I. General

1. We apply our contracts without exception to the following conditions. With the ordering the contractor acknowledges our terms.

2. We hereby oppose any conflicting conditions. They are only valid if agreed in writing. Conditions of the contracting party shall not become part of the contract even if we do not contradict them again and provide the contractually owed delivery / service without reservation.

3. Our terms and conditions also apply to all future business with the contracting party.

4. Our terms and conditions are available for inspection on our premises. On request, we also send them at any time free of charge.

5. For catalog prices, the appearance of a new catalog invalidates the old price lists / catalogs. We reserve the right to change prices.

II. Conclusion of the contract, content of the contract

1. A contract is only concluded with our written order confirmation of the agreed service. However, we are obliged to inform you of any refusal of the order immediately in writing.

2. Our offers are made without engagement. The contractor is bound to his offer for a maximum of one month.

3. All agreements upon conclusion of the contract must be made in writing, no agreements other than those have been made. The written form also applies to ancillary agreements, assurances and subsequent changes, including the cancellation of the contract as agreed.

4. We expressly refer to the rights that apply to copyrighted software or other proprietary software. We claim these rights. For third-party programs, the same applies accordingly.

III. Price and payments

1. The prices are to be understood as the value of goods and services
ex works without discounts and other rebates plus the respectively
valid VAT.

2. The payment must be made in “€” free of charge and without any deduction, upon delivery or sending the invoice or another billing document.

3. Default interest is 5%, in legal transactions in which consumers are not involved 8% p.a. above the respective base interest rate published in the Federal Gazette. In addition to the statutory provisions, we are entitled to charge a higher default interest charge if we prove a higher burden, unless the contracting party proves that the default interest was not incurred at all or significantly lower.

4. Payment instructions, checks and bills of exchange are only accepted on account of performance under calculation of all discount and collection charges.

5. We reserve the right to charge net processing costs of € 15.00 net for orders of less than € 50.00 net.

6. The contracting party may set off against our claims only with undisputed, recognized or legally established counterclaims.

7. A right of retention may also be exercised only in the case of undisputed, recognized or legally established counterclaims and only if it is based on the same contractual relationship.

IV. Delivery and delivery delay

1. The beginning of the delivery time specified by us requires clarification of all technical questions. Compliance with our delivery obligation requires the timely and proper fulfillment of the contractual partner’s obligations.

2. Timely and correct self-delivery is reserved.

3. Delivery dates or delivery periods that can be agreed as binding or non-binding must be stated in writing. Delivery times begin with the conclusion of the contract. If subsequent changes to the contract are agreed, a new delivery date or delivery period must be agreed if necessary.

4. The delivery deadline is met if the delivery item has left our house by the time it expires or the readiness for dispatch has been sent.

5. The contractual partner can request us 6 weeks after a non-binding delivery date or a non-binding delivery period has been exceeded to deliver within a reasonable period. We are only in default with this reminder. This does not apply if the above period of grace is unreasonably long. The appropriate long grace period then applies.

6. If our delay is based on slight negligence, our liability for damages is excluded, unless it concerns damage to life, body and health.

7. In the alternative, we limit our liability for delay in the event of slight negligence to the typically foreseeable damage, unless it concerns damage to life, body and health.

8. Force majeure, riots, strikes, lockouts and significant operational disruptions through no fault of our own shall alter the dates and deadlines specified in Clauses 1 and 2 by the duration of the disruptions in performance caused by these circumstances for a reasonable start-up period.

Excess or short deliveries of up to 10% do not entitle to objection. Charged will be the amount sent.

V. Transfer of risk, delivery, control, notification of defects

1. Without prejudice to any assembly obligations, the risk is transferred to the customer upon delivery to the shipping agent, but no later than when leaving our company. If the goods are ready for dispatch, the risk passes to the contract partner one week after receipt of a notice of readiness for dispatch, unless we have the dispatch or acceptance due to circumstances, for which the contract partner is responsible, so the risk passes with sending a notice of readiness for dispatch. In all cases, we are only obliged to take out insurance upon special written order from the contractual partner to the extent specified and at his expense.

2. The contractual partner is obliged to check the goods for defects – also in the case of resale – and to report any defects immediately, at the latest within 10 working days. Transport damage must be reported within 48 hours.

3. On request, the client is obliged to participate in the creation of an acceptance and function report.

4. In the event of repairs, recognizable defects upon receipt, unrecognizable defects after discovery, must be reported in writing immediately, at the latest within 10 working days.

VI. Warranty

1. If the nature of the item or the defect or other circumstances indicate that the rectification of defects has not yet failed and this is reasonable for the contractual partner, we are entitled to make further improvements.

2. If the rectification has failed, the contractual partner is entitled to reduce the price or to withdraw from the contract and to assert the right to compensation in accordance with the statutory provisions.

3. The period of limitation is 12 months.
4. The limitation period for the sale of used items is also 12 months.

5. We expressly point out that the implementation of improperly carried out changes or repair work on the delivery item without our approval will invalidate the warranty for the delivery item. The burden of proof for the opposite lies on the client.

VII Exclusion of damages, limitation of liability

1.If our obligation to pay compensation is based on the only slightly negligent breach of essential contractual obligations, we limit our liability for damages, that of our legal representatives or vicarious agents, to the foreseeable damage typical of the contract.

2. If our obligation to pay damages is based on the slightly negligent violation of non-essential secondary obligations, we exclude our liability for damages, that of our legal representatives or our vicarious agents.

3. In all cases of liability for damages due to negligent breach of duty, regardless of the legal basis, our liability for damages is limited to the foreseeable damage.

4. In the alternative, we exclude our liability for damages, that of our legal representatives or vicarious agents, insofar as we are responsible for a slightly negligent breach of a contractual obligation which, by its nature and its consequences, does not endanger the purpose of the contract.

5. If we are asserted for damages from producer liability in accordance with Section 823 of the German Civil Code (tort based claim), we limit our liability beyond the above provisions to the compensation of our liability insurer. The coverage amount is typically completed in terms of damage / contract / saxony. If the insurance does not or does not fully occur, our liability, limited to the amount of the sum insured, remains unaffected. If the sum insured is not typical for the damage, contract, or property, we limit our liability in these cases to the amount of damage typical for the contract, and / or property. The above provisions para. VII 1-5 do not apply if there is damage to life, limb and health and / or claims under the Product Liability Act.

VIII. Retention of title

1. In all cases, we reserve ownership of the delivery item until all payments from the underlying delivery contract have been received.

2. In addition, we reserve ownership of the delivered items until all claims arising from the business relationship, which will also arise in the future, have been fulfilled. The contractual partner is obliged to store the delivery items free of charge with the care of a prudent businessman in all cases.

3. Pledging or transfer by way of security of the reserved goods is not permitted in all cases.

In the event of seizure, confiscation or other dispositions by third parties, we must be notified immediately, providing the documents necessary for a contradiction have been provided.

4. Furthermore, the contractual partner is entitled to process and resell the delivery item within the framework of a proper business operation, as long as it is not in default. With the conclusion of the purchase contract with us, he assigns to us the claims he is entitled to from his customers from the sale or for any other legal reason in the amount of the invoice value of the goods delivered subject to retention of title.

5. With the suspension of payment, application for or opening of insolvency proceedings, as well as with check or bill protests, the right to sell and the authority to collect assigned claims expire. In these cases, the contracting party is obligated to immediately and unsolicitedly invoice us for the reserved goods and assignments of claims.

6. The retention of title shall remain valid even if individual claims are included in a current account and the balance is drawn and recognized, unless the balance is settled.

7. If the value of the collateral granted exceeds our claims by more than 20%, we are, at the request of the client, obliged to retransfer if the security limits are exceeded at our discretion.

8. We are to take back our goods subject to retention of title after a reminder in accordance with Section 5

regulated cases as well as if the contractual partner is behind with a substantial part of his payment obligations. Like a garnishment by us, this does not count as a withdrawal from the contract. The contractual partner is obliged to surrender. A right of retention is excluded.

9. Amounts which the contractual partner collects from assigned claims must be kept separately until they are transferred to us in order to exclude offsetting and/or set-offs with bank accounts managed on the debit side.

10. The processing or transformation of the delivery item by the contractual partner is always carried out for us. If this is processed with other items not belonging to us, we acquire the co-ownership of the new item in proportion of the value of the delivery item to the other processed items at the time of processing. For the thing resulting from processing, the same applies as for the delivery item delivered under reservation.

11. If the delivery item is inseparably mixed with other items that do not belong to us, we acquire co-ownership of the new item in the ratio of the value of the delivery item to the other mixed items at the time of the mixing. If the mixing takes place in such a way that the object of the contracting party is to be regarded as the main object, then it is agreed that the contracting party assigns to us pro rata co-ownership. The contractual partner keeps the resulting sole or co-ownership for us.

IX. Applicable law, place of jurisdiction

1. Contracts shall be governed by the law of the Federal Republic of Germany to the exclusion of the uniform UN Convention on Contracts for the International Sale of Goods (CISG).

2. The place of performance for all mutual claims arising from the contractual relationship is our registered office.

3. Our registered office is the place of jurisdiction for all claims arising from the business relationship, including check and bill of exchange claims, if the contractual partner is an actual merchant. However, we are entitled to sue the contractual partner at his general place of jurisdiction.

Werba Plast GmbH, Rosstal