General Terms and Conditions
1. Scope of Application
1.1 The general terms and conditions of Wertex GmbH govern exclusively. Any contradictory conditions of the purchaser or conditions of the purchaser which differ from our General Terms and Conditions will not be acknowledged, unless we expressly agree in writing to application of the purchaser’s conditions. The general terms and conditions of Wertex GmbH will also apply in place of any contradictory or conflicting conditions of the purchaser, even if we deliver in full knowledge of these contrary or conflicting conditions.
1.2 The general terms and conditions of Wertex GmbH apply only to entrepreneurs as defined in § 310 para. 1 BGB (German Civil Code).
1.3 These general terms and conditions of WERTEX GMBH govern the sale and delivery of goods as well as such services which are not governed by a separate service agreement.
1.4 Upon a first delivery pursuant to the present general terms and conditions, the purchaser recognizes that these terms and conditions apply exclusively as a framework agreement for further orders and contracts too.
2. Contract Conclusion
2.1 The conclusion of the contract requires the written acceptance of order by Wertex GmbH if the acceptance of the customer does not confirm the original written commercial offer of Wertex GmbH completely. Written form, in the sense of these general terms and conditions, also includes conveyance via fax or e‐mail.
2.2 If, in the case of a service order, the order is placed orally (for instance via telephone), the customer is obliged to confirm the order in writing on the site of the service. If no authorized representative of the customer is on site, the technician of Wertex GmbH is authorized to execute the services at his own discretion.
2.3 Our offers are only binding if they are laid down in written form. Also every other agreement in connection with this contract is only binding if it is made or at least confirmed in writing. Our offers are valid for a maximum of two weeks from the date of the offer.
2.4 We are not liable for defects due to performance data or other faulty or incomplete information issued by the customer.
The customer is not entitled to dispute or to assist any third person disputing any copyrights or filings for trademarks or other intellectual property, which were achieved during the contractual or pre‐contractual relationship between WERTEX GMBH and the customer, irrespective whether by issuing materials or documents or in any other way.
4. Execution of Services
4.1 Wertex GmbH will execute orders by qualified employees or sub‐contractors according to the principles of proper professionalism. The selection of the employees or sub‐contractors appointed to the execution of the services, lies at the sole discretion of Wertex GmbH.
4.2 Wertex GmbH is entitled to partial deliveries and partial services, as long as it does not amount to an unacceptable additional effort for the customer.
5.1 The time of delivery shall not begin prior to the fulfillment of all preparatory work to be made by the customer as well as the fulfillment of the obligations to co‐operate. If the customer is in delay with preliminary works or services, the terms of delivery shall be prolonged for the time of the delay.
5.2 The delivery deadline shall be deemed to have been met if the products have left the stock of Wertex GmbH or if the customer has been notified of the goods’ readiness for shipment prior to the expiration of the delivery date.
5.3 The delivery date as well as any other time limit shall be reasonably prolonged, at least for the term of the delay, in cases of any unforeseen event, which is not due to negligent behaviour and beyond the control of Wertex GmbH. This applies where the delay is due to force majeure, strikes, lockouts, system malfunctions or rulings by the authorities. This applies also if these reasons apply to a subcontractor or supplier of Wertex GmbH, provided that the hindrances do significantly affect the execution of the services and deliveries of Wertex GmbH.
5.4 If the customer is entitled to damages caused by the delay, the damages to be paid by WERTEX GMBH are limited in cases of slight or normal negligence to the amount of the predictable damage, not higher however, than the value of the part of the delivery which could not be used in time or as provided in the contract.
5.5 If the customer defaults on acceptance or breaches other duties of co‐operation, we are entitled, without prejudice to our other rights, to store the products in an appropriate way at the risk and expense of the customer. For such storage, we will charge 0.5% of the relevant net amount invoiced for the stored goods per week of default. The right to furnish evidence of a greater loss and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) are not prejudiced. However, the flat rate must be credited to any additional monetary claims. The customer also has the right to furnish evidence that we have only incurred significantly lower storage costs or no storage costs at all.
6.1 The prices listed are net prices and do not include the current statutory value added tax (VAT) at the time of delivery. Costs of packaging, freight, insurance, duty and supplier declarations are not included. The prices will be in accordance with the written contractual agreements. Costs for assembly and start‐up will be charged separately, if we handle them in addition. This also applies for technical works and project engineering, including the issuing of blueprints and sketches, if we have to supply them additionally.
6.2 In order to meet the prices agreed it is necessary that the positions relevant for this agreement do not change during the execution and that the services can be accomplished without hindrances coming from the side of the customer. In the case of any alteration of the costs of materials, wages, freight or of any other cost factors WERTEX GMBH reserves the right to adjust the prices accordingly if the period elapsed between the conclusion of contract and the date of delivery is longer than four months. An agreed fixed price remains unchangeable.
6.3 We will only issue supplier declarations giving certification of goods of preferential origin if expressly requested to do so by the customer. For the issue of the supplier declaration, a flat processing rate of EUR 50.00 net plus statutory value added tax will be charged to the customer for each supplier declaration.
7. Duties of inspection and notification
The customer has the duties of inspection and notification which can be expected of a prudent business person. Immediately after receipt of goods, the customer must inspect them for obvious defects. If a defect is found during this inspection or at a later date, we must be notified of the same immediately in writing or by email. In this notification, the defect must be described with adequate substantiation to enable us to follow up the complaint. In addition, the provisions in Sub‐Section 11.1 shall apply.
8. Terms of Payment and Set‐Off
8.1 Payments shall be made in accordance with our customer‐specific or contractually agreed terms of payment or in accordance with our standard terms. Otherwise, customer shall pay net within 14 days after issuing of the invoice. Service provided shall be paid net within 14 days after issuing of the invoice.
8.2 The payment period is only met, if the amount to be paid by the customer is received by WERTEX GMBH on the relevant payment date. Payment via bills of exchange or checks are not accepted.
8.3 In case of deterioration of the customer’s financial situation after conclusion of the contract, WERTEX GMBH may suspend its performance until the customer has entirely fulfilled its obligations, or made available a bank guarantee or other enforceable security as per discretion of WERTEX GMBH. The same applies in cases of repeated and/or substantial delay of the customer’s payments.
8.4 In the event that a payment is not made to WERTEX GMBH by the due date the customer is in arrears with his payment obligations. WERTEX GMBH shall – without prejudice to other rights – be entitled to charge interest on the amount due. Interest will be charged at a rate of 9 percentage points per annum above the base rate according to § 247 of the German Civil Code (Bürgerliches Gesetzbuch). The issuance of a reminder is not necessary. WERTEX GMBH may charge a higher amount if WERTEX GMBH can establish that the amount of damage was higher.
8.5 The customer may only retain payments or set‐off a claim against the claims of WERTEX GMBH if its counter‐ claim is undisputed or based on a final and binding court decision or the court decision is at least imminent. The customer shall have no right to detain advance payments if WERTEX GMBH fulfills its obligations or makes available an enforceable security to the customer.
8.6 The claims of WERTEX GMBH concerning the remuneration are subject to a limitation of five years.
9. Retention of Title
9.1 WERTEX GMBH shall retain title to the delivered products until all claims arising out of this delivery as well as out of any other open claims against the customer have been entirely fulfilled. If the customer is in delay of payment and a grace period, set by WERTEX GMBH, has expired fruitlessly, WERTEX GMBH shall be entitled to cancel the contract, take back the delivered products and the customer shall be obliged to surrender them. 9.2 The customer is entitled to resell the delivered products, which are still owned by WERTEX GMBH (“retained goods”), in its ordinary course of business. In order to secure WERTEX GMBH’s claims the customer hereby assigns to WERTEX GMBH all claims arising out of the resale of the retained goods in the amount of the price of the delivery.
9.3 After the transfer of the claims to WERTEX GMBH, the customer shall be authorized to collect payment. WERTEX GMBH shall be authorized to revoke this right to collect payment and shall collect open claims itself, if the customer does not fulfil its payment obligations vis‐a‐vis WERTEX GMBH properly, is in delay of payment, files for insolvency or ceases its payments. In this case, the customer is obliged to transmit the data necessary for collecting the claim, to forward the necessary documents to WERTEX GMBH and to inform its customer of the transfer of title.
9.4 Any processing or converting of any retained goods, shall be performed on behalf of but without any obligation for WERTEX GMBH. The processed or conversed product shall replace the original good as a retained good. If the retained good is incorporated or combined with other goods by the customer, WERTEX GMBH shall acquire joint ownership of the new goods up to the ratio of the price of the retained goods to the price of the other goods.
9.5 If the title of WERTEX GMBH will expire due to combination, processing or assembly, the customer hereby transfers ownership of the newly established product up to the extent of the delivery price of the retained goods. The customer will safeguard the newly established product for WERTEX GMBH with due diligence and free of charge. The newly established products shall be deemed as retained goods up to the ratio of the joint ownership.
9.6 If and in so far as the value of the securities exceeds the claims to be secured by more than 10 per cent, WERTEX GMBH shall release the assigned securities in so far.
9.7 In case of a forced lien or any other impairment of the proprietary rights of WERTEX GMBH, the customer shall notify WERTEX GMBH immediately thereof.
10. Passing of Risk
10.1 Risk shall pass to the customer at the moment and to the extent at which the product or parts of the product leave the facility of WERTEX GMBH or to which the customer has been informed of readiness for shipment.
10.2 If a part of the product cannot be delivered due to default of acceptance by the customer, we will fulfil our obligations by placing the product in storage. In this case all expenses we incur shall be paid by the customer upon submission of the invoices. Sub‐Section 5.5 applies to the amount of storage costs. We will notify the customer in writing immediately upon placing such products in storage. Any other legal remedies available to WERTEX GMBH remain unaffected. In this case the risk of accidental loss or coincidental deterioration of the product passes to the customer at the moment in which the customer delays acceptance.
11.1 For material defects and defects of title, WERTEX GMBH shall only be held responsible under the exclusion of any further claims and under the exceptions according to section 10.6 and 11., if the customer has notified WERTEX GMBH in writing within eight days in the case of obvious defects or such defects that could be discovered without thorough investigation and in all other cases immediately after discovery and provided further that the customer has observed the instructions of WERTEX GMBH with respect to the operation and storage of the delivered products. § 377 of the German Commercial Code (Handelsgesetzbuch) remains unaffected.
11.2 The warranty of WERTEX GMBH does not cover normal wear and tear as well as parts which, owing to their inherent material or their intended use, are subject to natural wear and consumption. The warranty shall not include damages caused by inadequate storage, treatment, operation, inadequate equipment or the use of unsuitable operating resources. WERTEX GMBH shall only be held responsible as provided within this section 10 under the exclusion of any other warranty claims, irrelevant whether orally, in writing, legally or otherwise.
11.3 It is in the sole discretion of WERTEX GMBH whether it fulfils its obligation concerning the warranty either by replacement or improvement of the delivered product. The Customer shall grant WERTEX GMBH sufficient time and opportunity to make such improvements and replacements as are necessary in the opinion of WERTEX GMBH; otherwise, WERTEX GMBH is released from any liability for resulting consequences. The Customer may only in urgent cases (endangering of safe operation; protection against excessive damages) repair the defect by himself or by a qualified third party, provided, however, that WERTEX GMBH is immediately informed thereof. The customer may only then and to that extent, request any compensation for the related repair costs, if these costs were necessary and, according to the relevant circumstances, not excessive.
11.4 To the extent legally permissible, the customer shall have the right to withdraw from the contract if WERTEX GMBH – unless permitted by law – makes no effort to repair or replace the defective products within a reasonable period of time set by the customer. In case of minor defects which do not affect commercial operability significantly, the customer is only entitled to a price reduction. In all other cases the right to a price reduction or damages is excluded.
11.5 In divergence from § 438 para. 1 no. 3, the general time limitation for claims made by the customer based on material and legal defects is one year as of hand‐over/delivery of the goods. If acceptance has been agreed, the period of limitation shall begin upon acceptance of the purchased item. The above time limitation periods do not apply to time limitation periods under the German Product Liability Act neither do they affect §§ 438 para. 1 no. 1, no. 2, and 438 para. 3 BGB (German Civil Code). Solely the statutory time limitation periods shall apply to damages claims made by the customer in accordance with Section 12.
12. Limitation of Liability
WERTEX GMBH shall not be liable, and the customer agrees to indemnify WERTEX GMBH from all claims, liabilities and damages that might occur if and to the extent that the customer does not follow the instructions and warnings given by WERTEX GMBH.
13. Data Protection
14. Place of Performance, Jurisdiction, Applicable Law
14.1 The contract shall be governed by the laws of the Federal Republic of Germany. The United Nations Convention on the International Sale of Products (CISG) is not applicable and shall be excluded.
14.2 Unless otherwise indicated in the acceptance of order, the designated place for execution as well as place of exclusive jurisdiction shall be the registered place of business of WERTEX GMBH.
14.3 Should any of the provisions contained in this contract or in these General Terms and Conditions beor become invalid for any reason, the validity of all other provisions shall not be affected. The invalid provision shall be replaced by a valid provision that reflects the original intention of the parties as much as possible.
Date: January 2019