General Conditions of Delivery
General Conditions of Delivery of STAHLWILLE Eduard Wille GmbH & Co. KG, Wuppertal (Edition 04/2018).
§ 1 Application
(1) These General Conditions of Delivery (“Conditions”) shall apply to all present and future contracts with entrepreneurs, with public enterprises as well as public assets, in regard to deliveries and other services, including contracts relating to the supply and manufacture of non-fungible goods.
(2) In no event shall the Buyer's purchase conditions apply even if we do not expressly object to them again after having received such conditions or a reference to the same.
§ 2 Quotation and Conclusion of Contract
(1) Our offers are non-binding and subject to change.
(2) The legal relationship between us and the Buyer is defined exclusively by the purchase contract in text form, including these Conditions. The contract contains the agreements in their entirety between the parties relating to the objects of agreement.
(3) Oral agreements, promises, assurances and guaranties made or given by our sales staff in connection with the conclusion of the contract and amendments to the agreements reached shall not be binding unless confirmed by us in text form.
(4) Our information on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, loading capacity, tolerances and technical data) as well as our representations of the same (eg drawings and illustrations) are only approximate, unless the usability of the contractually stipulated purpose require an exact conformity with the contract. These are not guaranteed features but merely descriptions or markings of the delivery or service. Standard deviations and those resulting from legal provisions or technical improvements and the replacement of components by other parts of equivalent quality are permissible provided they do not impair the applicability of the product for the contractually agreed purpose.
(5) We reserve the right of property or copyright in all quotations and cost estimates and any drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Buyer. The Buyer is not permitted to make these available to third parties, publicize them or exploit them or allow them to be exploited by third parties in their original form or in terms of their content or reproduce or store them in any form without our express consent. On our request, the Buyer shall return all these objects and destroy any copies in its possession as long as they are no longer required in the normal course of business or if the negotiations do not end in conclusion of a contract.
§ 3 Prices and Payment
(1) Prices apply to the deliveries and services listed in the order confirmation. Additional or special services shall be charged separately. Prices quoted are in EURO ex works excluding packaging and VAT and, for export orders, customs duties and any other fees or charges charged by the authorities.
(2) Unless certain prices have been specifically agreed, we will supply goods at the list prices valid on the date of shipment. If the agreed prices are based on our list prices and if delivery should take place later than four months after conclusion of the purchase contract, our list prices valid on the date of delivery shall apply (less any agreed percentage or fixed discount).
(3) Unless otherwise agreed or stated in our invoices, payment shall be made without cash discounts immediately upon delivery and in such a manner that we can dispose of the sum on the due date. Any payment transfer costs shall be borne by the Buyer. In case the Buyer exceeds the payment deadline or is in default in payment, we will debit him with interests at 9%-points above the basic rate of interest, unless higher interest was agreed. We may charge EUR 40.00 as default compensation additionally. We reserve the right to claim additional damages resulting from default.
(4) The Buyer may retain or set off any counterclaims only in so far as such claims are undisputed or have become legally binding, or as they are based on the same contractual relation with the Buyer and would entitle him to refuse performance under Sec. 320 of the German Civil Code (BGB).
(5) Should it become evident after the conclusion of the contract, that payment is jeopardized due to the Buyer’s lack in financial means, or should the Buyer be in default with a considerable portion of the amount due or should other circumstances arise which show a material deterioration in the Buyer's financial position after the conclusion of the contract, we shall be authorized to make use of rights under Sec. 321 BGB. This also applies in case the performance of our contractual obligation is not yet due. We shall be authorized to make due any and all of our not yet mature accounts receivable resulting from the business relationship. Buyer’s ability to perform shall be deemed jeopardized also if the Buyer is for at least three weeks in default with a considerable portion of the amounts due; further, in case of a considerable downgrading of his existing credit limit by our credit insurance.
(6) Where, after conclusion of a contract for delivery, our costs, e.g. for raw materials, power, wages or transport, increase, we reserve the right to adjust the prices of the goods supplied appropriately, even where specific prices had been agreed. If, in such a case, the price increases by more than 10%, the Buyer is entitled to withdraw from the contract by means of an immediate declaration in text form. Where the increase in prices relates only to a part of the delivery, the withdrawal applies only to that part of the contract.
(7) Any agreed cash discount always relates to the invoiced value excluding freight and will only be granted if and in so far as the Buyer has completely paid all payables due at the time of the discount. Unless otherwise agreed to discount periods shall begin with the date of the invoice.
§ 4 Delivery and Delivery Times
(1) Deliveries are made ex works. Our commitment to deliver is under the reservation of the contractual, in particular correct and timely self-supply by our own suppliers, unless we are responsible for the non-contractual, deficient or late self-delivery.
(2) Any confirmation as to delivery times shall be approximate only. Delivery times shall commence with the date of our order confirmation and are subject to the timely clarification of any details of the order as well as of the fulfilment of any of the Buyer’s obligations, e.g. to produce official certifications, to provide letters of credit and payment guarantees or to pay agreed instalments. Any agreed delivery time shall be considered to be met if and in so far the goods have left the works or our warehouse at such time or date. If and in so far the goods fail to be shipped at the agreed time for reasons not attributable to us, the agreed delivery time shall be considered to have been met at the day on which the goods are notified to be ready for shipment.
(3) We can – without prejudice to our rights resulting from the default of the Buyer – require the Buyer to accept an extension or postponement of the delivery periods by that period of time in which the Buyer has failed to meet its contractual obligations towards us.
(4) We shall not be liable for non-delivery or late delivery where this is as a result of force majeure or other events not foreseeable at the time the contract was concluded, and for which we are not responsible. Where these events make it difficult or impossible for us to supply the goods or services and the delay is not only of a transient nature, we reserve the right to withdraw from the contract. If the delay is perceived to be of a transient nature, the delivery or supply period is deemed to be put back by the same period as the delay plus an appropriate period for adjustment to the changed circumstances. If the Buyer cannot, as a result of the delay, be expected to take delivery of the products or services, it is entitled to withdraw from the contract by means of an immediate declaration in text form to us.
(5) We shall be entitled to make partial deliveries at reasonable quantities. We may also exceed or reduce the agreed quantities as appropriate. Where quantities are indicated as “circa”, we may exceed or fall below the agreed quantity up to 10 pct.
(6) Should we default on a delivery of performance, the Buyer shall be entitled to damages due to this delay; in case of slight negligence, however, the claim of the Buyer is restricted to maximum 10% of the agreed purchase price for the performance in default. The rights of the Buyer for damages instead of performance in accordance with Section 8 hereunder remain unaffected by the aforesaid.
§ 5 Place of Performance, Dispatch, Packaging, Passing of Risk, Inspection
(1) Place of performance for all obligations arising from this contractual agreement is Wuppertal unless otherwise agreed. If we are also obliged to perform installation, the place of performance shall be the place where the installation is to be made.
(2) The method of dispatch and the packaging are at our discretion.
(3) In all transactions, including freight prepaid and freight-free deliveries, the risk of loss or damage to the goods shall pass to the Buyer at the time where we hand them over to the forwarding agent or to the carrier, at the latest with their departure from our warehouse. This shall also apply to partial deliveries and cases where we agreed to supply additional services (e.g. shipping or installation). If dispatch or hand-over is delayed for reasons for which the Buyer is responsible, risk is transferred to the Buyer on the day on which the delivery is ready for dispatch and we have communicated this fact to the Buyer.
(4) The Buyer shall immediately request delivery of those goods which have been notified to him as ready for dispatch. Otherwise we are entitled, upon our reminder to ship such goods at the Buyer’s cost and risk or to store them at our discretion and to invoice them to the Buyer. If warehousing is arranged by us, the costs shall be 0.25% of the invoice amount per completed week for the goods to be stored. We retain the right to claim additional or lower storage charges on the basis of appropriate documentation.
(5) Shipments are only insured against theft, breakage, transport damage, fire and water damage and other insurable risks if the Buyer expressly requests this and agrees to pay the charges.
§ 6 Warranty Provisions
(1) For the examination of the goods and notification of defects, the statutory provisions shall apply with the proviso that defects in the goods must be reported to us in text form without delay. Defects that can’t be discovered immediately after delivery, even with the most careful examination, must be reported in text form immediately after discovery, with immediate cessation of any handling and processing. In all cases, after the defect has been discovered, the goods are to be kept in an unaltered condition for inspection. If the Buyer breaches the duty to disclose or processes the goods after discovery of the defect or does not provide the goods for inspection, the goods are deemed to have been approved. At our request the rejected goods are to be returned carriage paid to us. The above provisions of this paragraph shall apply mutatis mutandis to the production of a work.
(2) In case of justified and timely notice of defects, we may, at our discretion, rectify the defect or deliver a faultless product (supplementary performance). The place of performance for subsequent performance is our registered office. In the event of failure and / or refusal of supplementary performance, the Buyer is entitled to the statutory rights. If the defect is not significant and / or the goods have already been sold, processed or redesigned, the Buyer may only reduce the purchase price.
(3) We shall only assume any expenses in connection with supplementary performance insofar as they are reasonable in individual cases, in particular in relation to the purchase price of the goods, but in no case such expenses shall exceed 150% of the purchase price. We shall be liable for further expenses eg in connection with the installation and removal of the defective item, in accordance with Sec. 8 of these Conditions.
(4) For defects of components of other manufacturers, which we cannot eliminate for licensing or factual reasons, we will assert our claims for material defects against the manufacturers and suppliers for the account of the Buyer or assign such claims to the Buyer. In such cases, the Buyer may assert any claims for defects against us only under the conditions of and in accordance with these Conditions and provided that the enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for example, due to insolvency, futile. For the duration of the legal dispute, the statute of limitation of the respective claims of the Buyer for defects against us is suspended.
(5) Our liability for defects shall cease to exist if either the Buyer himself or third parties on his behalf have changed the delivered goods without our consent, thereby making the remedy of the defect impossible or unreasonably difficult. In any event, the Buyer has to bear any additional costs to remedy the defect incurred by the change.
§ 7 Proprietary Rights
(1) If the goods delivered should violate the proprietary rights or copyright of a third party, we shall at our discretion and at our own expense modify the goods or replace them in such a way that third parties’ rights are no longer violated and the goods still provide the functions contractually agreed or, after concluding a license agreement, we shall provide the Buyer with the rights to use the products. If this should not succeed within a reasonable period of time, the Buyer shall be entitled to withdraw from the contract or reasonably reduce the purchase price. Any claims for damages by the Buyer are subject to the restrictions defined in Sec. 8 of these Conditions.
(2) If products manufactured by other manufacturers and supplied by us violate any third party rights, we shall at our discretion either assert corresponding claims against the manufacturer and its suppliers on behalf of and for the account of the Buyer or assign such claims to the Buyer. In such cases, the Buyer may assert any claims for defects against us only under the conditions of and in accordance with this Sec. 7 and provided that the enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for example, due to insolvency, futile.
(3) If the order placed by the Buyer requires that we have to purchase special moulds or special-purpose tools & dies, the Buyer shall bear the costs of these. Special moulds or special-purpose tools & dies shall be used by the contractor exclusively for orders placed by the Buyer. For such special-order products, the Buyer shall bear the risk of any infringements of proprietary rights.
§ 8 General Limit of Liability and Limitation
(1) Our liability for breach of contractual or ex-tracontractual obligations, in particular for non-performance, late deliveries, for breach of duties prior to the contract as well as for tortuous acts - including our responsibility for our managerial staff and any other person employed in performing our obligations - shall be restricted to damages caused by our wrongful intent or by our gross negligence. In case of gross negligence, our liability shall in no case exceed the foreseeable losses and damages characteristic for the type of contract in question. Apart from that, our liability for damages resulting from defects including consequential damages shall be excluded.
(2) Where we are liable for damages for simple negligence in accordance with Sec. 8 (1), this liability is restricted to damages that we considered to be possible consequences of a breach of contract at the time of signing or which we should have predicted had we applied normal care and attention. We shall be liable for indirect damages and consequential damages, which are the result of defects of the delivered goods, only insofar as such damages are typically to be expected when the goods are used as intended.
(3) In the event of liability for simple negligence, our duty to indemnify the Buyer for property damages and consequential financial losses is restricted to 10 m. EURO per case, even in cases where fundamental contractual obligations have been breached.
(4) The above-mentioned disclaimers and restrictions apply to the same extent to our officers , employees and other agents.
(5) Where we provide technical information or act as a consultant, and this information or advice is not part of the contractually agreed services or one which we are duty bound to provide, it is provided free of charge and no liability at all is accepted for it.
(6) Unless otherwise agreed to, any contractual claims which the Buyer is entitled to in connection with the delivery of the goods shall fall under the statute of limitations within a period of one year after the goods have been delivered to the Buyer, or inspection is needed, after inspection. This shall not apply insofar as Sec. 438 para. 1 No. 2, Sec. 478, 479 or Sec. 634 lit a) para. 1 No. 2 of the German Civil Code BGB require longer limitation periods.
(7) The aforesaid restrictions of this section 8 shall not apply to our liability for intent, to such cases where we breach our fundamental contractual obligations and where such a breach of contract will endanger the contractual purpose; it shall neither pertain to damages to life, to the body or to health caused by our fault nor to any cases where we have guaranteed certain characteristics of the goods. Nor shall such clause affect our statutory liability laid down in the German Product Liability Act. Our contractual obligations shall be considered to be fundamental if they are required to safeguard the due performance of the contract and on which Buyer typically may rely on. Any statutory rules regarding the burden of proof shall remain unaffected by the aforesaid.
§ 9 Retention of Title
(1) The goods delivered to the Buyer shall remain our property until the full purchase price is paid. Additionally, the goods delivered to the Buyer shall remain our property (Reserved Property) until all of the Buyer’s accounts resulting from the business relationship with him, in particular, any account balances have been settled (current account reservation). This account retention shall finally cease when all of the accounts receivable that remain open and are encompassed by the account retention are settled at the time of payment. This condition shall apply to any future as well as any conditional claims including accepted notes and such cases where the Buyer will affect payments on specifically designated claims. The current account reservation is not applicable in prepayment or delivery vs payment cases (Sec. 142 Insolvency Act); in these cases, the goods remain our property until the purchase price for these goods has been paid in full.
(2) The Buyer shall store the Reserved Property free of charge for us.
(3) The Buyer may resell the Reserved Property only within the normal course of his business in accordance with his normal business terms and provided he is not in default of payment and provided also that any rights resulting from such resale will be transferred to us in accordance with clause 4 through 5 of this section. The Buyer shall not be entitled to dispose of the Reserved Property in any other way.
(4) If the goods delivered are processed by the Buyer, it is deemed to be on behalf of and for the account of us as the manufacturer and the contractor directly acquires property or – if the processing involves materials provided by a number of owners or the value of the processed goods exceeds that of the goods delivered – partial property in the items thus created and in proportion of the value of the goods delivered to the value of the new items. In case the contractor should not be able to acquire property as described herein, the Buyer agrees that his future property or partial property in the new items, as described above, is now assigned to the contractor as collateral. If the goods delivered become an integral part of another item and if that item is considered to be the main item, we become joint owner of the main item to an extent which is proportionate to the value of our property in the new item as defined above in so far as the Buyer is the owner of the main item.
(5) In the event that the goods delivered are resold, the Buyer hereby assigns to us as collateral any claims he may in future have against the Buyer in an amount proportionate to our property in the goods delivered. The same is deemed to apply to other claims which may replace the goods delivered or which may arise in connection with the goods delivered, such as insurance claims and claims resulting from unlawful acts in the event of loss or destruction of the goods. We hereby empower the Buyer irrevocably to collect the claims assigned to us in his own name. We may only revoke this power to collect in the event a claim is made. This right shall expire if withdrawn by us. We shall exert our right of revocation only if and in so far as it becomes evident after the conclusion of the contract that payment resulting from this contract or from other contracts is jeopardized by the lack of Buyer's ability to pay. The Buyer shall - upon our request - immediately inform his customers of such assignment and to forward to us any information and documents necessary for collection.
(6) If third parties attempt to seize the goods delivered, in particular through distraint orders, the Buyer shall without delay notify those third parties that we have property / partial property in those items and notify us of this fact to enable us to take steps to secure our property rights. If the third parties are not in a position to reimburse us for the costs incurred in this connection whether in court or out of court, the Buyer shall be liable to us.
(7) We shall release the goods delivered and items or claims that have replaced them at our own discretion on request to the extent that their value exceeds the claims secured by them by more than 50%.
(8) Should the Buyer default in payment or should he fail to honour a draft we shall be entitled to take back the Reserved Property, to enter, for this purpose, the Buyer’s premises and to sell the Retained Property best possible by crediting the proceeds to the purchase price. The same shall apply if, after the conclusion of the contract, it becomes evident that our claim for payment resulting from this contract or from other contracts is jeopardised due to the Buyer's lack of ability to pay. If we take back the Reserved Property, this shall not be regarded as withdrawal from the contract. The statutory regulations of the Insolvenzordnung (= German Insolvency Act) shall remain unaffected.
§ 10 Final Provisions
(1) For all disputes arising from any transactions between us and the Buyer the courts in Wuppertal shall have exclusive juridiction. We may, however, sue the Buyer also in the courts at his seat. Binding legal provisions relating to exclusive courts of jurisdiction shall remain unaffected.
(2) All legal relationships between us and the Buyer shall be governed by the laws of the Federal Republic of Germany. The provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
§ 11 Applicable Version
In cases of doubt, the German version of these Conditions shall apply.