General Terms and Conditions of Sale of Kunststoffverarbeitung Wimmer GmbH

§ 1 General – Validity
(1) Our terms and conditions of sale apply exclusively; we will not recognise contradictory terms and conditions or terms and conditions of the customer that deviate from our terms and conditions. Our terms and conditions of sale continue to apply even if we carry out unconditional delivery to the customer in the knowledge of contradictory terms and conditions or terms and conditions of the customer that deviate from our terms and conditions of sale.
(2) All agreements reached between the customer and ourselves for the purposes of application of this contract are set out in writing in this contract.
(3) Our terms and conditions of sale shall only apply towards employers in the context of §§ 310 para. 1, 14 BGB (German civil code)

§ 2 Offer – Offer Documents
(1) If the order is to be qualified as an offer, in accordance with § 145 BGB, then we can accept this within 2 weeks.
(2) For images, drawings, calculations and other documents, we retain the proprietary and copyrights. This also applies for such written documents as are designated “confidential“. Prior to their transmission to third parties, the customer requires our express written consent.

§ 3 Prices – Terms and Conditions of Payment
(1) Unless the confirmation of order specifies otherwise, our prices apply “ex works”, excluding packaging; this is invoiced separately.
(2) Our prices do not include statutory VAT; this will be shown separately in the invoice, at the statutory level, on the day when the invoice is issued.
(3) Deduction of discounts requires special written agreement.
(4) Unless otherwise specified in the confirmation of order, payment of the purchase price is due (without reduction) within 30 days of the invoice date. The legal regulations concerning the consequences of the payment process are applicable.
(5) The customer only has the right to set-off if the counterclaims are established legally, uncontested, or recognised by us. Additionally, the customer is authorised to exercise a right of retention if the counterclaim is based on the same contractual relationship.

§ 4 Delivery Period
(1) Furthermore, observance of our delivery obligation requires the customer’s obligation to be fulfilled punctually and in accordance with the regulations. We reserve the right to object if the contract is not fulfilled.
(2) Should the customer come into default of acceptance or be in culpable breach of other co-operation obligations then we are entitled to demand compensation for damages caused in this respect, including any additional expenses. We reserve the right to further claims.
(3) Provided the requirements of para. (3) are in place, the risk of accidental loss or accidental deterioration of the purchase object is transferred to the customer at the point in time at which the same falls into default of acceptance or default of payment.
(4) We shall be liable in accordance with the legal regulations, providing the underlying contract of sale is a firm deal in the context of § 286 para. 2 no. 4 BGB or of § 376 HGB. We shall also be liable in accordance with the legal regulations, providing the customer is entitled to assert the claim that an interest is no longer held in the continued fulfilment of the contract, as a consequence of a delivery delay for which we are responsible.
(5) Furthermore, we shall be liable in accordance with the legal regulations, providing the delivery delay is due to a wilful or grossly negligent breach of contract for which we are responsible; blame of our representatives or agents is to be attributed to us. If the delivery delay is not due to a wilful breach of contract for which we are responsible, then our liability for compensation is limited to the foreseeable, naturally arising damages.
(6) We shall also be liable in accordance with the legal regulations, providing the delivery delay for which we are responsible is due to a culpable breach of an integral contractual obligation; however, in this case, the liability for compensation is limited to the foreseeable, naturally arising damages.
(7) Furthermore, in the case of a delivery delay, we shall be liable for each complete week’s delay in the context of a flat rate compensation for delay at the rate of 3% of the delivery value, although up to a maximum of no more than 15% of the delivery value.
(8) The customer retains all other statutory claims and rights.

§ 5 Transfer of Risks – Packaging Costs
(1) Unless otherwise specified in the confirmation of order, delivery is agreed “ex works”.
(2) Special agreements apply for the withdrawal of packaging.
(3) If the customer desires, we will arrange transport insurance for the delivery; all costs arising from this will be borne by the customer.

§ 6 Liability for Defects
(1) Customer defect claims require the customer to properly fulfilled his obligation to investigate and immediately notify about defects, in accordance with § 377 HGB.
(2) If the purchase object is defective, the customer is entitled to a choice of either subsequent fulfilment in the form of fault rectification or delivery of a new, fault-free item. In the case of fault rectification, we are obliged to bear the cost of all applications required for the purposes of fault rectification, particularly transport, route, working and material costs, providing these are not increased by the purchase item having been moved to a location other than the place of performance.
(3) Should the subsequent fulfilment fail, then the customer is entitled to demand either a refund or a reduction.
(4) We shall be liable in accordance with the legal regulations, providing the customer asserts claims for compensation due to wilful intent or gross negligence, including wilful intent or gross negligence of our representatives or agents. If we are accused of no wilful breach of contract then liability for compensation is limited to the foreseeable, naturally arising damages.
(5) We shall be liable in accordance with the legal regulations, providing we are culpably in breach of an integral contractual obligation; in this case, however, liability for compensation is limited to the foreseeable, naturally arising damages.
(6) If the customer is entitled to claim for compensation for damages instead of performance, then our liability even in the context of para. (3) is limited to compensation for the foreseeable, naturally arising damages.
(7) Liability for culpable injury of life, body or health remains unaffected; this also applies for the compulsory liability according to the German product liability act.
(8) Unless the above includes a regulation to the contrary, liability is precluded.
(9) The statutory period of limitation for claims for defects is 12 months from transfer of risks.
(10) The statutory period of limitation in the case of delivery recourse according to §§ 478, 479 BGB remains unaffected; this is five years from delivery of the defective item.

§ 7 Total liability
(1) Liability for compensation for damages above and beyond that which is set out in § 6 is precluded – with no regard for the legal nature of the claim asserted. This particularly applies for claims for compensation for damages from debts on agreement of the contract, due to other breaches of obligations or due to tortious claims for compensation for material damages in accordance with § 823 BGB.
(2) The limitation in accordance with para. (1) is also applicable if, in place of a claim for compensation for damages, the customer demands compensation for useless applications instead of the service.
(3) Providing our liability for compensation for damages is precluded or limited, this is also applicable with respect to personal liability of our staff, employees, personnel, representatives and agents.

§ 8 Safeguarding Reservation of Proprietary Rights
(1) We will retain ownership of the purchase item until all payments from the delivery contract have been received. In the event of conduct in breach of contract by the customer, particularly default of payment, we are entitled to take back the purchase item. In recalling the purchase item, we withdraw from the contract. After taking back the purchase item, we are authorised to make a valuation assessment of the same; the difference in value is to be added to the customer’s liabilities – minus the appropriate valuation costs.
(2) The customer is obliged to handle the purchase object with care; in particular, the customer is obliged to sufficiently insure the object at own expense, as new, against fire, water and damages from theft. Where maintenance and servicing work is required, the customer must have these carried out in good time and at own expense.
(3) In the case of distraints or other third party interventions, the customer must immediately inform us in writing, so we can raise a complaint in accordance with § 771 ZPO. If the third party is not able to reimburse us for the judicial and extrajudicial costs of a complaint in accordance with § 771 ZPO, then the customer shall be liable for the losses we incur as a result.
(4) The customer is entitled to resell the purchase object within the ordinary course of business. However, all debts – incurred from passing the object on to account debtors or third parties – to the value of the final invoice amount (including VAT) shall be repaid at this point, independently of whether the purchase object is resold without or subsequent to processing. The customer remains authorised to settle this debt even after cession. This does not affect our authority to collect the debt ourselves. However, we agree that we will not collect the debt, providing the customer meets the payment obligations from the profits taken, does not fall into default of payment, and particularly providing no application has been made to commence settlement or insolvency proceedings and no suspension of payment is in place. Nonetheless, should this be the case, we can demand that the customer inform us of the claims assigned and their debtors, provide all details required for settlement, hand over the associated documents and inform the debtors (third parties) of the cession.
(5) Processing or reconstruction of the purchase item by the customer is always undertaken for us. Should the purchase item be processed with other objects that do not belong to us, then we shall acquire joint ownership of the new item at the rate of the value of the purchase object (final invoice amount including VAT) relative to the other processed objects at the time of processing. In any case, the same applies for the item resulting from the processing as for the purchase item supplied under reservation.
(6) Should the purchase item be inseparably mixed with other objects that do not belong to us, then we shall acquire joint ownership of the new item at the rate of the value of the purchase object (final invoice amount including VAT) relative to the other processed objects at the time of mixing. Should mixing take place in such a way that the item from the customer must be seen as the primary item, then it is agreed that the customer will afford us proportional joint ownership. The customer shall retain the resulting sole ownership or joint ownership for us.
(7) The customer shall also assign to us the claims for securing our claims against the customer, which derive from linking the purchase item with a property against a third party.
(8) On the customer’s request, we agree to release the securities to which we are entitled, providing the realisable value of our securities exceeds the debts to be secured by over 10%; which securities to release is our choice.

§ 9 Area of Jurisdiction – Place of Performance
(1) If the customer is a trader, our head office shall be the area of jurisdiction; however, we are entitled to sue the customer in the court local to the customer’s place of residence.
(2) The law of the Federal Republic of Germany shall apply; validity of UN purchasing law is precluded.
(3) Unless specified otherwise in the confirmation of order, our head office shall be the place of performance.