General Terms and Conditions

General Terms and Conditions

Winterhalder Selbstklebetechnik GmbH
Steinmattenstraße 8
79423 Heitersheim
Phone: +49 (0)7634 5260 – 0
Email: info@winterhalder.de

Represented by the Managing Directors Hermann Hogg, Dr. Markus Wiethoff, and Joachim Klette

I. General

1. These General Terms and Conditions (GTC) apply to the entire business relationship between us and our customers. The GTC apply particularly to contracts for the sale or delivery of movable goods (hereinafter also referred to as "Goods"), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers. The GTC apply only if the customer is a business entity (§ 14 BGB), a legal entity under public law, or a special fund under public law.

2. We reserve the right to change these GTC at any time insofar as the change is reasonable for the customer when taking into account the interests of Winterhalder Selbstklebetechnik GmbH. Changes will be communicated to the customer in writing at least two weeks before they take effect, with a note on the consequences of not objecting. If no objection is raised within two weeks of receipt, the amended GTC are considered accepted.

3. Our GTC apply exclusively. Deviating, conflicting, or supplementary General Terms and Conditions of the customer will only become part of the contract if we have expressly agreed to their validity. This requirement of consent applies in every case, for example, even if we carry out the delivery to the customer without reservation in the knowledge of their GTC.

4. All agreements as well as any subsequent supplementary or deviating additional agreements must be in written form to be effective. This also applies to the waiver of the requirement of written form.

II. Delivery and Services

1. Our offers are only binding if they are mentioned in the order confirmation and designated as binding.

2. The delivery period will be agreed individually or specified by us upon acceptance of the order. 3. We are entitled to make partial deliveries to a reasonable extent.

3. If we are unable to meet binding delivery deadlines for reasons not attributable to us (unavailability of the service), we will inform the customer immediately and at the same time communicate the estimated new delivery deadline. If the service is still unavailable within the new delivery period, we are entitled to withdraw from the contract in whole or in part; any consideration already rendered by the customer will be refunded immediately. A case of unavailability of the service in this sense shall particularly exist in the case of delayed self-delivery by our supplier if we have concluded a congruent covering transaction, neither we nor our supplier are at fault, or we are not obliged to procure in a particular case.

4. If the customer sets us an unreasonable deadline for performance or subsequent performance, this does not set in motion an appropriate period.

III. Prices

1. Our deliveries and services are provided at the prices and conditions stated in the written order confirmation and based on the price lists. In case of doubt, the price stated in the written order confirmation applies.

2. Our prices are exclusive of the applicable statutory VAT and, unless otherwise agreed in an individual case, free at the customer's place of receipt, excluding packaging, shipping, and transport insurance (if applicable, plus cash on delivery or transfer fees).

IV. Delivery, Transfer of Risk, Acceptance, Default of Acceptance

1. Delivery is made ex warehouse, which is also the place of performance. At the customer's request and expense, the Goods will be dispatched to another destination (sale by dispatch). Unless otherwise agreed, we are entitled to determine the method of dispatch (in particular transport company, shipping method, packaging) at our discretion. The customer bears costs of shipment, packaging, transport insurance, and any cash on delivery or transfer fees as well as any customs, taxes, and other public charges.

2. The risk of accidental loss and accidental deterioration of the Goods transfers to the customer at the latest upon handover. If the Goods are shipped, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay transfers to the customer upon dispatch of the Goods to the carrier, the freight forwarder, or the person or institution otherwise designated to carry out the shipment. The same applies if the customer is in default of acceptance.

3. If the customer is in default of acceptance, omits a cooperation act, or if our delivery is delayed for other reasons for which the customer is responsible, we are entitled to demand compensation for the damage resulting therefrom, including additional expenses (e.g., storage costs). We charge a lump-sum compensation of €100.00 per calendar day, beginning with the delivery deadline or - in the absence of a delivery deadline - with the notification of readiness for shipment. Evidence of higher damages and our legal claims remain unaffected; the lump sum is, however, offset against further monetary claims. The customer is permitted to prove that we suffered no damage or a significantly lower damage than the above lump sum.

V. Payment

1. Monetary claims are due with the invoice and must be paid within 30 days upon receipt to avoid default interest. For payments made
   within 14 days from the invoice date, we offer a 2% discount.

2. On expiration of the period referred to in paragraph 1 sentence 1, the customer is in default. The purchase price is subject to the statutory default interest rate during the default period. We reserve the right to assert further default damages. The commercial customer owes maturity interest per § 353 HGB, while the non-commercial customer owes usage interest from receipt of the Goods. If Winterhalder Selbstklebetechnik GmbH grants a deferral, deferral interest must be paid.

3. Payments are to be made exclusively to us at the bank account indicated on our invoice. Payment instructions, checks, and drafts are only accepted by special agreement and only on account of performance and not in lieu of fulfillment. Collection charges, bill, and discount fees are borne by the customer. Forwarding and prolongation do not count as fulfillment. We assume no liability for timely presentation, protest, notification, and return of the draft in the event of non-redemption.

4. The customer has the right to offset or withhold only insofar as their claim is legally established or undisputed. In the case of defects in the delivery, the customer's counter-rights remain unaffected.

5. The debtor's right of determination of payment is excluded. Any payment is made on the current account balance. If there is no current account, the reduction order of §§ 366 paragraph 2, 367 paragraph 1 BGB applies.

6. Discounts are contingent upon the current account balance being settled or no outstanding claims from previous deliveries existing against the customer.

7. If we become aware of circumstances after concluding the contract that give rise to doubts about the customer's creditworthiness, such as
   suspension of payments, over-indebtedness, application for the opening of insolvency proceedings, or delay in payment of €500.00 or more for more than one month, we are entitled to demand appropriate security. If this demand is not immediately met by the customer, we can withdraw from the contract without giving rise to a requirement for compensation. In such cases, we are entitled to cancel further already concluded contracts and claim damages instead of performance.

VI. Retention of Title

1. The Goods remain our property until payment of the purchase price, in the case of receipt of checks or drafts until such time as it is clear that we cannot be held liable under check or bill of exchange law. The retention of title secures all claims arising from the business relationship; if a current account agreement exists, the retention of title secures all claims entered in the current account. Recognition of a balance does not affect the retention of title.

2. Goods under retention of title may not be pledged to third parties or transferred by way of security or otherwise encumbered prior to full payment of the secured claims. The customer must notify us immediately in writing if and to the extent that third parties attempt to access the Goods owned by us. They must send us all related documents required for intervention. Independent of this, they are obliged to represent themselves immediately as our agent and to protect our rights to the best of their ability.

3. The customer is entitled to resell or process the Goods in the ordinary course of business. By processing these Goods, the customer does not acquire ownership of the new items wholly or partially produced; processing is done exclusively for us at no charge. Should our ownership nevertheless expire due to any circumstances, the customer agrees with us that ownership of the Goods shall transfer to us upon processing. We hereby accept the transfer. The customer remains the gratuitous custodian of these Goods. In the case of processing with Goods still under foreign ownership, we acquire co-ownership of the new Goods. The extent of this co-ownership results from the proportion of the invoice value of the Goods supplied by us to the invoice value of the remaining Goods.

4. In the event of the customer's breach of contract, particularly in the case of non-payment of the due purchase price, we are entitled to withdraw from the contract in accordance with the statutory provisions and to demand the Goods back based on the retention of title and withdrawal. If the customer does not pay the due purchase price, we can only assert these rights if we have previously unsuccessfully set the customer an appropriate deadline for payment, or such a deadline is dispensable according to statutory provisions.

5. The claims arising from a resale of the Goods or the product against third parties are assigned by the customer to us, either in total or in the amount of our potential co-ownership in accordance with the preceding paragraph to secure them now. We accept the assignment. The customer obligations mentioned in paragraph 2 also apply to the assigned claims. The above assignment secures all claims arising from the business relationship; if a current account agreement exists, the assignment secures all claims entered in the current account.

6. The customer remains authorized to collect the claim along with us. We undertake not to collect the claim as long as the customer meets their
   payment obligations towards us, is not in default by an amount of at least €500.00, and no application for the opening of insolvency proceedings is filed and no other deficiencies in their solvency exist. If this is the case, we are entitled to demand that the customer disclose the assigned claims and their debtors to us, make all information required for collection, hand over the associated documents, and notify the debtors (third parties) of the assignment.

7. In the event that the nominal value (in the case of receivables) or the estimated value (in the case of Goods) of the securities due to us under the foregoing provisions exceeds 150% of the claims to be secured, we undertake to release the excess part on the customer's request. The decision as to which securities to release is at our discretion.

VII. Withdrawal by the Customers

1. A breach of duty by us, for which we are not responsible, does not entitle the customer to withdraw under §§ 323, 324 BGB unless the breach of duty lies in the delivery of a defective purchased item or the manufacture of a defective work.

2. After the expiration of the grace period, the customer can declare withdrawal only within a reasonable period. The withdrawal is also excluded if the customer accepts the performance offered by us after the expiration of the grace period.

VIII. Liability

1. Unless otherwise provided in these GTC, including the following provisions, we are liable in the event of breach of contractual and non-contractual obligations under the relevant statutory provisions.

2. We are liable for damages – regardless of the legal basis – in case of intent and gross negligence.
   In the case of simple negligence, we are only liable for damages resulting from death, physical injury, or damage to health and for damages resulting from a material breach of contract (obligation whose fulfillment is essential for the proper performance of the contract and on which the contractual partner regularly relies and may rely). However, in the latter case, our liability is limited to the foreseeable, typically occurring damage.

3. The liability restrictions resulting from paragraph 2 do not apply to the extent that we have fraudulently concealed a defect or assumed a guarantee for the quality of the Goods. The same applies to claims of the customer under the Product Liability Act.

4. Due to a breach of duty that does not lie in a defect, the customer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory prerequisites and legal consequences apply.

5. We are not liable for damages resulting from an unavoidable breach of duty by one of our legal representatives or vicarious agents.

IX. Warranty for Defects

1. Due to their nature and chemical composition, our adhesive tape and adhesive products are subject to limited shelf life or storage capability. Therefore, no warranty claims can be derived from a sale or use of Goods delivered by us following the expiration of the respective storage or shelf life period. The same applies to such products designed solely for short-term applications in the event of
   exceeding the intended application period. More detailed information on shelf life, storage capability, and application period is available upon request.

2. Our deliveries are to be inspected immediately upon receipt. Non-merchants must report obvious defects in writing within two weeks with the delivery slip number, otherwise, the warranty is excluded. For merchants, § 377 HGB remains applicable.

3. Upon our request, the customer is obliged to send us the Goods for the purpose of rectification. The Goods must be properly packaged. We will bear the costs of shipping if the reported defect is confirmed; otherwise, the costs fall to the customer.

4. To the extent that we provide rectification or replacement delivery for courtesy reasons, the customer bears the shipping costs. If they want to insist on the statutory warranty, they must reject the courtesy offer immediately.

5. No guarantee can be given for the suitability of our products for the intended use by the customer. Instructions or recommendations are given to the best of our knowledge based on practical experience. However, they are non-binding and do not exempt the customer from their own trials and tests. Under no circumstances can liability for damage or disadvantages, including any third-party property rights, be derived from them.

6. Even within the first six months after the transfer of risk, the customer must prove that the item was defective at the time of the transfer of risk, unless they claim recourse under § 478 BGB. We accept no liability for public statements by the manufacturer or other third parties (e.g., promotional statements).
   With all deliveries, excess or short deliveries of up to 10% of the agreed quantity cannot be objected to by the customer. If we improperly deliver a quantity less than 10% too little, the customer may only withdraw from the entire contract or demand damages if they have no interest in the provided delivery.

7. We decide at our discretion whether to grant a customer requesting subsequent performance defect remediation or delivery of a defect-free item
   to allow. We can have the defective Goods inspected, examined, and checked before making a final decision.
   If the respective chosen means of subsequent performance fails twice, the customer has the right to reduce the price or withdraw from the contract unless something else arises in particular from the nature of the item, the defect, or other circumstances.
   Subsequent fulfillment does not include removing the defective item nor its reinstallation if we were not initially obliged to install it.

X. Adhesive Tapes and Custom Made Products

1. All information that the customer can request at any time regarding technical data is based on our own testing and experience or is the result of thorough research by the various manufacturers. We reserve the right for minor quality variations. In the case of justified complaints, we only replace the
   value of the adhesive tape but are not liable for indirect damages, especially for the application or specific use or the unusability of the adhesive tape. The customer must verify the suitability of the adhesive tape for the intended purpose before use. Sample rolls are available at any time.

2. The following applies to custom-made printed products:
   Tools and printing materials produced by us remain our property and possession, even if they are charged to the customer. Customer-approved proofs are solely authoritative for the final print execution. In the case of colored print executions, minor color deviations are not considered defects.

3. The customer warrants that they hold the legal rights to reproduce the ordered print execution. The customer undertakes to indemnify Winterhalder Selbstklebetechnik GmbH against all claims that may arise due to infringement of copyrights or other property rights by the customer. This includes all court and attorney fees arising from legal defense.

XI. Statute of Limitations

1. Warranty claims against us are time-barred in one year from delivery of the item or acceptance of the work unless the claim is based on

   a) an intentional breach of duty,
   b) recourse claims of the customer per § 478 BGB,
   c) the assumption of a guarantee for the quality of an item by us, or
   d) on fraudulent concealment of a defect.

   
   

2. Deviating from the limitation provision in number 1, warranty claims against us become statute-barred in the statutory limitation period

   
   a) in the case of a building and a work, whose success lies in the provision of planning or supervision services for it,
   b) in the case of a work whose success does not lie in the manufacture, maintenance, or change of an item or in the provision of planning or supervision services for it, and
   c) in the case of a purchased item that is used for a building according to its usual purpose and has caused its defectiveness.

XII. Miscellaneous

1. Notices and declarations (particularly defect notifications, requests for rectification, setting of deadlines, reminders, declarations of withdrawal, termination, etc.) to be submitted to us must be in writing to be effective. The requirement of written form is not maintained by sending an email.

2. The place of performance and the exclusive place of jurisdiction for all disputes arising from the business relationship is Heitersheim. This also applies to disputes from bills of exchange and checks.

3. The exclusive application of German law to the legal relationships existing between us and the customer is agreed in accordance with Art. 3 paragraph 1 Rome I Regulation. The application of uniform UN sales law is excluded by Article 6 CISG.

XIII. Final Provisions

If the foregoing General Terms and Conditions fully or partially do not become part of the contract or are ineffective, the remainder of the contract remains effective. As far as the provisions do not become part of the contract or are ineffective, the content of the contract is determined by the statutory provisions of the Federal Republic of Germany. The agreement is ineffective if holding on to it would represent an unreasonable hardship for the contracting parties considering the statutory provisions.