General Terms and Conditions of Sale of Norbert Wienold GmbH
Version: February 2019
§ 1 General
(1) The terms and conditions set out below (“General Terms and Conditions of Sale” or “GTC”) shall form part of the agreement concluded with us.
(2) Our General Terms and Conditions of Sale shall apply in accordance with the most recent version and to all subsequent transactions without any need of express reference thereto or agreement thereon at the conclusion of such transaction.
(3) We hereby object to any counter confirmation, counter offer or other reference by the customer to its general terms and conditions; any dissenting terms and conditions of the customer shall only apply if we have confirmed the same in writing.
(4) These GTC shall only apply vis-à-vis enterprises, a legal entity under public law or a special fund under public law as defined by § 310 Para. 1 BGB (German Civil Code).
§ 2 Offers; Orders
Orders placed by the customer shall not be regarded as accepted unless confirmed in writing or in text form (§ 126b BGB). If an order is to be regarded as an offer in accordance with § 145 BGB, we may accept it within two weeks. If we do not confirm the order within this period in writing or in text form (within the meaning of § 126b BGB), the offer shall be deemed as rejected. If we should fail to confirm an agreement in writing or in text form which we have entered into verbally or in a telephone conversation, then our invoice shall be regarded as a confirmation.
§ 3 Documents provided
We reserve all property rights and copyrights to all drawings, illustrations, calculations and other documents (collectively referred to as “Documents”) provided to the customer in connection with the placing of an order. These Documents may not be made accessible to third parties unless we give our previous written consent to the customer. If we do not accept the customer’s offer within the period of § 2, these Documents must be returned to us immediately.
§ 4 Prices and Payment
(1) Unless otherwise agreed in writing, our prices are ex work Emsbüren, Germany excluding packaging plus any statutory VAT applicable at the time of delivery. Packaging costs will be invoices separately.
(2) If, as a result of a change of law between the agreement date and the delivery date, additional or increased charges – in particular duties or levies shall be payable, then we shall have the right to increase the purchase price accordingly.
(3) Payment of the purchase price shall be made exclusively to the account specified in the order confirmation by bank transfer. The deduction of cash discount is only permissible with a special written agreement.
(4) Unless otherwise agreed, the purchase price is to be paid within 10 days upon delivery. For new customers, the purchase price is generally to be paid in advance. Interest on arrears shall be charged at a rate of 8% p.a. above the respective base interest rate. The assertion of a higher damage caused by default remains reserved.
(5) Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries made 3 months or more after conclusion of the contract.
(6) We only accept bills of exchange or cheques on the basis of a special agreement and only on account of payment. Discounting and bill charges shall be borne by the customer and are due immediately.
(7) If the customer has no longer ordinary business operations, in particular in case the court orders seizure of the customer´s assets, a cheque or bill protest takes place or if payment is delayed or even suspended or if it applies for judicial or extrajudicial composition proceedings or insolvency proceedings, we shall be entitled to demand immediate payment of all our claims arising from the business relationship, even if we have accepted bills of exchange or cheques. The same shall apply if the customer is in default of payment or if other circumstances become known which cast doubt on the creditworthiness. Furthermore, in such a case we shall be entitled to demand advance payments or the provision of security or to withdraw from the contract.
§ 5 Set-off, rights of retention and assignment
(1) The customer shall only be entitled to set-off if his counterclaims have been legally established or are undisputed. The customer shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
(2) The customer may not assign any claims arising from transactions with us without our written approval.
§ 6 Shipment; Delivery
(1) The commencement of the delivery period stated by us shall be subject to the timely and proper fulfilment of the customer’s obligations. The plea of non-performance of the agreement remains reserved.
(2) If deposit or advance payment has been agreed, the delivery period shall not commence until the corresponding amount has been credited to our business account.
(3) If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims. Insofar as the above conditions exist, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the moment in which the latter is in default of acceptance or of payment.
(4) If we are unable to meet the agreed or set delivery dates due to late delivery by our sub-suppliers, we shall not be in default if the primary material has been ordered on time and we have otherwise made all reasonable efforts to ensure timely delivery of primary material.
(5) Unless agreed otherwise, the goods shall be transported uninsured and in any event at the risk of the customer. This shall also apply in cases of any delivery free of charge and regardless of which means of transport shall be used. Any transport insurance shall be provided only upon express demand of the customer. Any costs arising therefrom shall be at the expense of the customer only.
(6) The selection of the place of dispatch and the transport route and the means of transport shall, in the absence of any written arrangement dictating otherwise, be subject to our reasonable discretion and be without liability for the cheapest and fastest transport.
(7) If the customer provides the means of transport, then it shall responsible for its availability on time. We shall immediately be informed of any delays. Any costs arising therefrom shall be at the expense of the customer.
(8) We have the right of instalment delivery to the extent its acceptance is not unreasonable for the customer, especially if the delivery of the outstanding goods is secured and no significant additional expenses or significant additional costs arise thereby for the customer (except if we declare to bear these costs).
(9) Any inability to supply as a result of force majeure or other unforeseen incidents outside our responsibility including, without limitation, strike, lock out, acts of public authorities, subsequent cease of export or import opportunities and our reservation of timely supply from on own supplies in accordance with subsection (4) above shall, for their duration and in accordance with their impact, relieve us from the obligation to comply with any agreed time for delivery and unloading. They shall entitle us to also withdraw from the Agreement which shall not result in any compensation claims of the customer.
§ 7 Retention of Title
(1) We shall retain full title of the goods that have been delivered until the customer has discharged all claims arising from the business relationship which shall include any account balance and claims from refinancing or reverse promissory notes. This shall also apply to all future deliveries, even if we do not expressly refer to this retention of title.
(2) The customer shall have the right to dispose of the goods delivered by us within the ordinary course of business. The authority granted hereunder shall cease in the cases referred to in § 4 (7) above. Moreover, we may withdraw the sales authority of the customer through written notice if it shall be in breach of any obligation owed to us and shall in particular be in payment default or we shall become aware of other incidents that give rise to doubts about its creditworthiness.
(3) The customer’s right to process the goods delivered shall also be subject to the limitations set out in subsection (2) above. The customer shall not acquire title to the fully or partly processed goods; the processing shall be free of charge for our benefit as Manufacturer in the sense of § 950 of the German Civil Code. If we should, for whatever reason, lose our rights under the retention of title, then it is hereby agreed between us and the customer that we shall acquire title upon processing of the goods and the customer shall remain custodian of the goods which shall be free of charge.
(4) If the goods in which we have retained title shall be inseparably assembled or mixed with goods that are third party property, then we shall acquire co-title in the new goods or the mixed stock. The proportion of title shall follow from the proportion of the invoice value of the goods delivered by us under retention of title and the invoice value of the other goods.
(5) Goods in which we shall acquire sole or co-title in accordance with subsection (3) and (4) shall, the same as with regard to the goods delivered under retention of title according to subsection (1) above, be regarded as goods delivered under retention of title for the purposes of the following paragraphs.
(6) The customer hereby assigns to us all claims arising from the resale of the goods delivered under retention of title. Such claims shall also include claims against the bank which, within the scope of such sale, shall have issued or confirmed a letter of credit for the benefit of the customer (= reseller). We hereby accept such assignment. If the goods delivered under retention of title shall be a processed good or a mixed stock, where, in addition to the goods delivered by us, only such goods exist that are either the customer’s property or a third-party property as a result of a (simple) retention of title, then the customer shall assign all of the claim arising from the resale. In the other case, i. e. in the event of a conflict between pre-assignment claims by other suppliers, we shall be entitled to receive any resale proceeds on a pro rata basis which shall be determined in proportion to the invoice value of our goods and the other processed or mixed goods.
(7) On customer’s request we undertake to release the securities to which we are entitled, as far as the realizable value of our securities exceeds the claims to be secured by more than 20%; the choice of the securities to be released is within our scope of responsibility.
(8) The customer shall be authorised to collect any receivables arising from the resale of goods. Such authority shall cease to exist in the event that there shall no longer be an ordinary course of business. Moreover, we may withdraw the customer’s authority to collect, if it shall be in breach of any obligation owed to us and shall in particular be in payment default or we shall become aware of other incidents that give rise to doubts about its creditworthiness. If the above authority shall cease to exist or be withdrawn by us, then the customer shall upon our demand immediately specify to us its debtors in the claims assigned and provide us with all information and documentation necessary for collection.
(9) In the event of any third-party action against our goods delivered under retention of title or any receivables assigned to us, the customer shall notify such party of our property/our right and immediately inform us about such action.
(10) If the customer shall be in breach of contract, in particular in payment default, then it shall, upon our demand, immediately return to us all goods delivered under retention of title and assign to us any repossession claims against any third party in conjunction with such goods. Any repossession or enforcement proceedings with regard to the goods delivered under retention of title shall not be regarded as a rescission of this Agreement.
§ 8 Empties
The customer agrees to return to us empties (Euro-Boxes, pallets, Euro-Hooks etc.) of the same type, amount and value that it shall have received for the purposes of delivery. All empties shall be returned in a clean state. If the customer shall be unable to return the same at the delivery of our goods, then it shall immediately ensure a settlement of the account of empties. If the customer shall be in default of the duty to settle the account of empties, then we may, if a reasonable cure period shall have been specified, refuse the acceptance and demand compensation from the customer.
§ 9 Warranty
(1) Prerequisite for any warranty claims is that the customer has duly complied with his obligation to inspect and give notice of defect in accordance with § 377 HGB (German Commercial Code).
(2) Warranty claims shall be time-barred 12 months after delivery of the goods to the customer. The above provisions shall not apply if the law requires longer periods. Our consent must be obtained before any goods are returned.
(3) If, despite all due care taken, the delivered goods exhibit a defect which existed at the time of transfer of risk, we shall, at our discretion and subject to timely notification of defects, either repair the goods or deliver replacement goods. We shall always be given the opportunity to remedy the defect within a reasonable period of time.
(4) Warranty claims shall not exist in the event of only insignificant deviation from the agreed quality, in the event of only insignificant impairment of usability, in the event of normal wear and tear as well as in the event of damage arising after the transfer of risk as a consequence of misuse, incorrect maintenance, excessive strain or due to special external influences not presumed in accordance with the contract. If improper repair work or modifications are carried out by the customer or third parties, no warranty claims shall exist for any consequences thereof.
(5) Claims of the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded insofar as such expenses increase because the goods delivered by us were subsequently taken to a location other than the customer’s branch office resp. shipping address as stated in the order, unless such transport corresponds to their intended use.
§ 10 Final Provisions
(1) This contract and all legal relations between the parties shall be governed by the laws of the Federal Republic of Germany, including the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) Place of performance and exclusive place of jurisdiction for all disputes arising from this contract shall be our registered office in Emsbüren.
(3) All agreements made between the parties for the purpose of executing this contract are set down in writing in this contract.
(4) The invalidity of individual provisions of these General Terms and Conditions of Sale shall not affect the validity of the remaining provisions. Ineffective provisions shall be deemed to be replaced by such effective provisions which are suitable to realise the economic purpose of the omitted provision as far as possible.
(5) In case of any discrepancies between the German and the English version of these GTC, the provisions of the German version prevail.