All shipments, services and offers shall only be made according to the general terms and conditions of Güth & Wolf GmbH as mentioned hereinafter. The terms of business or purchasing conditions of the buyer are entirely rejected, even if not explicitly contradicted on conclusion of a contract. Exceptions are subject to our written consent. Our general terms of sale, delivery and payment are considered as accepted latest on receipt of goods.
2. Offer, conclusion of a contract, delivery:
a) All offers submitted by Güth & Wolf GmbH are without obligation. Orders, prices and other agreements become binding only through our written acknowledgement. Any notice of acceptance or purchase order is subject to the written confirmation of the seller, errors concerning the indicated quantity and weight excepted.
b) All sales records referring to an offer such as drawings, figures, technical data, information about norms, dimensions or weight, do not relate to qualities or characteristics, unless we expressly refer to them like that in writing.
c) Our deliveries are made ex works. The agreed delivery dates and deadlines are non-binding, they just represent the earliest possible date of delivery. We reserve the right to exceed the indicated deadlines because of unforeseeable events or production interruptions.
d) Freight and transportation charges are borne by the buyer. The buyer will be responsible for any risk after goods have been handed over to the forwarder or to a third party being in charge of the transportation. This is also applicable if delivery “free domicile” has been agreed. Transport insurance will only be concluded on request and at the buyer’s charge.
e) We have the right to carry out partial shipments which can be invoiced separately in special cases. We also have the right to over or under deliver up to 10 % of the order quantity.
f) When purchasing on call, if nothing else has been agreed upon, the buyer is committed to purchase the total quantity of the items ordered within six months from the date of readiness for delivery.
3. Event of default, claim for damages:
a) In the case of force majeure, measures of industrial action and other breakdowns caused through no fault of the seller, the delivery period resp. the purchasing period will be extended by the duration of the obstruction plus an additional period of at least three weeks. Should the seller be unable to execute the order within this period for the mentioned or similar circumstances, both parties have the right to fully or partially withdraw from the unfulfilled part of the contract without any claim for damages resulting from this for either party.
b) In case of delay of delivery, the buyer can demand a maximum of 5 % of the price for that part of the delivery which was not delivered because of the delay. Any further demands, especially claims for damages due to breakdowns, are not included. This is not valid for claims referring to cases of intent or culpable negligence.
4. Prices, maturity:
a) Our invoices are immediately payable. The mentioned prices are net prices in euro, plus value added taxes, delivery ex works. A payment is regarded as effected when the money is at the seller’s disposal.
b) Our standard payment terms are “payment within 30 days after date of invoice less 2% discount or payment within 60 days after date of invoice net”, unless otherwise agreed.
c) If a payment is made, it will be set off against the outstanding accounts that are due longest including possible interest. In case of a delay of payment, we are entitled to charge annual interest of 8 percentage points over the respective base interest rate. In case of a payment default of more than 10 days, all outstanding accounts will be immediately payable. Cheques or bills of exchange are only accepted if specially agreed upon. They shall be accepted exclusively as an undertaking to pay but not in lieu of payment. Discount charges are to be refunded immediately.
d) Should the seller become aware of particulars which give doubt to the creditworthiness of the buyer or should the buyer fall into arrears, all outstanding accounts will be immediately payable. An offset, retention or reduction of payment on the part of the buyer is only allowed in the case of undisputed or legally assessed demands.
5. Reservation of proprietary rights:
a) The seller reserves the right of proprietary for the delivered goods until full payment of all entitled demands arising from the business relationship with the buyer.
b) The goods subject to retention of title are processed by the buyer for the seller to get a new movable product without any commitments on the part of the seller. The new product becomes the property of the seller. If the goods subject to retention of title are processed together with goods which are not owned by the seller, the seller will acquire co-ownership of the new product in proportion to the value of the goods subject to retention compared with the value of the other goods at the time of processing. If mixed or combined with goods not owned by the seller as per §§ 947, 948 BGB (German Civil Code), the seller will acquire co-ownership as regulated by law. Should the buyer acquire the sole ownership of the new product through the mixture or compound, he herewith transfers co-ownership to the seller to the amount of the co-ownership quota.
c) If the goods subject to retention of title are resold separately or together with goods not owned by the seller, the buyer transfers the demands from a resale to the amount of the goods subject to retention of title with all additional rights and rank of the rest. If the seller is co-owner of the resold goods subject to retention of title, the transfer of the demand will amount to the quota of the seller’s co-ownership.
d) The buyer is obliged to insure the goods new for old at his own risk against damages caused by fire, water and larceny. The buyer transfers all claims arising from the insurance to the seller.
e) The seller authorizes the buyer prior to retraction to collect the demands transferred to the seller. The seller will not use his own right of collection as long as the buyer fulfils his liabilities to pay. The buyer must disclose the names of the debtors of the transferred demands on request and notify them of the transfer. The seller is entitled to notify the debtors of the transfer on his own behalf.
f) As for the rest, the buyer can dispose of the delivered goods within the framework of a correct conduct of business. The buyer is not entitled to other rights of disposal especially pawnings or security transferences. Should third parties take actions of legal enforcement for the goods subject to retention of title or for the transferred demands, the buyer is obliged to refund the costs of the seller’s interventions against these actions. In the case of a stoppage of payment, opening of insolvency proceedings or out-of-court insolvency proceedings, the right of further disposal resp. processing or the collection of transferred demands expires.
g) To ensure the buyer duly meets his liabilities, the seller is entitled to demand adequate securities. If the securities exceed the demands to be covered by more than 20 %, the seller is free to arrange a transfer back or a release.
h) Should we, after withdrawal from the contract, gain the return of the goods subject to retention of title and be legally entitled to claim compensation instead of services, we are free to dispose of the goods subject to retention of title in the best possible way while safeguarding the buyer’s interests or reimburse the buyer with the normal sales value of the goods subject to retention of title at the time of taking back. The buyer bears all costs involved in the taking back and realization of the article purchased. In the case of breach of duty on the part of the buyer, we are entitled to take back the goods subject to retention of title since they are our property. The buyer is obliged to surrender the goods and bears the costs involved. i) The consignment goods remain our sole property. Disposal of them is subject to our prior approval. Payments will fall due immediately after sale. Any statute of limitation will start only after a stocktaking supervised by us 6. Notice of defects: a) In the case of a correct inspection of incoming goods, noticeable defects must be notified in writing immediately after receipt of the goods, other defects within 10 days after their discovery. Any claims resulting from a complaint will extinguish after a period of 12 months from delivery of the goods at the buyer. Non-hidden defects cannot be claimed any more once the delivered goods have been treated or processed. § 377 HGB (German Commercial Code) remains unaffected. b) Unavoidable tolerances of dimension, weight, quality, colour, finish or design do not constitute a fault if technically standard and typical of the product or if agreed upon. c) In case of a complaint, we will have the right to verify the defect according to the norms set by us. If the complaint is justified, we can choose either to eliminate the defect or to supply faultless goods. Should we incur a delay of more than four weeks when eliminating the defect or in sending a replacement delivery or should an elimination of the defect fail after two attempts or be made impossible, the buyer is entitled to withdraw from the bill of sale or to reduce the purchasing price. Further claims for liability for faults are excluded. In case warranty applies, this will not lead to a renewal of the warranty period. 7. Liability, claim for damages: a) Claims for damages on the part of the buyer, irrespective of which legal justification, especially those resulting from breaches of duty of the obligations or from unlawful actions, are excluded. This does not include product liability claims and does not apply to cases of intent or culpable negligence, injury to life, to the body or to health and in case of fundamental violation of the contract. The claim for damages in the case of an offence against fundamental contract responsibilities is limited, however, to foreseen damages typical of contracts, as long as intent or culpable negligence is not present or if legal responsibility is not taken for injury to life, body or health. b) In so far as claims for compensation are accorded to the buyer, a time limit of 1 year is set for this, beginning with the start of statute of limitation for claims for faults or defects. This is not valid in the case of claims for damages according to the product liability law. c) In all cases in which the buyer is obliged to render compensation instead of services (e.g. delay of acceptance), we can demand 20 % of the purchasing price as damages subject to proof of increased damage. The buyer has no right of retention. Both parties however have the right to prove that the damage is bigger resp. smaller or that there is no damage at all. 8. Place of fulfilment, court of jurisdiction: a) For both parties, only German law will be applicable for all matters of contract. The use of UN purchasing rights is explicitly excluded. b) For dealings with businessmen and corporate bodies under public law, Gütersloh will be court of jurisdiction and place of fulfilment for any legal dispute arising directly or indirectly from the contract irrespective of the value of the amount in dispute including complaints concerning bills of exchange or cheques. 9. Severability clause: Should any provision of these terms and conditions become fully or partly invalid, this shall not affect the validity or enforceability of any of the other provisions thereof. Both parties to the contract undertake to agree upon another provision which is equivalent to the intended meaning of the invalid one.