I. General/Basis of Contract

1. These terms and conditions apply to all contractual relationships and pre-contractual negotiations. Our terms and conditions apply exclusively. Conflicting terms and conditions shall only apply if we have expressly consented to their validity in text form. We hereby expressly object to the inclusion of deviating terms and conditions.

2. Our offers are non-binding.

3. An order may be placed orally (including by remote means), in writing or in text form. Acceptance of the order requires an order confirmation by our company in text form.

4. Contractual agreements require text form. The same applies to other declarations of intent, complaints, reminders and notices of defects as well as to the reservation of any contractual penalty. This clause may only be set aside by express agreement in text form.

5. The basis of an order placed with us and of the performance owed by us is the offer underlying the respective order, including the type designation contained therein, as well as the works test certificate. The type designation shows the properties of the services to be provided by us as well as any possible uses.

Deliveries by our company are as a rule recyclates and constitute “virgin material” only where this is expressly noted. The fact that the product to be delivered by us is a recyclate can be seen from the fact that the type designation in each case states “Ex …..” (= “manufactured from the starting material designated by the respective type designation”).

II. Price and Payment

1. The prices are in each case exclusive of statutory VAT.

2. Unless otherwise agreed in text form, payments are to be made in advance in full without any deduction. We are not obliged to make the ordered goods available before the payment claim of our company for making the goods available has been settled in full.

3. Insofar as, contrary to the above agreement, no advance payment is to be made, payments are to be made without deduction immediately, at the latest within 14 days calculated from the invoice date.

4. The Customer shall only be entitled to withhold payments/to assert a right of retention or to set off counterclaims insofar as its counterclaims are due and undisputed or have been established by a final and binding judgment.

III. Delivery Time, Delay in Delivery

1. Delivery dates and delivery periods are non-binding, unless they have been expressly agreed in text form as fixed dates.

2. Insofar as delivery dates and delivery periods have been agreed, compliance with them is subject to correct and timely delivery to us by our own suppliers.

3. Where delivery dates and delivery periods have been agreed, these are met if the delivery item has left our works before expiry of the period/on the date or if we have notified readiness for dispatch/collection.

4. If dispatch or collection of the delivery item is delayed for reasons for which the Customer is responsible, the costs arising/incurred as a result of the delay shall be charged to it.

5. For goods not collected we charge, 4 weeks after notification of completion, a storage space fee of 10.00 Euro (per storage space and per 30 days) plus the statutory VAT applicable at the time of performance (currently 19%).

6. If failure to meet the delivery time is attributable to force majeure, to a pandemic, to industrial disputes or to other events lying outside our sphere of influence, the delivery time shall be extended appropriately. We shall notify the Customer of the beginning and the end of such circumstances in text form as soon as possible.

IV. Passing of Risk, Acceptance, Duty to Inspect and to Give Notice of Defects

1. The risk passes to the Customer upon loading of the delivery item or, insofar as loading is not incumbent upon us, upon notification of readiness for collection in text form. This also applies to partial deliveries.

If loading or collection is delayed or does not take place as a result of circumstances not attributable to us, the risk passes to the Customer from the day of notification of readiness for loading or collection.

Insofar as acceptance is to take place (e.g. in the case of orders for grinding/granulation or colouring), such acceptance shall be decisive for the passing of risk.

2. The performance shall be deemed accepted (e.g. in the case of orders for grinding/granulation or colouring) within a period of 5 working days, calculated from loading or from notification of readiness for collection, at the latest from receipt of the delivery item by the Customer/at the unloading point, unless notice of defects is given in text form or acceptance is refused within this period.

Insofar as notice of defects is given or acceptance is refused, the reasons must be documented and communicated in text form within the aforementioned period of 5 working days and substantiated by the documentation.

3. If the delivery item is put into use/further processed without reservation, the delivery item shall likewise be deemed accepted.

4. Acceptance may not be refused on account of a non-material defect.

5. We are entitled to render partial performances/partial deliveries.

6. The goods delivered must be inspected by the Customer immediately after their receipt/arrival at the unloading point. Obvious defects must be documented and, together with the documentation, notified in text form without undue delay, at the latest within a period of 3 working days. If no notice of any defects or the like is given, the delivery shall be deemed approved upon expiry of this period, unless it has a defect which was not detectable upon inspection.

If the Customer is a merchant, § 377 HGB shall apply in addition.

7. If the Customer receives a sample delivery before the goods ordered by it are made available, this sample delivery must already be inspected immediately after its receipt/arrival at the unloading point. Obvious defects must be documented and, together with the documentation, notified in text form at the latest within a period of 3 working days. If no notice of obvious defects is given in text form and the Customer commissions us with making available the goods sent as a sample delivery, these goods still to be delivered shall be deemed approved within the meaning of § 377 Abs. 2 HGB, unless they have a defect which was not detectable upon inspection of the sample delivery.

8. Following unconditional acceptance of the object of performance including the packing list or the delivery note stating the gross and net weight of the object of performance, which we determine by means of a calibrated scale, the Customer bears the burden of proof insofar as it gives notice of a discrepancy regarding the gross and/or net weight.

V. Retention of Title

1. The goods delivered (goods subject to retention of title) remain our property until all claims arising from this contract have been settled in full.

2. For as long as title has not yet passed to it, the Customer undertakes to treat the goods subject to retention of title with care and to insure them adequately at their replacement value at its own expense against damage by fire, water and theft.

3. The Customer is not entitled to pledge the goods subject to retention of title to third parties or to transfer them by way of security. However, the Customer is entitled to use the goods subject to retention of title and to resell them in the ordinary course of business for as long as it is not in default with its payment obligations. The Customer assigns to us by way of security the claims arising against its business partners from such resale. We accept this assignment.
   We revocably authorise the Customer to collect the claims assigned to us for our account in its own name. Our right to collect the claims ourselves remains unaffected thereby. If the Customer acts in breach of contract towards us, in particular if it is in default with its payment obligations, we may demand that the Customer disclose the assigned claims and the respective debtors, notify the respective debtors of the assignment and hand over to us all documents and provide all information which we require in order to enforce the claims.

4. The treatment and processing or transformation of the goods subject to retention of title by the Customer is always carried out at the Customer’s expense. If the goods subject to retention of title are processed with other items which are not our property, we acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other processed items at the time of processing. If the goods subject to retention of title are inseparably combined or mixed with other items not belonging to the Customer, we acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other combined or mixed items at the time of the combination or mixing. Insofar as the combination or mixing takes place in such a way that the Customer’s item is to be regarded as the principal item, it is deemed agreed that the Customer transfers co-ownership to us on a pro rata basis. The Contractor accepts this transfer. The Customer shall keep the sole ownership or co-ownership of the item thus created in safe custody for us at its own expense.

5. If the goods subject to retention of title are seized or exposed to other interventions by third parties, the Customer is obliged, for as long as title has not yet passed to it, to point out our ownership rights to the third party and to notify us without undue delay in text form so that we can enforce our ownership rights. The Customer shall indemnify and hold us harmless in respect of the judicial and/or extrajudicial costs arising in this connection.

6. We undertake to release, at the Customer’s request, the securities to which the Customer is entitled insofar as the realisable value exceeds the value of the outstanding claims against the Customer by 10%.

VI. Claims for Defects/Exclusion of Warranty/Liability

1. Rights in respect of defects are governed by the statutory provisions.

Any claims for defects become time-barred within a period of one year, beginning with the date of the passing of risk/of acceptance.

The right to withdraw from the contract on account of defects is excluded.

2. We assume no warranty that the delivery item is a recyclate instead of virgin material, or for the (inter alia legal) usability of a colour in the event that the goods owed are coloured on behalf of the Customer.

Accordingly, liability for any contamination is also excluded.

The Customer is aware that our products are as a rule recyclates. We therefore expressly point out that – unless expressly agreed otherwise – they are not virgin material and that our products are accordingly not identical in quality to virgin material.

The use of our products for the purposes of the Customer is subject to the exclusive and sole responsibility of the Customer. It is the sole responsibility of the Customer to check and to decide whether the product ordered from us meets the requirements of its purposes and of its respective client as well as the contractual agreements made with its client.

The same applies in the event that the goods owed are coloured on behalf of the Customer. The respective colour is a specification of the Customer, who bears the exclusive and sole responsibility for the (inter alia legal) usability of the colour.

Should claims be asserted against us by third parties on account of these matters for injunctive relief/damages or in any other way, the Customer undertakes to indemnify and hold us harmless in respect of any such claim, including any extrajudicial and/or judicial costs.

3. The use/usability of the delivery item results from the type designation and, where applicable, the works test certificate, and is limited to the information given therein. The type designation is the basis of the order placed with us, with the particularity that the product delivered by us is as a rule not virgin material.

If the Customer uses the object of performance outside the possible purposes of use pursuant to the type designation – on the basis of the fact that it is a recyclate – our liability and/or the warranty for this is likewise excluded.

4. We are liable in the case of intent and/or gross negligence in accordance with the statutory provisions. In the case of slight negligence we are liable only if a material contractual obligation (cardinal obligation) is breached and the damage asserted is foreseeable or typical. In the case of liability for slight negligence, this limitation of liability also applies in the event of initial inability on our part.

In all other respects, we are liable for financial losses and for such damage as has not arisen from injury to life, body or health only insofar as such damage was caused intentionally or by gross negligence.

Liability in the above cases is limited, to the extent permitted by law, to 10,000.00 € per damaging event and to a maximum of 100,000.00 € in relation to the respective contractual relationship.

The limitation period for all claims against our company, on whatever legal grounds, is one year. Unless otherwise regulated, § 199 BGB applies to the commencement of the limitation period.

5. Should claims be asserted against us by third parties on account of a use of our products by the Customer outside the possible uses pursuant to the type designation – on the basis of the fact that it is a recyclate – (e.g. on the basis of the ProdHaftG or on account of a recall of a product manufactured with the object of performance delivered by us), the Customer is obliged to indemnify and hold us harmless in respect of any such claim, including the extrajudicial and judicial costs of the legal defence. Where applicable, we shall inform the Customer of any such claim.

VII. Applicable Law, Place of Jurisdiction, Miscellaneous

1. All legal relationships are governed exclusively– to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and other international provisions – by the law of the Federal Republic of Germany.

2. The place of performance for deliveries and services is the place contractually agreed as the address of performance, in case of doubt our registered place of business. The place of performance for payments is the place of the payee stated in the invoice.

3. The place of jurisdiction for both parties is exclusively the court having jurisdiction for the registered office of the Contractor.

4. Should individual clauses of these contractual terms, or of individual agreements concluded in addition thereto, be wholly or partially invalid, this shall not affect the validity of the remaining clauses. The invalid clause shall be replaced by another clause which comes closest to the economic purpose of the invalid clause and is itself valid.