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I. Scope/general provisions 1. All of our deliveries and services to entrepreneurs and bodies corporate organised under public law or public separate estates (but not consumers within the meaning of §§ 474 et seqq., 13 BGB [German Civil Code]) shall exclusively be governed by the following General Terms and Conditions (GTC) of wedi GmbH (wedi), with any contrary conditions being expressly excluded; the General Terms and Conditions shall also apply to all future business relationships without being expressly referred to again. Deviations from our Terms and Conditions shall require the express agreement in written form. Our Terms and Conditions shall not apply to construction work.
2. In addition, the Incoterms® 2010 including the applicable amendments as of the time when the contract is concluded shall apply. Accordingly and unless otherwise agreed, our deliveries shall always be FCA Emsdetten. II. Offer and conclusion of the contract
1. Our offers and our samples, brochures, drawings and other performance data shall be subject to change and without commitment unless we have expressly described them as binding.
2. The customer shall be bound by its orders for 2 weeks. The contract shall take effect by our order confirmation within 2 weeks following the receipt of the order or alternatively by the execution of the order within the same period.
3. Commercial correspondence that is printed using data processing facilities shall be legally binding even without a signature.
4. Offers shall apply to deliveries into the country where the customer has its seat, according to the information provided in its order (hereinafter “export country”). The customer shall be liable vis-à-vis wedi for all disadvantages and liabilities arising due to the use of the goods outside of the export country.
5. Pictures, samples, brochures, drawings and/or all other documents that form a part of the offer shall not constitute quality descriptions. Characteristics, representations or guarantees shall not be connected with them, except where this is separately agreed in written form. We shall reserve the right of ownership, the copyright and all other property rights regarding all pictures, samples, brochures, drawings and other documents. Unless expressly otherwise identified, we shall only warrant the existence of our property rights for the territory of the Federal Republic of Germany. The customer may only transfer our rights to third parties with our consent in written form, irrespective of whether or not we have identified them as confidential, and the customer must return them to us without delay upon request without having a right of retention.
6. Usage of our products in aircrafts, motor vehicles and/or watercrafts is not intended due to special licensing and test procedures and the relevant fire protection provisions, unless we have given an express previous approval in written form in the individual case. Otherwise, warranty, compensation for damages and any resulting claims shall be excluded.
7. Information on processing and application possibilities of the wedi products, technical recommendations or advisory services and other information of our employees (application-related advisory service) shall be provided to the best of our knowledge but without commitment and under exclusion of any liability whatsoever. They shall not release our customer and its purchasers from carrying out their own inspections and tests regarding the suitability of the products for the intended use. Application-related advisory services shall not constitute a separate contractual legal relationship/consultancy relationship.
8. The delivery shall be subject to the correct and timely supply by our own suppliers. We shall immediately inform the customer about the non-availability of a delivery and immediately reimburse the corresponding consideration to the customer in the case of a rescission. III. Prices
1. Our prices shall be net prices ex works Emsdetten (FCA Emsdetten), including the normal transport packaging plus transport costs, unless otherwise stipulated in the order confirmation; in each case those prices shall be deemed as agreed which result from the respectively current price list at the time of the acceptance of the order plus the respectively statutory VAT. If, in the case of foreign shipments, the customer provides exact information regarding applicable foreign packaging, weighing and customs regulations in due time, but at the latest prior to the confirmation of the order, we shall undertake to comply with those regulations as far as possible. Any additional costs associated with this shall be borne by the customer.
2. If the delivery is effected no sooner than 4 months after the order confirmation, we shall reserve the right to increase the prices if a significant change for the cost factors determining the contract, such as wages, packaging material, freight and energy costs, raw materials or taxes, occurs. Insofar, the price increase shall depend on the amount of the cost increase.
3. Customs, consular fees and taxes, dues, fees and associated costs charged due to regulations outside of the Federal Republic of Germany shall be at the expense of the customer. In the case of a delivery, including customs or other dues, the price stated shall be based on the rates applicable at the time of the offer. The actual costs shall be charged. The respectively valid statutory VAT shall be additionally charged, if applicable.
4. We shall expressly object to any cash discount deduction or other deduction not agreed to in our order confirmation.
5. The customer shall only insofar be entitled to the right to retain payments or to offset them against counterclaims as far as they are uncontested or have been ascertained in a legally binding manner.
IV. Period and date of delivery
1. Periods of delivery shall start upon the day of the order confirmation and/or execution of the order; they shall be without commitment unless a date of delivery has expressly been agreed in written form.
2. The prerequisite for an adherence to each period of delivery shall be that the customer meets its own contractual duties. The period of delivery shall be deemed as adhered to if the item has left our factory until the expiry of such period of delivery or if the readiness for shipment has been notified during this time. At the earliest, periods of delivery shall commence upon the conclusion of the contract but not prior to the complete provision of all documents, releases, technical clarifications etc. to be procured by the customer. Subsequent requests for changes and/or amendments of the customer shall reasonably extend the period of delivery. The same shall apply if unforeseeable impediments not at our fault occur, for example events due to force majeure such as war, strike, lockouts or other disruptions of operations, for example impediments at sub-suppliers. In these cases of an impediment to performance of more than 6 months, both parties shall be entitled to rescind the contract regarding the overdue delivery without compensation.
3. In the case of a default of delivery at our fault, the customer must set another reasonable period of grace after sending us a warning in written form, stating that the customer will refuse the acceptance of the contractual item after the expiry of such period. The customer shall only be authorised to rescind the contract by means of a declaration in written form after the futile expiry of the period of grace but only to the extent that we are at fault for the violation of duty, which is only to be assumed in the case of intentional or grossly negligent violations of duty, and that the customer proves that its interest in the delivery/service is no longer given. Additional claims for damages and claims for compensation for expenses cannot be asserted by the customer in the case of rescission. Our liability for damages shall in any case be limited to the foreseeable damage which typically occurs. We herewith expressly object to a consolidation of the damage in a lump sum or a penalty in the case of default of delivery.
4. We shall be entitled to partial deliveries and partial performance at any time, without implying a new offer. In the event of non-deliverability of the remaining part, the customer shall be entitled to withdraw from the contract without indemnity. Additional costs resulting from part deliveries shall be borne by us. The customer is only responsible for the payment of the full purchase price when we have completely fulfilled the contract or the performance.
5. If the customer is in default of acceptance, we shall be entitled to claim compensation for the damage incurred and possible additional expenses. The same shall apply if the customer culpably violates duties to cooperate. V. Terms of delivery, passing of the risk
1. The shipment of the goods shall be at the risk and expense of the customer (Incoterms® 2010 FCA Emsdetten). The risk shall always pass to the customer at the place of lading of the works, i.e. basically and unless otherwise agreed upon lading of the delivery; this shall also apply if partial deliveries are made or if we have accepted the duty to provide other services. The choice of the shipment route and the means of shipment shall be our responsibility.
2. If the shipment is delayed due to circumstances at fault of the customer, the risk shall pass to the customer on the day of readiness for shipment. Delivered items must be accepted by the customer even if they show minor defects.
3. If the customer is obliged to provide the means of transport for the delivery and if the customer fails to do so at the contractually agreed time, we shall be released from our duty to deliver by the storage and insurance of the goods at the cost and risk of the customer in any case. The carrier’s certificate of handover shall be deemed as proof of the contractual delivery.
4. Upon the express request and at cost of the customer, we shall insure the delivery against transport damage and other risks. VI. Terms of payment, default
1. The purchase price shall immediately be due for payment upon receipt of the invoice by the customer (without any deduction) unless a different due date for payment results from our order confirmation.
2. If we realize after conclusion of the contract that our claim for the purchase price is endangered by the insufficient ability to pay by the customer we shall be entitled under the statutory regulations to refuse performance and, if applicable, after setting a period of grace, to rescind the contract. In the case of contracts for the manufacturing of specific items, we may withdraw without setting a period of grace. A specific item might also be assumed if we manufacture customized serial products.
3. The payment may only be made to one of our accounts stated on the invoice or to a person to whom we have granted an authority in written form to collect.
4. Cheques and bills of exchange, the acceptance of which we expressly reserve, shall only be deemed as payment after being honoured. Any discount and bank charges shall be at the expense of the customer. To the extent that we have agreed a payment of the purchase money debt by means of a reversed bill of exchange, the reservation shall also apply to the honouring by the customer of the bill of exchange accepted by us and shall only expire by means of an irrevocable credit of the cheque received to us.
5. If a transfer of the payment at the time of maturity is not possible from the country from which the payment has to be effected, the customer must still demonstrably pay the equivalent value of the amount owed on schedule to a European bank in this country. If the exchange rate of the amounts paid in a currency other than the agreed currency deteriorates, the customer shall be obliged to make up for this by a subsequent payment.
6. If it becomes apparent for wedi after the conclusion that the claim for the purchase price is endangered by the insufficient ability to pay of the customer, e.g. the application for opening of insolvency proceedings or due to deteriorating credit information of a credit insurer, we shall be entitled under the statutory regulations to refuse performance and if applicable, after setting a period of grace, to rescind the contract. We shall undertake to facilitate payment in advance for the customer up to the amount of the value of the delivery or alternatively facilitate the provision of a corresponding security of a credit insurer or a European bank in form of an absolute guaranty for an unlimited period of time upon first request, waiving the right to dispute and set-off as well as the defence of failure to pursue other remedies. If the customer neither makes the down payment nor meets the request to provide a security, we shall permanently be entitled to the right of retention or alternatively a right of rescission after a fruitless dunning letter. In addition, we shall be entitled to claim damages.
7. If the customer is in default with a payment, we shall charge interest amounting to 8% above the base lending rate of the European Central Bank, subject to the proof of higher damage. VII. Warranty, notification of defects
1. Each of our deliveries must immediately be checked for completeness and lack of defects. Obvious defects that are recognisable during a proper examination must be noted by the customer on the carrier’s certificate of handover upon delivery and must immediately be notified to us after delivery in written form. Additionally, the customer must provide notification of each defect in written form immediately after detection. The notification must include an exact description of the fault. If the customer fails to carry out the proper examination and/or to notify defects, our liability for the defect not notified shall be excluded.
2. In the case of collection or agreed delivery, the customer shall be obliged to control the condition of the goods itself or to have it controlled by an authorised third party and to obtain an acknowledgment in this respect. Short deliveries and incorrect deliveries shall not constitute a defect; rather we shall be entitled to carry out a subsequent delivery in this respect upon request.
3. If the supplied item is defective, we shall have the option to render supplementary performance by removal of the defect (subsequent improvement) or by delivery of a non-defective item (substitute delivery). Our right to refuse the supplementary performance subject to the statutory prerequisites shall be unaffected from this. However, we shall be entitled to make the payment of the due purchase price by the purchaser a condition for the supplementary performance owed. However, the purchaser shall be entitled to retain a part of the purchase price that is reasonable in proportion to the defect. If defects of the product are determined, the customer shall be obliged (after request by us) to return the goods prior to the installation by the customer in the original packaging and safely packed for transport at our costs; in this respect, we shall be entitled to choose the means of transport. The expenses which are necessary for the purpose of inspection and subsequent performance, in particular transport, route, work and material costs, shall be borne by us if there is a defect we are responsible for. However, if it is determined that a request for the remedy of a defect by the customer is unjustified, we can request reimbursement of the costs incurred from the customer, including expenses for the inspection and transport, unless the customer was not able to see that we are not responsible or that there is no defect. Expenses for the installation or removal are explicitly excluded.
4. Claims based on defects shall not exist in the case of minor deviations from the agreed quality or in the case of minor impairment of the usability.
5. If the customer chooses to rescind the contract due to a material defect of the goods after the supplementary performance failed, the customer shall not be entitled to an additional claim for damages. If the customer chooses to claim damages after the supplementary performance failed, the goods shall remain with the customer if the customer can reasonably be expected to accept this. The compensation shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply if we have caused the violation of the contract in an intentional or grossly negligent manner. We shall contest any contractual penalty for damages or defective delivery.
6. For carrying out all corrections and substitute deliveries that appear to be necessary in our due discretion the customer must give us the required time and opportunity after agreement; if the customer fails to do so, we shall be released from the liability for defects. The customer shall only be entitled to remove the defect itself or to have it removed by third parties and to claim the reimbursement of the appropriate costs from us if we are in default with the removal of the defect after a warning and the setting of another reasonable period while threatening to otherwise refuse acceptance. In the case of a substitute delivery, the customer must return the defective item to us in accordance with the statutory regulations unless we renounce this in written form. Our supplementary performance shall neither include the disassembly of the item nor the re-installation unless we were originally obliged to install the item.
7. The period of limitation for claims and rights due to defects – for whatever legal reason – shall amount to 1 year, whether for delivery or manufacturing. This period shall also apply to other claims for damages of the customer, irrespective of their legal basis, unless we are intentionally at fault or in the case of a violation of guarantee and/or in the case of fraudulent concealment of defects and/or in the case of claims under the product liability law and in the case of a culpable violation of material contractual duties.
8. A notification of defects shall explicitly not suspend the period of limitation of the warranty claims if we find after an examination of the cause of the defects that we are not responsible for the defect.
9. We shall not be liable for any damage caused by the unsuitable or improper use, incorrect treatment by the customer or third parties, natural wear and tear or negligent treatment, unsuitable cleaning and care, chemical and/or mechanical influence etc. unless they are attributable to a fault on our part; we shall not be liable either if the customer fails to use our products according to their intended use or disregards our operating manuals/provisions on the intended use and the damage is (also) caused by this. In the case of slightly negligent violations of duty, the liability shall be excluded. In the case of a gross violation of duty, our liability shall be limited to the foreseeable damage that is typical for the contract; the same shall apply in the case of a violation of material contractual duties. In all other respects, we shall be liable in accordance with the product liability law, due to injury to life, body or health or due to the culpable violation of material contractual duties.
10. Each claim for damages must be asserted in court within a cut-off period of 3 months following our rejection of our liability in written form. VIII. Reservation of ownership, security interests
1. We shall reserve the ownership regarding the goods sold until the complete payment of all of our present and future claims under the purchase contract and our ongoing business relationship (secured claim). The reservation of ownership shall extend to all outstanding balance claims from the current account and, if bills of exchange or cheques are received, shall apply until they are honoured; in this respect, the receipt of payment by us shall be authoritative for the fulfilment.
2. The reservation of ownership shall also extend to the products created by the processing, mixing and/or combination of our goods at their full value; in this respect, we shall be deemed as manufacturers. If, in the case of a processing, mixing or combination with goods of third parties, which shall also mean products of the customers, their right of ownership continues to exist, we shall acquire a co-ownership in the proportion of the invoice values of the processed, mixed or combined goods. In these cases, the customer must store items that are subject to the sole ownership or co-ownership of wedi GmbH for wedi free of charge. In all other respects, the same regulation shall apply to the creation of the products as to the goods supplied subject to a reservation of ownership.
3. If the reserved goods are installed as material component by the customer in the real property/the building and/or a material component of the building of a third party, the customer shall assign to us already now the claims arising against the third party or the party concerned regarding the remuneration in the amount of the value of the reserved goods with all ancillary rights, including the right to grant an equitable mortgage ranking prior to the rest; we herewith accept the assignment. If reserved goods are installed by the customer in a real property as a material component, the customer shall assign to us already now the claims arising under the commercial sale of the property or real estate property rights in the amount of the invoice value of the reserved goods with all ancillary rights; we herewith expressly accept the assignment.
4. If the value of the securities granted exceeds the claims by more than 10%, wedi shall insofar be obliged at its discretion to either re-transfer or release securities upon the request of the customer.
5. The customer shall be entitled to process and sell the reserved goods in the proper course of business unless the customer is in default. The right to resell shall not apply if the customer has agreed a prohibition of assignment with its purchasers. Pledging or transfers by way of security shall be inadmissible.
6. If reserved goods are sold by the customer alone or together with goods not belonging to wedi, the customer shall assign to wedi already now the claims arising under the resale or for another legal reason (including all outstanding balance claims from a current account) by way of security to the full extent; wedi herewith expressly accepts the assignment.
7. The customer shall be revocably authorised by wedi to collect the assigned claims for own account and in its own name. The collection authorisation may at any time be revoked by wedi if the customer does not properly meet its payment obligations, is in default of payment, has agreed the prohibition of assignment with its purchasers or if an application for opening insolvency proceedings has been filed and/or if the payments have been discontinued. Upon request, the customer shall be obliged to inform its purchaser of the assignment and to handover any and all information and documents required for the collection to wedi.
8. The customer must immediately inform wedi of all attachments, measures of enforced execution or other encroachments by third parties upon the reserved goods or the assigned claim, and must hand over the documents necessary for the objection so that wedi can enforce its rights; the customer must point out our ownership and/or the fact that we hold the claims. To the extent that the third party is not able to reimburse the court or out-of-court costs incurred by us in this connection, the customer shall be liable for such costs.
9. Upon the discontinuation of payment and/or the application for opening of the insolvency proceedings, the right for resale, processing, combination or mixing of the reserved goods or the authorisation to collect the assigned claims shall expire; in the case of the protest of a cheque or bill of exchange, the collection authorisation shall also expire. This shall not apply to the rights of the insolvency administrator.
10. If the reservation of ownership is not effective under the laws of the country of destination in the above-mentioned form, the customer must cooperate in constituting a security interest for wedi in accordance with the provisions of its country. 11. The customer shall be obliged to treat the goods with care; in particular, the customer shall be obliged to sufficiently insure them at own costs against damage caused by fire, water and theft at the replacement value. If maintenance or inspection work is required, the customer must carry out such work in due time at own costs.
12. If the customer violates the contract, in particular in the case of a default of payment, we shall be authorised to rescind the contract in accordance with the statutory regulations and/or to request the surrender of the goods due to the reservation of ownership. The request for surrender shall not simultaneously include the declaration of rescission; rather we shall be authorised only to claim the surrender of the goods and reserve the right to rescind. If the customer does not pay the due purchase price, we may only assert these rights if we have previously fruitlessly set a reasonable period for payment to the customer or if it is not necessary to set such a period under the statutory regulations. IX. Liability
1. Unless otherwise stipulated in these Terms and Conditions, we shall be liable in the case of a violation of contractual and non-contractual duties in accordance with the relevant statutory provisions.
2. We will not bear any costs for assembly and disassembly with regard to commercial legal relations as long as we are not obliged to bear them by law. We shall be liable for damages – for whatever legal reason – in the cases of intention and gross negligence. We shall explicitly contest the absorption of the costs of installation and disassembly regarding commercial legal relations insofar as we are not legally obliged to their absorption. In the case of simple negligence, we shall only be liable for:
a) Damage arising due to the injury to life, body or health
b) Damage arising due to the violation of a material contractual duty (obligation the fulfilment of which renders the proper execution of the contract possible in the first place and the compliance with which is and can be regularly relied upon by the contracting party); however, in this case, the liability of wedi shall be limited to the compensation for the foreseeable damage which typically occurs.
3. The limitations of liability resulting from par. 2 shall not apply to the extent that wedi has fraudulently concealed the defect or has accepted a guarantee for the quality of the goods. The same shall apply to claims of the customer under the product liability law.
4. The customer can only rescind or terminate the contract due to a violation of duty which does not constitute a defect if wedi is at fault for the violation of duty and if the violation of duty is material. A free right of termination of the customer, in particular in accordance with §§ 651, 649 BGB, shall be excluded. In all other respects, the statutory prerequisite and legal consequences shall apply.
5. A notification of defects shall explicitly not suspend the period of limitation of the warranty claims if we find after an examination of the cause of the defects that we are not responsible for the defect and notify the customer thereof.
6. Rights of recourse under § 478 BGB due to complaints of final customers shall remain unaffected subject to the proviso that we are granted the right to render supplementary performance by repair or a new delivery at our choice for the compensation in the case of a recourse.
7. We object to penalties and lump-sum damages for whatever legal reason, namely in the case of default and defects. X. Conditional performance / embargo clause
1. Our performance of the contract shall be subject to the proviso that no impediments due to national or international regulations of the foreign trade legislation and no embargoes and/or other sanctions object to the performance. In particular, the customer shall be obliged to refrain from any business (a) with persons, organisations or institutions that are included in the sanction list under EC regulations or US export regulations, (b) with embargo states that is prohibited, (c) for which the necessary approval is not available or not applicable, (d) which may take place in connection with ABC weapons and/or theft of military equipment.
2. In particular, the customer shall undertake to immediately inform us in written form without request if it intends to supply products or deliveries purchased from us to territories which are subject to such provisions or to use them there. The customer shall indemnify us from all legal consequences which result from the violation of such provisions and shall pay damages to the necessary extent if we causally suffer a damage due to that. XI. Place of performance, place of jurisdiction, applicable laws, severability clause
1. The place of performance for all obligations under the contractual relationship shall be Emsdetten.
2. To the extent that the purchaser is a full merchant, a body corporate organised under public law or a public separate estate, the Amtsgericht [local court] Rheine and/or the Landgericht [district court] Münster shall have jurisdiction over all disputes directly and indirectly resulting from the contractual relationship, including actions on a bill of exchange or a cheque. This shall also apply if the customer does not have a general place of jurisdiction in Germany, relocates its place of residence or usual abode from Germany to another country or if its place of residence or usual abode is not known at the time of bringing the action.
3. These terms and conditions and the entire legal relationship between the contracting parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Sales Convention (United Nations Convention on the Contracts for the International Sale of Goods of 11 April 1980, BGBl. [federal law gazette] 1989 II page 588).
4. If any of the provisions in these terms and conditions is or becomes ineffective or unenforceable, the effectiveness or the enforceability of the other provisions shall not be affected. Rather, in such a case, the parties shall undertake to agree on such an effective or enforceable provision instead of the ineffective or unenforceable provision which economically is as close as possible to the ineffective or unenforceable provision in terms of content and the intention of the parties. The same shall apply if a gap is found during the execution of the contract which must be filled.