1. scope of validity, general

These General Terms and Conditions shall form an integral part of all our offers and contracts – including all future transactions – and shall apply to all deliveries and services of Wacosystems GmbH, unless other terms and conditions are expressly accepted in writing. Any deviation from the content of these General Terms and Conditions of Business must be made in writing. Our terms and conditions shall also apply if we make a delivery or provide a service without reservation in the knowledge of conflicting or deviating terms and conditions of the customer. By accepting the delivery with knowledge of the terms and conditions, the client expresses his acceptance thereof. Entrepreneurs within the meaning of these terms and conditions are natural or legal persons or partnerships with legal capacity who are acting in the exercise of their commercial or independent professional activity when concluding the legal transaction.

2. offer and design documents, conclusion of contract

Offers, cost estimates, price lists and other documents submitted by Wacosystems GmbH shall be subject to change without notice and shall only become binding, including the prices stated therein, upon the written dispatch of an AB (order confirmation) by Wacosystems GmbH. The written form shall also be deemed to have been complied with if the declaration of acceptance is sent by fax or e-mail and without the contractor’s signature. Subsidiary agreements, supplements and amendments to the contract must also be made in writing. Instead of a written declaration of acceptance, Wacosystems GmbH may issue an invoice with corresponding content. We shall retain ownership and copyright of all offer, draft and other technical documents (drawings, calculations, verifications of calculations, construction proposals, cost estimates). Without the consent of Wacosystems GmbH, these documents may not be used for any other purpose, in particular they may not be copied or made accessible to third parties. If the order is not placed, they shall be returned to us without delay. All necessary official or other authorisations shall be obtained by the customer and made available to Wacosystems GmbH in due time.

Wacosystems GmbH shall make the documents required for this purpose available to the customer upon request. Subsequent amendments to the order shall be made against payment of the costs incurred up to the time of the amendment. Illustrations, drawings as well as other documents or information on the internet or information/documents which are part of the non-binding offers of Wacosystems GmbH shall remain the property of Wacosystems GmbH. These indications are non-binding, unless they have been expressly designated as binding by Wacosystems GmbH. Concrete contract-related drafts, drawings and calculations shall remain our property. They may not be used, reproduced or made accessible to third parties without our consent. They are to be returned or destroyed immediately in the event that the order does not materialise.

3. reservation of right of modification

The Kandela® products / honeycomb products and other sales products of the seller are generally sold according to samples or marketing documents (data sheets, flyers, product documents …) and are delivered as true to sample as possible. Customary minor deviations in colour, sample and shape are in accordance with the contract. Slight shrinkage and cupping (deviation of the flatness of the honeycomb panels) of the honeycomb panels may occur due to changing temperature differences and changes in humidity. Slight deviations in the structure and colour of the surfaces of the Kandela® products and fleece absorbers may occur. Small inclusions, imperfections on the honeycomb core and deviations in the adhesive application of the honeycomb products are in accordance with the contract.

We reserve the right to make design changes or technical modifications, unless the change is unreasonable for the buyer, taking into account the interests of Wacosystems GmbH.

4 Execution periods and deadlines

Insofar as Wacosystems GmbH does not expressly agree on a delivery or performance time or execution time, all statements shall only be approximate on the basis of the conditions known at the time of the order; the corresponding time statement shall be made to the best of Wacosystems GmbH’s knowledge, but shall not be binding. Wacosystems GmbH shall be entitled to make partial deliveries to a reasonable extent after giving notice. Wacosystems GmbH shall not be responsible for delays in delivery and performance due to events which make delivery substantially more difficult or impossible for Wacosystems GmbH – including, in particular, natural disasters, strikes, lock-outs, official orders, etc. – even if they occur at suppliers, even in the case of bindingly agreed periods and dates. They shall entitle Wacosystems GmbH to postpone the delivery or service for the duration of the impediment plus a reasonable start-up period or – insofar as the delay is not due to strike or lockout – to withdraw from the contract in whole or in part due to the part not yet fulfilled. If the impediment lasts longer than one month, the client is also entitled, after setting a reasonable grace period, to withdraw from the contract because of the part not yet fulfilled.

5. prices and terms of payment

All prices are ex works, unless expressly stated otherwise. The prices in the order confirmation shall apply. If due dates for payment are exceeded, interest on arrears amounting to 5 percentage points above the base interest rate shall be payable without further reminder. If the buyer is an entrepreneur, the interest on arrears shall be 9 percentage points above the base interest rate. If advance payment has been agreed, i.e. payment by the customer after order confirmation within the payment period specified therein, the contractual terms of the order confirmation shall apply exclusively. Surcharges shall be levied for all overtime, night, Sunday and public holiday hours ordered by the client as well as for work under difficult conditions. If there is a period of more than four months between the conclusion of the contract and the agreed time of delivery and performance or the time of execution, and if the prices of our suppliers increase in the meantime, Wacosystems GmbH shall be entitled to adjust the agreed price upon expiry of four months from the conclusion of the contract. With respect to entrepreneurs, Wacosystems GmbH shall be entitled to do so after the expiry of six weeks from the conclusion of the contract. Wacosystems GmbH shall provide evidence of the price increases in all cases upon request. Any deduction of a discount or any other change in the terms of payment shall require special written agreement. Wacosystems GmbH shall be entitled to demand advance payments to a reasonable extent (e.g. in the case of cost-intensive special productions, exceeding of credit insurance limits, etc.).

Offsetting against claims of Wacosystems GmbH and the exercise of rights of retention shall only be permissible on the basis of undisputed counterclaims or counterclaims which have become res judicata. Wacosystems GmbH shall be entitled to assign claims arising from business relations. The acceptance of payment substitutes (bills of exchange, cheques), to which Wacosystems GmbH is not obliged, shall not constitute fulfilment or deferment of the claim. Credits from bills of exchange and cheques shall be made subject to receipt and with value date of the day on which the amount has been credited to our account or we can dispose of the equivalent value. The costs of safekeeping and encashment, in particular discount charges, as well as all other bank charges initiated by the customer, shall be borne by the customer. Payments shall always be credited against the oldest debt, irrespective of any provisions of the client to the contrary. If costs of collection and interest claims have already been incurred, payments shall first be credited against the costs, then against the interest and finally against the principal claim. If deferment of payment, payment by instalments or acceptance of bills of exchange has been agreed with the customer, our total claim shall become due and payable, irrespective of this agreement and the term of the bills of exchange, if the customer defaults on the agreed payments or if the redemption of payment substitutes fails for reasons for which the customer is responsible, if the customer’s financial circumstances deteriorate significantly, if he disputes Wacosystems GmbH’s claim or if he otherwise jeopardises it. In the event of a significant deterioration of the customer’s financial situation after the conclusion of the contract, Wacosystems GmbH shall also be entitled to make services not yet rendered dependent on the prior payment of the remuneration or the provision of securities. If the customer does not comply with the obligation to perform in advance due to a deterioration of his financial situation, Wacosystems GmbH shall be entitled to withdraw from the contract after having set a reasonable deadline or, if the customer is responsible for the deterioration of his financial situation, to claim damages instead of performance. Payments made by the customer shall always be credited in accordance with § 366 BGB. If there are cost or interest claims in addition to a principal debt, the payment shall always be credited first to the costs, then to the interest and only then to the principal debt.

6 Delivery, transfer of risk vis-à-vis entrepreneurs

If the buyer is an entrepreneur, the risk shall pass to the buyer upon collection by the buyer when the goods leave the seller’s premises. In the event that the transport is carried out by contracted carriers, Wacosystems GmbH shall assign claims for damages against the carriers to the buyer. If Wacosystems GmbH delivers sales products on the buyer’s premises with a forwarding agent commissioned by it, the buyer shall be obliged to provide sufficient personnel and technical equipment (forklift trucks, etc.) for unloading the sales products at his expense. In case of breach of this obligation, Wacosystems GmbH shall be entitled to withhold delivery of the goods. If the buyer or his customer is not present at the time of delivery despite prior notice and if he has not notified Wacosystems GmbH thereof without delay, Wacosystems GmbH shall be entitled to claim all additional costs incurred thereby, in particular for any further delivery attempts or storage costs. Delivery shall be made free place of use. It is necessary that there is an access, turning and unloading possibility for a truck. Unless otherwise agreed, delivery shall be ex works to the delivery address indicated by the buyer. Wacosystems GmbH shall be entitled to make partial deliveries to a reasonable extent. Wacosystems GmbH shall not assume any liability for the recipient of the delivery. Clause 10 ADSp shall not apply. Wacosystems GmbH shall only be in default without a reminder if a bindingly agreed delivery date is exceeded by a certain calendar day. This date shall be referred to as the “delivery date” in the order confirmation. In this case, the buyer shall grant a reasonable grace period of at least 4 weeks. Events of force majeure, unforeseeable circumstances and other unforeseeable disruptions of the business operations of Wacosystems GmbH or its suppliers, which cannot be averted by Wacosystems GmbH or its sub-suppliers despite reasonable diligence according to the circumstances of the case, shall postpone the delivery dates by a reasonable period of time.

Wacosystems GmbH shall be released from its obligation to perform if delivery is not possible within a reasonable period of grace. If Wacosystems GmbH has concluded a corresponding covering transaction with the upstream supplier for the fulfilment of the purchase contract, Wacosystems GmbH shall not be obliged to deliver if the upstream supplier is unable to deliver. Wacosystems GmbH shall immediately notify the buyer of such circumstances and, if applicable, reimburse any payments made without delay. If the delay in delivery for which Wacosystems GmbH is responsible is due to a culpable breach of an essential contractual obligation or a cardinal obligation, Wacosystems GmbH’s liability shall be limited to the amount of the damage foreseeable at the time of the conclusion of the contract and typical for the contract. In business transactions with consumers and entrepreneurs, our liability for damages in the event of default or impossibility shall be limited to a maximum of 10% of the invoice value of the goods whose delivery we are in default with or whose delivery has become impossible for us. This limitation shall not apply in the event of intent or gross negligence.

7. assembly

The Buyer shall be liable for its specifications or those of its customers, in particular for all dimensional and other information relating to the design, production and installation of Wacosystems products, as well as for the suitability of the installation environment, in particular walls, ceilings and connections. The buyer shall be responsible for the correctness of his information; in particular, the buyer shall be liable for all additional costs resulting from a breach of this duty to cooperate.

8. retention of title

Wacosystems GmbH shall retain title to all goods delivered until all claims arising from the business relationship have been paid in full. The rights of retention of title in comprehensive form (simple, extended and prolonged retention of title) shall apply to all present and future deliveries of goods. The client is obliged to treat the goods subject to retention of title with care. Insofar as maintenance and inspection work is required, the client must carry this out regularly at his own expense.

The customer must inform us immediately in writing of any attempts to seize or other interventions by third parties in the goods subject to retention of title so that we can take countermeasures. The customer must object to any attempts at seizure with reference to our reservation of title. In the event of a breach of contract on the part of the customer, in particular in the event of default in payment or in the event of a breach of the obligations incumbent upon him under the above paragraphs, Wacosystems GmbH shall be entitled to withdraw from the contract and to demand the return of the goods. Insofar as the delivery items have become essential components of a property owned by the customer, the customer undertakes, in the event of non-compliance with the agreed payment deadlines, to allow Wacosystems GmbH to dismantle the items which can be removed without significant impairment of the building structure and to transfer ownership of these items back to him. Dismantling and other costs shall be borne by the customer. If delivery items are firmly connected with another item, the customer shall, if claims or co-ownership arise from this, transfer his claims or co-ownership of the new item to Wacosystems GmbH in the amount of Wacosystems GmbH’s claim. As long as he is not in default of payment, the customer may resell the goods subject to retention of title in the ordinary course of business subject to general terms and conditions. He shall be obliged to agree on a retention of title. The customer hereby assigns to Wacosystems GmbH in full all claims and ancillary rights accruing to him against his customer or third parties from a sale of the goods subject to retention of title or for any other legal reason, irrespective of whether the sale is made to one or more customers. If the goods subject to retention of title are sold after transformation, combination, mixing or processing with other goods not belonging to Wacosystems GmbH, the assignment shall be made only to the extent of our co-ownership share in the sold item or stock. Until revoked, the customer shall be entitled to collect the claims assigned to Wacosystems GmbH, without this affecting our right to collect the claim ourselves. Wacosystems GmbH undertakes not to collect the assigned claims itself as long as the customer meets its payment obligations from the proceeds collected, is not in default of payment and no application for the opening of insolvency proceedings has been filed or payments have been suspended. If, on the other hand, the aforementioned conditions are met, Wacosystems GmbH shall be entitled to revoke the customer’s direct debit authorisation and to demand that the customer discloses to Wacosystems GmbH the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment. If necessary, Wacosystems GmbH may notify the debtors itself.

9. reversal of the contract

If the buyer does not accept a duly ordered good or if the buyer declares prior to delivery, either literally or analogously, including by silence in response to a corresponding written request containing a corresponding reference to the legal consequences of this paragraph, that he will not accept the good, Wacosystems GmbH shall be entitled to withdraw from the contract without further reminder and to claim damages instead of performance. As liquidated damages, Wacosystems GmbH may claim 50% of the order price without deduction. This shall also apply in the event of withdrawal from the contract by Wacosystems GmbH. The amount of damages shall be higher or lower, if Wacosystems GmbH proves a higher damage or the buyer proves a lower damage.

In the event that the seller withdraws from the contract for other reasons initiated by the buyer, in particular due to default of payment or any other unjustified rescission of the contract initiated by the buyer after delivery and the taking back of delivered goods, Wacosystems GmbH shall be entitled to damages, in particular compensation for expenses, transfer of use and reduction in value as follows:

Wacosystems GmbH shall be compensated for expenses incurred as a result of the contract, such as transport to and from the place of delivery and assembly costs, etc., in the amount incurred in each case.
Delivered goods are to be inspected by the recipient immediately upon receipt and any deviations in quantity and quality as well as obvious defects are to be reported immediately. Any complaints must be made in writing within eight days of receipt of the goods. If a material defect or defect of title becomes apparent at a later date, this must be reported in writing within eight days of the customer becoming aware of it. If the customer fails to give timely notice of defects, Wacosystems GmbH shall be released from any liability with regard to such defects. Defective goods shall be stored properly and may not be processed or installed. If this nevertheless happens, we shall be released from any liability for defects and shall also not be liable for any consequential damage caused by defects. If, upon inspection of the goods, it turns out that the complaint was unjustified and/or not due to a defect in Wacosystems GmbH’s performance, the customer shall be obliged to bear all expenses incurred by Wacosystems GmbH in connection with the inspection of the alleged defect (travel expenses/time spent/technical inspection costs, etc). Insofar as characteristics or other conditions of the goods are due to the customer’s wishes or other – in particular incorrect – information, Wacosystems GmbH shall be released from any liability for defects. The quality shall be determined exclusively in accordance with the agreements made and any product descriptions of the manufacturer. Public statements, promotions or advertising by the manufacturer shall not constitute any relevant information on the quality of the goods. In the event of demonstrable existence of material defects or defects of title notified in due time, Wacosystems GmbH shall, at its option, either remedy the defect (rectification of the defect) or provide a replacement free of defects. If subsequent delivery is granted, Wacosystems GmbH may demand return of the defective item from the customer in accordance with §§ 346 – 348 BGB. In the event of failure of subsequent deliveries or rectification of defects, the recipient shall only have the right to rescind the contract (withdrawal) or reduce the price (reduction). In the event of the assumption of a guarantee and in the event of intent or gross negligence on the part of Wacosystems GmbH or its vicarious agents, Wacosystems GmbH shall also be liable for damages within the scope of the statutory provisions. Any reference to standards or regulations shall not imply the assumption of a guarantee of compliance. Any claims for liability for defects against Wacosystems GmbH shall only be available to the customer and shall not be assignable. They shall become statute-barred within one year after delivery in the case of purchase contracts and within one year after acceptance in the case of contracts whose decisive content is the production of a work. This period shall not apply in the event of fraudulent conduct on the part of Wacosystems GmbH. The customer shall not be entitled to refuse acceptance due to insignificant defects. If the customer refuses acceptance without justification, acceptance shall be deemed to have taken place two weeks after delivery.

10 Liability for defects, limitation period

If the buyer is an entrepreneur, Wacosystems GmbH warrants that our new goods are free of defects for a period of one year. Should defects occur within the warranty period, Wacosystems GmbH shall have the right to make two attempts at rectification or subsequent performance. Should two attempts at rectification fail, we shall also be entitled to make a replacement delivery. If transport damage is evident or suspected, this must be reported to the carrier immediately upon receipt of the goods before the transport documents are signed and a written note made of this. This is important so that the transport insurance will cover the damage.

Delivered goods are to be inspected by the recipient immediately upon receipt and any deviations in quantity and quality as well as obvious defects are to be reported immediately. Any complaints must be made in writing within eight days of receipt of the goods. If a material defect or defect of title becomes apparent at a later date, this must be reported in writing within eight days of the customer becoming aware of it. If the customer fails to give timely notice of defects, Wacosystems GmbH shall be released from any liability with regard to such defects. Defective goods shall be stored properly and may not be processed or installed. If this nevertheless happens, we shall be released from any liability for defects and shall also not be liable for any consequential damage caused by defects. If, upon inspection of the goods, it turns out that the complaint was unjustified and/or not due to a defect in Wacosystems GmbH’s performance, the customer shall be obliged to bear all expenses incurred by Wacosystems GmbH in connection with the inspection of the alleged defect (travel expenses/time spent/technical inspection costs, etc). Insofar as characteristics or other conditions of the goods are due to the customer’s wishes or other – in particular incorrect – information, Wacosystems GmbH shall be released from any liability for defects. The quality shall be determined exclusively in accordance with the agreements made and any product descriptions of the manufacturer. Public statements, promotions or advertising by the manufacturer shall not constitute any relevant information on the quality of the goods. In the event of demonstrable existence of material defects or defects of title notified in due time, Wacosystems GmbH shall, at its option, either remedy the defect (rectification of the defect) or provide a replacement free of defects. If subsequent delivery is granted, Wacosystems GmbH may demand return of the defective item from the customer in accordance with §§ 346 – 348 BGB. In the event of failure of subsequent deliveries or rectification of defects, the recipient shall only have the right to rescind the contract (withdrawal) or reduce the price (reduction). In the event of the assumption of a guarantee and in the event of intent or gross negligence on the part of Wacosystems GmbH or its vicarious agents, Wacosystems GmbH shall also be liable for damages within the scope of the statutory provisions. Any reference to standards or regulations shall not imply the assumption of a guarantee of compliance. Any claims for liability for defects against Wacosystems GmbH shall only be available to the customer and shall not be assignable. They shall become statute-barred within one year after delivery in the case of purchase contracts and within one year after acceptance in the case of contracts whose decisive content is the production of a work. This period shall not apply in the event of fraudulent conduct on the part of Wacosystems GmbH. The customer shall not be entitled to refuse acceptance due to insignificant defects. If the customer refuses acceptance without justification, acceptance shall be deemed to have taken place two weeks after delivery.

11 General limitation of liability

In addition to liability for defective deliveries and services, Wacosystems GmbH shall be liable for all other legal reasons only in the event of intent, gross negligence or serious organisational fault. Insofar as there is a breach of essential contractual obligations or a guarantee has been assumed, Wacosystems GmbH shall be liable for any fault. However, liability for these cases shall be limited to the compensation provided by our liability insurance. We shall grant the customer insight into the policy upon request. Upon request, we shall arrange for increased coverage of the liability insurance at the customer’s expense. In the event of damage resulting from injury to life, body or health, Wacosystems GmbH shall be liable without limitation for any negligent breach of duty. The above limitations of liability shall also not apply to claims based on the provisions of the Product Liability Act.

12 Industrial property rights, copyright and competition law

The brand names Kandela®, ViewPan®, WaveCore® and TIMax® are protected by trademark law. The use of these names is only permitted with our express consent. Consent to use may be revoked at any time without giving reasons. All information and designs, in particular photos (image rights), illustrations, sketches, drawings, logos, product descriptions and information, instructions, brochures, Internet pages, as well as the entire corporate design, are protected by copyright and/or competition law. Use is only permitted with the express consent of Wacosystems GmbH. Consent to use may be revoked at any time without stating reasons. It is fundamentally inadmissible to remove, shorten or make unrecognisable copyright notices from our materials.

13 Other agreements

Information on processing, use and application possibilities of our deliveries and services, technical advice and other details are given to the best of our knowledge, but are completely non-binding and without any liability, unless we contractually undertake to provide advice or expressly guarantee the existence of certain properties of products. The tolerances customary in the trade shall apply to measurements. Should individual provisions of these terms and conditions be or become invalid, the validity of the remaining provisions shall remain unaffected.

14 Place of performance

The place of performance for all rights and obligations is Herford.

15. place of jurisdiction

The place of jurisdiction for all disputes shall be Herford, insofar as the customer is a merchant, a legal entity under public law or a special fund under public law. Wacosystems GmbH may, at its discretion, sue the customer at the customer’s place of business. Status 30.08.2022