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General Terms

General Terms of WIS Kunststoffe GmbH

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I.   Application

1.  For all our deliveries the following Terms are valid. In the event of an ongoing business relationship, these Terms also apply to future transactions even if no express reference is made to them.

2.  Any conflicting purchasing terms of the Customer will only become part of the contract if we expressly acknowledge them in writing.

3.  Our offers are subject to alteration relating to price, quantity, delivery time and delivery possibility. A binding contract is established only on receipt of our written order confirmation.

4.  In case of deliveries to foreign countries these General Terms shall be applicable together with the International Commercial Terms (Incoterms 2000), provided that these General Terms do not contain any deviating provisions.

II. Prices

1.  Prices apply ex works excluding freight, customs duties and incidental import charges and packaging plus value-added tax at the time of delivery.

2.  Our prices are determined on account of the cost basis valid on the day of the offer or the confirmation of order. If costs or charges which are connected with the goods traffic (e.g. customs duties, freights taxes) increase after conclusion of contract, we are entitled to the corresponding increases in price. The same applies to tariff increases in wages and increases in prices carried out by suppliers which come into effect after conclusion of contract. In case of change of currency or exchange rate parities in the time between conclusion of contract and delivery or part delivery we are entitled to withdraw from the contract. We are also entitled to charge our customers for currency losses if payments are credited to our account only after the originally agreed upon payment terms.

3.  If the Customer is a non-trader, we are only entitled to carry out the adjustment of prices if the delivery is done only 4 months after conclusion of contract or if it is a continuing obligation.

III. Weights and measures

The establishment of weights and measures which are also important for the calculation is done on loading by ourselves or by one of our authorized representatives unless the Customer requests official weighing by the railway authorities at the station of departure at his expense.

IV. Delivery and Acceptance Obligations

1. If an agreed delivery deadline is not kept due to our fault, the Customer (in case he is a merchant) is entitled – unless we have acted grossly negligently or intentionally - to claim compensation for delay or to rescind the contract after an appropriate extension provided that it was expressed in writing that the delivery would be rejected. The compensation for delay is limited at a level of maximum 5% of the value of that part of delivery which was not executed according to contract.

2. We are entitled to make appropriate part deliveries. Any part deliveries are regarded as a special business with regard to rendering an account and payment (compare XI)

3. In case of events of force majeure we are entitled to postpone the delivery by an appropriate starting time or to withdraw from the contract partly or in full because of the not yet fulfilled part. Events of force majeure shall be strike, lock-out and other conditions that essentially complicate the delivery or make it impossible, no matter whether they occur at our company or at one of our subcontractors.

4. Terms of delivery are only binding if they are expressly assured in the confirmation of order. The Customer can demand the compliance with the terms of delivery only if he fulfills his contractual obligations.

5. If the Customer defaults on acceptance or infringes on other obligations to cooperate, we are entitled to demand the damages arising to us including any additional expenditure. This shall not affect any other statutory rights of ours.

V. Shipment

1. Unless otherwise agreed we will choose packaging, mode of shipment and dispatch route in one's sole discretion. We try to choose the cheapest possible mode of shipment.

2. Even where delivery has been agreed carriage free, the risk shall pass to the Customer at the time of transfer of the goods to the first freight carrier. If the customer delays a delivery, the risk transfers to the customer as soon as notification is given that the order is ready for shipment.

3. If a certain mode of shipment and/or a certain dispatch route were chosen on the Customer’s request, he will have to bear the extra costs compared to the cheapest mode of shipment even if we have obliged to free carriage.

4. We are entitled to insure the object of shipment against damages in transit provided the Customer does not prove that he has contracted such insurance himself.

VI. Reservation of title

1. All goods delivered by us remain our property (Reserved Property) until all claims arising from our business contacts have been settled, regardless of the origin of the claims and including future or conditional claims even if the purchase price for separately identified liabilities has been paid. For current invoices, the reserved property shall be used to safeguard our balance claims. If a cheque is presented the reservation of title will expire only if it is completely and irrevocably cashed. If supplier liability on a bill is created in association with payment of the purchase price, the reservation of title will not expire until the bill has been honored by the Customer as the drawee.

2. Processing or compounding by the Customer is made on our instructions and excludes the acquisition of ownership as per Sec. 950 BGB (German Civil Code); we become the co-owner of the new product corresponding to the ratio of the net value of the invoice of our goods to the net value of the invoice of the goods to be processed or to be compounded which then serve as reserved goods to secure our claims as per paragraph 1. If goods are processed which do not belong to us, the provisions of Sec 974, 978 BGG shall apply with the consequence that our co-ownership in the new object shall now be classified as reserved property within the sense of these terms. Any processing or restructuring of the goods by the Customer shall always be performed on our behalf. The co-ownership of the new goods will be acquired in relation of the value of the purchased goods to the other objects processed at the time of processing. If the purchased goods are mixed with other items not being our property, then we acquire co-ownership in the new items in relation of the value of the purchased goods to the other mixed objects at the time of mixing. In the case the object of the Customer is considered the principal object; the Customer shall transfer co-ownership proportionally to our share.

3. The resale of reserved property is only allowed for the Customer in the ordinary course of business provided that he also agrees on a reservation of title according to paragraphs 1 and 2 with his customers. Other disposals, in particular pledging and assignment as security of the reserved property shall not be allowed for the Customer.

4. If the delivery item is resold, the Customer hereby assigns to us the receivables due from the resale, plus any other justified claims against its customers to which it is entitled, together with all subsidiary rights, until all the claims of the supplier have been fulfilled. As far as we have become a co-owner according to paragraph 2, the assignment shall apply to the value of our co-ownership share. On our demand, the Customer shall provide us with the necessary information and documents required to assert our claim against any sub-customer.

5. Should the value of the existing securities exceed our total receivables by more than 20 %, we will be obligated, upon request of the Customer, to release securities at our discretion.

6. We shall be immediately informed of any seizures or confiscation of reserved property by third parties. Arising intervention costs are balanced to Customer’s cost unless they shall be borne by a third party.

7. If we exercise our reservation of ownership in compliance with the above provisions by repossessing of reserved property, we are entitled to sell the goods on the open market or have them auctioned. The goods will be repossessed at the amount of the proceeds obtained but at not more than the agreed supply prices. Any further claims for compensation, in particular for lost profits, are reserved. The costs for returning the reserved property shall be borne by the Customer.

8. All assignments to us will be taken by us according to these General Terms.

9. To claim the right of reserving the property it is not required to withdraw from the contract unless the Customer is a consumer.

VII. Trademarks

If goods with registered trademarks are delivered, the Customer is only entitled to use the trademarks in connection with the products which were produced from the delivered goods if the owner of the trademark expressly agreed on such a usage in writing before. This shall apply to all methods of processing.

VIII. Warranty

1. For goods marked as secondary goods, substandard, new NT goods, industry quality, re-granules, regenerated material and material to be ground any warranty is excluded because these goods are business specific and of substandard quality which can have standard deviations. If the Customer is a merchant, he shall report the material defects, complaints about wrong deliveries and deviations in quantity to us in writing immediately, not later than one week after receipt of goods. In case of concealed defects complaints shall be reported immediately, not later than one week after the discovery of the defect in writing. Delays in reporting shall lead to exclusion of warranty.

2. In case of a justified complaint we are obliged to compensation delivery to the exclusion of any other warranty obligations. If compensation delivery fails, or if we do not fulfill our obligation within a reasonable time, the Customer shall be entitled to demand a decrease in price (reduction) or rescission of the contract (nullification) contract. The warranty period is six months.

3. Additional claims shall be excluded - regardless of the origin of the claims. If we were obliged to compensation on account of contractual or legal basis for a claim, however, we shall only be liable if the damage was caused by intent or gross negligence on our part. In case of intent or gross negligence of our other assistants we shall only be liable in case of essential violations of contractual obligations at the rate of the predictable damage.

4. The aforementioned provisions shall apply accordingly for the delivery of other goods than the contractual ones.

IX. Assurance, Information, Advice

Our technical information and advice – also in writing and pictures – are done to the best of our knowledge – also regarding any possible property rights of third parties – and they do not release our Customers from inspecting the goods supplied with respect to their applicability for intended procedures and purposes. We are only liable for that, if we or our employees or assistants can be charged with gross negligence or intent. Any reference to technical standards or other catalogue descriptions is used for purposes of specification and shall not be interpreted as a quality guarantee. Guarantees of definite qualities of the delivery item shall be expressly given and shall be done in writing.

X. General Limitation of Liability

We are only liable for claims for damages no matter for what legal grounds, especially for delay, the impossibility of performance, breach of an obligation, negligence in the conclusion of the agreement and unlawful torts, unless there is evidence of willful intent or gross negligence on our, the owner’s or executives’ part. In case of intent or gross negligence of our other assistants we shall only be liable in case of essential violations of foreseeable contractual obligations. The liability according to the Product Liability Act and the liability in case of lack of guaranteed qualities, insofar as the object of the guarantee intends to protect the Customer against damages which incurred outside of the supplied item remains unaffected.

XI. Payment

1. Our invoices shall be paid 30 days subsequent to the date of invoice, in cash or by bank transfer to one of our bank accounts. We are entitled to claim payment on our invoices on a special date. The payment date given on the invoices is considered as agreed.

2. In case of delay in payment by the Customer we are entitled to claim interests on arrears amounting to 8% above the basic interest rate of the European Central Bank. The claim of any further damage caused by delayed payment is reserved.

3. We expressly reserve the right to refuse cheques and bills of exchange. If cheques or rediscountable bills of exchange are accepted on account of performance, the customer shall cover all associated bank charges.

4. Failure to comply with the terms of payment or circumstances giving reasons for the creditworthiness of the Customer, lead to an immediate maturity of all our outstanding debits. In any case we shall be entitled to demand pre-payment for any outstanding deliveries and to withdraw from the contract after an appropriate waiting period has elapsed without satisfactory resolution or to claim compensation for non-performance of the contract; furthermore to order the Customer not to resell the goods and to return goods which have not been paid for at the Customer’s expense.

5. We are entitled to set off payments of the Customer of our choice against our claims even if the Customer determines something different. The Customer is entitled to set off, only with legally effective or demands which are recognized by us in writing.

XII. Final Provisions

1. Only German law applies. The application of the uniform laws of 17th July 1973 on the international sale of goods (BGBl. I. p. 856) and on the conclusion of international purchase contracts of goods (BGBl. I. p. 868) is excluded.

2. If the Customer is a merchant, the place of fulfillment for all performances from the supply relationship of the contractual parties shall be Breitungen; the place of jurisdiction for all disputes and proceedings from or in connection with the contractual relation shall be the factual and locally competent court for the seller’s registered office in Breitungen or the competent court in Bonn.

3. We are entitled to assign our claims from our terms and conditions.

4. Purchase terms of our Customer shall only apply insofar as these do not contradict our terms of delivery and payment.

5. All changes and amendments to the contract must be made in writing

6. Should any provision of this Agreement be or become invalid or unenforceable, the parties agree to replace the same by another provision that comes closest to what the parties intended. The validity of the remaining provisions shall not be affected thereby this also applies in case of an unintended omission.

(As of September 2010)

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WIS Kunststoffe GmbH
Nordstraße 5
D-98597 Breitungen
Phone: +49 (0) 36848 / 868-0
Fax: +49 (0) 36848 / 868-22