CGA

Condizioni generali di affari (versione: 01/01/2022)

I. Scope/General
1. All our deliveries and performances to entrepreneurs as well as to legal persons under public law or special funds under public law (but not consumers in terms of sect. 474 et seqq., 13 BGB (German Civil Code)) shall exclusively be governed by the General Terms & Conditions (GTC) of wedi GmbH (wedi) below , with conflicting terms being explicitly excluded. They shall also apply to all future business relations, unless they are replaced by our follow-up regulations, to the validity of which we shall then refer at least in text form. They shall always apply in addition to our offers, the provisions of which shall prevail for contradictions and when concluding master delivery contracts. Individual agreements made on a case-by-case basis shall be prevail our terms and conditions. Subject to the evidence to the contrary, a contract shall be decisive for the content of such agreements at least in text form or our confirmation at least in text form. Our terms and conditions shall not apply to construction services.

2. The Incoterms® 2020 incl. the supplements valid at the time the contract is concluded shall apply complementarily. In the absence of any differing agreement, our deliveries shall always be made EXW Emsdetten.

3. Legally relevant notices by the customer, such as setting of time limits, notices of defects, notices of withdrawal, reductions, avoidances etc., are to be given at least in text form. This shall not affect statutory formal requirements. Insofar as any reference to the application of legal regulations is made in our GTC, this shall be only for clarification. The legal regulations of the Federal Republic of Germany shall hence apply basically even without such a clarification, unless they are directly modified or expressly excluded in these General Terms & Conditions

II. Offer and Contract Conclusion
1. Our offers as well as our samples, prospectuses, drawings, technical documentations, product descriptions and other performance data shall be subject to change non-binding, unless we have expressly referred to them as being binding.

2. The customer shall be bound by the customer’s purchase orders for 2 weeks from receipt by us. The contract shall be concluded by our order confirmation within 2 weeks from receipt of the purchase order or, alternatively, even by execution of the purchase order within the same time limit.

3. Business mail printed out with data processing systems shall be legally binding even without signature.

4. Our offers shall apply to deliveries into the country in which the customer is established according to the statements in the customer’s purchase order (hereinafter “Country of Exportation”). The customer has to pay wedi for all disadvantages and liabilities arising from the use of the goods outside the Country of Exportation.

5. Illustrations, samples, prospectuses, drawings and/or all other documents pertaining to the offer shall not be quality specifications. This shall hence involve any properties, assurances or guarantees only if this is agreed separately at least in text form. We reserve titles, copyrights and other proprietary rights to any and all illustrations, samples, prospectuses, drawings and other documents. We shall guarantee the portfolio of our property rights exclusively for the Federal Republic of Germany. The customer may pass on our rights to third parties only with our consent (at least in text form), regardless of whether we have marked them as confidential, and has to return them to us on request without having any right of retention.

6. Our products are not intended to be used in aircraft, motor vehicles and/or watercraft on the basis of special approval and testing procedures as well as the relevant fire safety regulations, unless we have given prior express approval in text form in a given case. Warranty, damages and other claims resulting therefrom shall otherwise be excluded.

7. Information on the processing and application possibilities of the wedi products (= goods), technical recommendations or consultations and any other statement by our employees (application-technical consultation) shall be provided or made to the best of our knowledge, but without commitment and to the exclusion of any liability. As a result, our customers and their buyers shall not be exempted from own tests and trials for suitability of the products (= goods) for the intended use. Application-technical notes shall not give rise to any separate contractual legal relationship / consultant relationship.

8. Proper and timely self-delivery shall remain reserved. We shall inform the customer about the unavailability of any delivery without delay and shall refund the corresponding consideration to the customer in case of withdrawal without delay.

III. Prices
1. Our prices shall be net prices (in euros) and shall apply ex works Emsdetten (EXW Emsdetten), including normal transport packaging plus transport costs. Unless set out otherwise in our order confirmation, the prices following from the respective current wedi price list at the time of the customer’s purchase order, in each case plus the statutory VAT applicable upon the purchase order, shall be deemed agreed. Where the customer provides us with accurate information regarding foreign packaging, weighing and customs regulations to be applied in a timely manner, before the order is confirmed at the latest, we undertake to comply with these as far as possible. Any extra costs involved shall be borne by the customer.

2. If delivery is performed only 4 months after confirmation of the order, we reserve the right to increase the price where a substantial change occurs in the cost factors determining the contract, such as wages, packaging material, freight/energy costs, raw materials, taxes. In this respect, the price increase shall be calculated according to the level of cost increase since conclusion of the contract, which wedi has to prove.

3. Customs duties, consular fees and taxes, duties, fees as well as related costs levied outside the Federal Republic of Germany on the basis of regulations shall be at the customer's expense. Where any delivery includes customs or other duties, the price indicated shall be based on the rates applicable at the time of the offer. The actual costs shall be calculated. The respective applicable statutory VAT, where appropriate, shall be charged in addition.

4. We expressly object to any cash discount deduction or other deduction of our invoice lines not agreed upon by our order confirmation in text form.

IV. Delivery Period and Delivery Date
1. Agreed delivery periods shall commence with the day the order is confirmed resp. contract is concluded. They shall be non-binding, unless a delivery date has been expressly committed. Unless expressly agreed individually at least in text form by concordant declarations, agreed delivery periods are not to be qualified as fixed trade purchase in any case.

2. Compliance with each delivery period shall be subject to the customer meeting the contractual duties. The delivery period is adhered to if the subject-matter has left our works or notice of readiness for shipment has been given in time by its expiry. Delivery periods shall commence at the earliest upon conclusion of the contract, but not before all documents, releases, technical clarifications etc. to be procured by the customer have been provided in full. The delivery time shall be reasonably extended by subsequent requests for changes and additions of the customer; the same shall apply in the event of unforeseen obstacles for which we are not responsible, e.g. events due to force majeure, such as war, strike, lockout or other interruptions of operations, e.g. obstacles at subsuppliers. In these cases of unavoidable events, the legal consequences of clause X (4) + (5) of these terms and conditions shall apply.

3. Where we are responsible for any default in delivery, the customer must set us a reasonable further time limit, after having dunned us in writing, pointing out that the customer refuses to accept the subject-matter of the contract after expiry of the time limit. The customer shall be authorised to withdraw from the contract by declaration in text form only after the further time limit has expired to no avail, but only insofar as we are responsible for the breach of duty, which is to be assumed only for wilful or grossly negligent breach of contract, with the customer proving that the customer is no longer interested in the delivery/performance. Besides, the customer may demand claims for neither damages nor reimbursement of expenses in case of withdrawal. In any case, our liability for damages shall be limited to the foreseeable damage typically occurring. We expressly object to any damage consolidation into a lump sum or penalty for default in delay.

4. We shall be entitled to make partial deliveries and partial performances at any time, without attaching this to any new offer. If the remaining part is not deliverable, the customer shall be entitled to forbear from the contract without compensation for the customer. We shall bear extra costs due to part deliveries. The customer shall be obliged to pay the full purchase price only after we have performed the contract or rendered performance in full.

5. If the customer is in default of acceptance, we shall be entitled to demand compensation for the arising damage and any extra expenses. The same shall apply if the customer culpably breaches obligations to cooperate.

V. Delivery Terms, Passing of Risk
1. The goods shall be shipped at the customer’s risk and expense. The Incoterms® 2020, here basically EXW, shall apply at least in text form in the absence of any differing agreement. This shall also apply if we have taken over the transport in an accommodating manner and even at our expense. The risk shall always pass to the customer from the place of loading of the work, i.e. in principle and in the absence of any other agreement upon loading of the delivery, even if partial deliveries are made or we have still taken over other performances. Choosing the shipping route and the means of shipment shall be incumbent upon us, at least whenever we have taken over the transport in an accommodating manner. The place of performance shall be and remain Emsdetten.

2. If shipment is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer from the date of readiness for shipment. Supplied subject-matters are to be accepted by the customer, even if they have insignificant defects.

3. If the customer is obliged to provide the means of transport for delivery and fails do so at the contractually agreed time, we shall be released from our duty to deliver by storing and insuring the goods at the customer’s expense and risk. The forwarder's certificate of receipt shall be regarded as proof of delivery as per contract.

4. We shall insure the delivery against transport damage and other risks at the customer’s express request and expense.

VI. Payment Terms, Default
1. The purchase price shall be due for payment in euros without any deduction immediately upon receipt of the invoice as well as delivery of the goods at the agreed place of performance, unless any other date of payment follows from our order confirmation.

2. If we realise after conclusion of the contract that our claim to the purchase price is jeopardised due to the customer’s inability to pay, we shall be entitled to withdraw from the contract under the legal provisions on refusal of performance and after setting a reasonable time limit, where necessary. As part of an ongoing business relationship, we shall be entitled at any time to make supply conditional on advance payment if we give notice of a reasonable reservation when confirming the order at the latest. For contracts on the manufacture of unwarrantable items, we may give notice of withdrawal without setting a time limit. An unwarrantable item is also to be assumed if we manufacture series products individually for a customer.

3. Payment may be effected only to one of our accounts stated on the invoice receipt or to a person provided by us with an original collecting power.

4. Checks and bills of exchange, which we expressly reserve the right to accept, shall be considered as payment only after redemption. Any discount and bank charges shall be at the customer’s expense. Insofar as we have agreed payment of the purchase price debt due to the check / bill of exchange procedure with the customer, the reservation shall also extend to the redemption of the bill of exchange accepted by us by the customer and shall expire only by irrevocable crediting of the received check with us.

5. If is not possible at the due date to transfer the payments from the country from which the payment has to be made, the customer has to pay the equivalent of the amount owed to a European bank in such country on schedule in a demonstrable manner nonetheless. If the exchange rate of the amounts paid in non-agreed currency declines, the customer shall be obliged to compensate for these by payment of arrears.

6. If it becomes apparent for wedi after the conclusion that the claim to the purchase price is jeopardised due to the customer’s inability to pay, e.g. the application for opening of insolvency proceedings or due to deteriorating credit rating information of a credit insurer, we shall be entitled under the legal regulations to refuse performance and, after setting a time limit, where appropriate, to withdraw from the contract. We undertake to enable the customer to enable delivery of the goods against cash in advance up to the value of the delivery, alternatively for a reasonable security of a credit insurer or a European bank in the form of a directly-enforceable, open-ended suretyship upon first demand, waiving the defences of voidability, set-off and unexhausted remedies. If the customer fails to pay in advance or to provide the requested security, we shall be entitled to the right of retention on a permanent basis, alternatively to a right of withdrawal after dunning to no avail. Besides, we shall be entitled to demand damages claims.

7. If the customer is in default with any payment, we shall charge 9% interest above the base interest rate of the European Central Bank subject to proof of higher damage.

8. The right to withhold payments or to set off counterclaims shall be due to the customer only to the extent that as these are uncontested or have been finally and non-appealably established. In the event of defects in delivery, the customer's counter-rights shall remain unaffected in compliance with sect. 7 of our GTC.

VII. Warranty, Notice of Defects
1. Each of our deliveries is to be immediately examined for completeness and absence of defects. The customer has to note on the forwarder's certificate of receipt any obvious defects recognisable on proper examination and has to give notice of these to us in text form after the supply without delay. Other than that, the customer must immediately give notice of any defect in text form after its establishment. The notification must contain a detailed error description. If the customer fails to perform proper examination and/or to give notice of defects, our liability for the defect not advised shall be excluded.

2. The customer shall be obliged to examine or to have authorised third parties examine and sign for the examination of the condition of the goods upon collection or agreed supply. Neither any shortfall in delivery nor any false delivery shall give rise to any defect, but we shall be entitled to perform subsequent delivery upon request.

3. If the delivery/performance is defective, wedi shall warrant by subsequent improvement or replacement delivery at wedi’s option, unless any case of sect. 445a(1) BGB exists. Except for the cases of sect. 445a(1) BGB, the customer's claims due to a defect in a purchased item shall initially be limited to cure. The customer shall bear the expenses necessary such cure insofar as these increase in that the delivery or performance is brought to any place other than the place of performance. If cure fails after at least two attempts, the customer reserves the right to reduce the price or, if the defect is significant, to withdraw from the contract.

4. The customer’s warranty rights shall be subject to the customer having duly fulfilled the customer’s obligations to examine and to give notice of defects owed under sect. 377 HGB (German Commercial Code) without delay.

5. The customer's legal recourse claims against wedi shall exist only insofar as the customer has not concluded any agreement with the customer’s buyer beyond the legal claims. Insofar as our deliveries and performances are rendered to or installed or affixed at any locations other than our place of performance by our customer, the customer shall bear sole liability for the arising extra costs (workmen’s travel and freight costs) in all cases of liability. Recourse to us for such extra costs shall be expressly excluded.

6. If cure fails, the customer may otherwise withdraw from the contract or reduce the purchase price after setting another time limit to no avail, provided that the statutory conditions are met. Besides, damages claims shall be excluded. Claims of the customer due to the expenses required for the purpose of cure, in particular transport, workmen’s travel, work and materials costs, shall be excluded insofar as the expenses increase because the subject-matter of delivery was subsequently transported to any location other than the place of performance, unless such transport is in line with its intended use.

7. Claims shall not exist for a merely insubstantial deviation from the agreed quality, for a merely insubstantial impairment of usefulness, for natural wear and tear or negligent storage/use and/or for damage arising after the passing of risk as a result of incorrect and/or negligent handling, excessive stress, inappropriate operating materials and/or due to special external influences and/or for qualities not presumed under the contract.

8. If instructions for use / processing instructions from wedi and/or the manufacturer are not complied with, inadmissible changes are made to the wedi products (= goods), parts are exchanged and/or spare parts and/or fillers not in line with the original specifications and / or specifications are used, wedi shall no longer be liable for defects so caused / co-caused; anything to the contrary shall apply only if the warranty case is demonstrably not attributable to one of the exclusion criteria set out above.

9. Claims for defects shall be statute-barred within 12 months since passing of risk. The rights from sect. 445a, 445b BGB shall remain unaffected by this. The warranty shall be extended by the period of cure from notice of defects to cure only if the defects are substantial or considerable or impair suitability for use. The limitation of the warranty claims shall expressly not be suspended by a notice of defect if we find out that we are not responsible for the defect after having examined the causes of defect. The warranty period shall be 1 year from supply; where acceptance is agreed, limitation shall commence upon acceptance. If our goods are an item which is used for a building structure in line with its usual way of use and causes its defectiveness, the limitation period shall be 5 years from supply, without prejudice to special legal regulations. Such periods of limitation shall also apply to contractual and non-contractual claims for damages of the purchaser based on a defect in the goods, unless the regular legal period of limitation is shorter. Damages claims under the Product Liability Act resp. for a gross breach of duty or wilful intent shall be statute-barred exclusively under the legal regulations on limitation.

10. Each claim for damages is to be asserted in court within a period of exclusion of 3 months after we have rejected in text form our obligation to vouch for damage.

VIII. Retention of Title, Security Rights
1. We reserve title to the sold goods until all our current and future claims from the purchase contract and an ongoing business relationship (secured claim) have been paid in full. The retention of title shall cover any and all balance claims from current account and, on receipt of bills of exchange or checks, up to their redemption, with the effect of fulfilment depending on the receipt of payment by us.

2. The retention of title shall also cover the produces arising from processing, intermixture and/or combination of our goods at their full value, with us being considered as manufacturers. If the customer’s title remains in place after any processing, intermixture or combination with goods of third parties, i.e. also products of the customer, we shall we acquire co-title at the ratio of the invoice values of the processed, intermixed or combined goods. In these cases, the customer has to store free of charge for wedi the item(s), to which wedi GmbH reserves sole or co-title. Other than that, the emergence of the produces and the goods delivered under retention of title shall be governed by the same terms and conditions.

3. If the goods subject to retention of title are integrated by the customer into the land plot / building and/or essential parts of the building of a third party as essential parts, the customer shall already now assign to us the claims for remuneration arising against the third party or the person it concerns, at the level of the value of the goods subject to retention of title with all ancillary rights, incl. such one for granting of a security mortgage ranking the rest, with us herewith accepting such assignment. If goods subject to retention of title are incorporated by the customer into the customer's land plot as essential parts, the customer shall already now assign to us the claims arising from the commercial sale of the land plot or of land plot rights at the level of the invoice value of the goods subject to retention of title with all ancillary rights, with us herewith expressly accepting such assignment.

4. If the value of the securities granted exceeds the claims by more than 10%, wedi shall be obliged to retransfer or release them at its discretion in this respect at the customer's request.

5. The customer shall be entitled to process and alienate the goods subject to retention of title in the proper course of business as long as the customer is not in default. The authorisation for realienation shall no longer apply if the customer has agreed a prohibition of assignment with the customer’s buyers. Pledges or chattel mortgages shall be inadmissible.

6. If goods subject to retention of title are alienated by the customer alone or together with goods not owned by wedi, the customer shall already now assign to wedi in full by way of security the claims arising from such realienation or any other legal reason (including any and all balance claims from current account), with wedi herewith expressly accepting such assignment.

7. The customer shall be revocably authorised by wedi to collect the claims assigned to wedi on the customer’s account in the customer’s own name. Wedi may revoke the collection authority at any time if the customer fails to properly meet the customer’s payment obligations, is in default of payment, has agreed a prohibition of assignment with the customer’s buyers or an application for opening of any insolvency proceedings has been filed or payments have been suspended. The customer shall be obliged upon request to advice the customer’s buyer of the assignment and to hand over to wedi any and all information and documents required for the collection.

8. The customer has to advise wedi of attachments, compulsory enforcement measures or other interferences by third parties in the goods subject to retention of title or in the assigned claims without delay by handing over the documents necessary for the objection so that we can enforce our rights, with the customer having to advert to our title or our claim holdership. Insofar as the third party is unable to reimburse us for the judicial or extrajudicial costs incurred in this context, the customer shall be liable for this.

9. Upon cessation of payment and/or application for opening of insolvency proceedings, the right to realienate, process, combine or intermix the goods subject to retention of tile or the authorisation to collect the assigned claims shall lapse; in case of a cheque or bill of exchange protest, the direct debit authorisation shall lapse as well. This shall not apply to the rights of the insolvency administrator.

10. If the retention of title is not effective in the above form under the law of the country of destination, the customer has to cooperate when establishing a security right for wedi in line with the provisions of the customer’s country.
11. The customer shall be obliged to handle the goods with care and shall be obliged, in particular, to adequately insure them at own expense against fire, water and theft damage at replacement value. The customer must perform any required maintenance and inspection work on time at own expense.

12. If the customer acts contrary to contract, in particular is in default of payment, we shall be authorised to withdraw from the contract under the legal regulations and/or to demand surrender of the goods based on the retention of title. The demand for surrender shall concurrently not include the notice of withdrawal, but we shall rather be authorised to merely demand surrender of the goods and to reserve the withdrawal. If the customer fails to pay the purchase price due, we may assert such rights only if we have previously set the customer a reasonable time limit for payment to no avail or setting such a time limit is dispensable under the legal regulations.

IX. Liability
1. We shall be liable for damages for any legal reason whatsoever as part of the fault-based liability for wilful intent and gross negligence. In case of ordinary negligence, we shall be liable subject to legal limitations of liability, e.g. due diligence in own affairs, only for damage from injury to life, body or health and for damage from the violation of a substantial contractual duty; in the latter case, however, our liability shall be limited to compensation of the foreseeable, typically occurring damage. Such limitations of liability shall also apply towards third parties as well as to breaches of duty by our vicarious agents. The limitations of liability shall further apply neither if we have fraudulently concealed a defect or have assumed guarantee for the quality of the goods nor to claims of the customer under the Product Liability Act. Due to a breach of duty not being a defect, the customer may withdraw or terminate only if we are responsible for the breach of duty, with any free right of termination of the customer being excluded.

2. Rights of recourse under sect. 478 BGB from end customer complaints shall remain unaffected with the proviso that we shall be granted the right to perform cure at our option by repair or new delivery to the place of performance of the contract agreement, to ensure compensation in case of recourse. In any case, wedi's liability for fitting and removal costs shall be limited to 150% of the value of the purchase item.

3. The limitation of the warranty claims shall expressly not be suspended by a notice of defect if we find out that we are not responsible for the defect after having examined the causes of defect and give notice thereof.

4. We shall object to penalties and damage lump sums for any legal reasons whatsoever, especially for default and defects.

X. Reservation of Performance / Embargo Clause / Force Majeure
1. Our contract performance shall be subject to the proviso that such performance is excluded by neither impediments due to national or international regulations of foreign trade legislation nor embargoes and/or other sanctions. The customer shall be obliged, in particular, to refrain from all transactions (a) with persons, organisations or entities on a sanction list under EC regulations or US export regulations, (b) with embargo states that are prohibited, (c) for which the necessary approval is not on hand or not applicable, (d) which may be performed in connection with ABC weapons, military purloinment.

2. The customer undertakes, in particular, to advise us without delay and by the customer’s own accord in text form to the extent that the customer intends to deliver or use products or performances obtained from us in areas subject to such provisions. The customer shall indemnify us from all legal consequences arising from the violation of such provisions and shall pay damages to the extent necessary if this results in us causally incurring any damage.

3. We shall expressly object to all provisions on the cessation of acceptance obligations due to events of force majeure, such as natural disasters, earthquakes, floodings, thunderstorms, volcanic eruptions, base coincidence, riot, blockade, fire, civil war, embargo, hostage-taking, war, revolution, sabotage, strikes at third parties, terrorism, road accidents, pandemics and epidemics as well as production disruptions. In this context, we shall also object to any disclaimer of liability for non-acceptance.

4. In cases of force majeure, labour disputes, unrest, pandemics, such as COVID-19, public-law/regulatory measures as well as other unforeseeable, unavoidable and serious events, Wedi shall be exempt from the performance obligations for the duration of the disturbance (plus a reasonable extension of the performance period) and to the extent of its impact, without any compensation and penalty, provided that wedi was unable to foresee the consequences, but at least to avoid them. Wedi shall be obliged to provide the contract partner with the necessary information without delay, at least in text form, within the limits of what is reasonable for it and to customise its obligations to the changed circumstances in good faith and to let transparency prevail towards the other party in this respect.

5. If any commercially reasonable resumption of the wedi performances is neither foreseeable nor reasonable even by customising the contract, e.g. due to a considerable duration of the disturbance, wedi shall have the right to terminate the contract after prior notification. In doing so, wedi has to prove in advance that it has fulfilled any and all its objectively realistic damage mitigation obligations. Instead of termination, wedi may also demand cancelation of the contractual relationship due to interference with the basis of the transaction resp. terminate for cause, as set out above. In all these cases, wedi shall be exempt from the obligation to pay damages or penalties due to any delays or non-performance or lack of performance. There is consensus between the parties that claims existing under sect. 206 BGB shall be suspended for the duration of the disturbance.

XI. Place of Performance, place of jurisdiction, Applicable Law, Severability Clause
1. Place of performance for all obligations from the contractual relationship shall be Emsdetten.

2. Insofar as the customer is a registered trader, a legal person under public law or a special fund under public law, the Rheine Local Court or the Münster Regional Court shall have jurisdiction for all disputes directly or indirectly arising from the contractual relationship, including actions on bills of exchange and checks. This shall also apply if the customer has no general place of jurisdiction in Germany, has relocated the customer’s place of residence or habitual place of abode from Germany after conclusion of the contract or the customer’s place of residence or habitual place of abode is unknown at the time the legal action is taken.

3. These terms and conditions and the entire legal relationship between the contract parties shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Sales Law (United Nations Convention of 11/04/1980 on Contracts for the International Sale of Goods, FLG 1989 II p. 588).

4. If any of these provisions in these terms and conditions is or becomes ineffective or unenforceable, this shall not affect the effectiveness or enforceability of the remaining provisions. The parties rather undertake to replace the ineffective or unenforceable provision in such a case by agreeing on an effective or enforceable provision coming closest in economic terms to the ineffective or unenforceable provision regarding content and their will. The same shall apply if a gap in need of supplementation arising during the implementation of the contract.

 


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