General Terms and Conditions of Sale and Delivery
The following General Terms and Conditions of Sale and Delivery shall apply only to entrepreneurs within the meaning of Section 310 (1) of the German Civil Code (BGB), legal entities under public law and special funds under public law and, unless otherwise agreed, shall also apply to all future transactions with us. 1:
1. all agreements made for the purpose of executing this contract shall be set down in writing or by telecommunication. Any deviating terms and conditions of purchase or counter-confirmations shall only apply if we expressly agree to them. We are entitled to charge our prices generally applicable on the day of delivery. However, in the event of subsequent price increases, the buyer may withdraw from the contract.
2. our samples, specimens, analysis data and other information on the quality of the goods are non-binding general information unless they are expressly guaranteed. We give technical application advice to the best of our knowledge based on our research work and experience. Declarations made by the seller in connection with this contract (e.g. performance description, reference to standards, etc.) do not, in case of doubt, contain any assumption of a guarantee. In case of doubt, only express written declarations by the buyer regarding the assumption of a guarantee shall be authoritative. The buyer is responsible for compliance with legal and official regulations when using our goods.
3. Before placing an order, the buyer must check whether the goods to be delivered are at all suitable for the intended purpose. In this respect, the buyer must pay particular attention to our respective current product information sheets, which indicate the technical specifications and the possible uses. Any use or material incompatibility excluded in these must be observed. The product information sheets are available from us on request.
The purchaser’s rights in respect of defects presuppose that he has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
Claims for defects do not exist in the case of only insignificant deviation from the agreed quality or only insignificant impairment of usability.
We shall in any case have the right to choose between rectification of defects and new delivery.
The rectification of defects shall be deemed to have failed after the second unsuccessful attempt. The statutory cases of dispensability of setting a deadline shall remain unaffected. In the event of failure of the subsequent performance, the buyer shall be entitled, at his discretion, to withdraw from the contract or to demand a reduction.
We shall bear the expenses necessary for the purpose of subsequent fulfilment, insofar as these are not increased by the fact that the object of sale was transported to a place other than the place of fulfilment, unless the transport corresponds to its intended use.
If the buyer or a third party makes improper changes to the goods or uses them in a way that deviates from the instructions on the product information sheets and instructions for use, or if the buyer or a third party commits an application error, liability for any consequences arising therefrom shall be waived.
Any further claims or claims other than those regulated in this provision on the part of the buyer against us and our vicarious agents on account of a material defect shall be excluded.
4. We shall be liable for intent and gross negligence in accordance with the statutory provisions. Otherwise, we shall only be liable in accordance with the Product Liability Act, due to the assumption of a guarantee for the existence of a quality of the item, due to injury to life, body or health or due to the culpable breach of essential contractual obligations. Our liability is limited to foreseeable and contract-typical damages. This limitation shall not apply if legal representatives or executive employees of our company have caused the damage intentionally or by gross negligence or have violated essential contractual obligations. Furthermore, this limitation does not apply if we are liable for injury to life, body or health or due to the assumption of a guarantee for the existence of a quality of the item.
5. The limitation period for claims for defects is 12 months, calculated from the transfer of risk. This does not apply insofar as the law prescribes longer periods in accordance with § 438 para. 1 no. 2 BGB (items for buildings) or in accordance with § 479 para. 1 BGB (right of recourse of the contractor). The time limits specified in sentence 2 above are subject to a limitation period of two/three years.
These limitation periods regulated in sentences 1 to 3 shall furthermore apply to all claims for damages against the contractor that are related to the defect – irrespective of the legal basis of the claim. Insofar as claims for damages of any kind exist against the contractor which are not related to a defect, the limitation period shall be 12 months, calculated from the transfer of risk. The limitation periods described so far shall apply with the following proviso:
a) The limitation periods generally do not apply in the case of intent.
b) The limitation periods shall also not apply if the contractor has fraudulently concealed the defect or if the contractor has assumed a guarantee for the quality of the delivery. If the contractor has fraudulently concealed a defect, the statutory limitation periods which would apply in the absence of fraudulent intent shall apply instead of the periods specified in para. 1. To the exclusion of the extension of the period in the event of fraudulent intent pursuant to section 438 subsection 3.
c) Furthermore, the limitation periods shall not apply to claims for damages in cases of injury to life, limb or health or freedom, in the case of claims under the Product Liability Act, in the case of a grossly negligent breach of duty or in the case of a breach of material contractual obligations. 6.
6. War, strikes, lock-outs, shortages of raw materials and energy, operational and traffic disruptions, acts of government – also to the extent that they make the performance of the affected business uneconomical for the foreseeable future – as well as all other cases of force majeure, including those affecting our suppliers, shall release us from the obligation to deliver for the duration of the disruption and to the extent of its effect. Such events entitle us to withdraw from the contract in whole or in part without the buyer having a right to compensation.
7. Unless otherwise agreed, our goods shall only be delivered in standard packaging. The weight determined by us shall apply. Empty packaging shall be taken back, as shall containers provided on loan, for which the container provisions shall apply in addition.
8. The risk shall pass to the buyer as soon as the goods have been handed over to the transport company or have left our works/warehouse. This also applies if we bear the transport costs. This does not apply if the goods are delivered by WIGOL truck. We determine the means of transport at our own discretion. If the buyer has special wishes for the mode of transport, the additional costs shall be borne by him. Complaints due to transport damage must be made by the buyer directly to the transport company within the special deadlines provided for this purpose. The conclusion of transport or other insurances is left to the buyer. In addition, WIGOL is entitled to charge the shipping costs, unless free delivery is promised.
9. Our invoices are payable within 14 days of the invoice date without deduction, amounts under € 50.00 are payable immediately. We accept cheques only on account of payment. Bills of exchange shall only be accepted on the basis of special agreements and on condition that they are discountable. All expenses shall be borne by the buyer. Offsetting with counterclaims other than undisputed or legally established counterclaims as well as the exercise of rights to refuse performance and rights of retention against purchase price claims require our consent. If there are doubts about the solvency of the buyer, in particular in the case of payment arrears, we may, subject to further claims, demand advance payments or securities for further deliveries, revoke payment terms granted and withdraw from the contract. We are entitled, despite any provisions of the buyer to the contrary, to offset payments first against the buyer’s older debts. If costs and interest have already been incurred, we shall be entitled to offset the payment first against the costs, then against the interest and finally against the principal claim. If the buyer is in default of payment, we shall be entitled to charge interest at a rate of 5% above the respective discount rate of the Deutsche Bundesbank from the date in question. If the buyer does not fulfil his payment obligations, in particular if he does not honour a cheque or stops his payments, or if the seller becomes aware of other circumstances which call into question the creditworthiness of the buyer, we shall be entitled to call due the entire remaining debt, even if we have accepted cheques. In this case, we are also entitled to demand advance payments or securities.
10. Until all claims (including all balance claims from current account) to which the buyer is entitled now or in the future for any legal reason have been satisfied, the buyer shall grant us the following securities, which we shall release on request if their value exceeds the claims by more than 20% on a sustained basis. The delivered goods remain our property until full payment of all claims, including future claims. In the event of processing of our goods by the buyer, we shall be deemed to be the manufacturer and shall acquire ownership of the newly created goods, without any obligation on our part arising therefrom. If the processing takes place together with other materials, we acquire co-ownership in the ratio of the invoice value of our goods to that of the other materials. In this case, the buyer shall store our (co-)ownership free of charge. Goods which are (co-)owned by us are hereinafter referred to as reserved goods.
The buyer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledges or transfers by way of security are not permitted. The buyer hereby assigns to us by way of security all claims arising from the resale or any other legal reason (insurance, tort) in respect of the goods subject to retention of title (including all current account balance claims). We revocably authorise the buyer to collect the claims assigned to us for invoices of the buyer in his own name. This collection authorisation can only be revoked if the buyer does not properly fulfil his payment obligations. In the event of access by third parties to the goods subject to retention of title, the buyer is obliged to point out our ownership and to inform us immediately. In the event of behaviour by the buyer in breach of contract – in particular default of payment – we shall be entitled to take back the reserved goods at the buyer’s expense, even without exercising the right of withdrawal and without setting a grace period. All claims arising from the sale of goods to which we are entitled to ownership rights are hereby assigned to us by the buyer as security to the extent of our ownership share in the sold goods. The taking back as well as the seizure of the goods subject to retention of title by the seller shall not constitute a withdrawal from the contract.
11. We are entitled to process the data about the buyer received with regard to the business relationship or in connection with it, regardless of whether this data originates from the buyer itself or from third parties, in accordance with the Federal Data Protection Act.
12. The place of performance for all deliveries, including carriage paid deliveries, shall be the plant or warehouse of dispatch. The place of performance for the purchaser’s obligations is the Worms works.
13. If the customer is a merchant within the meaning of Section 38 (1) of the German Code of Civil Procedure (ZPO), the place of jurisdiction for all mutual claims and liabilities arising from the business relationship, including claims arising from bills of exchange and cheques, as well as for disputes concerning the formation and validity of the contractual relationship, shall be the local or regional court having jurisdiction for Worms. However, we are also entitled to sue the customer at his general place of jurisdiction. If the customer does not have a general place of jurisdiction in Germany and is not a merchant, the local or regional court responsible for Worms shall have jurisdiction.
14. If any of the above conditions are invalid, this shall not affect the validity of the remaining conditions. Instead of an ineffective condition, the legal regulation shall apply.
15. Insofar as the goods delivered by us are assembled or installed or repaired or modified by us, these activities shall be governed exclusively by our terms and conditions of assembly, which may be inspected at our premises or requested from us at any time.
16. German law shall apply to all contracts.