Terms and Conditions
General Terms and Conditions of Delivery and Payment the WSM industry for Industrial Transactions in Germany (hereinafter referred to as "Conditions of Sale")
Scope
- These Terms and Conditions of Sale shall apply to any (delivery) framework contract (hereinafter “Contract”) and all individual contracts and/or orders within the scope of a Contract (hereinafter “Individual Contract”) with entrepreneurs, legal entities under public law and special funds under public law (hereinafter “Partner”). Our deliveries and services are provided exclusively on the basis of the following terms and conditions. Business terms and conditions of the partner which are not expressly recognised by us shall not be valid. As there can always be bottlenecks in the procurement of the required raw materials, the expected delivery times stated in the offer shall apply to the time at which the offer is made. Depending on the time of the order, the delivery times stated in the order confirmation may therefore deviate from this.
- The contracting parties shall immediately confirm verbal agreements in detail in writing.
- Orders only become binding with our order confirmation.
- The information and illustrations contained in brochures and catalogues are customary approximations unless they have been expressly designated by us as binding.
- We shall be entitled to refuse acceptance of an order if it becomes apparent that our claim to payment under the individual contract would be jeopardised by the partner’s inability to perform if the order were accepted. This shall be the case in particular if the creditworthiness of the partner is assessed by Euler Hermes Forderungsmanagement Deutschland GmbH as “high risk” (assessment level 7) or worse or if there is any other reason within the meaning of Section 321 (1) of the German Civil Code. The same applies, notwithstanding the provision in Clause 25, to the fulfilment of an order to which Section 321 Paragraph 1 Sentence 2 and Paragraph 2 BGB apply in addition.
- We shall also be entitled to terminate the contract without notice if there is good cause for doing so. Good cause shall be deemed to exist in particular if, after conclusion of the contract, it becomes apparent that our claims for payment under the contract are jeopardised by the partner’s inability to pay and the partner, despite being requested to do so, fails to provide credible assurance of its ability to pay within a reasonable period. Statutory rights of termination and withdrawal and the rights pursuant to Sections 25 and 39 shall remain unaffected.
- Should individual parts of these terms and conditions of sale be or become invalid, this shall not affect the validity of the remaining provisions.
- Unlimited contracts and contracts with a term of more than 5 years can be terminated with 6 months’ notice.
- If, in the case of long-term contracts (contracts with a term of more than 12 months and unlimited contracts), there is a significant change in wage, material or energy costs, each contracting party shall be entitled to demand negotiations on an appropriate adjustment of the price, taking these factors into account.
- In the case of delivery contracts on call, binding quantities are to be notified to us by call at least 2 months before the delivery date, unless otherwise agreed. Additional costs caused by a delayed call or subsequent changes to the call with regard to time or quantity by our partner shall be borne by him unless he is not responsible for the delay or subsequent change; our calculation shall be decisive in this respect.
- Each contracting party shall use all documents (including samples, models and data) and knowledge which it receives from the business relationship only for the jointly pursued purposes and shall keep them secret from third parties with the same care as its own documents and knowledge if the other contracting party designates them as confidential or has an obvious interest in keeping them secret. This obligation begins with the first receipt of the documents or knowledge and ends 36 months after the end of the business relationship.
- The obligation does not apply to documents and knowledge which are generally known or which were already known to the contracting party at the time of receipt without the contracting party being obliged to maintain secrecy, or which are subsequently transmitted by a third party entitled to pass them on, or which are developed by the receiving contracting party without making use of documents or knowledge of the other contracting party which are to be kept secret.
- If one contracting party provides the other with drawings or technical documents relating to the goods to be delivered or their manufacture, these shall remain the property of the submitting contracting party.
- The manufacturing costs for samples and production equipment (tools, moulds, templates, etc.) shall be invoiced separately from the goods to be delivered, unless otherwise agreed. This shall also apply to manufacturing equipment which must be replaced as a result of wear and tear.
- The costs of maintenance and proper storage as well as the risk of damage to or destruction of the production equipment shall be borne by us.
- If the partner suspends or terminates the cooperation during the production period of the samples or means of production, all production costs incurred up to that point shall be borne by the partner.
- The means of production shall remain in our possession, even if the partner has paid for them, at least until the delivery contract has been settled. Thereafter, the partner is entitled to demand the return of the means of production if a mutual agreement has been reached on the time of return and the partner has fulfilled its contractual obligations in full.
- We shall store the means of production free of charge for three years after the last delivery to our partner. Thereafter, we shall request our partner in writing to comment on further use within 6 weeks. Our obligation to keep the equipment in safe custody ends if no comment is made within these 6 weeks or no new order is placed.
- Customer-related means of production may only be used by us for subcontracting to third parties with the prior written consent of our partner.
- Our prices are quoted in Euro exclusive of VAT, packaging, freight, postage and insurance.
- All invoices are due for payment within 30 days of the invoice date.
- If we have indisputably delivered partially defective goods, our partner is nevertheless obliged to make payment for the defect-free part unless the partial delivery is of no interest to him. In all other respects the partner may set off claims for compensation for the costs of remedying defects or completion of the work; he may set off other counterclaims only if they have been legally established, are ready for a decision or are undisputed. The partner also has a right of retention or a right to refuse performance only within these limits.
- In the event that we exceed our target, we shall be entitled to charge interest on arrears at the rate charged by the bank for current account overdrafts, but at least 8 percentage points above the respective base rate of the European Central Bank.
- In the event of default in payment, we may, after giving written notice to the partner, suspend performance of our obligations until payment has been received.
- Bills of exchange and cheques shall only be accepted by agreement and only on account of performance and on condition that they can be discounted. Discount charges shall be calculated from the date on which the invoice amount is due. A guarantee for the timely presentation of the bill of exchange and cheque and for the lodging of a bill protest is excluded.
- Unless otherwise agreed, we deliver “ex works”. Decisive for compliance with the delivery date or the delivery period is the notification by us of readiness for dispatch or collection.
- The delivery period shall commence with the dispatch of our order confirmation and shall be extended appropriately if the conditions of Clause 57 are met.
- Partial deliveries are permissible to a reasonable extent. They will be invoiced separately.
- Within a tolerance of +10 & -5 percent of the total order quantity, production-related excess or short deliveries are permissible. The total price shall change in accordance with their scope.
- Goods notified as ready for dispatch must be taken over by the partner without delay. Otherwise we shall be entitled to dispatch them at our own discretion or to store them at the partner’s expense and risk.
- In the absence of a special agreement, we shall choose the means of transport and the transport route.
- The risk shall pass to the partner when the goods are handed over to the railway, forwarding agent or carrier or when storage commences, but at the latest when the goods leave the factory or warehouse, even if we have undertaken delivery.
- If we can foresee that the goods cannot be delivered within the delivery period, we shall inform the partner of this immediately and in writing, inform him of the reasons for this and, if possible, state the expected delivery date.
- If delivery is delayed due to a circumstance listed in Clause 57 or due to an act or omission on the part of the Partner, an extension of the delivery period shall be granted which is reasonable in the circumstances.
- The partner is only entitled to withdraw from an individual contract if we are responsible for the non-observance of the delivery date and he has unsuccessfully set us a reasonable period of grace.
- We retain title to the delivered goods until all claims arising from the business relationship with the partner have been settled.
- The partner is entitled to sell these goods in the ordinary course of business as long as he meets his obligations from the business relationship with us in good time. However, he may neither pledge the reserved goods nor assign them as security. He is obliged to secure our rights in the credited resale of the reserved goods.
- In the event of breaches of duty by the partner, in particular in the event of default in payment, we shall be entitled to withdraw from the individual contract and to take back the goods after the unsuccessful expiry of a reasonable deadline for performance set for the partner; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The partner is obliged to surrender the goods.
- The partner hereby assigns to us by way of security all claims and rights arising from the sale or any leasing of goods to which we are entitled and which may have been granted to the partner. We hereby accept the assignment.
- Any processing or treatment of the reserved goods shall always be carried out by the partner on our behalf. If the reserved goods are processed or inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the other processed or mixed items at the time of processing or mixing. If our goods are combined or inseparably mixed with other movable items to form a single item and if the other item is to be regarded as the main item, the partner shall transfer co-ownership to us on a pro rata basis insofar as the main item belongs to him. The partner shall hold the ownership or co-ownership in safe custody for us. In all other respects, the same shall apply to the item created by processing or combining or mixing as to the goods subject to retention of title.
- The partner must inform us immediately of any enforcement measures by third parties against the goods subject to retention of title, against the claims assigned to us or against other securities, handing over the documents necessary for intervention. This shall also apply to impairments of any other kind.
- If the value of the existing securities exceeds the secured claims by more than 20 percent in total, we shall be obliged to release securities of our choice at the partner’s request.
- The quality of the goods is exclusively based on the agreed technical delivery specifications. If we have to deliver according to drawings, specifications, samples, etc. of our partner, the latter shall assume the risk of suitability for the intended use. Decisive for the condition of the goods in accordance with the contract is the time of the transfer of risk in accordance with Clause 33. 43a. In our deliveries we comply with the respective applicable statutory regulations of the European Union and the Federal Republic of Germany, e.g. the REACH Regulation (Regulation EC No. 1907/2006), the Electrical and Electronic Equipment Act (ElektroG) and the Electrical and Electronic Equipment Substances Ordinance (ElektroStoffV) as national implementations of Directives 2002/95/EC (RoHS I) and 2011/65/EU (RoHS II) and Directive 2002/96/EC (WEEE) and the End-of-Life Vehicles Ordinance (AltfahrzeugV) as national implementation of EU Directive 2000/53/EC. We shall inform the partner without delay of any relevant changes to the goods, their deliverability, usability or quality, in particular those caused by the REACH Regulation, and shall coordinate suitable measures with the partner in individual cases.
- We shall not be liable for material defects caused by unsuitable or improper use, faulty assembly or commissioning by the partner or third parties, normal wear and tear, faulty or negligent handling, nor for the consequences of improper modifications or repair work carried out by the partner or third parties without our consent. The same applies to defects which only insignificantly reduce the value or suitability of the goods.
- Unless otherwise agreed, the statute of limitations for claims for material defects shall be in accordance with the law.
- If an acceptance of the goods or an initial sample inspection has been agreed, the notification of defects which the partner could have detected during careful acceptance or initial sample inspection is excluded.
- We must be given the opportunity to determine the defect complained of. Goods which are the subject of a complaint must be returned to us immediately on request; we shall bear the transport costs if the complaint is justified. If the partner does not comply with these obligations or makes changes to the goods already complained about without our consent, he shall lose any claims for material defects.
- In the event of a justified notification of defects in due time, we shall, at our discretion, either repair the defective goods or deliver a faultless replacement.
- If we do not fulfil these obligations or do not fulfil them in accordance with the contract within a reasonable time, the partner may set us a final deadline in writing within which we must fulfil our obligations. After the unsuccessful expiry of this period, the partner may demand a reduction in the price, withdraw from the individual purchase contract or carry out the necessary rectification itself or have it carried out by a third party at our expense and risk. Reimbursement of costs is excluded insofar as the expenses increase because the goods have been taken to another location after our delivery, unless this corresponds to the intended use of the goods.
- Statutory rights of recourse of the partner against us shall only exist insofar as the partner has not made any agreements with its customer which go beyond the statutory claims for defects. Furthermore, the last sentence of Clause 50 shall apply mutatis mutandis to the scope of the rights of recourse.
- Unless otherwise stated below, other and further claims of the partner against us are excluded. This shall apply in particular to claims for damages for breach of obligations arising from the contractual obligation and from unlawful acts. We shall not be liable for damage which has not occurred to the delivered goods themselves. In particular, we shall not be liable for loss of profit or other financial losses of the partner.
- The above limitations of liability shall not apply in the event of intent, gross negligence on the part of our legal representatives or executive employees, or culpable breach of material contractual obligations, i.e. obligations the fulfilment of which is essential to the proper performance of the contract and compliance with which the contractual partner regularly relies on and may rely on. In the event of culpable breach of material contractual obligations, we shall be liable – except in cases of intent or gross negligence on the part of our legal representatives or executive employees – only for reasonably foreseeable damage typical for the contract.
- Furthermore, the limitation of liability shall not apply in cases in which liability is assumed under the Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the delivered goods. It shall also not apply in the event of injury to life, limb or health and in the absence of warranted characteristics if and insofar as the purpose of the warranty was to protect the partner against damage that did not occur to the delivered goods themselves.
- Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, legal representatives and vicarious agents.
- The statutory provisions on the burden of proof shall remain unaffected.
- Force majeure, industrial disputes, riots, official measures, failure of our suppliers to deliver and other unforeseeable, unavoidable and serious events shall release the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. This shall also apply if these events occur at a time when the contracting party concerned is in default, unless it has caused the default intentionally or by gross negligence. The contracting parties are obliged to provide the necessary information without delay within the bounds of what is reasonable and to adjust their obligations to the changed circumstances in good faith.
- Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.
- For all legal disputes arising from and in connection with a contract, also in the context of a bill of exchange and cheque process, our place of business shall be the place of jurisdiction. We are also entitled to take legal action at the registered office of the partner.
- The law of the Federal Republic of Germany shall apply exclusively to the contractual relationship. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG – “Vienna Sales Convention”) is excluded.
