General Terms and Conditions of Sale and Deliveryof Weinbrenner Maschinenbau GmbH, Schwarzwaldstr. 1, 71263 Weil der Stadt - Germany
(Current as of July 2019)
I. Scope; Offer, Contract Conclusion
- The following General Terms and Conditions of Sale and Delivery shall apply to all deliv-eries, services and offers made by us. The present General Terms and Conditions of Sale and Delivery are an integral part of all contracts concluded by us with our contractu-al partners (hereinafter called "Purchasers") on the deliveries and services off¬ered by us. They shall also be valid for all future deliveries, services or offers vis-à-vis the Purchaser, even if they are not separately agreed again.
- Our General Terms and Conditions of Sale and Delivery apply exclusively. Different, contrary or supplementary General Terms and Conditions of the Purchaser or of third parties shall not apply, even if we do not expressly object to their application on an indi-vidual case basis. Even if we refer to a letter containing General Terms and Conditions of the Purchaser or a third party or which refers to such General Terms and Conditions, this does not constitute an agreement to the validity of such General Terms and Condi-tions.The same applies, if we, being aware of the General Terms and Conditions of the Purchaser, carry out delivery to the Purchaser without reservation.
- Individual agreements made with the Purchaser on an individual case basis (including side agreements, additions and amendments) in any case shall take priority over the pre-sent General Terms and Conditions of Sale and Delivery. For the content of such agree-ments, a written contract and/or our written confirmation shall be authoritative subject to proof to the contrary.
- Our offers are subject to change and without obligation, unless they are expressly desig¬¬¬¬-nated as being binding or contain a specific term of acceptance. Purchase orders or con-tracts can be accepted by us within three weeks after receipt.
- Our indications made on the object of delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of same (e.g. drawings and illustrations) are only approximately authoritative, unless usabil-ity for the contractually stipulated purpose requires precise conformity. They are no guar-anteed quality characteristics but descriptions or designations of the delivery or service. Commercial differences and differences due to statutory provisions or constituting tech-nical improvements as well modifications in the technical construction of the products, are admissible insofar as they do not affect usability for the contractually stipulated pur-pose.
II. Prices and Payment
- The prices apply to the scope of services and delivery specified in the order confirma-tions. Additional or special services are charged separately. The prices are to be under-stood in EUR ex works plus packaging, statutory V.A.T., in the case of export deliveries customs duties as well as fees and public charges.
- Invoice amounts are payable within 14 days after date of invoice without any deduction, unless otherwise agreed upon in writing. Receipt by us is authoritative for the date of payment.
- Upon expiration of the above payment term, the Purchaser is in default. Interest shall be payable with respect to the purchase price during default at the respective applicable statutory default interest rate. We reserve the right to claim further default damages.
- The Purchaser shall be entitled to rights of set-off and retention only insofar as its claim has been established as being final and absolute or is undisputed.
In the case of defects of delivery, the counter-claims of the Purchaser, in particular pur-suant to Section V.4. sentence 2 of the present General Terms and Conditions of Sale and Delivery, remain unaffected.
- We are entitled to carry out or provide still outstanding deliveries or services only against prepayment or provision of security, if after conclusion of contract we become aware of circumstances, which are of a nature to significantly reduce creditworthiness of the Pur-chaser, and by which payment of our outstanding receivables by the Purchaser from the respective contractual relationship (including from other individual contracts for which the same framework agreement is valid) is compromised.
III. Delivery and Delivery Time
- Deliveries are made ex works (Incoterms 2010), unless otherwise agreed upon in writing.
- Terms and dates for deliveries and services envisaged by us, are always only approximative, unless expressly a fixed term or a fixed date has been promised or agreed upon.
If shipment has been agreed upon, the delivery terms and delivery dates refer to the time of transfer to the carrier, freight forwarder or other third party appointed to carry out transport.
- Irrespective of our rights from default of the Purchaser, we can request from the Pur-chaser extension of terms of delivery and service or a postponement of dates of delivery and service by the time period during which the Purchaser does not comply with its con-tractual obligations vis-à-vis us.
- We shall not be liable for impossibility of delivery or for delays in delivery, insofar as these have been caused by force majeure or other events unforeseeable at the time of contract conclusion and for which we are not responsible (e.g. breakdown in operations of any type, difficulties in the procurement of material or energy, transport defaults, strikes, law-ful lockouts, shortage of manpower, energy or raw materials, difficulties in obtaining nec-essary official permits, official measures or failure, incorrect or non-punctual delivery by suppliers). If these events considerably impede or make impossible delivery or service by us and if the impediment is not only temporary, we shall be entitled to withdraw from con-tract. In the case of impediments of temporary duration, the terms of delivery or service are extended or the dates of delivery or service are postponed by the time period of the impediment plus an adequate start-up period. If the Purchaser cannot be reasonably ex-pected to accept the delivery or service due to the delay, the Purchaser can withdraw from contract by prompt written declaration made to us.
- We shall be entitled to partial deliveries, if
- the partial delivery can be used by the Purchaser within the scope of the contractual-ly stipulated purpose,
- delivery of the remaining goods ordered is guaranteed, and
- no considerable additional expenditure or surplus cost are incurred by the Purchaser as a result (unless we declare our willingness to pay these cost).
- If we are in default with a delivery or service or if a delivery or service becomes impossi-ble for us for any reason whatsoever, our liability shall be restricted to the damage com-pensation in accordance with Section VII. of the present General Terms and Conditions of Sale and Delivery.
IV. Place of Performance, Shipment, Passing of Risk, Packaging, Acceptance
- Place of Performance for all obligations from the contractual relationship is the place of delivery (Section III.1.), unless otherwise specified. Upon request and cost by the Pur-chaser, the goods will be shipped to a different place of destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed upon, we shall be entitled to determine the type of shipment (in particular the transport company, shipment route, packaging) ourselves.
- The risk of accidental destruction and accidental deterioration shall pass to the Purchaser upon handing over of the delivery object at the latest. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental destruction of accidental deterioration of the goods as well as the risk of delay passes to the carrier, the freight forwarder or the individual otherwise appointed for carrying out the shipment al-ready with delivery.
- If acceptance is stipulated by law or has been agreed upon, it is authoritative for the pass-ing of risk. Also otherwise, the statutory provisions of the law on contracts for work and services shall apply accordingly with respect to an agreed upon acceptance. Default of acceptance by the Purchaser equates handing over and/or acceptance.
- Storage cost after passing of risk shall be borne by the Purchaser. In the case of storage by us, storage cost will be 0.25% of the invoice amount of the delivery objects to be stored per full week. The assertion and proof of further or lower storage cost remains re-served.
- Only upon express request by the Purchaser and at Purchaser's expense, the shipment will be insured by us against theft, breakage, transport, fire and water damages or other insurable risks.
V. Warranty, Material Defects
- The warranty period is one (1) year as from delivery or, if acceptance is required, as from acceptance. This delay shall not be valid for damage claims of the Purchaser from injury to life, body or health or from intentional or grossly negligent breaches of duty by us or by our vicarious agents which each become time-barred in accordance with statutory provisions.
- Purchaser's claims based on defects require that the Purchaser has complied with its statutory obligations to investigate and notify defects (Sections 377, 381 German Com-mercial Code). If upon delivery, investigation or at a later point in time a defect is re-vealed, this must be promptly notified to us in writing. In any case, obvious defects must be notified to us in writing not later than within ten (10) workdays as from delivery and de-fects, which cannot be discovered during investigation, must be notified to us in writing as from discovery within the same period of time. Product designation and package signing as well as invoice and consignment number must be indicated. Upon our request, a con-tested delivery object must be returned to us carriage paid. In the case of a justified no-tice of defect, we shall reimburse the cost for the most cost-effective shipment route. This does not apply, if the cost increase because the delivery object is at a different place than the place of intended use.
- In the case of material defects of the objects delivered, we are obliged and entitled at our option, which has to be made within a reasonable period of time, at first to perform a re-work or a replacement delivery. In case of failure, i.e. impossibility, unreasonableness, re-fusal or inadequate delay of rework or replacement delivery, the Purchaser can withdraw from contract or reasonably reduce the purchase price. Withdrawal due to a minor defect is excluded.
- We shall be entitled to carry out the subsequent performance owed subject to payment of the due purchase price by the Purchaser. But the Purchaser shall be entitled to retain a reasonable portion of the purchase price in relation to the defect.
- If a defect is based on our fault, the Purchaser can request damage compensation under the prerequisites stipulated in Section VII.
- In the case of defects of component parts by other manufacturers, which cannot be elim-inated by us for licensing or actual reasons, we will raise at our option our warranty claims against the manufacturers and suppliers for the account of the Purchaser or assign these to the Purchaser. Warranty claims against us with respect to such defects exist under fur-ther conditions and in accordance with the present General Terms and Conditions of Sale and Delivery only, if judicial enforcement of the above mentioned claims against the manufacturer and supplier had been unsuccessful or, e.g. due to insolvency, has no pro-spect of success. During the duration of the legal dispute, the statute of limitations of the respective warranty claims of the Purchaser against us is suspended.
- The warranty does not apply, if the Purchaser without our approval modifies the delivery object or has it modified by third parties, and thus renders impossible or unreasonably im-pedes the elimination of defects. In any case, the Purchaser has to bear the surplus cost of the elimination of defects incurred by the modification.
- A delivery of used goods agreed upon with the Purchaser on an individual case basis occurs under exclusion of any warranty claims for material defects.
VI. Property Rights
- In accordance with the present Section VI we guarantee that the delivery object is free of industrial property rights or third party copyrights. Each contractual partner will promptly inform the other contractual partner in writing, if claims are raised against it for the in-fringement of such rights.
- If the delivery object infringes an industrial property right or third party copyright, we will at our option and at our expense modify or replace the delivery object such that third par-ty rights are no longer infringed but that the delivery object continues to complies with the contractually stipulated functions, or we will procure the right of use for the Purchaser by concluding a license agreement with the third party. If we fail to do so within a reasonable period of time, the Purchaser shall be entitled to withdraw from contract or to reduce the purchase price reasonably. Possible damage claims of the Purchaser are subject to the restrictions of Section VII. of the present General Terms and Conditions of Sale and De-livery.
- In the case of infringements of rights by products of other manufacturers delivered by us, we will at our option raise our claims against the manufacturers and sub-suppliers for the account of the Purchaser or assign them to the Purchaser. Claims against us exist in these cases in accordance with the present Section VI. only, if judicial enforcement of the above mentioned claims against the manufacturers and sub-suppliers had been unsuc-cessful or, e.g. due to insolvency, has no prospect of success.
VII. Liability for Damage Compensation due to Fault
- Our liability for damage compensation for whatever legal reason, in particular due to im-possibility, default, defective or wrong delivery, breach of contract, violation of duties in contract negotiations and tortious act is restricted in accordance with the present Section VII. insofar as it is at fault.
- We shall not be liable in the case of simple negligence of our bodies, legal representa-tives, employees or other vicarious agents insofar as it is no violation of essential contrac-tual obligations. Essential to the contract are the obligation for punctual delivery and, if re-quired, installation of the delivery object, its freedom from defects of title as well as those material defects, which affect its functionality or serviceability more than only insignifi-cantly, as well as obligations to give advice, to protect and to exercise proper care, which shall permit to the Purchaser use of the delivery object according to contract or which shall protect body or life of the Purchaser's personnel or its property against considerable damage.
- Insofar as we are liable for damage on the merits in accordance with Section VII.2., said liability is limited to damage, which has been foreseen by us on contract conclusion as a possible consequence of a contract violation or which should have been foreseen by us when applying due care. Furthermore, indirect damages and consequential damages, which are a consequence of defects of the delivery object, are only eligible for compen-sation, insofar as such damages can be typically expected when the delivery object has been used for its intended purpose.
- In the case of liability for simple negligence, our obligation to pay compensation for prop-erty damage is limited to EUR 5,000,000.00 and resulting further financial loss to an amount of EUR 1,000,000.00 per damage event, even if it is a violation of essential con-tractual obligations.
- The above exclusions and restrictions of liability are valid to the same extent with respect to the bodies, legal representatives, employees and other vicarious agents of us.
- Moreover, the Purchaser must mandatorily comply with the specifications in the safety data sheet for handling of the substances delivered and their field of application.
- The restrictions of the present Section VII. do not apply to our liability for intentional be-haviour, for guaranteed characteristics, due to violation of life, body or health or in ac-cordance with the product liability law.
VIII. Retention of Title
- We retain ownership to the goods delivered until the Purchaser has fully paid all our pre-sent and future claims from the purchase contract and a current bu¬si¬ness relationship (secured claims).
- Prior to full payment of the secured claims, the goods under retention of title must neither be pledged to third parties nor transferred by way of security. The Purchaser must promptly inform us in writing, if an application for opening of insolvency proceedings has been filed or if any third party interference with respect to the goods owned by us occurs (e.g. attachment).
- In the case of behaviour of the Purchaser contrary to contract, in particular in the case of non-payment of the purchase price due, we shall be entitled to withdraw from contract pursuant to statutory provisions, and to demand return of the goods due to the retention of title and withdrawal. If the Purchaser does not pay the purchase price due, we shall only be allowed to assert these rights, if we have previously set unsuccessfully an adequate time limit for payment to the Purchaser, or such setting of a time limit is unnecessary pursuant to statutory provisions.
- The Purchaser is obliged to keep the goods under retention of title in safe custody, and to insure them at its own expense against loss and damage. The Purchaser hereby assigns by way of security its claims from the insurance contracts in advance to us.
- The Purchaser is authorised to resell and/or process further the goods under retention of title in the normal course of business. In that case, the following provisions apply in addi-tion:
(a) The retention of title extends to the products arising by processing, mixing or combin-ing of our goods at their full value, and we shall be considered as the manufacturer. If, in the case of processing, mixing or combining with third party goods, their reten-tion of title remains to exist, we shall acquire joint ownership in proportion to the in-voice values of the processed, mixed or combined goods. Moreover, the same ap-plies to the resulting product as to the goods under retention of title.
(b) The claims against third parties arising from resale of the goods or the products are assigned by way of security to us already now by the Purchaser in total and/or in the amount of our possible co-ow¬n¬ership share pursuant to the above paragraph. We accept the as¬s¬ignment. The obligations of the Purchaser mentioned in paragraph 2 are valid also in consideration of the claims assigned.
(c) Besides ourselves, the Purchaser remains authorised to collect the claim. We under-take not to collect the claim as long as the Purchaser complies with its payment obli-gations towards us, does not default on payment, no application for opening of insol-vency pro¬ceedings is filed, and no other deficiency in its performance capacity ex-ists. But if this is the case, we can request that the Purchaser informs us on the claims assigned and their debtors, provides all details necessary for collection hands over the associated documentation, and informs the debtors (third parties) of the ass-ignment.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we will release securities at our option upon request by the Purchaser.
IX. Choice of Law and Place of Jurisdiction
- The contractual relationship and all legal relations arising therefrom are governed exclu-sively by the laws of the Federal Republic of Germany to the exclusion of the United Na-tions Convention on Contracts for the International Sale of Goods (CISG). Prerequisites and effects of the retention of title according to Section VIII. shall be governed by the laws of the respective place where the goods are stored, if it stipulates that the choice of German law is inadmissible or invalid.
- If the Purchaser is a merchant, a legal entity under public law or a special fund under public law or if the Purchaser has no place of general jurisdiction within the Federal Re-public of Germany, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship between us and the Purchaser at our choice is Weil der Stadt, Federal Republic of Germany(ZIP-Code: 71263) or the registered offices of the Purchaser. For legal actions taken against us, however, Weil der Stadt, Federal Republic of Germany (ZIP-Code: 71263) has exclusive jurisdiction in that cases. Mandatory legal provisions on exclusive places of jurisdiction remain unaffected by this provision.