General Terms and Conditions of Sale and Deliveries

1. General

(1) All offers, orders, deliveries, and services of Wethje Carbon Composites GmbH are subject only to the following terms and conditions. Any customer terms and conditions, in particular those conflicting or deviating from our terms and conditions shall not apply without our express written consent, even if the order has been made on their basis and we have not expressly disagreed with them. These terms shall also apply if we, being aware of customer terms that contradict or are in conflict with these terms, make delivery to the customer without expressly stating our objections.
(2) Any other agreements must be in writing to be effective or at least require our written confirmation.
(3) These terms shall also apply to all future deliveries, services, or offers, even if they are not separately agreed at that time.

2. Offers, description, contract

(1) Our offers are always non-binding and legally represent an invitation to the potential buyer to offer to purchase our goods by placing an order. In particular, the pricing, delivery options, and freight charges in our offers are always non-binding.
(2) Each offer is separate whole; the removal of individual line items or any other modification of the offer when the order is placed is only valid if expressly confirmed in our written order confirmation.
(3) Orders are binding on us only after we issue a written order confirmation. For the scope of our delivery/services, only this written order confirmation shall apply. Terms and deadlines quoted by us are non-binding, unless expressly agreed in writing with the customer.
(4) Quotations are always non-binding and will be invoiced, unless otherwise agreed.
(5) Unless otherwise expressly agreed, drawings, illustrations, descriptions, dimensions, weights, standards of any kind, samples, or other information serve to give some sense of the item, are only approximations, and do not constitute a guarantee of quality. This applies in particular to information in printed matter (price lists and brochures), in cost estimates, on our website, on any electronic data carriers provided, and in any documents submitted with the offer. We reserve the right to make over- or under-deliveries within the customary limits. These do not entitle the customer to any claims.

3. Pricing

(1) The calculation is made on the basis of the list prices valid at the time of delivery or the prices offered plus VAT, transport packaging, and freight. Agreed prices are basically net and in euros.
(2) We reserve the right to change our prices if after the conclusion of the contract, due to wage agreements or material price changes in particular, cost reductions or increases should arise. We will provide the customer with proof of these, upon request.
(3) Deliveries of spare parts and the return of repaired goods, insofar as these are not covered by the warranty for defects, shall be subject to a reasonable shipping and handling charge plus fees for the services we provide. On request, we will inform the purchaser in advance of the costs for the delivery of spare parts and the return of repaired goods.

4. Payment conditions

(1) Unless otherwise agreed in writing, payment shall be received in our account within 30 days of the invoice date without deduction. However, we can also make the delivery dependent on payment or require advance payment. Partial deliveries will be invoiced immediately.
(2) We are entitled to apply payments to the oldest outstanding balance.
(3) In the event of a late payment, we are entitled to apply default interest charges at 9 points above the current base rate or higher if permitted by law. No further notice is required. This does not exclude claims for further damages.
(4) Payment by means of a bill of exchange or checks requires our express prior consent. Bills of exchange and checks are accepted only conditionally and are only deemed paid once they clear. All discount and bill of exchange charges are at the customer’s expense and are to be paid immediately. We are not liable for the timely presentation, protest, notification, or return of bills of exchange in case they are returned.
(5) If customers are in default of payment or their credit rating deteriorates, we are entitled to make any outstanding claims from the business relationship due immediately or to demand collateral. This right is not excluded by a deferral or acceptance of bills of exchange or checks. In these cases, we are particularly entitled to make any outstanding deliveries only against advance payment or collateral.
(6) Customers shall have the right to withhold payments or offset payments with counterclaims only to the extent to which such counterclaims are undisputed and have been established as final and absolute.

5. Delivery, delivery times, delays

(1) Delivery dates or delivery periods which may be agreed as binding or non-binding must be indicated as such in writing. Unless expressly designated as such, delivery dates and deadlines are non-binding approximations only. Agreed delivery periods assume the fulfillment of customer obligations, in particular the timely submission of all deliveries, documents, permits, investigations, approvals, etc. and their adherence to the agreed terms of payment. If these preconditions are not met in a timely manner, our time limits shall be reasonably extended except where the delay is attributable to ourselves.
(2) Our compliance with the agreed delivery periods is subject to the proviso that we in turn receive our deliveries correctly and in time. We will inform customers of any apparent delays as soon as possible.
(3) The delivery period is met if the delivery item has left our factory or we have provided notice of its being ready for shipping before the end of said period. If an acceptance inspection is to be made, the date of such acceptance inspection or, alternatively, the notification of readiness for the acceptance inspection, shall be decisive, except in the case of justified refusal of said acceptance inspection. Customers must not refuse to accept shipments due to insignificant defects.
(4) Force majeure, or operational disruptions not under our control, e.g. war, terrorist attacks, import or export restrictions, regulatory orders, labor disputes, strikes, or lockouts or other disruptions to operations, as well as delays in or the failure of our suppliers to make deliveries as promised, that prevent us from manufacturing or delivering the goods on time or within the agreed period will result in a postponement of said deadline or period for the duration of the disruptive circumstances. This applies to any such circumstances occurring with our suppliers. This also applies if such circumstances occur during an existing delay. If disruptions of this nature lead to a delay in delivery of more than four months, the customer may withdraw from the contract. Otherwise, the contract shall be adjusted appropriately in good faith, insofar as such circumstances significantly change the economic significance and the content of the delivery. Insofar as such an adjustment is not economically reasonable for us, we have the right to withdraw from the contract. In any case, we will inform the customer of the nature, the beginning, and the (expected) end of such circumstances once we become aware of them.
(5) If we are late making our delivery, customers shall at our request state within a reasonable term whether they intend to withdraw from the contract because of the delay in delivery and/or to claim damages in lieu of performance, or, alternatively, to insist on delivery.
(6) If the dispatch or the delivery of the goods is delayed upon the customer’s request by more than one month after the notification of the readiness for dispatch, the customer can be charged the costs incurred by the storage in the amount of 0,5 % of the price of the delivered goods per each month commenced. Either party may provide proof of higher or lower storage costs. Further claims due to failure to accept the goods remain unaffected.
(7) Partial deliveries and corresponding invoices are permissible, provided they are reasonable for the customer.
(8) Delivery is ex works, unless expressly agreed otherwise (transfer of risk is therefore upon dispatch ex works, even in the case of partial deliveries). At customer request and expense, we will insure deliveries against the customary transport risks.
(9) At our discretion, we are entitled to make design and other changes to our products, without being obliged to make changes to products already delivered, provided that these changes are reasonable for the customer taking into account our interests, the form and function of the product remain unchanged, and the changes do not conflict with the contractually agreed specifications. The customer will be notified of such changes with reasonable advanced notice.

6. Retention of title

(1) We retain ownership of the goods delivered until all the claims to which we are entitled as a result of the business relationship have been paid..
(2) Until full payment, the customer is obliged to treat our goods and store them in such a way that they are recognizable as our property.
(3) The customer may process or combine our goods within the framework of its normal business operation. The processing of our goods is carried out on our behalf as the manufacturer within the meaning of §950 German Civil Code (BGB) without further obligations. In order to secure our claims as referred to in subsection (1), we shall, on a pro rata basis, acquire co-ownership of the products resulting from the processing or combination with other objects within the meaning of §947 para. 1 BGB,
which the customer hereby assigns to us. If the other item to which our goods are combined is considered the primary object, the customer hereby assigns to us a pro rate co-ownership in the new item, as long as the primary object is theirs. The customer agrees to store the objects in which we have a co-ownership interest on our behalf and free of charge. The amount of our co-ownership interest is determined by the ratio of the value of our product and the item resulting from the processing or combination at the time of processing or combination.
(4) The customer is entitled to resell our goods in the ordinary course of its business either on a cash basis or with its own retention of title. The customer hereby assigns to us in full all claims arising from the resale of our product, regardless of whether our product has been further processed or not. The assigned claims serve to secure our claims according to paragraph (1). The customer is entitled to collect the assigned claims on our behalf. We may revoke the rights of the customer under this paragraph if the customer fails to fulfill its contractual obligations to us, in particular if in default of payment. These rights expire even without express revocation, if the customer ceases to make payments for more than on a temporary basis, files for bankruptcy, or is otherwise insolvent.
(5) At our request, the customer must immediately provide us with a written list of the parties to whom it has sold the goods we own or co-own and the amounts receivable from such sale, as well as issue us publicly certified documents on the assignment of the claims. In the case the direct debit authorization per para. (4) is revoked, the customer is obliged at our request to disclose the assignment of its claims to its third-party buyers and provide us with the information and documents necessary to assert our rights and claims against the same.
(6) The customer is not entitled to make any other dispositions concerning the goods we own or co-own or the accounts receivable assigned to us. The customer must notify us without delay of any attachments or other legal impairments of the goods or claims we own either in whole or in part. The customer shall bear all costs to prevent third-party interference with the goods we own or co-own and to repossess the goods if the accounts receivable cannot be collected from the respective third parties.
(7) In the event of default in payment, any other culpable violation of essential contractual obligations of the customer, filing for bankruptcy, or a court’s refusal to open such proceedings due to a lack of assets, we are entitled to demand the surrender of the objects we own or co-own. If we exercise this right, this does not constitute a withdrawal from the contract unless expressly declare otherwise. In connection with the request for surrender, we are entitled to enter the customer’s place of operation to take possession of our goods, to demand the information necessary to assert our claims, and to inspect the customer’s books.
(8) We shall be obligated to release the securities to which we are entitled upon request of the purchaser to the extent that the realizable value of our securities exceeds the claims to be secured by more than 15%. The selection of securities to be released shall be at our discretion.

7. Complaints, defects

(1) A customer’s warranty rights assume that they have properly fulfilled their obligations under §377 of the German Commercial Code (HGB) concerning the obligation to inspect and provide notice of defects.
(2) Immediately recognizable material defects must be reported in writing no later than 72 hours after receipt of the goods; other material defects immediately upon discovery. Decisive in each case is when we receive the complaint. The customer agrees to immediately notify us of any material defect by telephone or fax, so that we can inspect and secure the evidence.
(3) If the customer has incorrectly notified us of a defect, we are entitled to demand compensation for expenses incurred.
(4) Failure to provide timely notice of material defects shall exclude all claims for the same.

8. Material defects

(1) The statute of limitations for claims relating to material defects is 12 months. This begins once the risk is transferred.
(2) If a material defect is identified within this period that was already present when the risk was transferred, we are free to decide whether to remedy the defect as a supplementary performance or deliver a defect-free item. Any claims made by the purchaser for costs in connection with the supplementary performance, such as the cost of transport, travel, labor hours, and materials are excluded when the costs are increased because the delivered goods have been moved another location other than the original delivery destination unless it was originally intended for that purpose. These include in particular the costs for installation and dismantling the defective part. In addition, the costs are determined with regard to the expenses required for the purpose of supplementary performance in accordance with the law. We can demand that the customer surrender and transfer of any parts replaced.
(3) If the subsequent performance fails, the customer is entitled to require a reduction of the purchase price or to withdraw from the contract. If the defect is not significant, the customer is only entitled to request a reduction in the agreed price.
(4) The limitation period restarts upon delivery of supplementary performance. The supplementary performance does not constitute any acknowledgment of the customer’s claims.
(5) Claims for defects do not exist in the case of only insignificant deviations from the agreed quality and/or only insignificant impairment of usability.
(6) Material defects are not
– natural wear and tear from the use of the item;
– condition of the goods or damage that occurs after the transfer of risk as a result of improper handling, repair by the customer or third parties, storage or installation, failure to comply with installation and treatment regulations, excessive use or use or lack of maintenance or care;
– if the relevant quality of the goods or the damage is due to force majeure, to particular external impacts not intended according to the contract, or to the goods being used in a manner which does not correspond to their contractually intended or customary use. Claims for material defects do not exist if the goods are changed by third parties or by adding or installing parts of foreign origin or if accessories or spare parts of foreign origin are used, unless the defect is not causally related to the change or combination. We are not liable for the quality of the goods based on the design or choice of material if the customer stipulated the same.
(7) Customer claims for indemnification against us shall be admissible only inasmuch as no agreement extending the legal scope of indemnification has been made between the customer and its downstream buyer.
(8) Claims due to material defects, including recourse claims of the customer are excluded insofar as the customer has had the defect remedied by a specialist workshop/service center not authorized by us or has carried out this work themselves. Only in urgent cases of danger to the operational safety or to prevent excessive damage may the customer remedy the defect itself or have it remedied by third parties and bill us for any resulting charges. In such cases, the customer is to inform us immediately of the situation.
(9) In the case of notice of defects, payments can be withheld by the customer in due proportion to the defects of quality observed. The customer may only withhold payments, if there can be no doubt that the notice of defects given is justified.
(10) Our obligation to pay compensation for material defects is otherwise governed by § 10. Further claims or other than those stipulated in this § 8 due to material defects are excluded.

9. Intellectual property rights

(1) For claims arising from the infringement of industrial property rights or copyrights of third parties (hereinafter: property rights), we are not liable if the property right belongs to the customer or a directly or indirectly related company and we were allowed to use the property right with the owner’s knowledge.
(2) We are not liable for claims arising from the infringement of industrial property rights unless at least one industrial property right is published by the European Patent Office or in the Federal Republic of Germany.
(3) The customer must notify us immediately of any known (alleged) infringement of property rights or related risks and, if possible, allow to conduct a legal defense (also out of court) at our request.
(4) At our discretion, we are entitled to obtain a right of use for the product infringing a property right or to modify it in such a way that it no longer violates the property right or substitutes it for a similar product that no longer infringes the property right. If this is not possible for us on reasonable terms or within a reasonable period of time, the purchaser shall be entitled to the statutory rights of withdrawal if they allow us to carry out a modification. Under the same premises we are entitled to withdraw from the contract. We reserve the right to take the measures available to us even if the infringement of property rights has not yet been legally established or recognized by us.
(5) Any customer claims shall be excluded, if the violation of industrial property rights or copyrights falls under the customer’s responsibility or if they have failed to provide adequate support in mounting a defense against such claims or have rejected modification measures.
(6) Claims of the purchaser are further excluded if the products are manufactured according to the specification or the instructions of the purchaser or if the (alleged) infringement of the intellectual property right in connection with another object not originating from us follows the products in such a way which we could not foresee or which is not in accordance with the contract or the products are changed by the purchaser without authorization and this leads to the infringement of property rights.
(7) Our duty to pay damages in the event of infringement of property rights is otherwise governed by § 10.
(8) For the limitation period of claims due to infringement of property rights, § 8 para. (1) applies accordingly.
(9) Further claims or other than those regulated in this § 9 due to the infringement of third-party property rights are excluded.

10. Liability, damages

Unless otherwise stipulated herein, we shall be liable for damages for breach of contractual or non-contractual obligations only in case of intent or gross negligence of our legal representatives or vicarious agents, in case of injury to life, body or health, because we have made a guarantee or assumed a procurement risk, are in culpable violation of essential contractual obligations, due to mandatory liability under the Product Liability Act, in case of fraudulent concealment of defects, or other mandatory liability. However, the compensation for the breach of material contractual obligations is limited to the contractually typical, foreseeable damage, unless caused with the intent or gross negligence of our legal representatives or vicarious agents, or for injuries to life, limb, or health, or we have made a guarantee or assumed a procurement risk .

11. Confidentiality

(1) Drawings, forms, samples, models and other delivered documents/objects made by us as well as all business or technical information originating from us remain solely our property and all copyrights and other intellectual property rights are our sole responsibility, even if the customer has shared in the costs calculated for their development/preparation. All items and information are, as long as and as far as not demonstrably publicly known or without breaching this secrecy obligation to keep confidential to third parties and may be provided in the customer’s own business only to those persons who must necessarily be consulted for their use and are also committed to the appropriate secrecy. Without our prior written consent, the items and information may not be reproduced or used commercially. At our request, all items and information originating from us (including any copies or records made) and other temporary objects are to be promptly and completely returned to us or, at our discretion, destroyed.

12. General provisions

(1) If one of the provisions of these Terms and Conditions and of additional agreements reached should be or become ineffective, this shall not affect the validity of the Terms and Conditions in other respects. The parties are obliged to replace the ineffective provisions by provisions as equivalent as possible in terms of their economic outcome. The exclusive place of jurisdiction is Deggendorf if the customer is a merchant or has no general domestic jurisdiction or relocates its domicile or habitual abode from this country after the contract is signed or its domicile or habitual residence is not known at the time of action. We are, however, also entitled to bring a claim before a court that has jurisdiction for the headquarters or a subsidiary of the customer.
(2) All legal relationships between us and the customer are subject to German law, excluding the rules on the conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods (CISG).