GENERAL CONDITIONS FOR THE SUPPLY OF PRODUCTS AND SERVICES OF WEFTRON GMBH
- General Provisions
- These General Conditions (“GC”) are an integral part of contracts between Weftron GmbH (hereinafter referred to as "Weftron" or “we”) and the purchaser (hereinafter referred to as "Purchaser").
- The conclusion of contracts with Weftron is governed exclusively by the following GC unless agreed otherwise. When placing an order the Purchaser thereby accepts Weftron’s GC. Adverse or deviating terms or conditions of a Purchaser will only have binding effect if Weftron has expressly confirmed them. Weftron’s GC also apply when Weftron’s services are provided in the knowledge of a Purchaser’s adverse or deviating terms or conditions.
- These GC are applicable to all our supply of products and services and to all of the duties that might result from any relationship with Purchaser under the law of obligations. For entrepreneurs and legal entities incorporated under public law our GC apply also for all future business relations.
- Conclusion of Contract
- A contract shall only be deemed concluded with Weftron when the Purchaser either accepts our offer without reservation or when he receives our written confirmation of his order or when we commence with the delivery of products. In case we issue a written confirmation following the Purchaser’s order, this confirmation will define the subject and the scope of the contract, unless expressly agreed upon otherwise.
- Amendments, collateral agreements and additional provisions as well as any respective stipulation of condition or the issuance of guarantees shall require an explicit agreement in order to become effective; this must be in writing.
III. Execution of Order and Changes to the Scope of Services
- Unless expressly agreed upon otherwise the products need only be of such condition or have the technical characteristics etc. as expressly defined by the contract; our contractual obligation are guaranties in a legal sense only if we accept liability without fault or if we explicitly state them to be such guaranties; any guaranty must be made in writing. We reserve the right to make technical and design changes to the descriptions and specifications in our sales documents in the same or better quality and we may exchange parts and components against such of same or better technical standards; for the Purchaser no rights will arise resulting from this conduct. The Purchaser shall not refuse to receive supplies due to minor blemishes if supplies are otherwise fully functional.
- The Purchaser shall be obliged to give us all information necessary for the delivery of products, and to do so in full. Weftron is under no obligation to check the Purchaser’s data, information or other services for completeness and correctness unless individual circumstances arise in a particular case which gives cause to do so or we have contractually and expressly accepted such obligation.
- Subsequent changes to the scope of services must always be expressly agreed upon by Weftron. Prerequisite in any case is that a understanding has been reached concerning the description of the changes to the scope of services, the compensation, the timetables and deadlines as well as all other subjects any one party thinks are necessary; both consent and understanding must be in writing in any case.
- Weftron may specifically demand a reasonable extension of deadlines for our sales and services and in addition an extra period for resumption as well as the payment of costs which we assume by checking a request for changes.
- The assignment of Purchaser’s claims against Weftron which arise from the business relationship is excluded.
- Prices and Payments
- Only those prices shall be binding which are stipulated by Weftron, to which – if mandatory - the respective VAT is to be added as prescribed by law.
- Our invoices are to be paid - without deduction of cash discount and free of additional expenses - in accordance with the agreed schedule of payment, otherwise within 30 days of the date of the invoice. Weftron do reserve the right to require adequate payments on account and advance payments.
- The Purchaser can only claim rights of set-off if his counterclaims have been either determined by legal force (res judicata), or are undisputed or acknowledged by us in writing. The same shall apply in respect to claims of rights of retention.
- The Purchaser falls behind the default in payment without further statements by Weftron, when he does not pay within 5 days after the due date. In case of default in payment the Purchaser owes interest for late payment as provided for by law, unless we prove higher damages. The interest shall be reduced in case the Purchaser proves lower damages.
- Retention of Title
- All items supplied shall remain the property of Weftron until the Purchaser has fulfilled all its contractual obligations. No pledging, security transfer of ownership or other exploitation shall be allowed unless the purchase of the products deliberately occurred for resale purposes. In this case the Purchaser shall have the revocable right to resell the retained products in his own name within the framework of an orderly conduct of a business, as long as he is not in default of his financial obligations and no covenant exists between the Purchaser and his customers which would prohibit an assignment.
- Weftron shall acquire co-ownership in the instances of adjunction or commixtion, whereby our share of the ownership will be determined according to the value of the retained products (i.e. our contract price including value added tax without deduction of cash discount); to the extent that the Purchaser acquires sole ownership by virtue of law, he shall transfer to us such share of ownership corresponding to our previous share. He shall hold the products for us in custody henceforth. If any processing of the products takes place we shall be deemed manufacturer of the new product.
- The Purchaser herewith assigns to Weftron all claims with regard to the retained products including all claims arising from the balance on current account, which stem from resale or any other cause in law (e.g. insurance, tort); such assignment is by way of security only and correlates with the amount of the value of the retained products. The same shall also apply to the case that a resale was not admissible according to the aforesaid restrictions. Weftron do herewith accept the assignment. In case we should only be co-owners of the retained products, the anticipatory assignment shall be restricted to that part of the claim which is equivalent to the share of our co-ownership on the basis of the value as per invoice.
- The Purchaser shall have the revocable right to collect the assigned debts in his own name and for his own account. This authorization to collect debts may be revoked if the Purchaser does not properly meet his financial obligations. In case of a justified revocation, the Purchaser, respectively his legal successor or receiver shall upon our demand announce the assigned claims and names of the debtors including their addresses. In addition, he shall provide Weftron with all necessary information regarding the debt collection and also hand over all relevant documents and indicate the assignment to the respective debtor without delay.
- In case of seizure of the retained products by a third party, the Purchaser will point out Weftron’s ownership and inform us without delay to enable us to enforce our ownership. Moreover, he will bring at his expense a third-party action against execution without delay in accordance with Section 771 ZPO (German Zivilprozessordnung [Code of Civil Procedure]).
- In case of a default in payment by the Purchaser Weftron shall be entitled to reclaim the retained products at his expense and at the same time to rescind the contract, provided that the legal requirements are fulfilled.
- Weftron shall release at our discretion the aforementioned securities on demand of the Purchaser, to the extent that their value considerably exceeds the value of the secured claims at more than 10 %. Retained products will be appraised at an estimated value reduced by one third, assigned claims at nominal value reduced by one third.
- Terms and Deadlines
- Deadlines shall be binding only if they have been explicitly agreed to as binding deadlines; this must be done in writing. To the extent dates and deadlines have not been agreed upon as being binding, Weftron shall not be in default until the Purchaser has unsuccessfully declared a further reminder with an adequate extension of deadline in writing for the supply of products we owe. In any case terms shall only commence after the Purchaser has fully complied with the requirements under his duty to co-operate and - in case it was so agreed - upon receipt of a payment on account. Subsequent changes of the order upon the Purchaser’s request shall extend the time of supply according to the length of delay.
- In case the supply of products owed by Weftron will be delayed for force major reasons, we shall be entitled to choose, at our discretion, to either fully or partially rescind the contract or postpone the supply of products for as long as the hindrance lasts. The Purchaser will be informed immediately of the nonavailability of the products. Should we rescind the contract, we will furthermore refund to the Purchaser any compensation already provided. Claims for damages shall be excluded.
- In case the Purchaser fails to fulfill his duties to co-operate or to provide goods, be this in part or completely, the concurring deadlines will loose their binding effect and Weftron will not be in delay. After an unsuccessful reminder we shall be entitled to claim any damages resulting therefrom, including any respective additional expenditure. In this case the risk of accidental loss or accidental deterioration of the delivery item shall be passed unto the Purchaser at the time the default of accepting delivery has occurred. If the Purchaser does not fulfill his duties to co-operate or to contribute to the supply within the time of a further reminder with an adequate extension of deadline we are - in addition - entitled to terminate the contract with immediate effect. In this case we have the right, as a minimum, to compensation and payment according to Section 649 Bürgerliches Gesetzbuch (German Civil Code); our further claims remain unaffected. We have the same rights if, due to the delays, we cannot bring the supply to an end within reasonable time or if we can do so only at substantially higher costs, i.e. because of other commitments.
- If - for reasons Weftron is responsible for - we are either in default or the performance of the delivery proves impossible as provided for in Section 275 para. 1 of the Bürgerliches Gesetzbuch (German Civil Code), or if we are able to refuse to perform according to Section 275 para. 2 and 3 of the Bürgerliches Gesetzbuch, we shall be held liable exclusively as provided for by the law, but subject to the limitations of liability set forth hereunder in Section X.
VII. Passing of Risks
The risk of accidental loss or accidental deterioration of the delivery item shall be passed over to the Purchaser with its dispatching, notwithstanding the case that Weftron might have agreed to bear the delivery expenses or to take on additional obligations to be performed or we deliver in part. Section VI. 3. sentence 3 hereof applies.
- To the extent the formal acceptance of the Purchaser of our delivery of products is required by law, the Purchaser shall be obliged thereto. Minor defects not seriously impairing the suitability of the delivery of products with respect to the object of the contract, do not entitle the Purchaser to refuse the acceptance, regardless of his right to assert his legal claims of fault.
- The acceptance is considered granted if
- the Purchaser refuses the acceptance by way of breaching Section VIII. 1 hereinabove or refuses, in spite of having been requested in a timely manner to do so, to participate in the joint testing procedure for acceptance, or
- the Purchaser does not declare the acceptance in writing immediately after joint testing although he was requested to do so within a period of 7 working days, unless the Purchaser specifically names the faults which cause his refusal of acceptance within this deadline, whereas Weftron will point out to the Puchaser the relevance of his behaviour at the beginning of the period.
- In case of limited severable performance Weftron has a right to acceptance in part.
- Warranties / Claims of Fault
- Should the products Weftron has delivered has any faults, the Purchaser shall give us an opportunity to subsequent performance within reasonable time unless such subsequent performance cannot be reasonably accepted by the Purchaser in an individual case, or special circumstances are given which, taking into consideration the interests of both parties, justify an immediate rescission of the contract. In any case, Weftron shall be entitled to choose between remedying the defect or delivering products free of faults.
- The Purchaser is under the obligation to check the products for obvious faults which an ordinary customer would observe without effort. Obvious faults must be objected to in writing within one week after the delivery of the products. Faults which become apparent later but before the period of limitation must be objected to in writing within a week after the Purchaser has noticed them. If the Purchaser does not fulfill his obligation to check the products or to object to faults, the products are deemed accepted also concerning the particular fault.
- Should the subsequent performance fail, should we refuse to perform it or should the Purchaser not be able to reasonably accept it, the Purchaser shall be entitled to the usual claims of faults the law provides for (rescission of the contract, diminishment of the agreed remuneration, self-execution, damage payments or compensation for frustrated expenses). Claims for damages shall be given only as far as Section IX. of these GC provides for.
- Should the fault consist in a merely slight deviation from the respective condition stipulated to, we shall at our discretion only grant the Purchaser either the right to subsequent performance or to a reasonable diminishment of the agreed remuneration. Should no condition have been stipulated to, the same shall apply to any deviation from the suitability for the use provided for in the agreement otherwise the usual suitability, provided that it is only an immaterial deviation. The suitability shall be assessed against what is usual in products and the standards the Customer can expect as a result of the type of goods or services.
- Liability and Right of Rescission
- In the case that it is in breach of important contractual duties, Weftron shall be liable for damages up to a reasonable and predictable amount. Additional damage reparation claims shall not be permitted, regardless of the type of violation of the contractual duty, as long as no action with intent or gross negligence has been established.
- There shall be no claims regarding loss in profits, savings in expenses, damages claims pressed by third parties, or any indirect or subsequent damages that have been caused to the Purchaser’s legal property by the products, unless a guaranteed performance standard has been expressly employed to protect the Purchaser from the risk of such damage.
- As far as we are liable in cases of slight negligence, our liability shall in any case of pecuniary damages be limited to a maximum amount of € 50,000.00 per case of damage. In case of damages to property there is a limit in the maximum amount of € 500,000.00.
- The limitations and exclusions of liability in Sections 1 and 2 shall not apply to claims pursuant to German Product Liability Law (Produkthaftungsgesetz) or to claims involving damage to life or bodily health. Our liability shall be limited to reasonable and predictable damages claims even in the event of gross negligence, if none of the exceptional cases listed above in Sentence 1 applies.
- In cases in which our liability is limited, this shall also apply to our employees, representatives and vicarious agents.
- The right of the Purchaser to rescind the contract as a result of an infringement of our contractual duties due to reasons for which we are not at fault and which do not consist of a fault of products shall be excluded.
- Period of limitation
- The Purchaser‘s claims of fault shall be statute-barred within one year from the statutory start of the period of limitation. Claims set forth pursuant to Sections 438 I No.1 and 2 and 634a I No. 2 of the Bürgerliches Gesetzbuch (German Civil Code) shall be excluded.
- Any other contractual claims of the Purchaser due to the breach of duty shall, to the extent the Purchaser is an entrepreneur, be statute-barred within one year from the statutory start of the period of limitation.
- The periods of limitation provided for by law shall not be affected by the above provisions in the following cases:
- for damages resulting from injuries to lives, bodies or health;
- for any other damages based on intentional or grossly negligent failure to comply with our contractual duties by ourselves, our legal representatives or vicarious agents;
- for the Purchaser‘s right to rescind the contract due to our failure to comply with our contractual duties for which we are at fault and which does not consist of a fault of products;
- for claims resulting from fraudulent concealment of a defect and a guarantee within the meaning of Section 444 or Section 639 of the Bürgerliches Gesetzbuch (German Civil Code);
- for claims to remuneration for expenses pursuant to Section 478 para. 2 of the Bürgerliches Gesetzbuch (German Civil Code).
- In case in due course of this contractual relationship a party learns about confidential information of the respective other party or its vicarious agents as deployed for this contractual relationship (especially technical information or business and operational matters), it shall be obliged to keep this information confidential. The duty of confidentiality stays in force for 5 years after the expiration of the contract, unless otherwise agreements are made. The aforementioned obligations shall not apply to any information which at the time of its disclosure is lawfully publicly available or was lawfully disclosed by a third party or is disclosed to persons subject to a legal obligation.
- The Purchaser may not exploit confidential information for commercial purposes, make it the object of industrial property rights, pass it on or make it accessible to third parties in any way.
XIII. Place of Jurisdiction and Applicable Law
- The exclusive legal venue for all claims against entrepreneurs and legal entities incorporated under public law which result from this business relationship is Mannheim. This includes cases of claims based on checks, torts and cases of third party notice. Weftron reserves the right to also sue Purchasers at their place of general jurisdiction.
- All legal relations in connection with the contractual relationship are governed by the substantive law of the Federal Republic of Germany to the exclusion of the United Nations Convention on contracts for the International Sale of Goods (CISG).
XIV. Severability Clause
If any provision of this GC is or will become invalid, it will not affect the validity of the other provisions. In place of the invalid provision new provisions shall be inserted which will in meaning get closest to the economic goals of the contract with due observance of the parties’ interests.