General Terms and Conditions of Purchase of Weißer + Grießhaber GmbH
As of: 25/08/2014
1. General information
(1) Our purchasing terms shall also apply to contracts for work and labour or contracts for work and materials.
(2) Our purchasing terms shall apply exclusively; we do not recognise any terms and conditions of the supplier that conflict with or deviate from our purchasing terms unless we have explicitly agreed to their validity in writing. Our purchasing terms shall also apply if we accept the supplier’s delivery without reservation in the knowledge that the supplier’s terms and conditions conflict with or deviate from our purchasing terms.
(3) All agreements entered into between us and the supplier for the purpose of executing this contract must be recorded in writing.
2. Offer – offer documents
(1) The supplier shall be obligated to accept our order within a period of 2 weeks. We are entitled to cancel orders at any time until receipt of the supplier’s declaration of acceptance.
(2) We reserve the property rights and copyrights to illustrations, drawings, calculations, and other documents. They are to be used exclusively for production based on our order; they are to be returned to us unsolicited after completion of the order. They must not be made accessible to third parties. They must be kept secret from them. The supplier requires our explicit written consent before passing them on to third parties.
(3) Cost estimates prepared by the supplier shall be binding and will not be remunerated by us.
3. Prices – terms of delivery and payment
(1) The price stated in the order is binding. The price shall include delivery “free domicile”, including packaging and insurance, in the absence of any other written agreement. The return of packaging requires special agreement.
(2) Unless otherwise agreed, prices are stated excluding statutory VAT.
(3) We will only be able to process invoices if these state the order number shown on our purchase order – in accordance with the specifications made there; the supplier shall be responsible for all consequences arising from non-compliance with this obligation.
(4) We shall pay the purchase price within 14 days, calculated from delivery and receipt of invoice, with a 3% discount or within 30 days net unless otherwise agreed in writing.
(5) The payment period shall commence as soon as the delivery or service has been provided in full and the properly issued invoice has been received. Discounts may also be deducted if we offset or withhold a reasonable amount of payment due to defects; in this case, the payment period shall commence after the defects have been fully remedied.
(6) We shall be due any rights of set-off and retention to the extent permitted by law.
(7) Any excess or short deliveries shall only be permissible if this has been explicitly agreed when the order quantity is determined.
4. Delivery time
(1) The delivery time stated in the order shall be binding.
(2) The supplier shall be obligated to inform us in writing without undue delay if circumstances occur or become recognisable to them that indicate that the agreed delivery time cannot be met.
(3) If the agreed delivery deadlines are not met, we shall have the right to cancel the order and/or demand compensation and/or procure a replacement from a third party, without prejudice to further statutory rights.
(4) Acceptance of any delayed delivery or service shall not constitute a waiver of claims for damages.
(5) We shall have the right to demand liquidated damages for delay in the amount of 0.5% of the delivery value per completed week if there is any delay in delivery, up to a total of 5%; we reserve the right to assert further statutory claims. The supplier shall have the right to prove to us that no damage or significantly less damage was incurred as a result of the delay.
(6) If we have entered in default of acceptance or debtor’s delay, the claim for reimbursement of expenses to which the supplier is entitled shall be limited to a maximum of 0.5% of the delivery value per completed week, unless the delay is due to intent or gross negligence.
5. Transfer of risk – documents
(1) The risk shall pass to the buyer upon delivery.
(2) The supplier shall be obligated to state our order number precisely on all shipping documents and delivery notes; if they fail to do so, delays in processing are unavoidable for which we shall not be responsible.
6. Inspection for defects – warranty
(1) We shall inspect the goods for obvious defects, correct identity, shortages, and transport damage, upon receipt. We are to subject to any further inspection obligations. A complaint shall be deemed to have been made in time if it is received by the supplier within a period of 14 working days after delivery. The supplier waives the defence of late notification of defects.
(2) We shall be due statutory warranty claims in full; irrespective of this, we shall have the right to demand either rectification of the defect or delivery of a defect-free item from the supplier at our discretion. In this case, the supplier shall be obligated to bear any expenses necessary for the purpose of remedying the defect, in particular transport, travel, labour, and material costs. The right to full compensation for damages is explicitly reserved.
(3) We may perform rectifications ourselves at the supplier’s expense without setting a deadline if we have a particular interest in immediate rectification due to the avoidance of our own delay or other urgency.
(4) If we take back any products manufactured and/or sold by us as a result of the defectiveness of the contractual object delivered by the supplier or if claims are asserted against us for this reason, we shall be entitled to the full statutory rights of recourse in accordance with §§ 478, 479 of the German Civil Code (Bürgerliches Gesetzbuch; BGB).
(5) The warranty period shall be 3 years, or for building materials within the meaning of § 438 (1) no. 2 (b) BGB 5 years, from delivery.
7. Overall liability
(1) As far as the supplier is responsible for product damage, they shall be obligated to indemnify us against claims for damages by third parties on first demand as far as the cause lies within their sphere of control and organisation and they shall be directly liable in relation to third parties.
(2) The supplier undertakes to maintain product liability insurance with appropriate cover for injury and property damage. However, our claims for damages are not limited to the amount of this cover.
8. Property rights
(1) The supplier warrants that no third-party rights will be infringed in connection with its delivery.
(2) If any claims are asserted against us by a third party for this reason, the supplier shall be obligated to indemnify us against these claims upon first written request; we shall not be authorised to make any agreements with the third party – without the supplier’s consent – in particular to conclude a settlement.
(3) The obligation to indemnify relates to all expenses necessarily incurred by us from or in connection with the claim by a third party.
9. Provision – tools – retention of title
(1) We reserve the right of ownership to any parts provided by us to the supplier. Processing or remodelling by the supplier shall be performed on our behalf. If our reserved goods are processed with any other items not belonging to us, we shall acquire joint title in the new item in the ratio of the value of our item to the other processed items at the time of processing.
(2) If the item provided by us is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved item to the other mixed items at the time of mixing. If the mixing takes place in such a way that the supplier’s item is to be regarded as the main item, it is agreed that the supplier shall transfer co-ownership to us on a prorated basis; the supplier shall keep the goods subject to sole or joint title for us.
(3) We reserve title in any tools; the supplier shall be obligated to use the tools for the manufacture of the goods ordered by us exclusively. The supplier shall be obligated to insure the tools belonging to us at replacement value against fire, water damage, and theft at their own expense. They shall be obligated to perform any necessary maintenance and inspection work in time at their own expense. They must notify us immediately of any malfunctions; if they culpably fail to do so, this shall not affect any claims to damages.
(4) Products that are manufactured in accordance with documents designed by us, such as drawings, models, and the like, or in accordance with our confidential information or with our tools, may neither be used by the supplier itself nor offered or supplied to third parties.
10. Place of jurisdiction – place of fulfilment
(1) The place of jurisdiction shall be Villingen-Schwenningen if the supplier is a merchant. However, we shall also have the right to sue the supplier at the court of their place of residence.
(2) Unless otherwise agreed in writing, the place of fulfilment shall be Mönchweiler. This contract shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods.
1. General – scope of application
(1) Our terms of sale shall also apply to contracts for work and labour or contracts for work and materials.
(2) Our terms of sale shall apply exclusively; we do not recognise any terms and conditions of the customer that conflict with or deviate from our terms of sale unless we have explicitly agreed to their validity in writing. Our terms of sale shall also apply if we perform the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms of sale.
(3) All agreements entered into between us and the orderer for the purpose of executing this contract must be recorded in writing.
2. Offer – offer documents
(1) If the customer’s order is to be qualified as an offer in accordance with § 145 of the German Civil Code (Bürgerliches Gesetzbuch; BGB), we can accept this within 4 weeks. Our offers are always subject to change.
(2) We reserve the property rights and copyrights to illustrations, drawings, calculations, and other documents; they must not be made accessible to third parties. The customer shall require our explicit written consent before passing them on to any third parties.
(3) Descriptions of our products are merely quality descriptions and do not represent a guarantee for the quality of the goods in any manner.
3. Tools – devices, etc.
(1) Tools, devices, and similar equipment manufactured or procured for production in accordance with the customer’s documents shall remain our property even if they have been paid for by the customer wholly or in part.
4. Prices – terms of payment – default
(1) Our prices are given “ex works”, excluding packaging; this will be invoiced separately unless otherwise stated in the order confirmation.
(2) The statutory value added tax is not included in our prices; it will be shown separately on the invoice at the statutory rate on the day of invoicing.
(3) Deduction of discounts requires a special written agreement.
(4) The purchase price for moulded parts is due for payment immediately upon receipt (without deduction) unless otherwise stated in our order confirmation. Payment for moulds shall be due at 1/3 each after completion of the design, submission of the first sample and sample approval without deduction. The customer shall be in default if they do not settle due payments within thirty days of receipt of an invoice or equivalent request for payment. We reserve the right to cause default by issuing a reminder after the due date at an earlier point in time. Notwithstanding sentences 1 and 2, the customer shall be in default if it has been agreed that the purchase price is to be paid at a specific or determinable date on the calendar and the customer fails to pay by this date at the latest.
(5) If the customer is in default of payment, we shall have the right to demand default interest in the amount of 9% above the respective base interest rate per annum. If we are able to prove a higher damage caused by delay, we are entitled to claim this.
(6) The customer shall only be entitled to set-off rights if their counterclaims have been legally established, are undisputed or have been recognised by us. Furthermore, they are authorised to exercise a right of retention as far as their counterclaim is based on the same contractual relationship.
5. Delivery time
(1) The start of the delivery period stated by us presupposes that all technical questions have been clarified. Any delivery time stated by us shall be non-binding unless otherwise agreed.
(2) If we are in default of delivery for reasons for which we are responsible, our liability for damages shall be limited to the amount of the foreseeable damage in the event of simple negligence for property damage and financial losses that are a direct consequence of the delayed delivery.
(3) If the customer sets a reasonable period of grace for us after we are already in default, they shall have the right to withdraw from the contract if this period of grace expires without result. If a reasonable period of grace has expired without result, the customer shall be obligated to declare within a period of two weeks after expiry of the period of grace whether they will withdraw from the contract or continue to insist on fulfilment.
(4) As far as we are also liable for damages instead of performance, claims in the case of ordinary negligence shall be limited to the amount of the foreseeable damage.
(5) We shall never be liable for consequential damages resulting from delayed or cancelled performance, in particular for loss of profit of the customer or other production downtime costs in the event of ordinary negligence.
(6) Compliance with our delivery obligation presupposes the timely and proper fulfilment of the customer’s obligations.
(7) If the customer has entered default of acceptance or if the customer violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us, including any additional expenses. The risk of accidental loss or accidental deterioration of the purchased item shall also pass to the customer at the point in time at which the customer is in default of acceptance in this case.
6. Transfer of risk
(1) Delivery “ex works” is agreed unless otherwise stated in the order confirmation. The risk shall pass to the customer when the delivery item has left the factory, even if partial deliveries are made or if we have assumed other services, e.g., shipping costs or delivery and installation. This shall be decisive for the transfer of risk if acceptance is required. It must be performed without undue delay on the acceptance date, alternatively after our notification of readiness for acceptance. The customer must not refuse acceptance in the event of a minor defect.
(2) Risk shall pass to the customer from the date of notification of readiness for dispatch or acceptance if dispatch or acceptance is delayed or does not take place as a result of circumstances for which we are not responsible.
(3) Partial deliveries shall be permissible, as far as reasonable for the customer.
(4) If the customer desires, we shall cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer.
7. Warranty for defects – warranty period
(1) The purchaser’s warranty rights presuppose that they have properly fulfilled their inspection and complaint obligations in accordance with § 377 of the German Commercial Code (Handelsgesetzbuch; HGB).
(2) If there is a defect in the purchased item for which we are responsible, we shall be entitled, at our discretion, to remedy the defect or to deliver a defect-free item.
(3) If we are unwilling or unable to remedy the defect or supply a replacement, in particular if this is delayed beyond a reasonable period of time for reasons for which we are responsible, or if the remedy of the defect or replacement delivery fails in any other way, the customer shall be entitled, at their discretion, to withdraw from the contract or to demand a corresponding reduction in the purchase price. If a reasonable period of grace has expired without result, the customer shall be obligated to declare within a period of two weeks after expiry of the period of grace whether they will withdraw from the contract or continue to insist on fulfilment.
(4) Unless otherwise stated below, any further claims of the customer – irrespective of the legal grounds – are excluded. We are, therefore, not liable for damage to property or financial losses that have not occurred to the delivery item itself; in particular, we are not liable for loss of profit or other financial losses of the customer. As far as liability for such damages does exist, claims for damages shall be limited to the amount of the foreseeable damage.
(5) The above exemption from liability shall not apply if mandatory statutory provisions justify liability, in particular if the cause of the damage is based on intent or gross negligence or if claims are asserted for injury to life, limb, or health due to negligence. Furthermore, it shall not apply if we have assumed a guarantee for a certain quality of the item and this quality is missing.
(6) The warranty period is 1 year, calculated from delivery of the goods. This period is a limitation period and also applies to claims for compensation for consequential damages, as far as no claims in tort are asserted
8. Retention of title
(1) We reserve title in the purchased item until receipt of all payments arising from the business relationship with the customer. We shall have the right to exercise our statutory rights and take back the purchased goods in the event of any breach of contract by the customer, in particular default in payment. We shall have the right to realise it; the realisation proceeds are to be offset against the customer’s liabilities – less reasonable realisation costs – after taking back the purchased item.
(2) In the event of seizures or other interventions by third parties, the customer must inform us in writing without undue delay so that we can take legal action in accordance with § 771 of the Code of Civil Procedure (Zivilprozessordnung; ZPO). If the third party is not in a position to reimburse us for the judicial and extra-judicial costs of such an action, the customer shall be liable for the loss incurred.
(3) The customer shall be entitled to resell the purchased item in the ordinary course of business; however, they hereby assign all claims to us in the amount of the final invoice amount (including VAT) which accrue to him from the resale against their customers or third parties, irrespective of whether the purchased item has been resold without or after processing. The customer shall remain authorised to collect this claim even after the assignment. Our authorisation to collect the claim directly shall not be affected by this. However, we commit to not collecting the claim as long as the customer meets their payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed, and payments have not been suspended. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection and hands over the relevant documents.
(4) Processing or remodelling of any purchased item by the customer shall always be performed on our behalf. If the purchased item is be processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item to the other processed items at the time of processing. This shall apply accordingly to the item created by processing as to the purchased item delivered under reservation of title in any other respect.
(5) We commit to releasing any collateral that we are due upon the customer’s request as far as the value of our securities exceeds the claims to be secured by more than 20%; we shall have the right to select the collateral to be released.
9. Place of jurisdiction – place of fulfilment
(1) If the customer is a merchant, the place of jurisdiction shall be Villingen-Schwenningen. However, we shall also have the right to sue the orderer at the court of their place of residence.
(2) Unless otherwise stated in the order confirmation, the place of fulfilment shall be Mönchweiler.
(3) The laws of the Federal Republic of Germany shall apply exclusively to this contract.