POLIPOL. General Terms and Conditions of Business

Conditions of Sale, Delivery and Payment

1. Scope

The following General Conditions of Sale, Delivery and Payment (hereinafter referred to in brief as “Conditions of Sale”) shall apply for all contracts regarding the delivery of goods concluded between the Purchaser and ourselves. They shall also apply for all future business relationships, even when they have not been expressly agreed once again. Deviating conditions of the Purchaser which we do not expressly recognise, shall not be binding for us, even when we have not expressly rejected them. The following Conditions of Sale shall also be effective when we unreservedly execute the Purchaser’s order despite being aware of contradictory or deviating conditions.

2. Conclusion of the Contract

Our offers are subject to change without notice and are non-binding unless they are expressly identified as binding. Drawings, illustrations and dimensions are non-binding unless an agreement to the contrary has been reached. All contracts and orders, either placed directly or conveyed through representatives, require our express acceptance. We can declare this acceptance within two weeks by sending an order confirmation which may be in written, fax or electronic form. The acceptance may also take the form of delivery of the goods ordered within the same period of notice. With the awarding of a contract, the Purchaser simultaneously guarantees his ability to pay in consideration of the volume of the contract, at least to the point in time at which the Purchaser would expect the delivery of the goods ordered under regular circumstances. Should the financial standing and/or liquidity of the Purchaser be otherwise or should a deterioration occur, we may make the fulfilment of the contract dependent on advance payment or the provision of securities. This shall apply in particular in the event of negative credit information becoming known. In cases of this kind, we can withdraw from the contract without prejudice to further claims for compensation and costs, if, having considered all the circumstance in the individual case, and in accordance with our risk assessment, we cannot be expected to adhere to the contract. The contract parties agree that purely online selling of the supplier’s products is undesired. The companies within an association shall advocate that members refrain from selling purely online. The members’ option to also sell the supplier’s models purchased through the open house online shall remain unaffected.

3. Lead times

Delivery periods or deadlines shall be regarded as subject to change and non-binding; they shall apply approximately, unless they have been expressly agreed as binding. We shall not be liable to the Purchaser for delays in delivery resulting from unforeseen circumstances such as strikes, fire, and disruption of operations in our own plant or in the plant of one of our suppliers. If the purchase order in question relates to business to be settled on a fixed date within the meaning of Section 286, Sub-section 2, No. 4 BGB or Section 376 HGB, we shall be liable in accordance with the statutory stipulations. The same shall apply if, as a result of a delay in delivery for which we are responsible, the Purchaser is entitled to assert the discontinuance of his interest in the further fulfilment of the contract. In this case, our liability shall be restricted to foreseeable typical damage, provided the delayed delivery is not the result of an intentional infringement of the contract for which we are responsible. In the event that a delayed delivery for which we are responsible is the result of the culpable infringement of a cardinal contractual obligation, we shall be liable in accordance with the statutory stipulations subject to the proviso that, in this case, the liability for damages shall be limited to the foreseeable typical damage. Otherwise, in the event of a delayed delivery for which we are responsible, the Purchaser may assert a claim for fixed rate compensation amounting to 3% of the value of the goods to be delivered for every full week of the delay. Further liability for a delayed delivery for which we are responsible is excluded. Further statutory entitlements and rights of the Purchaser owing to him in addition to the compensation claims for a delayed delivery for which we are responsible, shall remain unaffected. We shall be entitled to make partial shipments and provide partial performance at any time, provided this is reasonable for the customer. Should the Purchaser default on acceptance, we shall be entitled to demand compensation for any losses incurred and any additional expenses. The same shall apply if the Purchaser culpably infringes his obligation to cooperate. With the occurrence of the default on acceptance or lack of timely performance by the obligee, the risk of accidental perishing or loss shall transfer to the Purchaser. Loading and shipment shall ensue, uninsured, at the risk of the Purchaser. Shipment shall be ex seller’s loading ramp. Should goods reach the Purchaser in a damaged condition, the Purchaser shall be obliged to determine the damage immediately and assert these and any other compensation claims without delay. With regard to mode of shipment and shipping route, we shall endeavour to follow the wishes and interests of the Purchaser; resulting additional costs – even in the event of delivery being agreed carriage paid - shall be borne by the Purchaser. We do not take back transport and other packaging materials pursuant to the regulation on packaging; excepted from this shall be pallets. The Purchaser shall be responsible for disposing of the packaging at his own expense. If the shipment is delayed at the request of the Purchaser or through the fault of same, we shall store the goods at the expense and risk of the Purchaser. In this case, notification of readiness for shipment shall be the equivalent of shipment.

4. Prices, Payments, Delay

Our prices are valid ex works without packaging, unless otherwise specified in the order confirmation. Our prices do not include the statutory VAT. This will be shown separately on the invoice at the rate valid on the day of issue of the invoice. Unless expressly agreed otherwise, our prices valid on the day of delivery apply. The purchase price shall be due for payment immediately, without deductions of any kind, with delivery of the invoice to the Purchaser unless an alternative payment deadline is specified in the order confirmation. A cash discount deduction is permissible only in the case of a special written agreement between us and the Purchaser. Payment shall be considered to have been made only when we can dispose of the sum. In the case of payment by cheque, the payment shall only be considered to have been rendered when the cheque has been cashed. We shall be entitled to assign claims arising from the business relationship with the Purchaser for the purpose of collection of outstanding debts by way of factoring. When a contract of this kind is disclosed by a corresponding note on the invoice, the Purchaser can only make payments with discharging effect to the bank account of the specified factor disclosed to him. Should the Purchaser fail to honour his payment obligation on the date on which it is due, we shall be entitled, at our own discretion, to terminate the contract or to discontinue further deliveries or performance or to charge statutory interest on arrears until full and final payment has ensued, without conceding any further rights and claims to which we may be entitled. In all other respects the Purchaser shall be in arrears as soon as a reminder has been sent. No reminder shall be required when a calendar date has been set for the performance or the performance is to ensue following the occurrence of an event with a certain deadline. In any event, the Purchaser shall be in default of payment, even without a reminder, 30 days after receipt of the invoice or, if the date of receipt of the invoice cannot be determined, 30 days after receipt of the delivery. When default occurs, we shall be entitled to demand interest at the rate of 8 % points above the base interest rate. The right to assert further damages due to delay in performance shall remain unaffected. It shall be incumbent on the Purchaser, where applicable, to prove that the delay in payment resulted in no loss or a lower level of loss. Even when notification of defects or counterclaims are asserted, the Purchaser shall only be entitled to set-off when the counterclaims have been recognised by us or are undisputed. The Purchaser shall only be entitled to exercise a right of retention when his counterclaim is based on the same contractual relationship.

5. Warranty, Liability

Warranty claims of the Purchaser apply only when the Purchaser has duly observed his duty of inspection and notification pursuant to Section 377 HGB. Written notification of defects is to be sent to us immediately by registered letter, stating exact details of the defect. Our representatives are not authorised to accept notification of defects. A plea of notification of defects shall not affect our right to assert a claim of delayed notification or incorrect form of notification. Minor deviations in the execution, measurements, colours, dimensions and weights do not constitute grounds for complaint. Should complaints be recognised by us, we shall have the choice of either rectifying the fault within a reasonable period of grace or supplying a replacement item or granting a price reduction appropriate to the fault. At our request, the goods which are the subject of the complaint are to be returned to us, carriage paid and in appropriate packaging for which we shall not be charged. Return consignments, deductions, set off or a right of retention of payments shall not be permissible without prior agreement with us. Further claims, in particular claims for compensation or loss of earnings are excluded. Deviations in the dimensions and execution, in particular in the case of customised products or follow-up orders, shall not constitute grounds for complaint, unless the strict adherence to dimensions and shade has been expressly agreed. The retention of due performance on the grounds of any counterclaims of the Purchaser and the set-off against any counterclaims is excluded. Should a fault apply for which we are responsible, we shall be initially obliged to make subsequent performance, excluding the rights of the Purchaser to withdraw from the contract or to reduce the purchase price, unless we are entitled on the basis of statutory provisions to refuse the subsequent performance. The Purchaser must grant us a reasonable period of grace for the subsequent performance. Only when the subsequent performance has failed can the Purchaser, at his discretion, demand reduction of the purchase price or declare his withdrawal from the contract. The rectification shall be considered to have failed with the second unsuccessful attempt unless the subject matter of the rectification attempt makes further rectification attempts appropriate and these are reasonable for the Purchaser. Compensation claims for the fault at the following conditions can only be asserted by the Purchaser when subsequent performance has failed. The warranty claims of the Purchaser shall lapse one year from the date of delivery of the goods to the Purchaser, unless we have fraudulently concealed the fault. In accordance with the statutory stipulations, we are also obliged to take back the new goods or reduce the purchase price without the otherwise-necessary setting of a time limit when the Purchaser’s customer, as consumer of the new moveable item sold (sale of consumer goods) could demand the return of the goods or the reduction of the price to the Purchaser on the basis of the fault or the Purchaser has a similar resulting right of recourse. Furthermore, we shall be obliged to reimburse the expenses of the Purchaser, in particular transport costs, tolls, labour and material costs, which same must bear in the relationship to the consumer in the context of subsequent performance on the grounds of fault in the goods applying at the time of transfer of perils from us to the Purchaser. The claim is excluded when the Purchaser has duly observed his duty of inspection and notification pursuant to Section 377 HGB. The obligation to accept returns shall be excluded when the matter in question is a fault based on advertising claims or other contractual arrangements which do not originate with us or when the Purchaser has issued a special guarantee to the consumer. The obligation is also excluded when, on the basis of the statutory provisions, the Purchaser himself was not obliged to exercise the warranty rights vis-a-vis the consumer or same has not objected to a claim made against him. The same shall also apply when the Purchaser has assumed warranties vis-a-vis the consumer which exceed the statutory scope. We shall be liable in accordance with the statutory stipulations for damage to life and limb resulting from a negligent or intentional violation of obligations on our part and for losses which are covered by liability pursuant to the Product Liability Act. The liability for damages is limited to the foreseeable typical losses unless we have acted with intent. To the extent that we have issued a guarantee regarding appearance and workmanship or durability for the goods or parts thereof, we shall also be liable within the framework of this guarantee. For losses resulting from the non-existence of the guaranteed appearance or workmanship or durability, but which do not arise directly in the goods, we shall only be liable when the risk of damage of this kind is obviously covered by the guarantee of appearance or workmanship and durability. Further liability is excluded regardless of the legal nature of the asserted claim; this shall apply in particular for torts or claims to compensation for wasted expenditure instead of performance. To the extent that our liability is excluded or restricted, this shall also apply for the personal liability of our employees, representatives and vicarious agents. Compensations claims of the Purchaser on the basis of a defect shall lapse one year from delivery of the goods. This shall not apply in the case of injury to life or limb caused by us or when we have acted with intent.

6. Reservation of Title

Until such time as all outstanding payments have been settled in full, including all balance demands from current accounts, payable to us from the Purchaser, now or in the future, the goods delivered (reserved goods) shall remain our property. In the event of conduct in contravention of the contract on the part of the Purchaser, e.g. delay in payment; we shall have the right, following the specification of an appropriate period of grace, to take back the reserved goods. If we take back the reserved goods, this shall constitute a withdrawal from the contract. If we attach the reserved goods, this shall constitute withdrawal from the contract. We shall be entitled to utilize the reserved goods following their return. Following deduction of a reasonable sum to cover the utilisation costs, the proceeds of sale will be set off against the sums owed to us by the Purchaser. The Purchaser must treat the reserved goods with care and insure same adequately at replacement value, at his own expense, against fire, water damage and theft. The Purchaser shall be entitled to sell the reserved goods accordingly in the normal course of business and/or to use them as long as he is not in default of payment or the circumstances specified in Item 2. Sub-section 2 apply. Attachment or transfer by way of security are prohibited. The Purchaser herewith assigns to us in full accounts receivable with regard to the reserved goods (including all balance demands from current accounts) arising from the selling on or any other legal grounds (insurance, unlawful act); we hereby accept the contract. We grant the Purchaser revocable authorisation to collect the assigned accounts receivable for his account in his own name. The direct debit authorisation can be revoked at any time if the Purchaser fails to duly honour his payment commitments. At our request, the Purchaser shall be obliged to inform his customers of the contract and to provide us with the information and documentation necessary for asserting our rights vis-a-vis the customer. Without our express prior approval, the Purchaser shall not be authorised to assign claims for the purpose of debt collection by way of factoring unless, at the same time the factor is obligated to effect the quid pro quo to the amount of the accounts receivable directly to us for as long as we have accounts receivable vis-a-vis the Purchaser. In every case, any processing or alteration of the reserved goods by the Purchaser will be undertaken on our behalf. To the extent that the reserved goods are processed with other items not belonging to us, we shall acquire co-ownership of the new items at the ratio of the value of the reserved goods (final invoice amount including VAT) to the other items processed at the time of processing. The same rule shall apply for new items arising from the processing as for the reserved goods. In the event of inseparable amalgamation of the reserved goods with other items not belonging to us, we shall acquire co ownership of the new item at the ratio of the value of the reserved goods (final invoice sum including VAT) to the other amalgamated items at the time of mixing. If, as a result of the mixing, the Purchaser’s item is to be regarded as the main item, we and the Purchaser agree that the Purchaser shall assign to us co ownership of the item; we hereby accept the assignment. Our sole ownership or co ownership of an item thus arising, shall be held by the Purchaser for us. In the event of third parties seizing the reserved goods, in particular by attachment, the Purchaser shall point out our ownership and notify us immediately so that we can assert our proprietary rights. To the extent that the third party is unable to reimburse us for the court costs or out of court costs incurred in this context, the Purchaser shall be liable for same. We shall be obliged to release the collateral to which we are entitled to the extent that the realisable value of our collateral exceeds the accounts receivable to be secured by more than 25 %, the decision on the choice of collateral to be released shall fall to us. If the Purchaser or his creditor files a request for the opening of insolvency proceedings or if insolvency proceedings are opened regarding his assets, we shall have the same rights vis-a-vis both the temporary administrator and the administrator appointed at the opening as we had vis-a-vis the Purchaser.

7. Catalogues, Illustrations

We retain our proprietary rights, author's rights and other copyright to all catalogues, illustrations, calculations, drawings and other illustrations as well as to other documents made available to the Purchaser. The Purchaser may pass these on, or make them accessible to third parties only with our written consent, regardless of whether or not we have identified same as confidential.

8. Place of Performance, Court of Jurisdiction

Place of performance for deliveries and payment (including enforcement proceedings for cheques or bills of exchange) as well as for all conflicts between us and the Purchaser arising out of the sales agreement concluded with him shall be our principal office. Where the Purchaser is a business owner, legal entity under public law or special fund under public law, our official place of business shall be the authoritative exclusive court of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. We are, however, also entitled to take an action against the Purchaser at his domicile and/or official place of business. Should a provision in these Conditions of Sale, or a provision in the context of any other agreement be or become invalid, the validity of the remaining provisions or agreements shall not be affected.

[Status November 2012]