled, after notifying you in advance and after the expiry of a brief grace period, to ourselves remedy the defect and any harm arising from it at your expense, or to permit a third party to remedy the defect at your expense. This also applies when you are late in delivering a supply or service and we have to remedy the defect immediately in order to avoid defaulting on our own delivery obligations.
11.5 The period of limitation for our claims arising from material defects is 36 months from the transferral of risk, pursuant to clause 9.1 above; the period of limitation for our claims arising from defects of title is ten years from the transferral of risk, in accordance with clause 9.1 above. The duration of the limitation period will start from the date on which we initially submit our notification of defects and ends with the fulfilment of our claim of defect.
11.6 If your delivery or service is based on our plans, drawings or other specific requirements, the delivery or service shall include an explicit guarantee that it conforms with these requirements. Should the delivery or service deviate from the requirements, we shall be immediately entitled to exercise our rights as set out in clause 11.3.
11.7 In cases of defective delivery, we shall be recompensed for potentially incurred freight costs, return-freight costs and primary costs for warehousing and logistics.
11.8 In the case of clearly contaminated goods, these shall be removed at an appointed time. Non-removal of goods shall be taken as consent for their disposal and assumption of all costs associated with their disposal. Our statutory rights remain otherwise unaffected.
12. Repeated default of service
In the event that you repeatedly provide deliveries or perform services that are essentially the same or similar in a defective or delayed manner, even after written warning, we are entitled to immediately withdraw from the contract. Our right to withdraw under these circumstances also encompasses deliveries and services that you are obliged, under the terms either of this particular contract or of another contract, to render us in future.
13. Exemption from defective goods or defect of title
You exempt us from all claims in the event that a third party – regardless of legal basis – asserts a claim against us due to a defect in a good or title or because of another type of defect pertaining to a product supplied, and will reimburse us for any necessary costs incurred in asserting our relevant legal rights.
14. Technical documents, tools, manufacturing resources
14.1 The technical documents, tools, work specification sheets, manufacturing resources, etc. we make available remain our property; all trademarks, intellectual property (IP) rights and other proprietary rights shall remain with us. These materials, including all copies made, shall be returned to us promptly, without this being especially requested, after the completion of the ordered work; in this regard you are not authorised to assert a right of retention. You shall deploy the materials named here only for the execution of the ordered work and shall not pass these on or otherwise make these accessible to unauthorised third parties. Duplication of the materials named here is only permitted in the event that this is required for the effective performance of the contracted work.
14.2 In the event that you generate materials mentioned in the first sentence of clause 14.1, incurring either partial or entire costs for us, clause 14.1 accordingly applies, whereby we become (co-) owners at the time of production of the corresponding materials. You undertake to safeguard these materials at no cost to us; we can at any time acquire your rights in respect of the materials and reimburse you for any expenses that have not yet been written off or amortised and demand that they be surrendered to us.
14.3 You are legally obliged to take appropriate care of the materials, to maintain them and to avoid or minimise normal wear and tear regarding them. If, in the course of carrying out our work order, you commission a subsidiary supplier, or subcontractor, to produce tools and samples, you assign to us your claims against the subcontractor for transfer of ownership of the tools and samples.
15. Provision of materials
15.1 Materials provided by us remain our property and you are to safeguard them free of charge with the reasonable diligence expected of a business person, to keep them separate from your other objects and in recognition of our status as the owners of the materials. They shall only be used for the purposes of implementing our work order. Damage to the provided material must be rectified by you.
15.2 In the event that you process or customise the material provided by us or change its form, this action shall be deemed to have been performed on our behalf. We become the new owner of the objects developed from this process. If the material we provided forms only a part of the new object, our share in the joint ownership of the new object is commensurate with the value of the provided materials that the object contains.
16. Purchase of recyclable material from production processes
We exclusively purchase sorted waste material generated from production processes. This is expressly affirmed by the supplier. The collecting, classifying and weighing is carried out by the purchaser on the purchaser’s own premises. The weight of any containers is deducted at a flat rate from the total weight. The purchaser undertakes evaluation of the material and the degree to which it has been successfully sorted. Remuneration is effected on the basis of the weight actually arrived at, minus possible mixed materials, potentially additional mixtures arising from the original intermixing, and losses incurred during processing. The vendor, or selling party, accepts these preconditions once the production waste has been handed over in a sorted form.
A complaint concerning the valuation of the material or the assessment of the weighing takes place immediately after the results are made known.
17. Confidentiality
17.1 You are legally obliged to treat as strictly confidential any and all business and technical information that is not already in the public domain and which you have become apprised of as a result of your commercial relationship with us, and undertake not to disclose or otherwise pass this on to third parties.
17.2 Producing for a third party, the exhibiting of finished products specific to us – especially those manufactured according to our plans, drawings or other specifications, the publication of material regarding our work orders and services, as well as references communicated to third parties regarding such orders – requires our express written permission in advance.
18. Other
18.1 The place of performance is the site given in the delivery address.
18.2 The place of jurisdiction, in the case that you are a business person, a legally recognised person or a special entity under public law, is the district court at Öhringen as well as, depending on the amount in dispute, the regional or state (Land) court at Heilbronn. We are however entitled to present a claim at the site of jurisdiction of your own company.
18.3 German law applies, with the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) and of the referral provisions under German International Private Law.
18.4 In the event that an individual clause of these General Terms & Conditions becomes – either wholly or in part – inapplicable, this shall not affect the validity and effect of remaining provisions or the remaining parts of such provisions.
General Terms & Conditions Governing Sale and Delivery
1. For delivery operations, the following conditions of sale and delivery between purchasers and vendors apply. Conditions that diverge from those set out below are only applicable once they have been expressly confirmed, in writing, to apply. We decline to accept other conditions.
2. All service offerings are subject to alteration. These are subject at all times to the goods remaining unsold.
3. The place of performance – that is, the site of fulfilment of work orders – applying to all shipments/deliveries that do not arrive at our plant in Neuenstein is nevertheless deemed to be Neuenstein.
4. All deliveries are transported at the risk of the party that has placed the order; this also applies when freightless delivery is agreed. The purchaser also bears the risk for returned goods and for empty containers during the return part of the transportation.
5. Delivery shall as a matter of course be freight unpaid, ex warehouse/storage facility.
6. The client acknowledges that, as far as the technology makes this feasible, we recycle plastic waste to the best of our ability. However, treatment of plastic waste (milled or ground goods, or re-generates), as well as non-standard goods, is accompanied by a certain risk due to its possible intermixing with foreign goods, which can occur despite the most diligent care being taken to avoid this, and that this possibility of risk is reflected in the eventual price offered. Deviations in quality or incidences of impurity or adulteration can occur in every batch. Regarding the condition of the material delivered to us, the following characteristics and conditions should be taken into account:
Contamination with other synthetic materials, metals, wood products, additional substances such as fire retardant materials, etc.
The purchaser is obliged to take these risks into consideration. We are happy to undertake an inspection of the material to be delivered prior to a contract of purchase.
7. The purchaser of the order is legally obliged to inspect the goods immediately after receipt of the goods and, in the event that defects are detected, to immediately give notice of this to us. In the event that the purchaser fails to fulfil this statutory obligation to notify, the product is deemed to have been approved, unless it is the case that a defect cannot be observed during the inspection. In the event that such a defect later becomes apparent, notice must be given immediately after its discovery, otherwise the delivered material, regardless of the defect, shall be deemed approved under the terms of the contract. The announcement by the purchaser of any defect must be made in writing, with a description specifying the nature of the defect. The reporting of the defect must be made within four days of receipt of the material and, in the case of initially undiscovered defects, of the time at which the defect was first discovered, unless the purchaser provides proof that it was not possible to meet this deadline, even while abiding by due business procedures.
8. In the event of force majeure – that is, the occurrence of events that are beyond our reasonable control – that makes it impossible for us or our suppliers to deliver or transport materials, we are freed from the duty to deliver, without any further obligations. In the sense applying here, “let or hindrance” also encompasses impediments that impose unreasonable costs on us, such as measures implemented by authorities, shortages of raw materials and difficulties in transportation.
9. In the event that conditions relating to payment are not complied with, or in cases of alteration in the purchaser’s business relationships, we have the right to withhold future deliveries of material or to withdraw from the pertinent contract. In the event that payment is delayed or in cases of default, AURORA is entitled to charge interest for late payment and/or calculate collection expenses at a statutory amount determined by para. 288 of the German Civil Code (the Bundesgesetzbuch or BGB).
10. The authoritative sum that appears on the invoice issued is based on the identified weight of the material upon dispatch of the delivery.
11. Good are supplied subject to retention of ownership, in line with the stipulations contained in para. 455 of the BGB, with the following expanded conditions:
a) We reserve the right to title of the material – that is, it remains our property – until such time as payment has been made in full of all claims, including claims arising in the future.
b) Acquisition of ownership by the purchaser, according to the stipulations set out in para. 950 of the BGB, in the event that the purchased material is further processed into a new good, is excluded. A treatment or processing is deemed as having been performed by order of the vendor and shall not be deemed to represent a prior commitment on the part of the purchaser.
c) Regarding processing with the help of other materials over which we have no proprietary claim, we shall become co-owners of the processed goods in proportion to the value of the conditional goods in relation to the other processed goods during the time of processing. Otherwise, the same shall apply for the new goods created from the processing as for the conditional goods.
d) The purchaser’s claims with respect to the resale of the conditional goods are now hereby assigned to the vendor, regardless of whether the conditional goods – unprocessed or after processing – are resold to one or more further recipients. The transfer of claims serves as security for the vendor of the conditional goods only up to the value of correspondingly sold goods. In the event that the conditional goods are sold together with goods that are not the property of the vendor, whether by arrangement or otherwise, the claim of the purchase price shall apply only to the value of the goods subject to retention of title which, together with other goods, are the subject of this contract for sale or part of the object of purchase.
e) The purchaser is entitled and authorised to resell the conditional goods only with the proviso that the claim on the purchase price from the resale is, pursuant to clause d) above, transferred to the vendor.
f) The purchaser is authorised, despite said assignment of rights, to collect claims arising from resale. The authority of the vendor to collect remunerations is unaffected by the purchaser’s authority to collect on claims. The vendor shall however not collect on claims as long as the purchaser fulfils its payment obligations. At the vendor’s request, the purchaser shall notify the vendor of the identity of the debtor in respect of the assigned claim, and inform the debtor of the assignment.
g) The retention of proprietary rights according to the conditions set out above also remains in force in the event that individual claims on the part of the vendor are included in an open invoice and in the case that the balance has been established and acknowledged.
h) A pledge or assignment of our goods or materials in the form of a security on the part of the purchaser is prohibited. In the event of an intervention by a third party, the vendor must be promptly notified of this circumstance.
i) Security clearance clause: in the event that the value of the securities provided to us exceeds our accounts receivable by more than 20%, we are legally obliged, at the purchaser’s request, to release securities of our own choosing.
12. The warranty period shall be one year from receipt of the delivered good/material. The statutory limitation period for retroactive claims (according to sub-para. 445b of the BGB) remains unaffected by this. The aforementioned warranty period does not apply in cases of premeditated intent or non-disclosure, as a result of bad faith, of a defect or in the event that we have given a guarantee relating to the item delivered. The limitation period does not apply to claims made on material defects in cases involving mortal injury, physical damage or harm to health, to claims according to product liability law, to a breach of an obligation as a result of gross negligence duties, or to a culpable breach of a condition essential for the fulfilment of a contract – that is, contractual obligations whose fulfilment, as a general principle, enables the due implementation of the contract, whose proper observance the purchaser is entitled to rely on regularly, and whose non-observance will jeopardise the fulfilment of the purposes of the contract.
13. In the case of a material defect or defects, the purchaser shall grant us a reasonable period of grace for supplementary activities for the purpose of fulfilling our contractual obligations. We are entitled to choose not to carry out supplementary activities chosen by the purchaser, in the event that executing these would incur unreasonably high costs. This shall be the case especially when the costs of the supplementary activities exceed the value of the purchased item – were said item to be free of defect – or if the costs of the supplementary activities exceed the amount by which the defect diminishes the value of the defective item, or if supplementary activities other than those proposed by the purchaser are more cost-effective to perform and would not entail significant disadvantages for the purchaser. The purchaser’s warranty claims in this case are restricted to the form of supplementary activity the purchaser proposes. If the form of supplementary activity proposed by the purchaser entails disproportionate costs, we can refuse as a matter of principle to carry this out.
14. The purchaser shall be responsible for inspection to determine whether the contracted good or material (re-generate, NT-ware or milled materials) is permitted and appropriate, instead of original wares, for the intended area of application. Warranties or claims of guarantee do not apply to defects arising from use of the good in a manner that is non-permissible or inappropriate for the intended purpose.
15. Claims for damages arising from a breach of a contractually agreed obligation as well as from unauthorised handling are inadmissible, both in respect of us and in respect of all our assisting parties and vicarious agents, unless in cases where the damage was the result of wilful intent or gross negligence. The aforementioned limitation of liability does not apply in the event of a breach of a contractually agreed duty (see the final sentence of point 13 above), and nor does it apply in the event of personal injury and to damages arising from a warranted product characteristic, or for liability for which provisions have been made in the relevant legal frameworks governing product liability. In the event of a claim for damages being made for slightly negligent violations of contractual obligations, and in cases of grossly negligent breach of ancillary contractual obligations, liability is limited to foreseeable damages typical for the respective contract. This does not apply to cases of personal injury, to damages arising from a warranted product characteristic, or for liability for which provisions have been made in the relevant legal frameworks governing product liability.
16. Additional terms for subcontracted/commissioned orders: in cases where the client provides material for processing, the client shall be liable for all damages incurred by us as a result of foreign bodies or other foreign substances contained in the material.
17. In cases of dispute arising from contractual relationships, which relate to the processing and/or delivery of goods and materials, and to the provision of services, the place of jurisdiction is Heilbronn, in cases where the purchaser or implementer of the order is a business entity, legally recognised as such in Germany’s Code of Commercial Law (Handelsgesetzbuch).
18. Other
18.1 German law applies, with the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) and of the referral provisions under German International Private Law.
18.2 In the event that an individual clause of these General Terms & Conditions Governing Sale and Delivery becomes – either wholly or in part – inapplicable, this shall not affect the validity and effect of remaining provisions or the remaining parts of such provisions.
