Valid for the Sale of Goods and Services from Welger Recycling Engineering GmbH
Article 1 Scope
(1) Any and all supply contracts, understandings and quotations made within the scope of commercial transactions shall be exclusively governed by these Terms and Conditions in their version in effect at the time of conclusion of the Contract even if, in the future, the Seller should no longer make express reference thereto. The Buyer?s order placement or acceptance of delivery shall be deemed to constitute the Buyer?s agreement to these Terms.
(2) Any amendments of or supplements to these Terms shall not be valid unless made in writing.
(3) These Terms shall also apply in the event that the Buyer has notified, or communicated in writing, its own divergent general terms. Such Buyers terms shall not become part of the Contract unless expressly agreed by the Seller or an agent acting on the Sellers behalf.
Article 2 Conclusion of Contract
(1) The Buyer shall place orders in writing by letter or telefax communication. Orders may also be placed via electronic data transmission, e.g. e-mail, provided that by means of current technical standards the Buyer can be clearly identified as sender of such message.
(2) In the event of any discrepancy between the confirmation of an order and the purchase order, the contents of the confirmation shall be deemed contractually agreed unless written objection is made within 14 days of the mailing date.
(3) The Seller shall retain the ownership and copyright of any illustrations, pictures, drawings, calculations and other information that were put at the Buyer?s disposal. Such documents must not be disclosed to or reproduced for any third party unless express consent has been obtained from the Seller.
Article 3 Prices / Payment
(1) Prices are net prices, with value added tax (VAT) payable in addition at the rate in effect at the time. Prices are in Euros.
(2) The prices stated by the Seller in quotations and price lists shall be valid for a period of 30 days from publication thereof.
(3) Any circumstances which may arise after expiration of four months from the conclusion of the Contract and which materially affect the Sellers calculation parameters in a way that is beyond the Sellers scope of responsibility or control shall entitle the Seller to adjust the prices previously agreed, though only in order to allow for such new circumstances. This shall apply particularly in the event of any legislative or administrative interferences, or similar occurrences. Such price adjustments shall be made on the same calculation bases as the original prices and shall not aim at any profit increase.
(4) Any invoiced amounts shall consistently be due for payment within ten days of the date of invoice.
(5) If payment is effected after the date specified in paragraph (4) above, interest on arrears shall be due at a rate of 8 percentage points above the base lending rate (§§ 288, 247 German Civil Code). This is without prejudice to any further claims on account of damage caused by delay.
(6) Cheques will be accepted as conditional payment only, and bills of exchange will be accepted as conditional payment on the basis of a private agreement only.
(7) The Buyer shall not be authorized to withhold and/or offset any payments due to the Seller unless Buyers counterclaim has been proven and is undisputed and recognized.
(8) The Buyer shall not be authorized to exercise such right to withhold payment unless the Buyer?s counterclaim is based on the same contractual relationship.
Article 4 Term of Delivery
(1) The agreed term of delivery shall be deemed to have been met if by the end of the agreed term the Product ordered has left the Sellers warehouse, or the manufacturers facilities in the event of ex-works delivery, or if advice of Products readiness for shipment has been notified.
(2) If, however, the Product cannot be delivered or the Service cannot be rendered because the Buyer still has to take certain preparatory measures or meet certain requirements, this shall extend the Term of Delivery by the period of time so required. In that case, the Term of Delivery shall be newly agreed in writing.
(3) The Seller shall not be under an obligation to perform its obligations under the Contract as long as the Seller is unable to do so due to any circumstances of force majeure that were not predictable at the time of conclusion of the Contract such as labour conflicts, strikes, lock-outs, unpredictable equipment failures, unavoidable shortages of material, or any similar circumstances of which the Seller cannot be held responsible. Any agreed Terms of Delivery shall automatically be extended by the duration of such disruptions. The Buyer shall have no right to claim damages under the circumstances described above. However, the Buyer shall be authorized to suspend performance of its own contractual obligations as long as such circumstances continue. The Seller shall without delay communicate to the Buyer the emergence of such conditions of force majeure in terms of this provision as well as the termination thereof, and the Seller shall render evidence of its his non-responsibility for such circumstances no later than six months after the termination thereof.
(4) If delivery is delayed due to any circumstances for which the Buyer is responsible, the latter shall be under an obligation to reimburse to the Seller any of the extra costs incurred by the Seller.
Article 5 Devolution of Risk
(1) The risk of loss of the Product [the price risk] shall pass to the Buyer upon delivery of the Product to the party entrusted with transporting the Product.
(2) The Seller shall at the Buyers request insure the Product against theft, breakage, transport damages, fire and water damages and any other insurable risks.
(3) Partial deliveries shall be admissible unless the Buyer cannot reasonably be expected to accept them.
(4) In the event of consignment sales the risk of loss shall be, mutatis mutandis, as provided under paragraph (1). The Buyer shall be under an obligation to properly stock and carefully treat the consigned Products and service them if required. The Buyer shall insure the Products ordered as goods in consignment against theft, fire, water and other insurable risks in the amount of their invoice value. The Seller shall be authorized at any time to request the surrender of the Products delivered to the Buyer as consigned goods. The Buyer shall be under an obligation to notify the Seller without delay of the sale of the consigned Product.
Article 6 Retention of Title
(1) The Product shall remain the Sellers property until all payments due under the Sellers contractual relationship with the Buyer have been received in full. The retention of title shall include the recognized account balance to the extent that the Seller books any amounts receivable from the Buyer to current account (current account reservation).
(2) In the event of the Buyers non-compliance with its obligations under the Contract, including but not limited to default in payment, the Seller shall be authorized to repossess the delivered Product, and the Buyer shall be under an obligation to surrender the Product. Repossession of the delivered Product by the Seller shall not constitute any rescission of the Contract unless otherwise provided by the provisions of the German Civil Code [BGB] relating to consumer credits, or unless such consequential rescission has been expressly declared by the Seller. Any pledging of the delivered Product shall consistently constitute a Contract rescission. In order to enable the Seller to bring action pursuant to § 771 German Code of Civil Procedure [ZPO], the Buyer shall at once notify the Seller in writing if the Product is pledged or otherwise seized by any third party. To the extent that such third party is unable to reimburse to the Seller the judicial and extra-judicial costs of a lawsuit pursuant to § 771 ZPO, the Buyer shall be liable to reimburse any remaining balance to the Seller.
(3) The Buyer shall be authorized to resell the Product in the ordinary course of business; the Buyer hereby assigns to the Seller any payments receivable in the amount of the invoiced total (including value added tax) that the Buyer may be entitled to from the resale of the Product to its customer or any third party irrespective of whether the Product was resold with or without the Sellers consent. Notwithstanding such assignment, the Buyer shall continue to be entitled to collect the receivables. The Seller shall be entitled to collect the receivables on its own accord but promises not to collect the receivables as long as the Buyer properly meets its payment obligations and does not default. Should the Buyer default, the Seller can request the Buyer to disclose the assigned receivables and the respective debtor, to provide any additional information that may be required for the collection of receivables, to surrender any pertinent documents, and to notify the debtor (third party) of such assignment.
(4) If the delivered Product is irreversibly combined or mixed with other products not owned by the Seller into a new product, the Seller shall obtain co-ownership in such new product, and the percentage of such co-ownership shall reflect the value of the Product supplied in proportion to the value of the other parts or products at the time they were combined or mixed. The Parties hereto agree that the Buyer shall assign such proportionate co-ownership to the Seller if the Seller?s Product is deemed to constitute the essential element in such combined or mixed product. The Buyer shall stock the Product, of which the Seller has sole ownership or co-ownership, on behalf of the Seller. The Buyer shall also assign to the Seller any claims, which the Buyer may have on any third party on the grounds of the combination of the Product with a basic element, and such assignment shall be for the protection of the Sellers claims on the Buyer.
(5) On the Buyers request, the Seller agrees to return to the Buyer the guarantees provided by the Buyer should their value exceed the value of any secured receivables by more than 20%.
Article 7 Buyers Rights in the Event of Defects
(1) The Buyer shall be under an obligation to inspect the Product immediately upon delivery. Any notice of defect must be reported no later than three days after delivery of the Product. Any hidden defects shall be notified by registered letter to the Seller immediately upon detection, but no later than three days after detection. Any notice of defect must be addressed exclusively to the Seller.
(2) If notice of defect of a Product has been reported in due time, the Seller can at its discretion supply a Product in replacement or remedy the defect complained of. If such remedy is unreasonable or if it fails, the Buyer can request a reduction of the purchase price or rescission of the Contract.
(3) The Buyers title to remedial performance shall become time-barred twelve months after the date of delivery.
(4) Any parts of the Product that are replaced by the Seller while remedying the defect shall become the Sellers property.
(5) The Buyer shall be under an obligation to offer the Seller a reasonable chance to remedy the defect. If the Buyer defaults on such obligation, the Seller shall not assume any additional liability for any damages caused thereby.
(6) The Seller shall not be held liable for any damages resulting from the defectiveness of the Product unless such damages were caused by at least grossly negligent breach of duty by the Sellers legal representative or vicarious agents.
(7) It is expressly agreed that the above limitation of liability shall not apply in the event of any damages arising from injuries to the life, physical integrity and health of an individual if such damages are attributable to culpable breach of duty on the part of the Seller, its legal representatives or vicarious agents.
(8) If the Seller warrants a specified quality of the Product for a specified period of time, paragraphs 1, 2, 3 and 7 shall not be applicable.
Article 8 Limitation of Liability / Non-Liability
(1) The Buyer cannot claim any other damages of whatever nature, including but not limited to any damages arising from culpa in contrahendo or infringement of contractual or legal incidental obligations, unless such damages are attributable to at least grossly negligent breach of duty on the part of the Seller or its legal representatives or vicarious agents.
(2) The above restriction shall not apply to predictable damages arising from the infringement of material obligations under the Contract. However, in that case the Seller shall be held liable only to the extent that such damage was predictable. The Seller shall not be liable for any unpredictable excess risks.
(3) It is expressly agreed that the above limitation of liability shall not apply in the event of any damages arising from injuries to the life, physical integrity and health of an individual if such damages are attributable to culpable breach of duty on the part of the Seller, its legal representatives or vicarious agents.
Article 9 Rescission of Contract
(1) The Seller can rescind the Contract if after conclusion of the Contract the Seller becomes aware of any developments which are beyond its scope of control but which materially affect the performance of the Contract so that performance has become impossible or unreasonably difficult for the Seller (e.g. non-delivery by Sellers suppliers for which Seller cannot be held responsible, or delivery only at considerably deteriorated conditions).
(2) The Seller shall also be authorized to rescind the Contract if the Buyer grossly infringes its contractual obligations, particularly if the Buyer infringes its duty to exercise due care of the Products delivered under retention of title.
(3) The Seller shall also be authorized to rescind the Contract in the event that the Buyer makes incorrect representations relating to its credit standing. This shall also apply if the Buyer is actually not creditworthy and, consequentially, the Sellers claims seem to be jeopardized. The same shall apply if the Buyer has sworn an affidavit of means or insolvency proceedings have been instituted.
(4) In any other circumstances, the Sellers and the Buyers right of rescission shall be governed by the legal provisions in effect.
Article 10 Applicable Law / Venue
(1) This Contract shall be interpreted exclusively in accordance with the laws of the Federal Republic of Germany. The UNCITRAL Convention on Contracts for the International Sale of Goods shall not apply.
(2) The venue for any disputes arising from or in connection with this Contract shall be the city of Braunschweig.
Article 11 Place of Performance
The place of performance of any and all obligations under this Contract shall be the city of Braunschweig.