GTC

Preamble

These General Terms and Conditions provide for the contractual relationships between us, the commercially active

Polywest GmbH & Co. KG,
represented by the Polywest Geschäftsführungsgesellschaft mbH
the latter represented by the managing director Dipl. Ing. Michael Kockentiedt
Ridderstraße 42, 48683 Ahaus, Deutschland

and our contractual partners (hereinafter referred to as Purchasers). We can be contacted as follows:

Tel: +49 (0) 2561 9321- 11
Fax: +49 (0) 2561 9321- 55
E-Mail: VKH@polywest.de

The language of the contract shall be German. Version as of January 2021

Art. 1 DEFINITIONS

Merchant (plural: merchants) shall either be a person who operates a commercial enterprise in terms of the German commercial code or a person who has the name of their company registered in the commercial register.
Name shall mean the name under which the merchant operates their business and signs documents.
Commercial enterprise shall mean any business enterprise, unless the company does not require a commercially-established business operation according to its type or extent.
Commercial transactions shall mean all transactions of a merchant that are part of the operation of their commercial enterprise.
Entrepreneur shall be a natural or legal person or a partnership with legal capacity who exercises their commercial or self-employed occupational activity when it concludes legal transactions.
Text form shall mean the issuance of a declaration of intent in a deed or in another form suitable for permanent reproduction in printed characters which states the declaring person and makes the conclusion of the declaration evident by the signature of their name or otherwise.

Art. 2 GENERAL INFORMATION, VALIDITY OF THESE GENERAL TERMS AND CONDITIONS, PROPERTY RIGHTS AND RIGHTS OF USE

These General Terms and Conditions shall only apply to merchants, entrepreneurs and legal persons under public law as well as special funds under public law.
We render our services solely based on these General Terms and Conditions. We do not recognise any opposing or deviating conditions. Our General Terms and Conditions shall also apply if we perform the deliveries and services without reservation in full awareness of any terms of the Purchaser which are opposed hereto or deviate herefrom.
These General Terms and Conditions shall also apply to future business transactions with the Purchaser.
We shall be entitled, at any time, to amend or supplement these General Terms and Conditions. The Purchaser shall be entitled to object to such amendments. If the Purchaser fails to object to the amended conditions in writing within four weeks after receipt of the amendment notification, they shall become valid according to the amendment. At the beginning of this period, we notify the Purchaser, in writing, about the amendments and that the amendment notification will be considered accepted, unless the Purchaser objects within four weeks.

Art. 3 OFFER AND CONCLUSION OF CONTRACT, SUBJECT MATTER OF THE CONTRACT

The promotion of our services and/or our documents identified as offers shall be a non-binding invitation to the Purchaser to make an offer.
We may accept the Purchaser’s offer within three weeks after the order date either by an order confirmation or by the delivery of the goods.
Any information provided by us on the subject matter of the delivery or service (e.g. weights, measurements, values in use, capacity, tolerances and technical data) as well our illustrations of such (e.g. drawings and figures) are decisive only as approximations and shall be understood as average values, unless one precondition for their fitness for the contractually specified purchase is their exact match.
The properties of samples or specimen copies will not become an integral part of the contract, unless that was explicitly agreed in writing.
Customary deviations and deviations made based on legal provisions or which constitute technical improvements and the replacement of components by equivalent parts shall be permitted for the delivered goods and shall not entitle the Purchaser to any complaints or claims against us, unless they impair the fitness for the contractually specified purpose and unless any agreed specification were not complied with. The above shall also apply to the sale made on the basis of a commercial sample.
We will only assume a duty to consult by virtue of a separate consulting contract to be concluded in writing.
No other guarantees apply, apart from those we explicitly assumed in the contract. Any descriptions of the subject matter of the contract or of the scope of delivery and services, specifications of properties and technical data shall not be understood as a guarantee regarding quality. Any guarantee shall only be deemed accepted by us if we identified a property and/or a performance-related success as being “legally guaranteed”.

Art. 4 PRICES, TERMS OF PAYMENT

Our prices shall be strictly net, without cash discount or other reductions, in euros, ex work and plus (any) statutorily owed VAT. If the financial administration assumes a delivery subject to VAT instead of a tax-exempt intra-Community/export delivery due to a lack of documentary evidence on the side of the Purchaser, the purchase price shall increase by the statutory VAT amount. This shall apply in particular if the Purchaser violated collaboration duties incumbent upon them. The seller shall be entitled to subsequently claim the VAT from the purchaser against issuance of an invoice with separate VAT disclosure.
Packaging, freight and insurance shall be charged separately.
If the delivery or service are made more than four months after the conclusion of the contract and if the costs for wages, material, packaging material, freight, taxes or duties have increased, in the meantime, the agreed price might be adjusted according to the effect of the above-mentioned cost factors. If the price changes by more than 15 % compared to the contractually agreed price, the Purchaser shall have the right to withdraw from the contract, if we insist on the request for price increase, despite the Purchaser’s announcement of their intention to withdraw.
In the case of a continuing obligation, we shall also be entitled to change the prices if the costs mentioned in no. 3 have increased. In case of a change, the Purchaser will be informed of such, in writing. Simultaneously, we will inform the Purchase explicitly that the changed price will apply, unless the Purchaser objects to the changed price, in writing, without four weeks. The contractual relationship will then be continued with the changed prices.
If the Purchaser objects in due time, both parties shall be entitled to terminate the continuing obligation with a four weeks’ period of notice to the end of a calendar month.
Unless explicitly otherwise agreed, payments after delivery shall be due within 14 days after receipt of the invoice without any deduction of discounts.
We shall convert payments in currencies other than Euro in accordance with the official exchange rate, and, in its absence, in accordance with the market rate prevailing on the day of credit to our account. The costs of conversion and of the crediting in Euros shall be borne by the Purchaser.
Cheques and bills of exchange shall only be accepted after a separate agreement and only on account of performance, where all collection and discount fees will be invoiced. The payment shall not apply as performed, unless the cheque/bill of exchange is cashed or the unconditional and final credit of the cheque amount or the bill of exchange amount, as the case may be.
If the Purchaser is culpably in arrears with their payments, we shall be authorised to render the entire residual debt due for payment. In this case, we shall also be entitled to demand collateral security to the extent of the receivable with respect to which the Purchaser is culpably in arrears with payment. With respect to the type of collateral security, the Purchaser shall be entitled to the options set out in Sec. 232 of the BGB [German Civil Code]. We shall also be entitled to the same right to demand collateral security if we realize, after conclusion of the contract, that the Purchaser is unworthy of credit or if the Purchaser has provided incorrect information about their creditworthiness prior to, or at conclusion of, the contract. If the Purchaser fails to provide the collateral security on demand, we may withdraw from the contract.

Art. 5 TERMS OF DELIVERY AND SERVICE PERIOD

Delivery dates indicated in the customer’s order shall require our confirmation to be effective.
Deliveries shall be made ex works excluding packaging. Partial deliveries shall be permissible, if
- the partial delivery is usable for the Purchaser in the context of the contractually intended purpose;
- the delivery of the remaining ordered goods is ensured; and
- no significantly additional extra efforts or no additional expenses arise for the Purchaser (unless the Purchaser declares their willingness to take over the costs).
The commencement of the delivery period indicated by us shall require that the Purchaser has given us all information, documents and items to be provided according to the contract and that we confirm their complete receipt immediately after receipt of all information. The delivery or service period, as the case may be, shall commence upon receipt of this confirmation by the Purchaser. The defence of non-performance of the contract shall remain reserved. The delivery period shall be deemed as complied with if the deliverable has left our factory or warehouse until expiry of the deadline or if we have informed the Purchaser about the readiness for dispatch.
The delivery period shall be extended appropriately in case of measures taken during labour disputes, especially strikes and lock-outs or official requirements or orders as well as in the case of unforeseeable disruptions that are beyond our control, as far as such disruptions demonstrably have a considerable effect on the completion or delivery of the item to be delivered. That shall also apply if the circumstances occur during the supply for reasons not attributable to us and despite proper stocking.
If any delivery or service deadline or a delivery or service period was bindingly agreed and if the agreed delivery or service deadline or the agreed delivery or service period is exceeded by more than six weeks due to events specified in no. 4 above, or if it is objectively unreasonable for the Purchaser to comply with the contract, in case of a non-binding delivery date, the Purchaser shall be entitled to withdraw from the contract regarding the part which remains unfulfilled. In this case, the Purchaser shall have no other rights, in particular no claims for damages.
The risk of accidental loss or destruction and the accidental deterioration of the items to be delivered shall be transferred to the Purchaser once they have been handed over to the forwarder, the carrier or other persons assigned to perform the dispatch. Handing-over shall have occurred even if the Purchaser is in default of acceptance. Moreover, the risk of the items to be delivered shall be transferred to the Purchaser upon receipt of the notification of readiness for dispatch.
Unless explicitly otherwise agreed, we shall be entitled to decide on the shipping method, type and means of dispatch without guarantee for the fastest and cheapest transport. The Purchaser’s interests shall be reasonably considered. Upon request, the goods to be delivered shall be insured against damage caused by theft, breakage, transport, frost, fire and water as well as other risks to be named by the Purchaser at the Purchaser’s expense, as far as possible.
If shipment is delayed at the Purchaser’s request, we shall charge for costs incurred due to storage, beginning one month after the notification of readiness for dispatch.
If we are in default, our liability for the replacement of any pecuniary damage shall be limited to 5% of the contract price in case of simple negligence. Other claims of the Purchaser shall remain unaffected.

Art. 6 MODELS OF THE PURCHASER, THIRD PARTY PROPERTY RIGHTS

If the Purchaser delivers materials for the performance of an order to us, they shall deliver them at their own cost and risk, in a flawless condition and in due time and with a quantity premium of 5% to the quantity of the respective material required for performance of the order.
The Purchaser shall ensure that the documents, samples, information, etc. to be provided by them are complete and correct; they shall, in particular, be responsible for ensuring that the utilisation of these items or this information will not violate any third party rights. Otherwise, the Purchaser shall indemnify us against any claims for infringement asserted by such third parties.

Art. 7 MOULDS, TOOLS

Unless explicitly otherwise agreed, we shall be and remain the owner of the moulds and tools manufactured for the Purchaser by us or by a third party engaged by us.
Our obligation to keep such moulds and tools according to no. 1, if agreed, shall expire not later than 2 years after our last delivery based on the mould or the tool under the order, as the case may be, for the fulfilment of which the mould or the tool has been manufactured.
If such moulds and tools according to no. 1 have been damaged or lost, we shall be obliged to provide replacements, free of charge, however only within the period of 2 years as mentioned above and only if they are mandatorily required for the creation of an order quantity promised to the Purchaser and unless the Purchaser is responsible for the damage or loss.
We shall take out an insurance against damage for the Purchaser’s own moulds and tools that we store and/or may use, at the Purchaser’s request and cost. The Purchaser shall bear the costs for the appropriate maintenance of these moulds and forms if we are not permitted to use them.

Art. 8 LIENS, RESERVATION OF OWNERSHIP, PROPERTY RIGHTS

We shall be entitled to a statutory contractor’s lien on the items of the Purchaser that are processed by us. Notwithstanding the above, the Purchaser shall provide us with a contractual lien on the items given to us for the purpose of processing/handling which serves to secure our claim under the order. Unless explicitly otherwise agreed, the contractual lien shall also apply to claims under previously performed orders and services, insofar as they are inwardly contiguous, uniformly and vitally related to the subject matter of the order.
We shall reserve the ownership of the goods against our purchasers until complete payment of all claims under the current business relationship. Insofar as we agree that the purchase price debt can be paid on the basis of a cheque/bill of exchange process with the Purchaser, the reservation shall also extend to the Purchaser’s cashing of the bill of exchange accepted by us and shall not expire when we cash the cheque we received.
We undertake to release the collateral securities that we are entitled to at the Purchaser’s request insofar as the realisable value of our collateral securities exceeds the claims to be secured by more than 20%; we shall be responsible for choosing the collateral securities to be released.
Delivery of the item subject to retention of title or our equitable lien, as the case may be, to a place other than the place of delivery or their disposal shall be prohibited without our explicit consent. At our request, the Purchaser shall be obliged to attach a mark to these items at a clearly visible place that informs about our property. Furthermore, the Purchaser shall be obliged to inform us immediately about any access of third parties to the goods, e.g. in case of seizure, as well as about possible damage or destruction of the goods. Furthermore, they shall be obliged to take all other measures according to the laws applicable at the location where the goods subject to retention of title or our equitable lien are located, in order to also protect our property against third parties without limitation. If the third party is not able to reimburse to us the extra-judicial and judicial costs of an action according to Sec. 771 of the ZPO [German Code of Civil Procedure], or of similar foreign legal remedies, the Purchaser shall be liable for the loss incurred by us. The Purchaser shall immediately inform us of any change of ownership of the goods as well as any change of their own residence or change of their registered office, as the case may be.
The Purchaser shall be obliged to handle the goods subject to our retention of title or equitable lien with care, they shall insure them sufficiently against theft, breakage, fire and water damage and shall apply, at our request, for an insurance confirmation
(insurance certificate) from the insurance company in our favour, and shall assign to us, at our request, the claims against the insurance company and the person causing the damage. Insofar as maintenance and inspection works are required, they shall be performed by the Purchaser at their own costs and in due time. The Purchaser shall adhere to statutory rules and regulations applicable to the possession and utilisation of the goods. If the Purchaser fails to fulfil the insurance obligation even after a reasonable grace period given by us, we shall be entitled to insure the goods delivered under retention of title correspondingly at the Purchaser’s expense. Otherwise, the Purchaser shall bear the risk of accidental loss or destruction of the goods during the term of retention of title.
The Purchaser shall assign to us, already as of now, all claims arising from the resale or any other legal ground with respect to the delivered goods subject to retention of title or the goods subject to our equitable lien, up to the amount set out in the final invoice (including value added tax) of our claims, including all ancillary rights and with priority over their remaining claims accruing towards third parties from the resale to the buyer or from other legal grounds. This shall apply regardless of whether the delivered goods have been resold without or after processing or compounding or mixing. We accept the assignments. After the assignment, the Purchaser shall be entitled to collect the claim irrespective of our own entitlement. However, we undertake to not collect the claim ourselves if the Purchaser duly fulfils their payment obligations and is not in delay of payment and, in particular, if no application for initiation of insolvency or composition proceedings is filed over their assets or the Purchaser ceases their payments. If this is the case, however, we may demand that the Purchaser discloses the assigned claims and their debtors and hands over all documents required for collection and informs the debtors or the third parties about the assignment.
The processing and handling of the goods subject to retention of title or goods which are in our equitable lien, made by the Purchaser shall always be made in our name and on our behalf, without leading to obligations on our part. If the processing is made with items that are not the property of the Purchaser, we acquire a co-ownership in the new item in proportion to the value of the goods delivered by us (final amount of invoice plus VAT) to the other processed items at the time of processing. In all other cases, the same shall apply to the item resulting from processing as to the object of purchase delivered with reservation. This shall also apply if the Purchaser acquires the sole ownership by activities according to sentence 2. The storage shall be made free of charge for us. If the object of purchase is inseparably mixed with other items that are not our property, we shall acquire the co-ownership of the new item in proportion to the value of the goods delivered for us (final amount of invoice plus VAT) to the other mixed items at the time of the mixing. If the mixing is done in such a way that the item of the Purchaser has to be considered the main item, it shall be agreed that the Purchaser transfers a co-ownership to us on a pro-rata basis. The Purchaser shall store for us the sole ownership or co-ownership which has arisen in that manner, free of charge.
If the Purchaser’s conduct violates the contract, in particular in case of delay of payment, we shall be entitled, after granting a reasonable grace period, to seize delivered items or to demand their surrender. The seizure – also by way of attachment – of the object of purchase and our demand for surrender shall constitute a withdrawal from the contract. After return of the object of purchase, we shall be entitled to its disposal; the proceeds of disposal shall be credited to the Purchaser’s liabilities, less reasonable costs for disposal.
Our authorised representatives shall be entitled to inspect the delivered goods subject to retention of title or the goods in our equitable lien during normal business hours at the Purchaser’s location and may identify them as our property.
We may invoice a reasonable fee in line with Sec. 315 BGB for all services and measures during ordering, administration, release and disposal of collateral securities as well as when we assert claims against co-obligated persons. Moreover, the Purchaser shall bear all other expenses and extra costs in this connection, especially warehousing charges, warehousing costs, costs of supervision, agent’s commissions and costs of litigation.

Art. 9 RIGHTS ARISING FROM DEFECTS

The Purchaser shall, in their capacity as merchant, comply with the obligations arising from Sec. 377 of the HGB [German Commercial Code]. Any defects recognisable upon delivery must be reported to the transport company and the latter must be caused to record the defects. Notices of defects must contain a description of the defect including as much details as reasonable possible. Any delayed notice of defects will result in the exclusion of any claim by the Purchaser.
Claims of the Purchaser for material defects shall be excluded if such are the consequence of incorrect use (in particular in case of an assembly that is not in line with the state of the art or any assembly contrary to the assembly instruction) or of any natural wear of the goods, of excessive use or unsuitable operating material and the consequence of physical, chemical or electrical influences that are not in compliance with the foreseeable average standard influences.
We assume no liability for any public statements, advertising or promotion of any manufacturer deviating from us or of other third parties; they shall not constitute an indication of quality of the goods in line with the contract.
The delivered goods shall be deemed to be approved by the Purchaser as being in compliance with the contract upon commencement of their use, processing, handling, combination or mixing with other goods. That shall apply, mutatis mutandis, in case of an on-shipment from the original place of destination.
Insofar as a defect is identified, we shall render supplementary performance by additional delivery or rectification of defects at our discretion.
The recognition of violations of duty in form of material defects shall always be made in writing to be effective.

Art. 10 STATUTE OF LIMITATIONS FOR RIGHTS ARISING FROM
DEFECTS

The limitation period for claims for defects shall be 12 months, beginning from the day of transfer of risk (see Art. 5 no. 6 of the GTC), in case of a rejection of receipt or acceptance on the part of the customer, at the time of notification that the goods are ready for take-over. That shall not apply to construction contracts, to items which have been used for a building according to their usual type of use and which caused defects in the latter, to claims for injury of life, body and health, to violations of duty which were caused at least by gross negligence on our part or by one of our legal representatives or vicarious agents and to claims for damages arising from a guarantee. Special statutory regulations applicable to claims for surrender in rem of third parties, in case of malice of the seller and to claims under supplier regress upon final delivery to a consumer shall remain unaffected as well.
Any claims against us due to rights arising from a defect shall be excluded for second-hand goods.

Art. 11 LIABILITY

We shall be liable – regardless of the legal grounds – without restriction
a) In case of intent;
b) In case of a culpable violation of life, body or health;
c) In case of default, insofar as a fixed delivery date and/or a fixed date of service provision was agreed;
d) In case of defects that were fraudulently concealed by us or the absence of which we guaranteed;
e) For defects in the deliverable, insofar as a liability applies under the product liability act for personal injury or property damage to privately used objects.
We shall also be liable in case of a culpable violation of essential contractual obligations; in case of simple negligence, however, our liability shall be limited to the damage that we have foreseen as a potential consequence of a violation of the contract upon conclusion of the contract or which we should have foreseen if we had applied the customary duty of care or which are typically to be expected if the deliverable is used for its intended purpose. Essential contractual obligations are those obligations which protect the legal position of the Purchaser which is important under the contract, that must be granted to them according to the contents and purpose of the contract and those obligations that enable the proper performance of the contract and on the compliance with which the Purchaser regularly relied and may rely.
We shall also be liable for damage caused by gross negligence. But, if other than essential contractual duties were violated and if other legal assets than life, body or health are affected, our liability in case of gross negligence shall also be limited to the damage which we have foreseen as potential consequences of a violation of the contract upon conclusion of the contract or which we should have foreseen if we had applied the customary duty of care or which are typically to be expected if the deliverable is used for its intended purpose.
Any other claims shall be excluded.
The exclusions and limitations of liability set out in the above nos. 1 to 4 shall also apply to any violations of duty committed by our vicarious agents.
Insofar as the liability for damages is excluded or restricted against us, that shall also apply in view of the personal liability for damage of our executive bodies, legal representatives, employees or other vicarious agents.

Art. 12 SPECIAL PROVISIONS ON THE RESPONSIBILITY OF THE PARTIES

The Purchaser shall perform a functional test prior to the first use of the goods.
In case of a violation of these obligations, we shall not be liable for damage caused by defects that could have been prevented by a functional test.
Insofar as the object to be delivered is solely defined according to generic markings, we shall be liable for replacement of any damage, unless we evidence that the non-performance, the delay of delivery or the defective performance are not attributable to us. The provisions of Art. 11 of the GTC shall apply as a supplement.
The Purchaser may only withdraw from the contract according to the legal provisions, if the violation of duty is attributable to us.

Art. 13 EXCLUSION OF SET-OFF, RIGHTS OF RETENTION

The Purchaser shall not be entitled to set their own claims off against our claims for payment, unless the claims are undisputed or found to be legally effective by a court of law.
Any right of retention of the customer shall be excluded, unless the customer’s counter-claim arose under the same contractual relationship, is undisputed or found to be legally effective by a court of law.

Art. 14 APPLICABLE LAW, PLACE OF JURISDICTION, SIDE AGREEMENTS, SEVERABILITY

The contract, including these General Terms and Conditions, shall be governed exclusively by the substantive law of the Federal Republic of Germany.
Our registered office shall be the place of jurisdiction for any legal disputes. We shall also be entitled to file a claim at any other statutory place of jurisdiction.
No side agreements have been made.
If any provision of these General Terms and Conditions is or becomes ineffective, the remaining provisions shall remain in full force and effect.

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