GENERAL TERMS AND CONDITIONS OF SALE OF THE WECUBEX GROUP OF COMPANIES (as of June 2018)
GENERAL TERMS AND CONDITIONS OF SALE OF THE WECUBEX GROUP OF COMPANIES (as of June 2018)
I. Validity / Offers
These General Terms and Conditions of Sale shall apply to all - also future - business relationships of a company of the WECUBEX group of companies (“Seller”) with entrepreneurs, legal entities under public law and special funds under public law (“Buyer”). The Buyer's terms and conditions of purchase shall not apply.
The seller's offers are subject to change and non-binding. Only the order of the goods by the buyer is considered a binding contract offer. The Seller may accept this contractual offer within 2 weeks of its receipt. Acceptance can be declared either in writing or in text form (e.g. by order confirmation) or by delivery of the goods to the buyer. Only the Seller's declaration of acceptance shall be decisive for the content of the contract, in particular for the scope of performance.
The Seller reserves the right to make changes to the information provided by the Seller on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances, technical data or product designations) as well as its representations (e.g. drawings and illustrations), provided that the delivery item is not significantly changed or its quality improved as a result and the changes or deviations are reasonable for the Buyer.
II. Prices + delivery conditions
Unless otherwise agreed, the prices and conditions of the Seller's price list valid at the time of conclusion of the contract shall apply plus the applicable VAT. Delivery shall be ex works, the conditions “EXW LOADED respective supplying plant” (Incoterms 2010) shall apply, any ancillary costs incurred such as assembly, commissioning, transportation and packaging, in the case of export deliveries customs duties as well as fees and other public charges shall be borne by the Buyer. The Seller shall not take back transport packaging and all other packaging in accordance with the Packaging Ordinance; it shall become the property of the Buyer.
If taxes or other external costs which are included in the agreed price and which cannot be influenced by the Seller change or are newly incurred more than four weeks after conclusion of the contract, the Seller shall be entitled to change the price accordingly.
III. Payment and settlement
Unless otherwise agreed or stated in the invoices, the purchase price shall be due immediately after delivery without discount and shall be paid in such a way that the Seller can dispose of the amount on the due date. Payment transaction costs shall be borne by the Buyer. The Buyer shall be in default without further ado 14 calendar days after delivery and invoicing. Irrespective of other claims for compensation, the Seller shall be entitled to postpone its own contractual obligations in the event of payment arrears for which it is not responsible until the overdue payments have been made. The Buyer shall only be entitled to rights of retention and set-off insofar as his counterclaims are undisputed or have been legally established.
If the term of payment is exceeded or in the event of default, interest shall be due at a rate of 9 percentage points above the base interest rate, unless higher interest rates have been agreed. We reserve the right to assert further claims for damages caused by default.
If the Buyer defaults on payment of a not insignificant amount or fails to honor a bill of exchange on the due date or if other circumstances arise which indicate a significant deterioration in the Buyer's ability to pay after conclusion of the contract and which jeopardize the claim for payment, the Seller shall be entitled to declare all outstanding claims from the current business relationship with the Buyer due and payable and to demand security or advance payment for outstanding deliveries and services from the business relationship, unless the Buyer provides sufficient security.
An agreed discount shall always relate only to the invoice value excluding freight and shall require the full settlement of all due liabilities of the buyer at the time of the discount.
In the case of deliveries made in installments in accordance with agreements or due to the nature of the goods, the Seller shall be entitled to demand an advance payment for each installment in proportion to the total order volume.
IV. Execution of deliveries, delivery deadlines and dates
Unless expressly designated as binding, information on delivery times is non-binding.
Delivery periods shall commence on the date of the order confirmation and shall be subject to the timely clarification of all details of the order and the timely fulfillment of all obligations of the Buyer, such as the provision of all official certificates, the provision of letters of credit and guarantees or the payment of down payments. If this is not the case, the delivery time shall be extended accordingly. This shall not apply if the Seller is responsible for the delay.
The time of dispatch ex works or ex warehouse shall be decisive for compliance with delivery periods and dates. They shall be deemed to have been met upon notification of readiness for dispatch if the goods cannot be dispatched on time through no fault of the seller.
In the event of force majeure and other unforeseeable extraordinary circumstances - e.g. operational disruptions, strikes, lockouts, lack of means of transportation, official interventions, energy supply difficulties, missing or delayed self-supply, etc. - agreed delivery periods shall be extended to a reasonable extent, provided that the Seller is not responsible for the occurrence of these circumstances. If performance becomes impossible or unreasonable due to the aforementioned circumstances, the Seller shall be released from its obligation to perform.
Partial deliveries are permissible if the partial delivery can be used by the buyer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the buyer incurs neither significant additional work nor additional costs as a result.
If the Buyer is in default of acceptance or culpably breaches other obligations to cooperate, the Seller shall be entitled, without prejudice to the assertion of further rights, to withdraw from the contract and/or to claim liquidated damages of 1% per full week of default, up to a maximum of 5% of the order value. Both contracting parties reserve the right to provide evidence of higher or lower damages.
V. Retention of title
All goods delivered shall remain the property of the seller (goods subject to retention of title) until all claims to which the seller is entitled within the scope of the business relationship have been fulfilled (extended retention of title).
The buyer is obliged to carefully store, maintain and repair the goods delivered under retention of title at his own expense and to insure them against fire, water damage, burglary and theft.
The handling and processing of the goods subject to retention of title shall be carried out for the seller as manufacturer within the meaning of § 950 BGB, without any obligation on the part of the seller. The treated and processed goods shall be deemed to be reserved goods within the meaning of Clause V.1. In the event of processing, combining and mixing of the reserved goods with other goods by the Buyer, the Seller shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. If ownership expires as a result of combining or mixing, the Buyer hereby assigns to the Seller the ownership rights to which it is entitled to the new stock or the new item to the extent of the invoice value of the goods subject to retention of title and shall store them for the Seller free of charge. These co-ownership rights are deemed to be reserved goods within the meaning of Clause V.1.
The Buyer may only sell the goods subject to retention of title in the ordinary course of business at his normal terms and conditions and as long as he is not in default, provided that the claims from the resale pursuant to Nos. 5 to 7 are transferred to the Seller. He is not entitled to dispose of the reserved goods in any other way.
The Buyer hereby assigns to the Seller in full by way of security any claims arising from the resale or any other legal grounds (in particular transfer of ownership to the end customer, insurance claim, tort) in respect of the reserved goods. The seller accepts the assignment. In the case of the sale of goods in which the seller has co-ownership shares in accordance with clause V. 2., a part corresponding to the seller's co-ownership share shall be assigned to the seller.
The buyer is entitled to collect receivables from the resale. This authorization to collect expires in the event of revocation by the seller. The seller shall only make use of the right of revocation if he becomes aware of circumstances which indicate a significant deterioration in the buyer's ability to pay which jeopardizes the claim for payment. If the buyer acts in breach of contract - in particular if he is in arrears with the payment of a claim for payment - the seller may demand that he disclose the assignment and provide him with the information and documents necessary for the collection of the claim.
The Buyer must inform the Seller immediately of any seizure or other impairment of the reserved goods by third parties. The Buyer shall bear all costs that have to be incurred for the removal of the seizure or for the return transportation of the reserved goods, insofar as they are not reimbursed by third parties.
VI. Grades, dimensions and weights
Unless otherwise agreed, grades and dimensions shall be determined in accordance with the DIN/EN standards or material sheets applicable at the time of conclusion of the contract or, in the absence thereof, in accordance with commercial practice. Laser parts and punched parts are manufactured according to DIN 6930, dimensions without tolerance specification according to DIN 6930 medium. Other technical data on laser cuts, powder manufacturers, packaging, etc. shall be discussed with the Buyer after receipt of the Buyer's order and confirmed by the Seller in the declaration of acceptance in accordance with Clause I. 2.
The weights shall be determined by the weighing carried out by the Seller or its upstream supplier. Proof of weight shall be provided by submitting the weighing slip. Where permissible, weights can be determined without weighing in accordance with DIN. Quantities, bundle numbers etc. stated in the dispatch note are not binding for goods invoiced by weight. Unless individual weighing is normally carried out, the total weight of the consignment shall apply. Differences compared to the calculated individual weights shall be distributed proportionally to these.
VII. Delivery
Goods notified as ready for dispatch in accordance with the contract must be called off immediately, otherwise the Seller shall be entitled to dispatch them at the Buyer's expense and risk after issuing a reminder or, at its own discretion, to store them at the Buyer's expense and risk and to invoice them immediately.
If transport by the intended route or to the intended place within the intended time becomes impossible through no fault of the Seller, the Seller shall be entitled to deliver them by another route or to another place, provided this is reasonable for the Buyer. The additional costs incurred shall be borne by the Buyer. The buyer shall be given the opportunity to comment beforehand.
Customary excess and short deliveries of the agreed quantity are permissible.
In the case of contracts with continuous delivery, the Buyer shall submit call-offs and sorting for approximately equal monthly quantities; otherwise the Seller shall be entitled to make the delivery at its reasonable discretion, taking due account of the Buyer's interests. If the individual call-offs exceed the contractual quantity in total, the Seller may - but does not have to - deliver the excess quantity. He may invoice the excess quantity at the list prices valid at the time of the call-off or delivery.
VIII. Liability for material defects
In the case of the delivery of defective items, subsequent fulfilment shall be effected at the seller's discretion by remedying the defect or delivering a defect-free item.
The expenses required for the purpose of subsequent performance, in particular transport, labour and material costs, shall be borne by the Seller. The Seller shall not bear any expenses incurred as a result of the goods sold being taken to a place other than the agreed place of fulfilment, unless this is in accordance with their contractual use.
The seller is entitled to make the subsequent fulfilment owed dependent on the buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect. 4. if the buyer does not immediately give the seller the opportunity to convince himself of the material defect, in particular if he does not make the rejected goods or samples thereof available upon request and after expiry of a reasonable grace period, the seller shall not be in default with the subsequent fulfilment. If the subsequent fulfilment is frustrated for reasons for which the Buyer is responsible, in particular by self-remedy, all rights due to the material defect shall lapse. 5. 5. in the case of goods that have been sold as declassified material - e.g. so-called IIa material - the buyer is not entitled to any rights due to material defects with regard to the specified defects and those that he usually has to expect. 6. if the defect is based on a defective third-party product, the seller is entitled to assign his warranty claims against his upstream supplier to the buyer. In this case, warranty claims can only be asserted against the seller once the buyer has asserted the assigned claims against the upstream supplier in court. 7. the limitation period for claims for defects according to § 438 para. 1 no. 3 BGB is one year - except in the case of fraudulent intent and subject to clause IX.4 - and begins from delivery or, if acceptance is required, from acceptance.
IX. General limitation of liability
The Seller shall be liable for breach of contractual and non-contractual obligations towards the Buyer - also for its executive employees and other vicarious agents - in cases of wilful intent and gross negligence.
The seller shall be liable for damages arising from the breach of material contractual obligations, i.e. contractual obligations whose fulfilment characterises the contract and makes its proper execution possible in the first place and on whose compliance the contractual partner regularly relies and may rely, even if he is only guilty of simple negligence.
Insofar as the Seller is not guilty of wilful conduct in the cases of Sections IX.1 and IX.2, it shall only be liable for compensation for the typically occurring damage which the Seller foresaw as a possible consequence of a breach of contract when the contract was concluded or which it should have foreseen if it had exercised due care.
In all other respects, the liability of the seller, including for defects and consequential damages, is excluded.
The above limitations of liability do not apply to culpably caused damage to life, body and health and also not if and insofar as the seller has assumed a guarantee for the quality of the item sold, as well as in cases of mandatory liability under the Product Liability Act.
Insofar as the seller's liability is excluded or limited, this shall also apply to the personal liability of its employees, legal representatives and vicarious agents.
Claims for damages in accordance with the above Sections IX.1 to IX.6 shall become time-barred within the statutory periods.
X. Information and technical advice
Information and recommendations provided by the seller are non-binding and exclude any liability, unless the seller has expressly undertaken in writing to provide information and recommendations. Whether a product is also suitable for the Buyer's specific applications must be investigated by the Buyer in its own test series. The information and advice provided by the Seller shall not constitute a warranty of quality for the Seller's products.
XI. Place of fulfilment, place of jurisdiction and applicable law
Unless otherwise agreed, the place of fulfilment for all obligations of both contracting parties shall be the registered office of the seller.
The place of jurisdiction is Cologne. (Federal Republic of Germany) The seller is also entitled to sue the buyer at his registered office.
In addition, German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
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