terms and conditions

General terms and conditions
of the company Wilken Plastics Energy GmbH
for the acceptance of plastics

§ 1
General, scope of application

(1) Our terms and conditions of business shall apply exclusively; we shall not recognize any terms and conditions of the customer that conflict with or deviate from our terms and conditions of business unless we have expressly agreed to their validity in writing. Our terms and conditions shall also apply if we execute the transaction with the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms and conditions.

All agreements made between us and the customer for the purpose of executing the contract are set out in writing in the contract.

Our terms and conditions shall only apply to entrepreneurs pursuant to § 3. § 310 BGB.

4. our terms and conditions shall also apply to all future transactions with the customer.

§ 2
Offer, offer documents, involvement of third parties

1. our offer is subject to confirmation, unless otherwise stated in the order confirmation.

(2) We reserve the property rights and copyrights to samples, specimens, illustrations, photographs, invoices, calculations and other documents. This also applies to such written documents that are designated as “confidential”. The customer requires our express written consent before passing them on to third parties.

3. samples, patterns, illustrations and photographs, which we hand over to the customer, represent illustrative pieces for the approximate characteristics regarding quality and dimensions. Unless otherwise agreed in writing, the provision of samples, illustrations, photographs and specimens by us does not imply any guarantee – whatsoever – of corresponding properties by us.

4. we are entitled to engage third parties to fulfill the obligations assumed by us under the contract, unless otherwise agreed with the customer.

§ 3
Price, terms of payment

1. the price is calculated according to the weight of the delivered goods per ton.

2. the weight shall be determined by weighing on the officially certified vehicle scales located on our premises. If the customer intends to object to a weight determination made by us, he must do so before unloading the delivered goods. The statutory rules concerning the consequences of default in payment shall apply.

Insofar as counterclaims of the customer are to be settled, e.g. on the basis of sales similar to barter transactions, we shall be entitled to dispose of these claims by issuing credit notes in accordance with § 3. § 14 para. 2 sentence 2 UStG. Upon request, the customer shall immediately provide its tax number or its VAT identification number.

Unless otherwise agreed in writing, we shall pay within 14 days of delivery and receipt of invoice with a 2% discount or net within 30 days of receipt of invoice.

5. we shall be entitled to rights of set-off and retention to the extent provided by law.

§ 4
Delivery

1. we accept only clean, recyclable material.

2 Unless otherwise agreed in writing, the delivered material may not exceed a foreign material content of 5 %.

Unless otherwise agreed in writing, the goods to be delivered shall be delivered air-dry by the customer. Deliveries are considered air-dry if their humidity – at a normal relative humidity of 65% and a normal temperature of 20°C – does not exceed 10%.

Unless otherwise agreed in writing, delivery shall be made to us by the customer “free domicile” in the manner agreed in the contract with us.

The customer shall be responsible for ensuring that the delivered goods comply with their declaration and the quality agreed with us in the contract.

6. in the case of samples, specimens, illustrations or photographs handed over to us by the customer, their properties including their composition shall be deemed to be guaranteed by the customer.

(7) We shall be entitled to carry out inspections and sampling of the delivered goods both upon delivery and thereafter or to have such inspections and sampling carried out by third parties.

8. if the delivered goods do not have the quality declared by the customer or the quality required by the contract, or if the delivery is not made in the contractually agreed manner, we shall be entitled to return the delivered goods to the customer at the customer’s expense or to dispose of them properly at the customer’s expense. We shall inform the customer – insofar as possible and reasonable – before implementing the measures referred to in sentence 1 and give him the opportunity to comment. § 8 remains unaffected. The implementation by us of the measures referred to in sentence 1 shall be carried out exclusively in fulfillment of an obligation under public law. Legal claims of the customer or third parties are not justified by this.

9. if the delivered goods do not have the quality declared by the customer or the quality required by the contract or if the delivery is not made in the contractually agreed manner, we are entitled to refuse further performance and to withdraw from the contract under exclusion of claims for damages if, in the event of continuation of the contractual relationship, personal injury or substantial damage to third-party property or our property or assets is to be feared. In the event of withdrawal, the remuneration will be calculated on a pro rata basis. § 8 remains unaffected.

10. if, according to the contract, ownership of the delivered goods is to pass to us, we shall acquire ownership at the earliest after we have subjected the delivered goods to an inspection. If the delivered goods do not comply with the customer’s declaration or if they do not have the contractually required quality, the transfer of ownership to us is excluded.

§ 5
Performance barriers

Impediments to performance due to force majeure, strike, lockout or similar circumstances beyond the control of the contracting parties shall initially cause a reasonable extension of the performance period. The aforementioned circumstances shall release the contracting parties from the performance of the contract for the duration of the impediment. If an obstacle exists for longer than three months, both contracting parties are entitled to withdraw from the contract.

§ 6
Customer’s Liability, Customer’s Duty to Examine and to Give Notice of Defects, Product Liability,
Exemption

1. the customer shall be liable for all damages – including indirect damages – incurred by us or third parties as a result of his failure to comply with his obligations, in particular if the delivered goods do not comply with their declaration or the quality agreed in the contract with us or if they are not delivered in the manner agreed in the contract with us. If claims are asserted against us by a third party, the customer shall indemnify us against such claims upon first written request; we shall not be entitled to enter into any agreements with the third party – without the customer’s consent – in particular to conclude a settlement. The customer’s obligation to indemnify shall also apply to all expenses necessarily incurred by us as a result of or in connection with the claim by a third party.

(2) To the extent that the customer is responsible for product damage, it shall be obliged to indemnify us against claims for damages by third parties upon first request to the extent that the cause lies within its sphere of control and organization and it is liable itself in relation to third parties.

3. within the scope of his liability, the customer is also obligated to pay any expenses pursuant to. §§ 683, 670 BGB (German Civil Code) or acc. §§ 830, 840, 426 of the German Civil Code (BGB) arising from or in connection with a recall action carried out by us. We will inform the customer – as far as possible and reasonable – about the content and scope of recall measures to be carried out and give him the opportunity to comment.

4. we shall be entitled to the statutory claims in full.

§ 7
Third party rights

(1) The customer warrants that the delivered goods are free from third party rights, in particular property rights, liens and industrial property rights.

2. if claims are asserted against us by a third party in this respect, the customer shall be obliged to indemnify us against such claims upon first written request; we shall not be entitled to make any agreements with the third party – without the customer’s consent – in particular to conclude a settlement. The customer’s obligation to indemnify shall also apply to all expenses necessarily incurred by us as a result of or in connection with the claim by a third party.

The limitation period is 10 years, calculated from the conclusion of the contract.

§ 8
Driving on/entering our company premises

Driving on and entering our premises is at your own risk. The instruction of vehicles is not carried out by us. Only the charging points are instructed. A maximum speed of 10 km/h applies on our company premises, the regulations of the StVO apply accordingly.

§ 9
Liability

1. we shall be liable in accordance with the statutory provisions insofar as 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. Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.

2. any liability for damages exceeding the liability set forth in para. 1. is excluded – irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for damage to property in accordance with the German Civil Code (HGB). § 823 BGB. The limitation according to sentence 1 shall also apply insofar as the customer demands compensation for useless expenses instead of a claim for damages.

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, staff, representatives and vicarious agents.

§ 10
Additional conditions in the case of services provided by us on a contract basis

1. price and payment
a) We are entitled to demand a reasonable advance payment upon conclusion of the contract.
b) Value added tax shall be charged additionally to the customer at the respective statutory rate.
c) In the absence of a special agreement, the remuneration shall be due for payment net (without deduction) immediately. The statutory rules concerning the consequences of default in payment shall apply. The deduction of a cash discount requires a special written agreement.
d) The customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been acknowledged by us. Furthermore, he shall only be entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

2. extended lien
We shall be entitled to a lien on the customer’s items that have come into our possession on the basis of the contract because of our claim arising from the contract. The right of lien may also be asserted on account of claims arising from services previously performed by us, insofar as they are connected with the present performance. For other claims arising from the business relationship, the right of lien shall only apply insofar as these are undisputed or have been legally established.

3. liability for defects
a) No warranty shall be assumed for defects resulting from the nature of the delivered goods, e.g. from their composition (e.g. too high a proportion of foreign substances).
b) The customer shall inspect the delivered goods immediately after delivery by us, insofar as this is feasible in the ordinary course of business, and shall notify us immediately if a defect becomes apparent. If the customer fails to notify us, the delivered goods shall be deemed to have been approved, unless the defect was not recognizable during the inspection. If a defect is discovered later, the notification must be made to the customer immediately after discovery, otherwise the goods shall be deemed approved, also in view of the defect.
c) Our liability does not exist if the defect is insignificant for the interests of the customer or is based on a circumstance that is attributable to the customer.
d) In the event of improper modifications or repair work carried out by the customer or third parties without our prior consent, we shall not be liable for the resulting consequences.
e) Only in urgent cases and to prevent disproportionately large damage, in which case we must be notified immediately, or if we have allowed a reasonable deadline set for us to rectify the defect to expire, shall the customer have the right to rectify the defect itself or have it rectified by third parties and to demand compensation from us for the necessary costs.
f) If we – taking into account the statutory exceptions – allow a reasonable period of time set for us to remedy the defect to expire fruitlessly, the customer shall have a right to reduce the purchase price within the scope of the statutory provisions. The customer’s right to reduce the purchase price shall also apply in other cases of failure to remedy defects. Only if the rectification is demonstrably without interest for the customer despite the reduction, the customer can withdraw from the contract.

4. limitation period
The limitation period for claims for defects is 12 months calculated from the statutory commencement of the limitation period.

§ 11
Privacy

In accordance with the applicable provisions of the Federal Data Protection Act, we are entitled to store, transmit, process and delete personal data of the customer in the course of business transactions.

§ 12
Applicable law, place of jurisdiction, place of performance, severability clause

(1) All legal relations between the contracting parties shall be governed exclusively by the laws in force in the Federal Republic of Germany.

2. place of jurisdiction is the court responsible for 49733 Haren. However, we shall be entitled to bring an action at the customer’s principal place of business.

3. place of performance is, unless otherwise stated in the contract, 49733 Haren.

4. should parts of these terms and conditions of business be ineffective or inapplicable in individual cases for contractual or legal reasons, all other provisions shall remain unaffected by this; § 139 of the German Civil Code (BGB) is waived in this respect.

General conditions of sale
of the company Wilken Plastics Energy GmbH

§ 1
General, scope of application

(1) Our Terms and Conditions of Sale shall apply exclusively; we shall 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 writing. 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.

All agreements made between us and the customer for the purpose of executing this contract are set out in writing in the contract.

Our terms and conditions of sale shall only apply to entrepreneurs pursuant to § 3. § 310 BGB.

Our terms of delivery shall also apply to all future transactions with the customer.

§ 2
Offer, offer documents

1. our offer is subject to confirmation, unless otherwise stated in the order confirmation.

(2) We reserve the property rights and copyrights to samples, specimens, photographs, illustrations, invoices, calculations and other documents produced by us. This also applies to such written documents that are designated as “confidential”. The customer requires our express written consent before passing them on to third parties.

3. samples, specimens, photographs made by us are illustrative pieces for the approximate properties. Unless otherwise agreed in writing, the provision of samples, specimens, photographs and illustrations by us does not constitute a guarantee of the corresponding property of the delivery item.

§ 3
Prices, terms of payment

Unless otherwise stated in the order confirmation, our prices are “ex works” excluding packaging, freight. If the price is calculated by weight, the weight shall be determined by the measurement on the officially certified vehicle scales located on our premises. If the customer intends to object to our weight calculation or our quantity calculation, he shall do so immediately after receipt of the purchased goods at the place of delivery and before unloading them.

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

3. we reserve the right to increase or decrease prices for contracts with an agreed delivery period of more than 4 months in accordance with cost changes that have occurred, in particular due to collective bargaining agreements or material price changes. We will notify the customer in writing of a corresponding change in the price at least 4 weeks in advance. The customer shall then have the right to terminate or withdraw from the contract as of the date on which this price change takes effect.

4. in the absence of a special agreement, the net purchase price (without deduction) is due for payment immediately. The statutory rules concerning the consequences of default in payment shall apply. The deduction of a cash discount requires a special written agreement.

5. the customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been acknowledged by us. Furthermore, he shall be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

(6) Insofar as counterclaims of the customer are to be settled, e.g. on the basis of sales similar to barter transactions, we shall be entitled to dispose of these claims by issuing credit notes in accordance with the provisions of the German Civil Code (BGB). § 14 para. 2 sentence 2 UStG. Upon request, the customer shall immediately provide its tax number or its VAT identification number.

§ 4
Delivery time

1. the start of the delivery time stated by us presupposes the clarification of all technical questions.

2. compliance with our delivery obligation further requires the timely and proper fulfillment of the customer’s obligation. The defense of non-performance of the contract remains reserved.

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 remain reserved.

4. provided that the requirements of par. 3. exist, 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) We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of Section 286 (1) of the German Civil Code (BGB). 2 No. 4 BGB or of Section 376 HGB. We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the customer is entitled to claim that its interest in the further performance of the contract has ceased to exist.

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.

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

8. in the event of a delay in delivery, we shall be liable for each full week of delay within the framework of a lump-sum compensation for delay in the amount of 0.5% of the value of the delivery, but not more than 5% of the value of the delivery.

9. further legal claims and rights of the customer remain reserved.

§ 5
Delivery, transfer of risk

1. depending on the agreement of the parties, delivery shall be made in our factory in big bags, octabins or loose, i.e. unpacked and unstrapped.

(2) The risk shall pass to the customer when the delivery item is handed over to him, the carrier, forwarder or freight forwarder, or it is loaded onto our vehicle, at the latest when the delivery item has left our premises, even if partial deliveries are made or we have assumed other services.

If the shipment is delayed or does not take place due to circumstances for which the customer is responsible, the risk shall pass to the customer from the date of readiness for shipment. However, we are obliged to effect the insurances requested by the customer at the customer’s request and expense.

Partial deliveries are permissible insofar as they are reasonable for the customer.

§ 6
Liability for defects, limitation period

1. claims for defects of the customer presuppose that the customer has duly complied with its obligations to inspect the goods and to give notice of defects pursuant to § 377 HGB (German Commercial Code).

The customer is aware that secondary raw materials are used in the production of the purchased goods. Claims for defects cannot be derived from the fact that we use waste in accordance with the waste acceptance catalog approved for us by the State Trade Inspectorate in compliance with the applicable public law regulations, unless otherwise contractually agreed. The waste acceptance catalog that applies to us can be viewed at our offices during normal office hours. Upon request, we will also send it to the customer.

(3) In the event of a defect in the purchased goods, we shall be entitled to choose between subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. 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 was taken to a place other than the place of performance.

If the supplementary performance fails, the customer shall be entitled to demand rescission or reduction at his discretion.

5. 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.

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

7. insofar as the customer is entitled to claim compensation for damages instead of performance, our liability shall also be limited within the scope of para. 4. limited to compensation for the foreseeable, typically occurring damage.

8. liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.

(9) Unless otherwise provided above, liability is excluded.

The limitation period for claims for defects is 12 months, calculated from the transfer of risk.

11. the period of limitation in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it amounts to five years, calculated from the delivery of the defective item.

§ 7
Total liability

(1) Any further liability for damages than provided for in § 6 shall be excluded, irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for property damage pursuant to Section 823 of the German Civil Code (BGB).

2. the limitation according to par. 1. shall also apply insofar as the customer demands compensation for useless expenses instead of a claim for damages.

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, representatives and vicarious agents.

§ 8
Driving on/entering our company premises

Driving on and entering our premises and the facilities there is at your own risk. The instruction of vehicles is not carried out by us. Only the charging points are instructed. A maximum speed of 10 km/h applies on our company premises. The regulations of the StVO apply accordingly.

§ 9
Retention of title

(1) We retain title to the purchased item until receipt of all payments arising from the business relationship with the customer. In the event of conduct by the customer in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. The taking back of the purchased goods by us shall constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to realize it; the proceeds of the realization shall be credited to the customer’s liabilities – less reasonable realization costs.
to be credited.

2. the customer is obligated to treat the object of purchase with care; in particular, he is obligated to sufficiently insure it at his own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at its own expense.

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

The customer shall be entitled to resell the object of sale 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 accruing to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer remains authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets its payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform 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 object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other processed objects 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 subject to reservation of title.

If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other mixed objects 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 shall be deemed to be agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.

7. the customer also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the object of sale with a plot of land. 8. we undertake to release the securities to which we are entitled at the customer’s request insofar as the realizable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released shall be ours.

§ 10
Privacy

In accordance with the applicable provisions of the Federal Data Protection Act, we are entitled to store, transmit, process and delete personal data of the customer in the course of business transactions.

§ 11
Applicable law, place of jurisdiction, place of performance, severability clause

(1) All legal relations between us and the customer shall be governed exclusively by the law applicable in the Federal Republic of Germany, with the exception of the UN Convention on Contracts for the International Sale of Goods.

2. place of jurisdiction is the court responsible for 49733 Haren. However, we shall be entitled to bring an action at the customer’s principal place of business.

3. place of performance is, unless otherwise stated in the contract, 49733 Haren.

(4) If, for contractual or legal reasons, parts of these Terms and Conditions of Sale are ineffective or not applicable in individual cases, all other provisions shall remain unaffected; § 139 of the German Civil Code (BGB) shall be waived to this extent.

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