General terms of sales and delivery

1. Preliminary remarks

We do not provide delivery and services to consumers, but to business customers as defined by § 14 of the German Civil Code. Upon placing an order, the customer confirms its status as a business customer. Individual agreements have priority over the following general conditions.

2. General

2.1 The following conditions apply to all our sales, deliveries and services including future business transactions and subsequent orders. They apply to ongoing business relations even without explicit reference to future business transactions.

2.2 Customer purchasing conditions or general terms of business are not binding for us even if they serve as a basis for the purchase order and we do not explicitly reject the contents. This also applies if the customer terms exclude deviating conditions. Even if we carry out the agreed upon activities, this can not be interpreted as silent acknowledgement of deviating conditions. Acceptance of our delivery is considered as acknowledgement of our conditions.

2.3 Verbal collateral agreements as well as modifications and extensions of the contract and even the stipulations of our general terms of business only apply if we confirm them in writing.

3. Quotation, acceptance

3.1 Our quotations are non-binding and subject to change if they are not clearly designated as fixed quotations. Quotations only become binding once we have accepted orders in writing.

3.2 We can accept orders from our contractual partners within 8 business days of receiving the purchase order. The purchase order remains binding for our contractual partner during this time.

3.3 Products (colors, modifications) manufactured especially for the customer can be subject to quantity variances of ± 10% for technical reasons. The quantity that is actually produced will be delivered and invoiced.

4. Prices

4.1 All prices are quoted ex works and exclude shipping, packaging, sales tax or other public dues as well as insurance and any other extra expenses incurred.

4.2 If, in the time between order acceptance and delivery, the prices of essential precursor materials, which we procure and use to fulfill the order, increase by more than 20% and if our customer does not agree to suitable price adjustment, then we have the right to withdraw from the contract without charge.

4.3 The valid legal stipulations apply with regards to taking back packaging material.

4.4 In the case of deliveries within the framework of ongoing delivery agreements, the applicable sales price is the price at the time of delivery. The same applies if agreed upon delivery takes place 4 months after the date of order acceptance. In the case of price agreements based on a currency other than the EURO, the price is to be adjusted to reflect depreciation if the agreed upon currency has depreciated towards the EURO more than 10% since order acceptance.

5. Protection of designations and brands

The goods that we deliver can only be distributed using designations that we have authorized. Registered third-party brands can not be used or referenced upon resale even in the case of material identity. Violations of this stipulation will result in immediate halt of deliveries and oblige the customer to release us from all related claims and reimburse us in full for all resulting damages and expenses including damages suffered as a result of delivery halts from our suppliers.

6. Delivery period

6.1 Delivery periods are approximate and are non-binding due to lack of special agreement. They start on the date of order confirmation. The date of delivery is the day that the goods leave the plant or the warehouse.

6.2 If fixed delivery dates are agreed upon, the customer must set a suitable extension-period for delivery usually comprising 4 weeks in case of delay.

6.3 Our customer has the right to withdraw from the contract in the case of delivery delay exceeding the extended delivery period. If our customer suffers proven damages as a result of delivery delay after extended this period, we will credit the customer with up to 1% of the purchase price for each month of delay and a maximum of 3% of the purchase price for the outstanding part of delivery. No further claims can be made unless we can be held accountable due to intent or gross negligence.

6.4 Acts of nature beyond control affecting us or our suppliers will accordingly extend the delivery period. If acts of nature beyond control or other exceptional events, for which we are not responsible, render delivery impossible or significantly hinder timely delivery, then we can limit or stop activities for the duration of the hindrance or withdraw from the contract without our customers making claims for damages due to this. If delivery or acceptance is delayed by more than 1 month, then each party has the right to withdraw from the contract as pertains to the parts of the agreement affected by the hindrance to delivery or acceptance with the exclusion of all further claims. This also ap-
plies in cases of official interference, limitations of energy and precursor material supply, strikes, lockouts and unforeseeable delivery hindrances to the extent that we ourselves are not responsible for these conditions. The customer will be informed immediately upon recognition of obstructions. To the extent possible, negative effects on the customer will be kept to an absolute minimum.

6.5 Partial deliveries are permissible. In the case of ongoing delivery agreements, each partial delivery is considered as an individual transaction. If we have to delay a partial delivery or if activities are rendered impossible, then the stipulations above apply accordingly.

6.6 In the case of purchases via release order, the release order has to be carried out within 3 months of sending order acceptance if no special agreements apply. Once this period has expired, we can either withdraw from the contract or demand compensation for damages at our discretion.

7. Shipping

7.1 Shipping is always carried out at the recipient’s expense and risk, even if freight prepaid shipping has been agreed upon. If the customer is responsible for the cause of delay, then the transfer of risk takes place upon notification of readiness for shipment. The goods will be insured upon written request from the customer on his expenses.

7.2 In the case of damages due to shipping, the customer has to notify the freight carrier and report the damages to us with proof of notification within 3 days of the incident. The customer is to accept delivery despite damages and keep the goods at hand for inspection of damages.

7.3 If our customer delays acceptance and a shipping delay of more than 1 month is caused as a result of the customer’s actions, then we can demand reimbursement of costs for storage to the amount of ½ percent of the invoice value for each additional month in addition to any other damages caused by delay.

8. Payment

8.1 Payments for deliveries are to be made within 30 days from the date on the invoice to the full amount or within 8 days from the date of invoice with a deduction of 2% discount. Invoices for replacement deliveries and other activities are to be paid immediately upon invoice receipt without deduction. The date of the payment is the day on which the amount is available on our account. In the case of later payment, the purchaser owes interest to the amount of 8 percent points above the basic interest rate from the date of the invoice. We reserve the right to assert higher damages, especially damages related to delay due to availment of bank loans.

8.2 Payments can only be made in the agreed upon currency. Drafts and cheques are only considered as payment upon full redemption. We reserve the right to refuse acceptance of drafts, cheques or cessions in each case. Acceptance is only carried out for payment. Upon drawing on this type of surrogate payment we are only held accountable for prudence as in own affairs. All related costs are payable by the customer.

8.3 The customer can only exercise a right of retention due to counterclaims from the same order. Offset is only permissible in the case of indisputable or legally binding claims. Commercial right of retention (German Commercial Code § 369) is not permitted.

8.4 In the case of partial payments, we have the exclusive right – even in contrary to German Civil Code §§ 366, 367 – to decide which receivables are settled by the payment.

8.5 Farming out manufacturing operations is subject to the individually agreed upon conditions.

8.6 We will invoice sample deliveries. Upon placement of order, we reserve the right to credit these items.

9. Default

9.1 If our customer delays payment, then all payments from this customer including deferred payments become immediately payable.

9.2 Non-adherence with our payment conditions and delays of payment release us from all other contractual obligations, especially as pertains to all other delivery obligations. Due to reasons of default, we can withdraw after a grace period of 2 weeks and demand compensation for damages related to default.

9.3 If the customer’s credit standing worsens, then we are authorized to demand immediate payment for all outstanding payments, halt further deliveries and make further deliveries dependent on prepayment of the total purchase prices. If prepayment has not been made, then we are authorized to withdraw from the contract after a grace period of 2 weeks and demand compensation for damages resulting from default. Proof of this condition can include information from a respectable credit agency or bank. It is sufficient for a lawyer or notary acting on our behalf to confirm existence of this evidence. Submission of the actual disclosure can not be demanded.

10. Retention of title

10.1 The delivered goods remain our property until final payment of all invoices including collateral charges and claims for damages.

10.2 This retention of title also remains intact if some of our individual receivables are included in an open account and a balance is drawn and acknowledged.

10.3 If conditional goods are processed by the customer to chattels, then this processing is carried out for us as seller without resulting in an obligation on our part. The new goods are our property. In cases of processing, mixing or commingling with goods not belonging to us, we obtain proportional ownership of the new goods according to the ratio of the value of our conditional goods to the total value.

10.4 The customer is only permitted to resale, further process or install the conditional goods within the realm of proper business transactions and only upon taking into consideration the following conditions and only to the extent that claims are actually transferred to us according to items 10.5 and 10.6.

10.5 The buyer’s authority in accordance with item 10.4 (divestiture, processing or installment) ends upon our revocation. We are authorized to revoke if we are made aware of worsening of the purchaser’s financial standing (9.2). This especially pertains to a stoppage of payments or filing for bankruptcy.

10.6 In doing this, the customer cedes to us claims resulting from resale of the conditional goods including all ancillary rights. If the goods have been processed, mixed or commingled and we have obtained co-ownership corresponding to the amount of our delivery value, then we are entitled to the portion of the purchase price corresponding to the value of our delivered goods. If the purchaser has ceded the claim within the context of factoring, then the purchaser cedes the replacement claim to the factor. We accept all cessions.

10.7 The customer is granted the power of authority to assert the claims ceded to us against third parties on their own behalf until we revoke this power of authority. This collection authorization is removed upon revocation and at the latest upon delay in payment from the customer or significant worsening of the customer’s financial standing. From this point on, we possess the exclusive right to collect receivables. Upon request the customer is obliged to provide us with a precise list of receivables that we are entitled to with the names and addresses of the customers, the amount of
the individual receivables, invoice data, etc. Furthermore, our customer is obliged to provide us with any other information required to assert ceded claims and allow us to inspect this information based on the customer’s documents.

10.8 If the value of the securities provided us exceeds our claims by more than 10%, then we are obliged to release securities of our choice upon request by the customer or a third party affected by our excess security.

10.9 Pledging or transfer by way of security of the conditional goods or ceded claims are not permissible. We are to be informed immediately of levies of execution including the lienor (pledgee) and the title on which it is based.

10.10 If we take back the delivered property due to retention of title, then this only represents withdrawal from the contract if we clearly state such withdrawal. We are authorized to independent sale of the conditional goods at the customer’s expense.

10.11 The customer stores the conditional goods for us free of charge. The customer is responsible for insuring these goods to a standard amount at its own expense against normal threats such as fire, theft and water. In doing so, the customer cedes its claims resulting from the above mentioned types of damage against insurance companies or others obliged to compensation, to us to the amount of the invoice value of the goods. We accept this cession.

10.12 If we take on contingent liabilities in the customer’s interest, then all security interests and rights related to retention of title pertaining to all special forms of financing specified in these conditions are maintained until we are fully exempt from these liabilities.

11. Liability for quality and defects

11.1 The decisive standard for quality and properties of our products are the properties described in the order or our product datasheet (certificate of analysis).

11.2 Property descriptions including entries in the product datasheet (certificate of analysis) merely represent descriptions of properties but not guarantees. Guaranteed properties only exist if expressly stated in writing.

11.3 All property descriptions are limited to the goods in the condition in which they leave our plant. Upon goods receipt our customer is obliged to immediately carry out a sufficient quality check and reprehend determinable defects immediately in writing (by fax or E-mail if possible) and within one week of goods receipt at the latest. Hidden defects or those not determinable in proper inspection of incoming goods are to be reprehended immediately following discovery. If this type of defect is determined during processing, then processing is to be interrupted immediately and we are to be consulted for instructions. Non-compliance with this duty to examine and notify release us from all liability for defects. The same applies to arbitrary modification or improper handling of our goods.

11.4 As pertains to processing delivered materials, the most recent processing guidelines should be followed for each of the products. We especially refer to processing temperatures and drying guidelines for processing thermoplastics in this context.

11.5 Guarantee expires as soon as our products are processed differently or improperly and not in accordance with the processing guidelines (e.g. by adding non-suitable pigments, regenerating, regranulating, mixing with non-compatible plastics and pigments). It also expires if our plastics are mixed and processed with plastics that we have not produced ourselves.

11.6 In the case of authorized notification of defects, we provide a guarantee for products we deliver to the extent that we provide replacement for the defective goods that are sent back to us on request. Additional claims are excluded.

11.7 The customer is aware that we agree upon processed materials. Slight color variations, differences in viscosity, adding of other plastics which can be processed with only slight reduction of quality as well as slight impurities, different glass fibers and other fillers which also represent no significant reduction of quality are not considered as defects unless certain properties have been guaranteed expressly and in writing.

11.8 The customer is to keep defect materials available to us until we have issued a statement pertaining to further usage and send the materials to us at our expense upon request. Otherwise all guarantees are barred.

11.9 Particularly any claims for damages according to item 12 are barred.

12. Claims for damages

12.1 In all cases in which we are obliged to pay claims for damages or reimbursement of expenses as deviates from the conditions above due to terms of contract or a binding legal basis for claims, we are liable to the extent that our executives and vicarious agents are found guilty of intent, gross negligence or injury to life, body or health.

12.2 Liability regardless of negligence or fault as set forth in the German Product Liability Law remains unaffected by the limitation of liability. Also unaffected is liability for provided warranted properties and liability for culpable injury of significant contractual obligations. However, liability remains limited to foreseeable damages typical of the contract other than the cases described in item 12.1.

12.3 The above stipulations do not represent an agreement to changing the burden of proof to the disadvantage of the contractual partner.

13. Partial ineffectualness

If any part of our conditions should prove ineffectual in the present or the future, this shall have no impact on the other specifications. The same applies to possible ineffectualness of individual specifications in the contract signed with the customer.

14. Place of fulfillment / legal domicile / law / data protection

14.1 The place of fulfillment and legal domicile is Krefeld for both parties. In addition to this we are authorized to take the customer to court in its general legal domicile.

14.2 The business and legal relations between us and the customer are subject exclusively to German law. It is not possible to apply the stipulations of uniform conventions on contracts for the international sale of goods or uniform conventions on international sales relations.

14.3 We enter and process customer data in our company’s IT system.