General Terms and Conditions

Scope of application

(1) The following general terms and conditions exclusively apply to our deliveries and services (including advisory services). Provisions to the contrary always require our written consent; they are not deemed approved upon acceptance or execution of a customer's order.

(2) Our general terms and conditions apply only to companies, legal entities under public law or public law entities with special funds pursuant to section 310 para. 1 BGB (German Civil Code).

(3) Deliveries and services, as set forth in these terms and conditions, include auxiliary services such as installations relating to the sale under a contract for goods and services, and other supplementary or advisory services.

(4) When we transport goods for waste disposal purposes, the provisions of the Allgemeine Deutsche Spediteurbedingungen (ADSp: General German Forwarders’ Conditions) in their current version apply in place of and prevail over these general terms and conditions if they provide differently.

(5) In the event of contradictions, the provisions of the main contract (usually in the form of an order confirmation) shall prevail over these terms and conditions.

Offer

(1) Our offers are subject to change and non-binding unless they are specifically marked as binding or include a period of time for acceptance. Dimensions, weights, performances, capacities and other product characteristics specified in our offers or in accompanying documents are not guaranteed and provide no warranty of quality. Such specifications do not become an integral part of the contractual item or contract unless they are outlined in the order confirmation or otherwise confirmed by written agreements. This likewise applies to drafts, sketches, drawings, illustrations, dimensions, weights and other specifications or performance data that are submitted to the contractual partner or its agent or personnel before concluding the contract.

(2) We accept waste at our recycling and processing plants only if capacities are available, irrespective of whether offers are binding or non-binding.

Conclusion of contract

(1) The contract is concluded when the contractual partner receives our written order confirmation, or in any event when delivery is executed.

(2) Amendments, supplements or collateral agreements relating to contractual agreements require our expres written consent to become effective. Formal and informal agreements reached before concluding the contract do not become an integral part of the contract unless they are specifically referred to in writing in the contract.

Obligation of contractual partner

(1) The contractual partner is obliged to make available to us in due time, without explicit request, any information, documents, data, figures, etc. necessary to perform the contract - such as safety data sheets, material analyses, samples, waste codes or the like. The order will be processed on the basis of any information submitted that is expected to be accurate and complete. Such information will not be reviewed by us unless explicitly agreed upon in writing.

(2) When we agree by contract to accept waste at our recycling and processing plants, the following shall apply in particular:

  1. the contractual partner is obliged to comply with agreed specifications and certificates (e.g. waste data sheets) or other agreed conditions necessary for accepting waste, including packaging and type of shipment.
  2. deliveries must be notified in writing at least 3 (three) working days before shipment specifying the
    • contractual partner
    • date of delivery
    • carrier
    • material
    • packaging and/or loading equipment.
  3. Acceptance hours are detailed in individual contracts and must be adhered to. We are entitled to refuse deliveries outside the agreed acceptance hours.
  4. The contractual partner or a third party assigned by the contractual partner must follow the legal requirements when forwarding and delivering contractual items and must use vehicles and/or containers that are acceptable at our plants.

(3) The contractual partner is obliged to observe all applicable statutory requirements, in particular Regulation (EC) No. 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (in the event of transfrontier shipments of waste) as well as the German Ausfuehrungsgesetz (AbfVebrG: German Implementation Act).

(4) We are entitled to refuse deliveries in whole or in part at the contractual partner’s expense where the actual delivery deviates from specified technical data and/or certificates or from other conditions necessary for acceptance. The contractual partner must bear additional costs incurred when possible alternative utilisations, disposals and/or treatments are agreed.

Changes to services

(1) Insofar as can be considered acceptable to the contractual partner, we reserve the right to make design changes where they are necessary in technical or practical terms and where they do not materially affect the value or usability of the goods. Insignificant changes that can be reasonably accepted by the contractual partner are permitted at any time.

(2) We provide all contractual services in accordance with accepted technical rules and standards. If, for reasons beyond our control, these services cannot be performed or can be performed only by substantially changing the technical, personal and/or other requirements, the contractual partner must be notified immediately and contract performance must be suspended for the time being. The contractual partners then mutually agree if, and to what extent and to what costs, the contract can further be performed. In the absence of an agreement, each contractual partner is entitled to terminate the contract in writing.

Pricing

(1) Our prices are subject to VAT at the prevailing rate on the date of invoicing.

(2) Unless stated otherwise in the order confirmation, our prices are quoted in EURO plus other costs and public charges for packaging, loading, transport and insurance.

(3) The amount of waste accepted at our recycling and processing plants is calculated using a weighbridge, and after weighing the vehicle a weight note is handed over to the driver.

Payment

(1) Unless otherwise agreed, and provided that any and all conditions for the amount becoming due are met, all payments shall be made in full within 14 (fourteen) days of invoice. The invoice is deemed to have been received not later than 3 (three) days from the date of despatch to the last billing address provided by the contractual partner. The right to provide counter-evidence applies.

(2) We accept cheques or bills of exchange only by special agreement on account of performance. The contractual partner is liable for all expenses arising from paying by cheque or bill of exchange.

(3) In the absence of contrary instructions, all payments received may at our option be applied against the oldest or least secured liabilities.

(4) When the contractual partner can be held responsible for not complying with the agreed terms of payment, including running up major arrears or justifying the assumption after concluding the contract that our claim for consideration will be jeopardised by a lack of capacity on the part of the contractual partner, e.g. if the contractual partner requests the opening of insolvency proceedings, we are entitled to suspend outstanding deliveries and/or make outstanding deliveries exclusively against prepayment or the provision of securities. When, in the case of jeopardising our claim for consideration, the contractual partner does not meet our demands to either effect consideration or provide securities in exchange for performance within a reasonable period, we have the right to terminate the contract after the deadline has expired, irrespective of other statutory rights, and where, in addition, legal provisions apply. When the contractual partner is responsible for jeopardising our claim for consideration, all outstanding monies relating to other receivables from services provided by us to the contractual partner become due immediately.

Set-off claim and right of retention

The contractual partner is not entitled to a set-off against counterclaims unless such counterclaims are subject to a non-appealable declaratory judgment, or unless they are undisputed or accepted by us. To that extent, the right of retention shall also be excluded.

Performance

(1) Unless otherwise provided in the order confirmation, the place of performance is our place of business. When the contractual item is shipped to the contractual partner’s address upon request, risk passes to the contractual partner once the contractual item is handed over to the carrier at our storage site; this also applies when we bear the transport costs.

(2) Part shipments are allowed to an extent that can be considered acceptable to the contractual partner.

(3) In the event of war, riot, lawful industrial action, instructions of higher authority, shortage of energy or raw materials, transport disruptions and inevitable operational disruptions, and other cases of force majeure (also affecting our suppliers), or any cause beyond our control, we are relieved from our obligation to provide services for the duration and extent to which the hindrance prevails.

(4) When the contractual parties unanimously assume that an agreed deadline is exceeded by more than 4 (four) weeks caused by such hindrance, each party shall have the right to terminate the contract in whole or in part provided that the disruption is of significant scale. In case of part shipment, the contractual partner may terminate the entire contract only if part shipment is not acceptable by the contractual partner. The above ruling does not constitute a change in the burden of proof to the contractual partner’s disadvantage.

Liability for defects when delivering new objects of sale

(1) The contractual partner’s rights arising from product defects imply that the contractual partner has duly fulfilled his obligations to examine and report on defects according to section 377 HGB (German Commercial Code) in writing.

(2) Where complaints are justified, we will remedy the defect, or replace or redeliver the respective components or services at our option – except when the contractual partner has the right of recourse against the supplier pursuant to sections 478, 479 BGB (German Civil Code). We are not obliged to remedy insignificant defects. We shall bear all expenses necessary for remedying defects, in particular transport, road, labour and material costs unless the object of sale was transferred to a place other than the place of delivery which may increase the costs. If subsequent performance fails within a reasonable period, the contractual partner may terminate the contract or reduce payment, however, we are always entitled to make two attempts to remedy a defect.

(3) We may refuse to effect a remedy for as long as the contractual partner fails to meet his payment obligations towards us to an extent equating the fault-free portion of the services performed.

(4) When the contractual partner reports a defect without good reason, we have the right to demand compensation for expenses incurred in this connection.

(5) The period of limitation for claims and rights due to defects of quality relating to new objects of sale is 12 (twelve) months and begins to run when the contractual item is handed over to the contractual partner. The period of limitation of 12 (twelve) months does not apply in circumstances where we or our agents or personnel are liable for damages resulting from injury to life, limb or health, including malicious non-disclosure of a defect, wilful or grossly negligent breach of duty, violation of material contractual obligations or strict liability offences.

Liability for defects of used objects of sale and when using used components

(1) The contractual partner’s rights arising from product defects imply that the contractual partner has duly fulfilled his obligations to examine and report on defects according to section 377 HGB (German Commercial Code) in writing.

(2) When used objects are sold or objects are manufactured from used parts and/or components in whole or in part according to the contractual agreements, we exclude any liability for defects of quality relating to these objects and parts. Where we have contractually assumed liability for defects of quality, or where, for other reasons, we are liable for objects of sale manufactured from used parts and/or components in whole or in part, the provisions in clause 10 shall apply, however, the period of limitation shall not exceed 6 (six) months as opposed to clause 10(e) sentence 1.

Liability for defects relating to work performances

Should the contract concluded between us and the contractual partner qualify as a contract for services, the provisions of clause 10 with sentences 2 to 4 thereafter, and the provisions of clause 11 and 13 accordingly shall apply to defects of work performances, subject to section 635 para. 3 BGB (German Civil Code), and to damage claims. The contractual partner’s right of self-performance according to section 637 BGB shall be excluded. The contractual partner’s right of termination according to section 649 BGB shall remain unaffected. The period of limitation begins to run when work performances are accepted and/or completed in those cases, where an acceptance is not possible.

Claim for damages

(1) We accept unlimited liability imposed by statutory provisions for damages to life, limb or health if we or our legal representatives or personnel commit a wilful or grossly negligent breach of duty; we also accept unlimited liability for damages covered by liability under the Produkthaftungsgesetz (German Product Liability Act) and for other damages that are subject to a wilful or grossly negligent breach of contract or acts of intentional malevolence committed by us or our legal representatives or personnel. Where we provide a warranty of quality or durability relating to goods or parts of such goods, we also assume liability within the scope of this guarantee.

(2) According to the legal provisions, we are also liable for damages due to slight negligence, insofar as this negligence constitutes a breach of such contractual obligations that are to be observed specifically in order to fulfil the purpose of the contract (‘material contractual obligations’); however, this liability is limited in the amount concerned to the typical damages foreseeable at the time of concluding the contract.

(3) Where goods are not directly damaged (‘consequential harms caused by a defect’), we are liable only to the extent that typical damages are associated with the contract and foreseeable; however, this liability is limited in the amount concerned to the typical damages foreseeable at the time of concluding the contract. Such exclusion of liability does not apply to damages to life, limb or health if we or our legal representatives or personnel commit a wilful or grossly negligent breach of duty, including damages that are subject to a wilful or grossly negligent breach of contract or acts of intentional malevolence committed by us or our legal representatives or personnel. Where we provide a warranty of quality or durability relating to goods or parts of such goods, we also assume liability within the scope of this guarantee.

(4) In the event of default in delivery, we assume liability according to legal provisions insofar as we have negligently breached significant contractual obligations or in the event of gross negligence or wrongful intent committed by us or our agents or personnel. Except in the case of wrongful intent, our liability for damages is limited to typical damages foreseeable, however, limited in the amount concerned to 0.5% of the value of shipment per week, not exceeding 5% of the value of shipment.

(5) Any further liability by us is hereby excluded; this particularly also applies to tortous claims, or claims for compensation relating to wasted expenditure instead of performance unless they concern damages to life, limb and health. Where liability is excluded or limited, this also applies to the personal liability of our employees, staff, representatives, agents or personnel.

Guarantee

We assume a guarantee only if it is specifically agreed in writing, and if its content, duration and territorial scope of application are sufficiently identified. We do not assume a guarantee in case of a doubt.

Covenant against assignment

Any assignment to third parties of expected performances, payment claims, warranty claims or other secondary claims or damage claims against us requires our permission. Section 354a HGB shall remain unaffected.

Retention of title, reserved goods

(1) We retain title of the contractual item (reserved goods) and documents accompanying the contractual item as long as we are entitled to claims, irrespective of their nature, from the ongoing and future business relationship with the contractual partner. When operating a running account, this retention of title also serves to secure the net amount owing on the current account.

(2) The contractual partner may resell reserved goods in the ordinary course of business. There is no ordinary course of business when reserved goods are resold without retention of title, or when the buyer of reserved goods does not allow an assignment of the outstanding purchase price in his account. Such authorisation shall expire as soon as the contractual partner is in default, or when the contractual partner requests the opening of insolvency proceedings, submits a cessation of payments or subsequently reduces his creditworthiness.

(3) The contractual partner hereby assigns to us any claims from the resale of reserved goods including secondary rights and security interests to the amount of the invoice value of the reserved goods. If reserved goods are installed in land owned by third parties, the contractual partner hereby assigns to us the claim arising therefrom to the amount of the invoice value of the reserved goods. We hereby accept any assignment as specified above.

(4) The contractual partner is also authorised to collect claims until the date of expiration of the authorisation granted above. When this authorisation expires, we are entitled to notify the contractual partner’s purchaser of the assignment and collect any claims ourselves. When the authorisation to collect expires, our contractual partner shall be obliged to give us any information and submit all documents that are necessary to assert the assigned claim.

(5) Any transfer and/or assignment or mortgage of ownership of reserved goods and/or of assigned claims as security lien is not permitted. Section 354a HGB shall remain unaffected. The contractual partner must immediately notify us in writing in the case of mortgages or third party interventions.

(6) The contractual partner is to keep reserved goods and documents in safe custody for us free of charge and must handle them with care. The contractual partner is to insure these reserved goods and documents at original value against usual risks such as fire, theft, transport and water pipe damages. The contractual partner hereby assigns to us any claim arising from a damaging event against insurers and third parties to the amount of the invoice value of the appropriate reserved goods. We shall accept this assignment. The contractual partner must carry out necessary maintenance and inspection works in good time at his own expense.

(7) When the value of securities, to which we are entitled, exceeds our claims in total by more than 10%, we are obliged to release securities at our option if requested by our contractual partner or a third party that is impaired by such excessive securities.

Agreement on ownership protection

In the event of an impending loss of ownership of individual parts of goods and/or of the goods manufactured by us in their entirety by integrating them in buildings and/or by connecting them with land owned by the contractual partner, the contractual partner shall be obliged upon conclusion of the contract to reach a separate agreement with us on ownership protection relating to anticipated constructive possession regarding these (parts of) goods, whereby such separate agreement shall be limited in time until the complete settlement of our contractual claim for payment.

Proprietary rights, drawings, documents

(1) We retain proprietary rights and copyrights to all drawings, drafts and documents made and/or prepared by us. Such documents are to be treated confidentially; they are subject to intellectual property rights according to legal regulations, must not be disclosed to third parties, such as competing companies, and must not be used by the contractual partner himself outside contractual agreements.

(2) Drawings, drafts and documents that are part of our offer must be returned if no contract is concluded.

(3) When the contractual partner provides equipment such as materials or documents, the contractual partner is responsible for protecting the proprietary rights of third parties. The contractual partner indemnifies us against any liability in the event of a claim made against him.

Jurisdiction

Insofar as the contractual partner is a merchant as set forth in the Handelsgesetzbuch (German Commercial Code), or a legal entity under public law or a public law special fund, local courts at our place of business have jurisdiction to settle any dispute or claim arising directly or indirectly out of or in connection with this contractual relationship. However, we also have the right to take legal proceedings against the contractual partner at his place of business.

Applicable law

The contract shall be governed in accordance with the laws of the Federal Republic of Germany. The UN Convention on the International Sale of Goods shall be excluded.

Data processing

We use electronic data processing to handle our business relations and process business transactions internally. In accordance with the provisions of the Bundesdatenschutzgesetz (German Federal Data Protection Act), our contractual partner will be informed that we process any personal data required for these purposes and that such data will be used internally only.

Final provisions

(1) Contractual amendments or supplements must be confirmed in writing to become effective. This also applies if the requirement of written form is renounced.

(2) If a provision of the contract is or becomes invalid, illegal or unenforceable, this shall not affect the validity and enforceability of the remaining provisions of this contract. The contractual parties agree to replace the invalid, illegal or unenforceable provision by a provision that comes closest to the intended purpose.

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