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GTC

General Terms and Conditions (Allgemeine Geschäftsbedingungen) of Wöhrmann GmbH, Gerken Busch 1a, 49393 Lohne, hereinafter all jointly referred to as “Company”/Wöhrmann.

 

I. Scope of application

The following General Terms and Conditions shall apply to any – also future – delivery transactions, services and repair orders, including consulting, provision of information or similar services, unless they have been excluded on the basis of the Company´s explicit written approval.

 

The General Terms and Conditions shall be deemed to be acknowledged by contract award or acceptance of the other deliveries/services and orders as specified above. Deviating terms of the customer shall not be binding for the Company unless the Company has acknowledged these explicitly and in writing. This term shall apply even if a Company performs deliveries services as specified above being aware of contradicting terms.

 

II. Contract conclusion, scope of supply and services

Oral side-agreements, exceptions, amendments or supplementations of an agreement as well as warranties shall not be binding unless these have been confirmed in writing by the Company. The confirmation of an order given by the Company shall be subject to a positive appraisal of creditworthiness.

 

 

III. Plans and documents, industrial property rights

1. In so far as the customer provides documents, including documents in electronical format, at the Company´s disposal for the performance of the Company´s contractual obligations, the following terms and conditions shall apply:

 

a) The customer is obliged to procure the documents necessary for the Company´s contractual performance at his own expense and to make these available to the Company in due time. All documents shall be furnished with the exact details of the scope of delivery stating article, type, quantity and order number.

 

b) If the Company´s contractual scope includes research, construction, developments, drafts or similar services, the documents to be submitted shall in particular comprise design—and production drawings, as well as documentation, user manuals etc.

 

c) Unless individually and expressly agreed otherwise in writing, the Company is granted the exclusive timely and regionally unlimited right to use the development results gained by the Company during the research, construction or and/or development of products for the customer in any way. Any utilization, duplicating, reproduction, distribution or handing over of the results to third parties, publication and presentation does require the express confirmation by the Company. If appropriate, and if there are no conflicts with prior rights of the customer or a third party, the Company shall in particular be authorised to register industrial property rights.

 

d) The customer shall be held liable for any violation of third-party industrial property rights as a result of construction details, drawings, models or any other specifications which have been submitted to the Company by the customer. In the event of any infringement of industrial property rights of third parties, the customer shall indemnify and hold the Company harmless.

 

2. In so far as the Company has made documents available to the customer in relation to an order, the following provisions shall apply:

 

a) The customer shall be obliged to treat any information made available to him or any information becoming known to him in connection therewith or within the scope of an order as confidential even beyond the order fulfilment and to refrain from utilising any such information itself.

 

b) Any and all items, in particular models, tools, samples, drawings, plans and documents of any kind which are submitted to the customer, including the know-how contained, shall remain the Company´s property unless expressly agreed otherwise in writing. The customer shall not surrender any such items and the know-how included to any third party and shall neither make these available in any other way, nor reproduce or utilise any such for other purposes than those contractually agreed.

 

c) Alterations of the items and documents mentioned in Clause 2.a) and b) above may only be made with the Company´s express approval. It shall be deemed to be agreed that the Company shall retain the ownership in the above-mentioned items and documents and that these shall be stored free of charge and appropriately on behalf of the Company while being used by the customer unless otherwise expressly agreed in writing.

 

d) The customer shall be obliged to insure the items stated in III. b and c against material damage, loss etc. while being in the customer´s possession.

 

IV. Prices

If, after the quote has been submitted or after confirmation of the order and up to the delivery date the decisive cost factors for material, energy or human resources alter by more than 5%, each party shall be entitled to demand an adaptation of the prices. This adaptation shall depend on the extent to which the decisive cost factor has influenced the total price.

 

V. Offsetting

1. The customer shall only be entitled to offset a possible claim in so far as the claim to be offset can be considered as undisputed between the parties or has been established as legally binding. This does not apply to counterclaims originating from the same order as the Company´s principal claim.

 

2. Beyond the regulation stipulated in par. V.1, the Company shall be entitled to offset with Companies´ claims against customer claims, as well as against claims of companies affiliated with the customer. In addition thereto offsetting of claims with various payment dates shall be deemed permissible in the event of default in payment or compromise of assets

 

VI. Force majeure

1.In the event of any act of God (force majeure) which shall include the occurrence of unforeseeable or exceptional circumstances arising through no fault of one’s own, for example, but not limited to , difficulties in connection with material procuration, sabotage, strike, lock-out, delayed self-delivery (reservation of self-supply), lack of transport mean, official intervention, extraordinary weather conditions, lack or outage of power supply etc., including such events occurring in the sphere of pre-suppliers, the delivery period shall be extended in an appropriately if the Company has been prevented from complying with its obligations in due time.

 

2.If performance of the obligation becomes impossible or unacceptable as a result of the afore-mentioned circumstances, the Company shall be released from its delivery commitment. If the delay in delivery lasts for a period exceeding two months, the customer shall be entitled to rescind the agreement. If the delivery time is extended or if the Company is released from its obligation in cases of force majeure, the customer shall not be entitled to claim any damages arising therefrom.

 

VII. Transfer of perils, delay in delivery, partial delivery

1.Unless otherwise agreed between the parties, the risk shall pass on to the customer at the point of time at which the delivery item has left the site (EXW). In the case of delivery “carriage paid, freight prepaid, cif, fob” the risk shall also pass on to the customer if the delivery items are ready for dispatch, however, if shipment is delayed for reasons which the Company is not responsible for.

 

2. In the case of default of acceptance the Company shall be entitled to charge the delivery in full and to send it to the customer at its expense and risk resp. to place it in the customer´s or a third-party stock. Further damage or other claims of the Company shall not be affected thereby.

 

3. After having given the customer the opportunity to render a statement with reasonably notice period, the Company shall be entitled to make partial deliveries, unless it must be deemed to be unreasonable on the part of the customer.

 

VIII. Acceptance and inspection

A formal acceptance must be explicitly agreed on. The customer shall bear the costs for such an acceptance unless agreed otherwise between the parties.

 

IX. Warranty

1. If the delivered items are defective, the Company shall be obliged but also entitled, at its discretion and excluding further warranty claims on the part of the customer, to eliminate the defect or to replace the defective part. The Company must be immediately informed in writing of any identifiable defects within 14 days as of receipt of the goods, in case of any hidden defects the notification must be submitted in writing immediately upon identification thereof. Company´s shall gain the ownership of any replaced part. Failure to notify a defect as well as the consumption, the dilution and processing of the delivered goods shall be deemed to be understood as unconditional approval of the goods.

 

2. Warranty shall neither cover defects which arise from unsuitable or improper use, faulty assembly resp. operation by the customer or third party, natural wear and tear, faulty or negligent treatment, nor shall warranty apply to consequences of improper modifications or repair work on the part of the customer or any third party performed without the Company´s approval.

 

3. If the Company fails to comply with its obligation to perform a replacement delivery resp. to perform remedial measures twice within a reasonable deadline, the customer shall be entitled to reduce the remuneration or at its discretion to rescind the agreement. Claims for damages shall be asserted exclusively according to fig. X of these General Terms and Conditions.

 

4. The customer’s right to enforce warranty claims shall lapse after a period of two months as from the date of the written rejection of the defect by the Company.

 

X. Other damage claims, limitation and scope of liability

1. For damages having occurred separately from the delivered item (indirect damages, consequential damages etc.) and regardless of the legal ground, the Company shall only be liable

 

a) In case of deliberate action

b) In case of grossly negligent action of the Company´s owners/organs or senior executives

c) In cases of negligent infringement of life, body or health

d) In cases of defects having been deliberately kept back by the Company

e) In case of an expressly agreed guarantee

f) In cases of defects of the delivered item, as far as the ProdHaftG (German Produkthaftungsesetz) provides liability for personal or other damages to items used for private use or consumption (§ 1 par.1 .2 ProdHaftG)

 

In case of a culpable breach of material contractual obligations, the Company shall also be liable for gross negligence of other employees than senior executives and in case of slight negligence; in the latter case the Company´s liability shall be limited to damages which are typical for similar kind of contracts and reasonably foreseeable. As far as the Company´s general liability insurance does not provide coverage for such kind of damage, the Company´s liability shall be limited to 500.000 € respectively to 50% of the relevant contract price, depending on which figure is lower. This limitation does not apply to damages to body, health, or life or if insurance coverage is rejected because of delayed premium.

Further claim for damages shall be excluded.

 

XI. Title retention

1. The Company shall retain ownership of the goods delivered to the customer until all accounts receivable resulting from the order and from the business relationship between the Company and the customer have been settled. In the case of running accounts the reserved ownership shall be deemed as payment security for the Company´s outstanding balance claim. Payment shall only be deemed to be effected at the point of time the equivalent amount has been fully credited to the Company´s account.

 

2. A processing of the reserved goods by the customer shall be deemed to take place by order of the Company and free of charge so that the Company shall generally be classified as manufacturer in compliance with § 950 BGB and shall at any point of time and with any degree of processing retain ownership in the products. In this case the customer´s expectant right with regards to the reserved goods shall extend also to the treated or processed goods. In the case of bonding, dilution or mixing of the reserved goods with other goods not belonging to the Company, the Company shall acquire co-ownership in the relevant goods at the ratio of the invoice value of the reserved goods to the other processed goods at the point of time the goods have been of, bonded, diluted or mixed any such. If the customer acquires sole ownership in the new goods, the Company and the customer agree that the customer shall grant the Company co-ownership in the new goods at the ratio of the invoice value of the bonded, diluted or mixed reserved goods to the new goods and shall store these free of charge on the Company´s behalf.

 

3. The customer is authorised to sell the reserved goods within the scope of normal business transactions, however, shall not be authorised to pledge goods or transfer goods by way of security. The customer shall be obliged to protect the Company´s rights with regard to the reserved goods in the case of further sale on credit. The customer shall assign with immediate effect any of the customer’s accounts receivable resulting from further sale of the conditional goods to the Company for the purpose of securing all accounts receivable resulting from the business relationship. Irrespective of the collection rights to which the Company will be entitled due to the assignment, the customer shall be authorised to collect outstanding monies as long as the customer fulfils its obligations vis-à-vis the Company. Upon Company´s request the customer shall be obliged to provide any information required in connection with the assigned receivable for the purpose of collection by the Company and to inform the debtor of the assignment.

 

4. If the reserved goods are resold no matter whether with or without having been processed, bonded, or mixed with other goods, the assignment of the receivables in advance as delineated above shall only extend to the amount of the invoice value of the reserved goods. The customer shall immediately inform the Company of any third-party enforcement measures in the reserved goods or the claims assigned in advance surrendering all necessary documents required for the defence against these measures. If the value of the existing securities exceeds the secured accounts receivable in total by more than 15 % the Company shall be obliged upon the customer’s request to release securities at the Company´s discretion accordingly.

 

5.If the Company is assigned by the customer against reimbursement to manufacture certain products using the Company´s moulds, tools, etc. by order of the customer, the Company retains ownership of the manufactured products until these are fully paid by the customer. If the customer makes any payments before the items have been completed, the customer gains ownership of goods of the half-finished product.

 

 

XII. Place of jurisdiction and applicable law

1. Exclusive place of jurisdiction for legal disputes shall be the competent court at the registered seat of the Company. The Company shall, however, also be entitled to file a suit at the customer’s registered seat.

 

2. Any legal agreement concluded under these Terms and Conditions shall be governed by German law excluding the CISG (UN-Kaufrecht).

 

Stand: März 2018

 

 


Wöhrmann GmbH

Gerken Busch 1a
49393 Lohne

Tel.:

+49 (0) 4442 / 88785 - 09

Fax:

+49 (0) 4442 / 88785 - 10

eMail:

info@woehrmann.de