GTC

General Terms and Conditions of Purchase

§ 1 General, scope of application

(1) Our Terms and Conditions of Purchase shall apply exclusively; we do not recognize any terms and conditions of the supplier that conflict with or deviate from our Terms and Conditions of Purchase unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Purchase shall also apply if we accept the Supplier’s delivery without reservation in the knowledge that the Supplier’s terms and conditions conflict with or deviate from our Terms and Conditions of Purchase.

(2) All agreements made between us and the supplier for the purpose of executing this contract must be set out in writing in this contract.

(3) Our Terms and Conditions of Purchase shall only apply to entrepreneurs pursuant to § 310 para. 1 BGB (German Civil Code).

§ 2 Offer, offer documents

(1) The supplier is obliged to accept our order within a period of 2 weeks.

(2) We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties without our express written consent. They are to be used exclusively for production on the basis of our order; after completion of the order they are to be returned to us unsolicited; they are to be kept secret from third parties, in this respect the provision of § 9 para. (5).

§ 3 Prices, terms of payment

(1) The price stated in the order is binding. In the absence of any written agreement to the contrary, the price shall include delivery “free domicile”, including packaging. The return of the packaging requires special agreement.

(2) The statutory value added tax is included in the price.

(3) We can only process invoices if these – in accordance with the specifications in our order – state the order number shown there; the supplier is responsible for all consequences arising from non-compliance with this obligation, unless he can prove that he is not responsible for them.

(4) Unless otherwise agreed in writing, we shall pay the purchase price within 14 days, calculated from delivery and receipt of invoice, with a 2% discount or net within 30 days of receipt of invoice.

(5) We shall be entitled to set-off and retention rights to the extent permitted by law.

§ 4 Delivery time

(1) The delivery time stated in the order is binding.

(2) The supplier is obliged to inform us immediately in writing if circumstances arise or become apparent to him which indicate that the agreed delivery time cannot be met.

(3) In the event of a delay in delivery, we shall be entitled to the statutory claims. In particular, we shall be entitled to demand compensation in lieu of performance and rescission after the fruitless expiry of a reasonable period. If we demand compensation, the supplier shall be entitled to prove to us that he is not responsible for the breach of duty.

§ 5 Transfer of risk, documents

(1) Unless otherwise agreed in writing, delivery shall be free domicile.

(2) The supplier shall be obliged to state our exact order number on all shipping documents and delivery bills; if he fails to do so, we shall not be responsible for the resulting delays in processing.

§ 6 Inspection for defects, liability for defects

(1) We are obliged to inspect the goods within a reasonable period of time for any deviations in quality and quantity; the complaint shall be deemed to have been made in good time if it is received by the supplier within a period of 5 working days, calculated from receipt of the goods or, in the case of hidden
defects, from their discovery.

(2) We shall be entitled to the statutory claims for defects in full; in any case, we shall be entitled to demand that the supplier either rectify the defect or deliver a new item, at our discretion. We expressly reserve the right to claim damages, in particular damages in lieu of performance.

(3) We are entitled to remedy the defect ourselves at the supplier’s expense if the supplier is in default.

(4) The limitation period is 36 months, calculated from the transfer of risk.

§ 7 Product liability, indemnification, liability insurance cover

All employees of the Supplier, regardless of their race, nationality, social origin, possible disabilities, sexual orientation, political or religious beliefs, age or gender, shall be judged solely on the basis of their abilities and qualifications. This includes hiring, promotions, additional benefits, dismissals and terminations and is also to be applied in all other areas.

§ 8 Property rights

(1) The Supplier warrants that no rights of third parties within the Federal Republic of Germany are infringed in connection with its delivery.

(2) If claims are asserted against us by a third party for this reason, the supplier shall be obliged to indemnify us against these claims upon first written request; we shall not be entitled to enter into any agreements with the third party – without the supplier’s consent – in particular to conclude a settlement
.

(3) The supplier’s obligation to indemnify relates to all expenses necessarily incurred by us from or in connection with the claim by a third party.

(4) The limitation period is 36 months, calculated from the transfer of risk.

§ 9 Retention of title, provision of materials, tools, confidentiality

(1) If we provide parts to the supplier, we reserve the right of ownership to these parts. Processing or transformation by the supplier shall be carried out on our behalf. If our reserved goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our item (purchase price plus VAT) to the other processed items at the time of processing.

(2) If the item provided by us is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved item (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the supplier’s item is to be regarded as the main item, it is agreed that the supplier shall transfer co-ownership to us on a pro rata basis; the supplier shall hold the sole ownership or co-ownership for us.

(3) We reserve title to tools; the supplier is further obliged to use the tools exclusively for the manufacture of the goods ordered by us. The supplier is obliged to insure the tools belonging to us at replacement value against fire, water damage and theft at his own expense. At the same time, the supplier hereby assigns to us all claims for compensation arising from this insurance; we hereby accept the assignment. The supplier is obliged to carry out any necessary maintenance and inspection work on our tools as well as all servicing and repair work at his own expense and in good time. He shall notify us immediately of any malfunctions; if he culpably fails to do so, claims for damages shall remain unaffected.

(4) Insofar as the security rights to which we are entitled in accordance with paragraph (1) and/or paragraph (2) exceed the purchase price of all our goods subject to retention of title that have not yet been paid for by more than 10%, we shall be obliged to release the security rights at our discretion at the supplier’s request.

(5) The supplier is obliged to keep all illustrations, drawings, calculations and other documents and information received strictly confidential. They may only be disclosed to third parties with our express consent. The confidentiality obligation shall also apply after the completion of this contract; it shall expire if and to the extent that the manufacturing knowledge contained in the illustrations, drawings, calculations and other documents provided has become generally known.

§ 10 Place of jurisdiction, place of performance

(1) If the supplier is a merchant, our place of business shall be the place of jurisdiction; however, we shall also be entitled to sue the supplier at the court of his place of residence.

(2) Unless otherwise stated in the order, our place of business shall be the place of performance.

General Terms and Conditions of Sale

§ 1 General, scope of application

(1) Our Terms and Conditions of Sale shall apply exclusively; we do not recognize any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity in text form. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our Terms and Conditions of Sale. (Conflicting conditions, written form, ancillary agreements) These General Terms and Conditions shall apply to the contract; other conditions shall not become part of the contract, even if we do not expressly object to them. The customer may only invoke ancillary agreements prior to and upon conclusion of the contract if they are confirmed immediately in text form.

(2) All agreements made between us and the customer for the purpose of executing this contract are set out in text form in this contract.

(3) Our Terms and Conditions of Sale shall only apply to entrepreneurs within the meaning of Section 310 (1) BGB.

§ 2 Offer, offer documents

(1) If the order is to be qualified as an offer in accordance with § 145 BGB, we can accept this within 2 weeks.

(2) Orders and order confirmations are only legally binding if they are made in writing or text form.

(3) The submission of each offer is subject to timely delivery to us, unless we ourselves are responsible for the non-delivery, in particular if we have concluded a congruent hedging transaction with our supplier in good time.

(4) We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. This shall also apply to such documents in text form which are designated as “confidential”. The customer requires our express consent in text form before passing them on to third parties.

§ 3 Prices, terms of payment

(1) Unless otherwise stated in the order confirmation, our prices are “ex works”, excluding packaging; this will be invoiced separately.

(2) The statutory value added tax is not included in our prices; it will be shown separately on the invoice at the statutory rate on the day of invoicing.

(3) The deduction of discounts requires a special agreement in text form.

(4) Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due for payment within 30 days of the invoice date. The statutory provisions regarding the consequences of default of payment shall apply.

(5) If the customer is in default of payment or if the customer’s assets deteriorate significantly, our entire credit balance shall become due immediately, even if it relates to claims from other deliveries. In this case, we are entitled to demand default interest in accordance with § 288 BGB.

(5.1) We are also entitled, in accordance with §288 BGB, to charge a lump sum of EUR 40.00 for expenses incurred by us as a result of the delay. We expressly reserve the right to claim further damages caused by default.

(5.2) If it becomes apparent after conclusion of the contract that our claim to the purchase price is jeopardized by the Buyer’s inability to pay, e.g. due to the opening of insolvency proceedings, we shall be entitled to withdraw from the contract (§321 BGB).

(6) Increases in raw material prices incurred by the supplier between the order and delivery can also be shown on the invoice as a surcharge and passed on.

(7) If the transport is organized by us on the basis of the order as a sales shipment and there is an increase in transport costs between the acceptance of the order and the day of delivery, this shall be borne in full by the customer.

(8) The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by us. In addition, the customer is authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

§ 4 Delivery time

(1) The start of the delivery period stated by us presupposes that all technical questions have been clarified.

(2) Compliance with our delivery obligation further presupposes the timely and proper fulfillment of the customer’s obligation. We reserve the right to plead non-performance of the contract.

(3) If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims or rights are reserved.

(4) If the conditions of paragraph (3) are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.

(5) Delivery deadlines shall only be deemed to have been agreed as approximate, unless we have made a commitment expressly designated as binding in text form. Delivery date commitments made verbally by vicarious agents require confirmation in text form to be effective.

(6) Under no circumstances shall we be liable for delayed or omitted deliveries (impossibility) due to the fault of our suppliers. However, we undertake to assign any claims for compensation against the upstream supplier to the customer.

(7) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this immediately and at the same time inform the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part. We shall then immediately refund any consideration already paid by the buyer. A case of non-availability of the service in this sense shall be deemed to be in particular the failure of our suppliers to deliver to us in good time if we have concluded a congruent hedging transaction, neither we nor our suppliers are at fault or we are not obliged to procure in the individual case. The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the buyer is required.

(8) We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a fixed-date transaction within the meaning of Section 286 (2) No. 4 BGB or Section 376 HGB. We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to assert that his interest in the further performance of the contract has ceased to exist.

(9) We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is due to a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the
foreseeable, typically occurring damage.

(10) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is due to the culpable breach of a material contractual obligation; in this case, however, liability for damages shall be limited to the foreseeable, typically occurring damage.

(11) Force majeure and events such as operational disruptions, fire, floods, epidemics, labor disputes, strikes, lockouts, official measures, war, acts of terrorism, energy and raw material shortages, which temporarily prevent us or our subcontractors from producing or delivering the delivery or service on the agreed date or within the agreed period through no fault of our own, entitle us to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period. If the delivery time is extended or if we are released from our obligation, the customer cannot derive any claims for damages from this.

(11.1) If such disruptions lead to a delay in performance of more than 3 months or if the performance of the respective contract becomes unreasonable for the Buyer or us earlier as a result, either party may withdraw from the contract to this extent. Other rights of withdrawal remain unaffected.

(12) We do not agree to the agreement of a lump-sum compensation or a contractual penalty in the event of a delay in delivery through the effective inclusion of the buyer’s General Terms and Conditions of Purchase or other contractual terms and conditions of the buyer.

(13) Otherwise, in the event of a delay in delivery, we shall be liable for each full week of delay within the scope of a lump-sum compensation for delay amounting to 0.5% of the delivery value, but not more than 5% of the delivery value.

(14) Partial services and partial deliveries are permissible to a reasonable extent. We may demand payments on account to a reasonable extent.

(15) The customer is obliged to accept the delivery. If the customer is in default of acceptance, we shall be entitled to demand compensation for the costs incurred by us.

(16) Further legal claims and rights of the customer remain reserved.

§ 5 Transfer of risk, packaging costs

(1) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.

(2) Separate agreements shall apply to the return of packaging.

(3) If the customer so wishes, we will cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer.

(4) The goods shall be shipped at the customer’s request (sales shipment). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, packaging) ourselves. The risk shall pass upon delivery of the goods to the forwarding agent, carrier or other designated person.

(4.1) If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation from the Buyer for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a flat-rate compensation for each completed calendar week of 0.5% of the net delivery value of the goods, up to a maximum of 5%. Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected. However, the above lump sum shall be offset against our further monetary claims.

§ 6 Liability for defects

(1) Claims for defects on the part of the customer presuppose that the customer has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code).

(1.1) The specific application is the responsibility of the user.

(1.2) Improper use is excluded from liability.

(1.3) The installation of spare parts by qualified and trained specialist personnel is mandatory. The machine manufacturer’s instructions for correct installation, assembly, commissioning, handling, operation and maintenance must be observed.

(1.4) Claims for compensation for damage caused by non-compliance with §6.1.3 or by improper use of the goods are excluded from liability.

(2) If there is a defect in the purchased item, the customer is entitled to choose between subsequent performance in the form of rectification of the defect or delivery of a new defect-free item. Visual defects that do not impair the function of the item are reasonable. If the goods have to be replaced for reasons of wear and tear due to normal use or after expiry of their normal service life, this shall not give rise to any claims for defects on the part of the purchaser. The customer or claimant must prove the normal period of use by means of suitable documentation.

(2.1) In the event of rectification of defects or replacement delivery, we shall be obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance.

(2.2) In urgent cases, in particular in the event of an imminent shutdown of operations, the Buyer may only remedy the defect at our expense if we have agreed in advance in writing or text form to the Buyer remedying the defect himself and we have also demonstrably caused the defect.

(3) If the subsequent performance fails, the customer shall be entitled, at his discretion, to demand withdrawal or a reduction in price.

(4) We reserve the right to make changes to the design or shape, deviations in color and changes to the scope of delivery on the part of the manufacturer during the delivery period, provided that the changes or deviations are reasonable for the customer, taking into account our interests.

(5) Technical application instructions are non-binding and do not release the customer from his own obligation to check them, taking into account the intended use and the machine and local conditions.

(6) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.

(7) We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case too, however, liability for damages shall be limited to the foreseeable, typically occurring damage.

(8) Insofar as the customer is entitled to compensation for damages instead of performance, our liability shall be limited to compensation for foreseeable, typically occurring damages, even within the scope of paragraph (3).

(9) Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.

(10) Unless otherwise stipulated above, liability is excluded.

(11) The limitation period for claims for defects when purchasing manufactured goods is 12 months, calculated from the transfer of risk. In the case of the purchase of used goods, claims for material defects are excluded.

(12) We may refuse the warranty in the event of late payment.

§ 7 Joint and several liability

(1) Any further liability for damages other than that provided for in § 6 is excluded, regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for property damage in accordance with § 823 BGB.

(2) A limitation period of 18 months shall apply to the limitation of all claims that are not subject to the limitation period due to a defect in the item. It shall commence from the time of knowledge of the damage and the person causing the damage.

(3) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents. Our subcontractors shall not be deemed vicarious agents pursuant to §278 BGB.

(4) In principle, we do not agree to the agreement of an exemption from liability in favor of the Buyer through the effective inclusion of the Buyer’s General Terms and Conditions of Purchase or other contractual terms and conditions.

§ 8 Retention of title

(1) We reserve title to the purchased item until receipt of all payments from the delivery contract. If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the purchased item. If we take back the purchased item, this shall constitute a withdrawal from the contract. After taking back the purchased item, we shall be authorized to sell it; the proceeds from the sale shall be offset against the customer’s liabilities – less reasonable selling costs.

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

(3) In the event of seizures or other interventions by third parties, the customer must notify us immediately in text form so that we can take legal action in accordance with Section 771 of the German Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to Section 771 ZPO, the customer shall be liable for the loss incurred by us.

(4) The customer shall be entitled to resell the purchased item in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to him from the resale against his customers or third parties, irrespective of whether the purchased item has been resold without or after processing. The customer shall remain authorized to collect this claim even after the assignment. Our authorization to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.

(5) The processing or transformation of the object of sale by the customer shall always be carried out for us. If the purchased item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the purchased item delivered under reservation of title.

(6) If the purchased item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount including VAT) to the other mixed items at the time of mixing. 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 shall transfer co-ownership to us on a pro rata basis. The
customer shall hold the resulting sole ownership or co-ownership for us.

(7) The customer shall also assign to us the claims to secure our claims against him which arise against a third party through the connection of the purchased item with a property.

(8) We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; we shall be responsible for selecting the securities to be released.

§ 9 Molds and tools

(1) Molds and tools manufactured by us or on our behalf with which we manufacture for the customer shall remain our property, even if the customer has paid for them in whole or in part. However, such molds and tools are used exclusively for the orders of this customer as long as he meets his payment and acceptance obligations. Our obligation to store the goods expires two years after the last delivery from the mold or tool. After expiry of this period, Wotex Elastomer- und Pumpentechnik GmbH will scrap the tools unless Wotex Elastomer- und Pumpentechnik GmbH and the customer have agreed in text form on further storage of the tools and molds or transfer of ownership against payment of an appropriate remuneration.

§ 10 Return of goods/restocking fee

(1) Insofar as we voluntarily take back goods from the customer, the following applies:
Only goods in proper, saleable condition, which are not custom-made products or orders, can be taken back. Upon return of the goods, the customer shall receive a credit note in the amount of the value of the goods, less a restocking fee, in the case of goods subject to a shelf life, in the amount of the current value. We are entitled to offset credit note amounts without restriction.

(2) The restocking fee shall be a flat rate of 10% of the value of the returned goods per item, unless a different value is agreed on the occasion of the return.

§ 11 Data protection

(1) In accordance with § 33 BDSG, we would like to point out that all customer and supplier-related data is stored and processed by us with the aid of electronic data processing.

§ 12 Place of jurisdiction - Place of performance

(1) If the customer is a merchant, a legal entity under public law or a special fund under public law, our place of business shall be the place of jurisdiction; however, we shall also be entitled to sue the customer at the court of his place of residence.

(2) The law of the Federal Republic of Germany shall apply. The application of the UN Convention on Contracts for the International Sale of Goods or other sales laws such as the CISG, the conflict of laws rules of private international law, etc. are expressly excluded.

(3) Unless otherwise stated in the order confirmation from our company, our place of business shall be the place of performance.