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Europlast-Nycast GmbH - General Delivery Conditions

I. Scope

(1) These General Terms and Conditions of Delivery apply to all deliveries, services, offers, sales transactions and our business relationships with our customers. The terms of delivery only apply if the customer is an entrepreneur (Section 14 German Civil Code - BGB) or a legal entity under public law. Deviating, conflicting or supplementary general terms and conditions of the customer or third parties, even if they are known, are not part of the contract unless their validity is expressly approved in writing. The delivery of our products does not imply acceptance of any general terms and conditions of the customer.

(2) The terms of delivery apply to all current and future business relationships. They apply to future transactions even if they are not included in the correspondence with the customer.


II. Offer and Order, Clarification of Technical Questions

(1) Our offers are non-binding. They only become binding with our order confirmation. Oral or telephone agreements only become part of the contract if they are confirmed by us in writing. By ordering a product, the customer makes a binding declaration that he wishes to purchase the ordered product.

(2) The contract conclusion is subject to the correct and timely delivery to us by our suppliers. This only applies in the event that we are not responsible for the non-delivery, in particular if a congruent hedging transaction is concluded with our supplier. The customer will be informed immediately about the non-availability of the service. Any consideration already paid will be refunded immediately.

(4) Documents belonging to the offer, such as illustrations, drawings, weights and dimensions, are only approximately authoritative unless they are expressly designated as binding. We reserve the property rights and copyrights to cost estimates, drawings and other documents; they may not be made accessible to third parties. At our request, the customer must return these documents to us in full and destroy any copies that may have been made if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

(5) The customer is obliged to ensure that documents, plans, drawings as well as computer programs and files originating from him are suitable for the processes used by us and are technically usable by us. We provide general technical information on request. We do not check the usability and suitability of ordered deliveries and in particular the materials specified by the customer for the customer's intended use. We are only obliged to obtain material test certificates and other manufacturer certificates if this is expressly contractually agreed. The same applies to compliance with and observance of standards and guidelines. In the latter cases, the respective medium tolerance is deemed to be owed.


III. Prices

(1) The prices apply to the scope of services and deliveries listed in the order confirmation ex works. Additional or special services will be charged separately.

(2) Orders for which fixed prices have not been expressly agreed shall be charged at the daily prices valid on the day of execution.

(3) As a rule, the prices do not include taxes, fees, customs duties or similar charges arising outside of the Federal Republic of Germany as a result of the conclusion or execution of the order. If we are called upon to meet such charges, the customer is obliged to reimburse these expenses. In the case of wage labour in particular, the contracting parties undertake to negotiate a changed price if difficulties arise.


IV. Delivery Time

(1) Information on the delivery time is approximate unless a fixed period or a fixed date has been expressly promised or agreed.

(2) An agreed delivery period begins with the dispatch of the order confirmation, but not before the clarification of all technical questions and the provision of the documents, drawings, plans, permits, releases, materials, computer programs and files by the customer, as well as before receipt of any deposit either especially agreed or owed according to Section V hereunder.

(3) We are also not obliged to deliver or to provide other contractual services of any kind before full payment of due invoice amounts and down payments from all other contractual relationships with the customer, in particular delivery contracts between the contracting parties, including any default interest incurred. An exception only applies if the customer's claims are undisputed or have been legally established.

(4) In the event of a delay in delivery, the customer can set us a reasonable grace period and, after the unsuccessful expiry of this period, withdraw from the contract to the extent that the contract has not yet been fulfilled. If shipping is delayed at the request of the customer, the costs incurred by storage will be charged to him.

(5) We are not liable for impossibility of delivery or for delays in delivery, insofar as these are due to Force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of workers, energy or raw materials, epidemics (including pandemics, insofar as a risk level of at least "moderate" is defined by the Robert Koch Institute), war, difficulties in obtaining the necessary official permits, official measures or non-existent, incorrect or late delivery by suppliers for which we are not responsible. If such events make the delivery or service significantly more difficult or impossible for us and the hindrance is not only of a temporary nature, we are entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to us.



V. Payment

(1) Payment is to be made net cash ten days after receipt of the invoice or, if applicable, within agreed targets.

(2) After this period has expired, the customer is in default of payment. During default the customer has to pay interest on the debt to the amount of 9 percentage points above the respective base interest rate. We reserve the right to prove and claim higher damages caused by delay.

(3) Outside the same contractual relationship, the customer only has the right to offset if his counterclaims have been legally established or recognized by us. The customer can only exercise a right of retention if his counterclaims are based on the same contractual relationship and are undisputed or have been legally established.


VI. Place of Performance/Passing of Risk

(1) The place of performance for all obligations arising from the contractual relationship is Velbert.

(2) The risk of accidental loss and accidental deterioration of the goods passes to the customer upon handover, in the case of shipment purchase sales upon delivery of the goods to the forwarding agent, carrier or other person or institution responsible for carrying out the shipment. This applies irrespective of who bears the freight costs and also if partial deliveries are made. The insurance of the shipments is exclusively a matter for the customer and is at his expense.

(3) If the customer is in default of acceptance or violates other obligations to cooperate, we are entitled to demand the damage incurred by us, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the purchased item passes to the customer at the latest at the point in time at which he defaults in acceptance.

(4) If the goods are ready for dispatch or if dispatch or acceptance is delayed for reasons for which we are not responsible, the risk passes to the customer upon receipt of notification of readiness for dispatch. In this case, we will insure the delivery items at the request and expense of the customer. The customer bears the costs of storing the delivery items. Excess or short deliveries of the agreed quantities that are customary in the industry are permissible.

(5) Delivered items are to be accepted by the customer, even if they have insignificant defects.


VII. Retention of Title

(1) We reserve ownership of the goods delivered by us until all claims from an ongoing business relationship have been settled in full.

(2) If the payments are made in whole or in part against sureties or guarantees, the retention of title only expires after the return of the surety or guarantee documents.

(3) If the delivered item is processed with other items that do not belong to us, we acquire co-ownership of the new item in proportion to the invoice value of the delivered item to that of the other processed items. For the rest, the same applies to the item resulting from processing as to the item delivered under reservation.

(4) If the delivered item is inseparably mixed with other items that do not belong to us, we shall acquire co-ownership of the new item in the ratio of the invoice value of the delivered item to that of the other mixed items. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer transfers proportionate co-ownership to us. The customer keeps the resulting sole ownership or co-ownership for us. The customer also assigns to us the claims to secure our claims against him, which arise against a third party through the connection of the delivered item with real estate.

5) The customer shall be entitled to resell the goods subject to retention of title in the ordinary course of business transactions only on condition that the claim for payment arising from the resale is assigned to us. We accept the assignment. The customer shall only be entitled to dispose of the reserved goods in any other way with our express written consent. In any case, he shall be obliged to notify a third party buyer or purchaser of the assignment for payment to us, to provide us with the information required to assert the claim and to hand over the documents required for this purpose.

(6) Claims of the customer from the resale of the reserved item, including claims from credit insurance, are already assigned to us with all ancillary rights, regardless of whether the reserved item is resold to one or more customers. If the assigned claim against one or more customers has been included in a current account, the agreed assignment also applies to the claims from the current account.

(7) If the reserved item is sold or otherwise disposed of by the customer together with other goods not belonging to us, whether without or after combination with other goods, the assignment of the claim arising from the disposal transaction shall be deemed to be agreed in the amount of the invoice value of the reserved goods. The customer shall inform us without delay of any compulsory execution measures by third parties against the goods subject to retention of title or the claims assigned in advance, handing over the documents necessary for an intervention.

(8) The customer is obliged to treat the delivered item with care; in particular he is obliged to insure it adequately at replacement value against fire, water and theft damage at their own expense. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.


VIII. Notification of Defects, Warranty

(1) The customer must inspect the received goods immediately after transfer of ownership. Defects in the goods must be reported in writing immediately, no later than seven days after transfer of ownership. Defects that cannot be discovered within this period even with the most careful examination must be reported to us in writing immediately after discovery. Otherwise the assertion of the claim for defects is excluded. Timely notification is sufficient to meet the deadline dispatch.

(2) In the event of a justified, timely notice of defects, we shall initially provide subsequent performance for defects in the goods at our discretion - taking into account the interests of the customer - either by replacement delivery or by subsequent improvement.

(3) If the subsequent performance fails, the customer can generally choose a price reduction of payment (reduction) or cancellation of the contract (withdrawal). In the case of only a minor breach of contract, in particular in the case of only minor defects, the customer is not entitled to withdraw from the contract. We reserve the right to refuse subsequent performance if it is only possible at disproportionate costs (see Section 635 Paragraph 3 and Section 439 Paragraph 4 of the German Civil Code - BGB).

(4) If the customer does not immediately give us the opportunity to convince ourselves of the defect, if he does not immediately make the goods complained about or samples thereof available to us for inspection purposes upon request, all rights due to the defect shall lapse.

5) If the customer chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, he shall not be entitled to any additional claim for damages due to the defect, unless we act with gross negligence or intent.

(6) If the customer chooses compensation after subsequent performance has failed, the goods remain with the customer if this is reasonable for him. Compensation for damages is limited to the difference between the purchase price and the value of the defective item. This does not apply if we have caused the breach of contract fraudulently.

(7) We are not liable for deterioration or loss or improper handling of the goods after passing of risk.

(8) Recourse claims of the customer against us according to section 478 German Civil Code (BGB) are limited to the legal scope of the claims for defects asserted against the customer by third parties and presuppose that the customer has complied with the period for complaints incumbent on us according to section 377 German Commercial Code (HGB).

(9) We are liable for replacement deliveries and rectifications to the same extent as for the original delivery item.

(10) Repairs or replacement deliveries do not allow the limitation period to start anew.

(11) Only those quality characteristics of the goods that have been confirmed by us in writing within the scope of the product descriptions contained in our order confirmations shall be deemed to have been agreed, provided these are not based on erroneously incorrect information. Public statements, promotions or advertising by the manufacturer do not represent any contractual information on the quality of the goods.


IX. Limitations of Liability and Statute of Limitations

(1) The statute of limitations in the case of defective delivery ends - except in the case of intent - after one year after delivery. If acceptance has been agreed, the limitation period begins with acceptance. This does not apply if the customer has not notified us of the defect in good time.

(2) Unless otherwise stipulated in these conditions, we are only liable for damages due to breach of contractual or non-contractual obligations or when initiating a contract in the event of intent or gross negligence and culpable violation of essential contractual obligations. In the event of a culpable breach of essential contractual obligations, we shall only be liable - except in cases of intent or gross negligence - for the typical, foreseeable, direct average damage.

(3) We are not liable for slightly negligent breaches of insignificant contractual obligations. Our Liability is limited to the value of the parts supplied if this is in reasonable proportion to the risk of damage typical of the contract.

4) If the customer has built the goods that are defective at the time of the transfer of risk according to their type and their intended purpose into another item or attached to another item, he can only be reimbursed for expenses for the removal of the defective goods and the installation or attachment of the repaired or delivered defect-free goods (removal and installation costs) in accordance with Section 439 Paragraph 3 German Civil Code (BGB) subject to the following provisions.

(a) The claim is excluded if the customer was aware of the defect in the goods before installation in or attachment to the other item.

(b) Required in the sense of Section 439 Paragraph 3 German Civil Code (BGB) are only those removal and installation costs that relate to the removal and installation or the attachment of identical products. Transport, travel, labour and material costs, including any removal and installation costs, are excluded if the expenses increase because the goods delivered by us were subsequently taken to a location other than the customer's branch, unless the transfer corresponds to their intended use. The costs must be proven to us at least in text form by submitting suitable receipts. Personnel and material costs that the customer claims in this context are to be calculated on the basis of the customer's cost price without a share of the profit. The purchaser's right to advance payment for removal and installation costs is excluded. The customer is also not permitted to unilaterally offset claims for reimbursement of expenses for removal and installation costs against existing payment claims on our part without our consent. Claims by the customer that go beyond the necessary removal and installation costs, in particular costs for consequential damage caused by defects such as lost profits including calculated profit surcharges, costs of business interruption or additional costs for replacement purchases are not removal and installation costs and are therefore not eligible for compensation in accordance with Section 439 Paragraph 3 German Civil Code (BGB).

(c) The costs of supplementary performance must be proportionate. This applies in particular in relation to the purchase price of the goods in a defect-free condition and taking into account the importance of the non-conformity. Otherwise we are entitled to refuse subsequent performance.

(5) The above limitations of liability do not apply to the customer's claims under the Product Liability Act. Furthermore, the limitations of liability do not apply to bodily injury or damage to health attributable to us or loss of life.

(6) Claims by the purchaser arising from a breach of duty become statute-barred after a period of one year the start of the statutory limitation period. This does not apply if we act with intent, deceit or gross negligence, as well as in the case of bodily injury or damage to health attributable to us or in the event of loss of life.

(7) Insofar as our liability is excluded or limited, this also applies to the personal liability of our legal representatives, employees and vicarious agents.


X. Right to Withdraw

In the event of unforeseen events, the insufficient suitability or lack of usability of the materials, documents, plans or programs provided for the use of the devices and processes used by us and in the event of subsequent impossibility of execution in the intended form, the following regulations apply:

(1) If the aforementioned circumstances change the economic importance or the content of the service significantly or have a significant impact on our operations, the contract will be adjusted appropriately. Insofar as this is economically justifiable, we have the right to withdraw from the contract in whole or in part.

(2) Claims for damages by the customer due to such a withdrawal do not exist. If we want to make use of our right of withdrawal, we must inform the customer immediately after learning the scope of the event or other circumstances, even if an extension of the delivery period was initially agreed with the customer.


XI. Severability Clause

Should individual provisions of the contract with the customer, including these General Terms and Conditions of Delivery, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The ineffective regulation should be replaced by a regulation whose economic success comes as close as possible to that of the ineffective one.


XII. Jurisdiction, Applicable Law

(1) The place of jurisdiction is our place of business in Velbert. However, we are also entitled to bring an action at the customer's general place of jurisdiction. The law of the Federal Republic of Germany applies.

(2) In the case of translations of these conditions into a language other than German, the German version of these conditions is authoritative in the event of doubts about the interpretation.