General Terms and Conditions of Karl Wenk GmbH

1.  Scope

1.1 All deliveries, services and offers of Karl Wenk GmbH are carried out solely on the basis of these General Terms and Conditions. These Terms and Conditions are considered a component of all agreements we conclude with our contractual partners (hereinafter referred to as “Clients”) regarding our deliveries or services. They also apply to all future services, deliveries, or offers to Clients, even if they are not agreed separately in these instances.

1.2 Terms and Conditions of the Client or third parties shall not apply to said services, deliveries, and offers, even if we do not reject their validity in each individual instance. Even if we refer to a letter or document containing Terms and Conditions of the Client or a third party, this shall not be considered agreement that these Terms and Conditions apply.

2.  Offer and Conclusion of Contract

2.1 All of our offers are non-binding, unless they are expressly designated as binding or include a specific acceptance deadline. A contract shall only come into being upon our written order confirmation or delivery by us.

2.2 Our information on the object of the delivery or service (such as on weights, dimensions, consumption values, load-bearing capacities, tolerances, descriptions and technical data) and our illustrations of the same (such as drawings and images) are only approximate, unless they must conform precisely to actual conditions for the contractual purpose. Said information does not indicate guaranteed characteristics, but rather descriptions or designations of the delivery or service. Typical deviations and deviations due to legal requirements or technical improvements are permitted, and components may be replaced with equivalent components if such measures do not affect their usability for the contractual purpose.

3.  Prices and payment

3.1 Prices apply to the scope of performance and delivery indicated in the order confirmation. Additional or special services shall be calculated separately. Prices are provided in euros and ex works, and do not include packaging, shipment, any insurance, statutory VAT, duties in case of export deliveries, as well as fees and other public contributions.

3.2 If the agreed prices are based on our list prices and the delivery is made over four months after the contract is concluded, the list prices valid upon delivery apply (minus the agreed rebate percentage or fixed rebate).

3.3 Invoiced amounts must be paid within thirty days (without deductions), unless otherwise agreed in writing; the due date is printed on the invoice. The payment date is determined by our receipt of the payment.

3.4 Offsetting with counter-claims by Client or the retention of payments due to such claims shall only be permitted, insofar as said counter-claims are uncontested or have been established by a court of law or arise from the same order under which the delivery in question was made.

3.5 We are entitled to carry out or perform any outstanding deliveries or services only in return for advance payment or a security if we become aware of circumstances after the contract is concluded that could significantly reduce the Client's creditworthiness, and which would endanger payment of our open receivables by the Client under the contractual relationship in question (as stated in its individual orders placed under the same framework contract).

If it becomes clear after the agreement is concluded (for instance because a motion is made to open insolvency proceedings) that our claim to compensation is endangered because the Client is unable to make payment, we are entitled by law to deny service and to withdraw from the agreement – after a notice period if required (Sec. 321 BGB - German Civil Code). In the case of contracts for manufacturing custom items, we can declare our withdrawal immediately; statutory regulations requiring a notice period shall remain unaffected.

4.  Delivery and delivery term

4.1 Deliveries are made ex works.

4.2 Any planned deadlines and terms for deliveries and services we provide are always approximate, unless a fixed term or deadline has been expressly agreed or promised. Delivery terms only begin once the contract has come into effect, the contractual partners have agreed on the type of execution, and if the Client has provided all of the documents and materials it is required to provide (drum bodies, models ready for engraving, etc.). Delivery deadlines shall be delayed accordingly. If there are changes or additions to the scope of services, the indicated delivery deadlines and terms shall be null and void; they shall be extended appropriately unless otherwise agreed.

4.3 A delivery deadline is considered fulfilled if the delivery object is provided for transportation or the Client has been informed that the object is ready for delivery.

4.4 We shall not be liable if a delivery cannot be made or for delayed deliveries, if these are caused by force majeure or by other events that were unforeseeable at the time the contract was concluded (e.g. operational interruptions of all kinds, difficulties in purchasing materials or energy, transportation delays, strikes, lawful lockouts, lack of staff, energy or raw materials, difficulties in obtaining required official permits, official measures or a missing, delayed, or incorrect delivery from suppliers), insofar as we are not responsible for said issues. If such events make it significantly more difficult or impossible for us to provide our deliveries or services, and if such issues are more than only temporary impediments, we shall be entitled to withdraw from the agreement. In case of temporary impediments, the delivery or service deadlines shall be extended or shall be delayed by the length of the impediment plus a reasonable start-up period. Insofar as it would be unreasonable to expect Client to accept the delivery or service due to the delay, the Client may withdraw from the agreement by providing a prompt written declaration to us.

4.5 We are entitled to make partial deliveries only if

• the Client can use the partial delivery within the framework of the intended contractual purpose,

• delivery of the other ordered goods is ensured and

• this will not result in any significant additional expenses or costs for the Client (unless we declare our willingness to accept these costs).

4.6 If we fall into default with a delivery or service, or if it is impossible for us to provide a delivery or service for any reason, our liability for damages shall be restricted in accordance with no. 8 of these General Terms and Conditions.

5.  Place of fulfillment, transfer of risk, acceptance

5.1 The place of fulfillment for all obligations resulting from the contractual relationship is Lörrach, unless otherwise agreed.

5.2 Risk shall be transferred to Client at the latest upon handover of the delivery object (the beginning of the loading process determines this time) to the shipping company, freight forwarder, or other third party commissioned with shipment. This shall also apply if partial deliveries are made, or if we are providing further services as well (such as shipment or installation). If the shipment or handover is delayed due to circumstances for which the Client is responsible, risk shall be transferred to the Client on the date on which the delivery object is ready for shipment and we have provided the Client with notification of said readiness.

5.3 If acceptance has been carried out, the delivery object is considered accepted when

• the delivery is complete,

• we have notified the Client of this, referring to implied acceptance under 5.3, and have requested the Client accept the delivery,

• twelve business days have passed since the delivery or the Client has begun using the purchased item (such as operating the delivered goods), and in this case six business days have passed since the delivery, and

• the Client has not completed acceptance within this period for any reason besides a defect that makes it impossible to use the purchased item or significantly impacts this use. Such defects must be reported to us.

6.  Warranty, material defects

6.1 The warranty term shall be one year from delivery or from acceptance, if acceptance is required. This term shall not apply to claims for damages by the Client due to an injury to life, body or health, or due to intentional or grossly negligent breaches of duty, which shall expire in accordance with statutory regulations.

6.2 The delivered goods must be carefully inspected promptly after their delivery to the Client or third parties appointed by the Client. The Client shall be considered to have accepted the delivery, including any obvious defects or other defects that should have been discovered during a prompt, careful inspection, if we do not receive a written defect notification within seven business days after delivery. The Client shall be considered to have accepted the delivered object if we do not receive the defect notification within seven business days from the date the defect becomes apparent; if the defect was obvious earlier during normal use, however, this earlier time shall determine the start of the complaint deadline. Upon request, any delivery object about which complaints have been submitted must be returned to us with freight paid. If the complaints are legitimate, we will reimburse the cost of the least expensive shipping option; this shall not apply if costs increase because the delivery object is located somewhere besides the location of intended use.

6.3 The Client must complete a test run to ensure the embossing or printing fulfills its requirements. If there are any doubts, the Client must have its customers carry out test pressing or test prints so that any defects can be found as quickly as possible, and any resulting damages can be kept as low as possible.

6.4 If there are material defects in the delivered objects, we are obligated and entitled, at our discretion (to be decided within a reasonable term), to initially repair the defects or deliver replacement objects. If these attempts fail, for instance if the repair or replacement delivery is impossible, unreasonable, if we decline to complete the repair or delivery, or if it is delayed to an unreasonable extent, the Client can withdraw from the contract or reduce the purchase price appropriately.

6.5 If a defect is our fault, the Client may demand compensation for damages under the specific requirements indicated in no. 8.

6.6 If there are defects in components from other manufacturers which we cannot repair due to material reasons or for licensing reasons, we will assert our warranty claims against the manufacturer or supplier on behalf of the Client or assign such claims to the Client, at our discretion. In case of such defects, warranty claims shall only exist against us under the requirements and in accordance with these General Terms and Conditions if legal assertion of the above claims against the manufacturer and supplier have been unsuccessful, or would be ineffective due to bankruptcy. During the legal dispute, the statute of limitations for the Client's relevant warranty claims shall be suspended.

6.7 The warranty shall not apply if the Client modifies the delivered objects without our approval or allows third parties to do so, and if such modifications cause correcting the defect to be impossible or unreasonable. In every case, the Client shall bear the additional costs to correct the defect incurred due to the modification.

6.8 Any delivery of used goods agreed with the Client in an individual case shall exclude any guarantee for material defects.

7.  Protected rights

7.1 We reserve ownership and copyrights to all of our provided offers and cost estimates, as well as to all drawings, figures, calculations, brochures, catalogs, models, tools and other documents and auxiliary materials provided to the Client, as well as our provided know-how. The Client may not disclose these objects as such or their content or make them accessible to third parties, or use them or allow third parties to do so without our express consent. Upon request, the Client must return all of these objects to us and destroy any copies, if it no longer requires these in the normal course of its business or if negotiations do not result in the conclusion of a contract. This does not include electronic storage of provided data in the course of normal data backups.

7.2 We undertake to treat documents, such as drawings for cylinder construction, received from the Client as confidential. We will only make these documents accessible to external third parties with the express consent of the Client.

7.3 The Client shall ensure that contractual products manufactured according to drawings, models or Client information do not violate any protected third party rights. If such protected rights are violated, the Client shall release us from any third party claims for damages.

7.4 If the Client violates the contract, its protected rights to the manufactured product shall not interfere with our ability to sell the goods.

7.5 We are also entitled to sell our drafted engraved designs to third parties at any time, unless the contractual parties have concluded an agreement on design protection.

8.  Liability for damages due to culpability

8.1 Our liability for damages, on any legal basis whatsoever, and in particular due to impossibility, delay, defective or incorrect deliveries, contractual violations, the violation of obligations during contractual negotiations, and prohibited actions is restricted pursuant to this no. 8 if we are culpable for said damages.

8.2 We will not be liable for simple negligence unless it involves a violation of cardinal contractual obligations. Obligations considered cardinal to the contract are on-time delivery, deliveries that are free from defects and material defects that restrict the function or usability of the object significantly, as well as advising, protective and custody duties intended to allow the Client to use the delivery object as per the contract or to protect the life and health of Client personnel or protect its property against significant damages.

8.3 Insofar as we are in principle liable for claims for damages under no. 8.2, this liability shall be restricted to damages we have foreseen as the possible consequence of a contractual violation upon conclusion of the agreement, or which we should have foreseen if applying due care and diligence. Indirect damages and subsequent damages caused by defects in the delivered goods are also only eligible for compensation if such damages would typically be expected if the delivered goods were used as intended.

8.4 The above exclusions and restrictions of liability shall apply to the same extent to our bodies, legal representatives, employees, and other agents.

8.5 If we provide technical information or consulting work, and if this information or consulting is not part of our contractually agreed scope of services, such work shall be provided free of charge and excluding any liability.

8.8 The restrictions of this no. 8 shall not apply to our liability due to injuries to life, body or health, due to intentional actions, for guaranteed characteristics or under the Product Liability Act.

9.  Retention of Ownership

9.1 The following agreed retention of ownership shall secure all of our existing current and future claims against the Client resulting from the delivery relationship between the contractual partners (including outstanding balances from a current account relationship restricted to this delivery relationship).

9.2 Goods we deliver to the Client shall remain our property until all secured claims have been paid. Goods, as well as goods which take their place included under the retention of ownership under the following provisions, are referred to as “reserved goods” in the following.

9.3 The Client shall store the reserved goods for us free of charge.

9.4 The Client hereby undertakes to handle the reserved goods carefully during the term of the retention of ownership, keep them in proper condition, and inform us promptly of any necessary repairs. The Client is not entitled to provide or sell the reserved goods to third parties or encumber them without our written approval. The Client must inform us promptly before changing the location of reserved goods.

9.5 If the Client has any claims against third parties due to actions by the Client that violate the contract, for instance disposing of our property, then these claims are hereby already transferred to us.

9.6 If third parties impound the reserved goods, in particular through seizure, the Client shall inform us of this promptly in order to allow us to enforce our property rights, and shall promptly inform third parties which goods are our property. If the third party is not able to reimburse us for associated court or extra-judicial costs, the Client shall be liable for doing so.

9.7 If the Client processes the reserved goods, the Parties hereby agree that such processing is carried out in our name and on our behalf as the manufacturer, and that we will obtain direct ownership or – if materials from multiple owners are processed at the same time, or the value of the processed goods is higher than that of the reserved goods – co-ownership (fractional ownership) to the new goods in relation to the ratio of the reserved goods to the value of the newly created goods. For good measure, i we do not obtain such ownership, the Client hereby already transfers its future ownership or – in such a relationship as indicated above – co-ownership to the newly created goods to us. If the reserved goods are combined with other goods or irretrievably mixed to create a uniform good, and if one of the other goods is considered the primary good, then if the primary good belongs to us, we hereby transfer a percentage of co-ownership in the uniform good to the Client according to the ratio indicated in paragraph 1.

9.8 If the recoverable value of the securities to which we are entitled under the above provisions exceeds our claims by more than 10%, we are obligated to release the excess amount.

9.9 If the Client violates the contract and we withdraw from it – in particular due to a default of payment – (enforcement), we are entitled to request the return of the reserved goods.

10.  Final provisions

10.1 If the Client is a merchant, a legal entity under public law, a special fund under public law, or if it does not have a general place of jurisdiction within the Federal Republic of Germany, then the place of jurisdiction for any disputes arising in conjunction with the business relationship between us and the Client shall be our headquarters or the headquarters of the Client, at our discretion. However, our headquarters shall be the sole place of jurisdiction for suits against us in these cases. Mandatory statutory provisions regarding the exclusive place of jurisdiction shall remain unaffected by this regulation.

10.2 Our relationships with the Client are governed exclusively by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11th, 1980 (CISG) does not apply.

10.3 Insofar as the agreement or these General Terms and Conditions contain contractual gaps, legally valid regulations shall be selected to fill said gaps which the contractual partners would have agreed in accordance with the economic objectives of the agreement and the purpose of these General Terms and Conditions, if they had been aware of the contractual gap.