These General Terms and Conditions of Purchase shall apply to all - also future - business relationships of a company of the WECUBEX group of companies (“Buyer”) with entrepreneurs, legal entities under public law and special funds under public law (“Seller”).
Deviating or supplementary terms and conditions of the Supplier shall only become part of the contract if and insofar as the Buyer has expressly agreed to their validity.
II. Order placement and contract fulfillment
The preparation of offers is free of charge and non-binding for the buyer. The seller's offers are binding for at least 10 working days and can be accepted by the buyer at any time during this period.
The Buyer's orders are freely revocable until receipt of the order confirmation or - in the absence of an order confirmation - until delivery. The seller is obliged to confirm the order within a period of 3 working days by means of an order confirmation in text form or by delivery. A delayed order confirmation with a different delivery date shall be deemed a new offer and requires confirmation by the Buyer.
All obligations arising from the contract shall be fulfilled by the Seller itself. The involvement of a subcontractor is only permitted with the prior express consent of the Buyer.
The buyer's registered office is the place of performance for all obligations arising from the contractual relationship.
III. Prices
The agreed prices are fixed prices. All prices are exclusive of VAT, but inclusive of packaging, insurance, transportation and other ancillary costs.
If the Buyer bears the costs of transportation or packaging in individual cases, these shall be charged at the lowest possible rate, unless the Buyer has specified a special type of transportation or packaging.
IV. Payment
Unless otherwise agreed, payments shall be made at the Buyer's discretion either within 14 days of receipt of the invoice and delivery with a 3% discount or within 30 days of receipt of the invoice and delivery strictly net. In the case of contracts for work and services, the date of acceptance shall apply instead of the date of delivery. If documentation, test certificates (e.g. works certificates) or similar documents are part of the scope of performance, the payment period shall not commence before they have been handed over to the Buyer in accordance with the contract. If premature deliveries or services are accepted, the due date shall be based on the agreed delivery or service date.
Payments are made by check or bank transfer. Payment shall be deemed to have been made on time if the check has been sent by post on the due date or the bank transfer has been ordered from the bank on the due date.
The default interest rate is 5 percent. The seller reserves the right to assert a demonstrably higher damage caused by default. The buyer reserves the right to prove that the seller has only incurred lower damages.
The seller is only authorized to exercise a right of retention to the extent that his counterclaim is based on an undisputed or legally established claim. He may only offset undisputed or legally established counterclaims.
V. Delivery periods / delay in delivery
Unless expressly agreed otherwise, delivery times and deadlines specified by the Buyer are binding. The seller must inform the buyer immediately if circumstances become apparent to him which give rise to fears of delays in delivery.
Receipt of the goods at the place of receipt specified by the Buyer shall be decisive for compliance with delivery dates or delivery periods; in the case of deliveries with installation, assembly or other services, acceptance shall be decisive.
The seller can only invoke the absence of necessary documents or other information to be provided by the buyer if he has not received the documents despite a written reminder.
VI. Retention of title
If the Seller has expressly reserved title to the delivery item, title to the delivery item shall pass to the Buyer upon payment for this item. Any extended reservation of title (current account reservation) declared by the seller shall be ineffective.
VII. Execution of deliveries and transfer of risk
All deliveries by the Seller shall be made DDP agreed place of delivery (Incoterms 2010).
The seller shall bear the risk of accidental loss and accidental deterioration of the goods sold, even in the case of “carriage paid” and “free domicile” deliveries, until the goods are handed over at their destination.
Partial deliveries require the consent of the buyer. If only a partial delivery is made without the express consent of the buyer, the buyer is entitled to withdraw from the entire contract if he has no interest in the partial delivery.
Excess or short deliveries are only permitted to the extent customary in the trade. We reserve the right to accept or reject them. If the buyer does not recognize a short delivery, the buyer is entitled to withdraw from the entire contract if he has no interest in the short delivery.
VIII. Declarations of origin
At the request of the buyer, the seller is obliged to prepare a supplier's declaration for the delivery item and to hand it over to the buyer. He shall also enable the customs services to check proofs of origin and provide the necessary information as well as any necessary confirmations.
The seller is obliged to compensate the damage caused by the fact that the declared origin is not recognized by the competent authority as a result of incorrect certification or lack of possibility of verification.
IX. Liability for material defects
The Seller shall provide the Buyer with the goods free of material defects and defects of title. In particular, he shall be responsible for ensuring that his deliveries and services comply with the recognized rules of technology and the contractually agreed properties as well as the standards applicable in Germany or (if notified to the seller) in the country of destination of the end product (safety, occupational health and safety, accident prevention regulations, etc.). Exact compliance with the agreed specifications, the applicable standards and laws and the recognized rules of technology are among the essential obligations of the seller under this contract.
Our obligation to inspect incoming goods shall be limited to defects which become apparent upon external inspection, including the delivery documents (e.g. transport damage, incorrect and short delivery). If the Seller has its registered office in Germany, notifications of defects shall in any case be deemed timely if they are received by the Seller within 5 working days of receipt of the goods or, if such a defect becomes apparent later, within 5 working days of the Buyer becoming aware of the defect. If the Seller has its registered office outside Germany, any defects shall be deemed to have been notified in good time if the Buyer notifies the Seller of them within 4 weeks of the time at which they were discovered or should have been discovered.
In the event of defects, the Seller shall provide subsequent performance by remedying the defect or delivering a defect-free item at the Buyer's discretion. If the type of subsequent performance chosen by the Buyer is impossible, the Seller shall be entitled to provide subsequent performance by other means, insofar as this is reasonable for the Buyer. If subsequent performance is impossible overall, if the Seller refuses subsequent performance, if no attempt at subsequent performance is made despite the setting of a reasonable deadline or if subsequent performance has failed, the Buyer shall be entitled to withdraw from the contract at any time within the limitation period pursuant to Section IX.6 without prejudice to its other rights. The period pursuant to Art. 49 para. 2 CISG (if applicable) shall not end before the expiry of the limitation period stipulated in Section IX.6.
The buyer manufactures products which in turn are incorporated into products of the buyer's customers. If defective goods of the seller are used in the manufacture of the buyer's products and if these lead to the defectiveness of these products, the buyer may be exposed to liability vis-à-vis its end customers due to consequential damages such as loss of production, production of rejects, product recalls, property damage and personal injury. The seller is obliged to cover his liability risk by means of insurance and to provide the buyer with proof of cover on request.
The Seller hereby assigns to the Buyer - on account of performance - all claims to which it is entitled against its suppliers arising from and in connection with the delivery of defective goods or goods that lack the agreed quality. He shall hand over to the Buyer all documents necessary for the assertion of such claims. The buyer accepts the assignment.
Notwithstanding § 438 Para. 1 No. 3 BGB and § 634a Para. 1 No. 1 BGB, the general limitation period for claims arising from material defects and defects of title is three (3) years from delivery or, if acceptance has been agreed, from acceptance. Longer statutory limitation periods shall remain unaffected. The preclusion period pursuant to Art. 39 para. 2 CISG (if applicable) shall not end before the expiry of the limitation period regulated in this IX.6.
X. Confidentiality
The Buyer retains ownership and all copyrights to drawings, illustrations, calculations, descriptions and other documents that it makes available to the Seller. The Seller may only use these documents for the purposes of cooperation with the Buyer and may not reproduce them or make them available to third parties or use them for other purposes without the express consent of the Buyer. This shall also apply after termination of the contract. The Seller shall return these documents at the Buyer's request if they are no longer required by the Seller in the ordinary course of business. Any copies made by the Seller must be destroyed in this case; the only exception to this is storage within the scope of statutory retention obligations.
Paragraph 1 shall apply accordingly to tools, templates, samples and other items which the Buyer provides to the Seller for production.
If the Seller culpably breaches obligations under X.1 or X.2, it shall pay the Buyer a contractual penalty in the amount of EUR 10,000. The Buyer shall be entitled to demand the contractual penalty in addition to performance and as a minimum amount of damages owed by the Seller in accordance with the statutory provisions; the assertion of any further damages shall remain unaffected.
XI. Place of jurisdiction and applicable law
The place of jurisdiction is the buyer's registered office. The buyer is also entitled to sue the seller at the seller's registered office.
In addition, German law and - where applicable - the UN Convention on Contracts for the International Sale of Goods (CISG) shall apply.