Wirth GmbH, Brehnaer Strasse 1, 06188 Landsberg, Revision: January 2002
I Scope of application
- The terms and conditions herein below shall apply with regard to all transactions with the customer. Said terms and conditions are also understood to apply with regard to future transactions even if they are not agreed on again expressly in such case.
- Our terms and conditions shall have exclusive validity. We do not recognize any conflicting or deviating conditions by our customers unless we expressly ap- prove the validity of such in writing. Our terms and conditions shall also apply in case we execute the contract without reservations with knowledge of conflicting or deviating conditions on the part of the customer.
II. Amendments and supplements
- All agreements which are made between us and the customer shall be laid down in writing, if required by means of an agreement to change an existing contract.
- Members of our sales staff are not authorized to make any verbal agreements exceeding the contents of the written contract.
III. Conclusion of contracts
- Our offers are submitted subject to change without notice. Moreover, the technical descriptions and other specifications in offers, brochures and other forms of information are also not binding at first.
- We reserve the right of ownership and the copyright in pictures, drawings, calculations and other documents. Such documents must not be disclosed to third parties; this shall also apply with regard to all the information referring to our goods or other services received since the beginning of the negotiations re- garding the contract. Prior to passing on such information to third parties the customer shall obtain our express written approval.
- In case the order has to be qualified as an offer according to art. 145 BGB [German civil code] we can accept said offer within a period of 12 business days.
- Statements within the meaning of par. 1 as well as public statements by us, by the manufacturer and his vicarious agents (art. 434 par. 1 sent. 3 BGB) shall on- ly become part of the performance specifications if such statements are referred to explicitly in the contract.
IV. Prices and terms of payment
- Our prices are quoted in EURO, “ex works“, exclusive of packaging, transport, insurance and the value-added tax to the respective amount required by law.
- In case the costs for materials, supplies, wages or salaries on which our calculation is based change after the conclusion of the contract, the right to cor- responding price revisions shall be reserved.
- In as far as no other provision has been made expressly, we shall invoice at the prices valid on the day of the delivery.
- In the case of orders regarding vacuum installation systems our invoices shall be payable within a period of 14 days, in the case of other systems said invoices shall be payable within 30 days in cash or by means of a remittance. Payments shall be considered effected as of the day on which the amount in question is at our free disposal.
- Other forms of payment shall require a special written agreement. Costs incurred by both parties to the contract on account of this shall be borne by the customer.
- The deduction of a cash discount shall require a special written agreement.
- The customer shall only have a right of offset or a right of retention with regard to uncontested demands or claims or demands or claims established finally and conclusively.
V. Performance and duty to cooperate
- With regard to the scope of our duty to perform our written confirmation of the order shall be decisive. Rights to modifications in the construction, the design and the colour which are based on an improvement of the technology as well as on legal requirements shall remain reserved in as far as such changes are im- material or otherwise acceptable to the customer.
- In case partial performances are acceptable to the customer and in case these do not affect the scope of services provided for and the period of performance stipulated in the end, such can be executed and invoiced.
- The terms of delivery shall commence as of the day of our delivery undertaking; however, they shall not commence before all commercial and technical details have been settled or prior to the approval of our execution documents by the customer or prior to the receipt of an initial payment agreed on in any case.
- The period of delivery shall be complied with in case the passing of risks as per sect. VII has taken place until the expiry of said term.
- Deliveries on call have to be called at the latest two weeks before the desired date of delivery. In this context our confirmation of the date shall be decisive, however. In case deliveries are not called or allocated, we are entitled to allo- cate the goods ourselves and to deliver or to resign from the part of the contract which is in arrears after fruitless fixing of a time limit at equitable discretion.
- The specification of periods of performance shall always be made subject to the proviso of cooperation of the customer in accordance with the contract. Compli- ance with our duty to perform shall be based on the precondition of the timely and proper discharge of the customer’s obligations. In case the customer falls into arrears with the payment of a previous performance, we shall be entitled to retain the performance of our services. The customer shall not be entitled to de- rive any rights from such justified retention.
- In case we, on our part, are not supplied properly or on time even though we have placed sufficient orders with reliable suppliers, we shall be freed from our duty to perform and can resign from the contract forthwith.
In case it turns our after the conclusion of the contract that our claim to payment is threatened by a lack in the ability to pay on the part of the customer, we shall be entitled to refuse performance until the customer has effected the payment or has furnished security for such. If the payment is not made within a period of 12 business days after a request to that end or in case the security is not furnished within such period of time, we shall be entitled to resign from the contract and to demand reimbursement of expenses to the amount of 5 per cent of the contract volume. The right to assert damage exceeding this shall not be excluded on ac- count of this provision. The customer shall be allowed to furnish evidence sub- stantiating that expenses were not incurred or that no damage was suffered or that such occurred to an amount considerably lower than the lump sum.
In case the customer falls into arrears with the call, the acceptance or the collection or in case a delay of dispatch falls within in his responsibility or in case such is desired by him, we shall be entitled to demand a lump sum to the amount of 0.5 % of the invoice total for each month as of the advice of readiness for dispatch without prejudice to any further rights and regardless of whether we store the goods on our premises or on the premises of a third party. The cus- tomer shall be entitled to furnish evidence substantiating that no damage oc- curred or that such occurred to an amount considerably lower than the lump sum. After the fruitless expiry of a suitable period of time we shall be entitled to dispose of the goods otherwise and to supply the customer with an adequately extended period of delivery.
VI. Delay in performance/ Default in performance
- In case the period of performance agreed on cannot be complied with on our part or on the part of our suppliers because of temporary obstacles for the per- formance for which we are not responsible (e.g. insufficient supply for our com- pany, cases of force majeure, lack in energy and resources, industrial action, traffic problems), said period shall be extended adequately. We shall inform the customer of the occurrence of such a case forthwith. In case the obstructing cir- cumstances still persist after one month after the expiry of the period of perfor- mance agreed on, each party to the contract can resign from the contract in writ- ing. Further claims because of a non-compliance with the period of performance for which we are not responsible shall be excluded. The provisions herein above shall apply accordingly in case the obstacles for the performance of the contract arise during a delay which has already occurred.
- In case of a delay the compensation for delayed performance for the customer shall be restricted to a maximum of 5 per cent of the value of the performance. Moreover, the customer shall be entitled to set a suitable extension of time for us which has to amount to at least 15 business days. After the fruitless expiry of such extension the customer shall be entitled to resign from the contract in writ- ing. The compensation in place of performance shall be restricted to 50 per cent of the damage incurred; however, in this context only the foreseeable damage typical of the contract shall be considered. The provisions herein above shall ap- ply accordingly in case we only provide a partial performance.
- Claims by the customer on account of the exclusion of the duty to perform and because of an obstacle for the performance upon conclusion of the contract shall be restricted to 50 per cent of the damage suffered or of the expenses incurred; however, only the foreseeable damage or expenses which are typical of the con- tract shall be considered in this. The same shall apply in case we only provide a partial performance.
- In the cases as per par. 2 and 3 the legal liability for damage arising from an injury to the life, limb or the health of a person which is based on a breach of ob- ligations for which we are responsible as well as for other cases of damage shall apply in case the breach of obligations is due to premeditation or gross negli- gence. Our liability shall be restricted to the foreseeable damage typical of the contract in case the breach of obligations forms an infringement of a substantial contractual obligation. Sentences 1 and 2 shall apply accordingly with regard to a breach of obligations by our lawful representative or vicarious agent.
VII. Passing of risks, dispatch and receipt
- Unless another provision is made in the confirmation of the order, delivery „ex works“ shall be agreed on. Therefore the customer shall bear in particular the risk of loading onto the means of transport collecting the goods and of the ship- ment of the consignment in case an acceptance does not take place as of the point in time agreed on for the acceptance or as of the expiry of a period of time agreed on for the call in case the consignment has been allocated to the cus- tomer. This shall also apply in case we defray the costs of shipment in excep- tional cases. The point in time agreed on for the acceptance shall correspond to the time of readiness for dispatch of which the customer has been notified.
- With the exception of the cases specified in par. 1 the risk shall pass to the customer as of the time of delivery according to section V par. 5.
- All consignments including any possible return consignments shall be dis- patched at the customer’s risk.
- We are not obliged to take out insurances. In case the customer wishes us to do so, we shall insure the consignment at the customer’s expense against the risks specified by him in writing.
- In case no other provisions are made, the selection of the means of transport and of the transport route shall be up to us; however, we do not accept any re- sponsibility for selecting the fastest or cheapest solution.
- Goods which have been reported as ready for dispatch have to be accepted immediately. Without prejudice to the rights arising under section X Goods which have been delivered shall be accepted by the customer even if such display non-essential defects.
- The goods are delivered unpacked. Any possible packaging material required for the railway or carrier transport shall be invoiced.
VIII. Raw materials and production
Unless other provisions are made expressly, the DIN standards with the aver- age tolerances or, in case such are not available, the commercial quality shall apply. With regard to the production the standard specifications as per DIN shall apply.
IX. Risk of use
The supplier does not accept any liability in case the customer has provided in- complete or incorrect information in particular regarding colours, materials, tol- erances, surface designs, anchoring grounds, loads, dimensions, required load bearing capacities, installation areas and transport routes which are required for the proper execution of proposals and advice and in case the delivery item can- not be used by the customer in accordance with the contract on account of this.
X. Liability for defects
- Our liability for defects shall be based on the precondition that the customer has properly fulfilled his responsibility of inspecting the delivery item and the re- quirement to give notice of defects according to articles 377, 381 par. 2 HGB [German commercial code]; in this context the following requirements also have to be fulfilled: (a) notice of defects has to be given in writing; (b) apparent de- fects have to be reported forthwith, however, no later than within a period of 8 days after delivery. Hidden defects have to be reported immediately after their discovery.
The customer cannot derive any right from defects which do not affect the value or the suitability of the goods for the use agreed on, assumed or usual or which only affect said value or suitability to an insignificant degree.
- Defects which are due to the improper use, storage, operation or maintenance, excessive use or improper changing of our products, to the use of parts or sup- plies which are not suitable or the like are not covered by our liability for defects. The same shall apply with regard to normal consumption as well as wear and tear. The customer shall be responsible for setting forth the defectiveness of the product and for furnishing evidence of such upon passing of the risk if required.
- If there is a defect in the goods upon passing of the risk, we are at first only entitled and obliged to carry out subsequent performance. At our choice the subsequent performance can be carried out by means of subsequent improve- ment or replacement. We shall bear the expenses required for the purpose of subsequent performance, in particular transport and travelling expenses as well as labour and material costs, in as far as these expenses do not increase on account of the fact that the product has been taken to another location than the customer’s business establishment after delivery. Replaced parts shall become our property. The customer shall grant the supplier a suitable period of time for subsequent performance.
- In case subsequent performance fails, the customer shall be entitled to either resign from the contract or demand a reduction of the purchase price (deduction from the price) at his choice in accordance with the legal requirements as well as the additional requirements specified in sentence 2 herein below. Setting of the period for subsequent performance as well as discharging of the right to re- sign from the contract or of the right to a reduction of the purchase price shall always be based on the precondition of a written statement.
- In as far as no other provisions are made herein below (par. 7 to 11), further claims on the part of the customer – regardless of the legal reasons for such – shall be excluded. Therefore we do not accept any liability in particular with re- gard to damage which was not caused to the delivery item itself (such as e.g. lost profits or other financial losses). Any possible liability arising under the guarantee or on account of malice shall remain unaffected by this.
- We are liable for losses arising from an injury to the life, limb or the health of a person in accordance with the legal provisions if the breach of obligations falls within our responsibility.
- With regard to other damage we are liable in accordance with the legal provi- sions if such was caused by us on account of a premeditated or grossly negli- gent breach of obligation.
- In case the damage is due to an infringement of an essential contractual obligation which falls within our responsibility but does not consist of a defect in the object of the sale in any case, our liability shall be limited to the foreseeable damage typical of the contract in question. Paragraphs 7 and 8 shall not be af- fected.
- Paragraphs 7 to 9 herein above shall apply accordingly for a breach of obliga- tions for which our lawful representative, executive body, senior officers or other vicarious agents are responsible.
- The legal and conventional distribution of the burden of proof shall not be affected by the provisions herein above.
- With the exception of the cases in paragraphs 7 to 10 and subject to the articles 438 par. 1 no. 2, 479, 634a par. 1 no. 2 BGB (German civil code) claims arising from a defect shall become stature-barred after a period of one year as of the legal commencement of the limitation period. This shall not apply with regard to claims arising from tort or under the product liability law.
XI. Other liability for damages
- In as far as no other provisions are made herein below (par. 2 and 3), the provisions laid down in section X. par. 6 to 11 for all other claims to damages, regardless of the legal reason for such, shall apply accordingly. Therefore, these shall apply in particular with regard to our liability arising from offence and from the infringement of obligation prior to the contract.
- The provisions laid down in par. 1 shall not apply with regard to claims arising under the product liability law.
- In as far as our liability is barred or restricted, this shall also apply with regard to the individual liability of our employees, workers, members of staff, representa- tives and vicarious agents.
XII. General limitation of liability in time
Claims which are subject to the regular statutory period of three years shall be- come stature-barred within two years after their emergence. Claims arising un- der the warranty, from malice, tort or under the product liability law shall not be affected. Section X par. 7 to 10 shall apply accordingly.
XIII. Reservation of title
- Ownership in the product delivered shall remain reserved until all our demands towards the customer arising from the business connection including any de- mands arising in the future from contracts concluded at the same time or at a later time are settled. This shall also apply in case accounts receivable are trans- ferred into a drawing account and in case the accounts are cast and recognized. The customer shall be obliged to treat the products delivered with care and to in- sure these against the usual risks (fire, water, storm, theft) in our favour.
- The customer shall be entitled to sell or process the products in the ordinary course of his business. He shall carry out any possible processing for us; how- ever, this shall not create any obligations for us. In case of processing, connec- tion or confusion of the reserved goods with other goods this shall create a co- ownership share in the new good for us on principle; in the case of processing said share is established in accordance with the ratio of the value (=gross value of the invoice including incidental costs and taxes) of the reserved goods to the value of the new good; in the case of connection or confusion of goods said share is established in accordance with the ratio of the value of the reserved goods to the value of the other goods. As soon as our ownership is lost because of a confusion or connection of goods, the customer shall transfer a proportion- ate co-ownership share to us.
- The customer hereby assigns all the claims arising to him from subsequent disposal towards the buyer or a third party to us in order to provide security for all other demands arising from the business connection. He shall remain author- ized to collect these claims even after such assignment. He shall receive the amounts collected in trust and shall pay out said amounts to us in order to satisfy our claims. Our authority to collect the claims ourselves shall not be affected; however, we shall not make use of this right as long as the customer discharges his payment obligations as well as his other obligations properly and as long as his credit standing is not reduced in our view, in particular as long as no applica- tion for bankruptcy proceedings is filed. Upon a request to that end the customer shall inform us of the assigned accounts receivable and the respective debtors, he shall provide all the information required for collection, submit the relevant documents and inform the debtors of the assignment in question.
In case the customer uses the reserved goods in order to fulfil (avoidable) obligations towards third parties, he hereby assigns all accounts receivable from these contracts or his compensation claims to the amount of our invoice value for the respective reserved goods. If goods are used in this context, with regard to which we are entitled to a co-ownership share, the assignment shall be valid to the amount of the counter-value of the co-ownership share. Figure (3) shall apply accordingly.
- In case the customer acts in breach of contract, in particular in case of a delay of payment, we shall be entitled to a withdrawal from the contract and a withdrawal of the goods forthwith. For the purpose of the withdrawal of the goods the cus- tomer hereby irrevocably authorizes us to enter his business and storage prem- ises without let or hindrance and to collect the goods.
- The customer shall always be obliged to provide comprehensive information regarding the goods to us upon a request to that end. In as far and for as long as the reservation of ownership persists, the customer shall not assign or pledge the goods or goods produced from these in order to provide security without our approval. The conclusion of financing agreements (such as e.g. regarding leas- ing), which comprise the assignment of our reservations, shall require our prior written approval unless the contract binds the financing institution over to pay out the share in the purchase price to us directly.
- In case of seizures and other interventions by third parties, the customer shall inform us immediately and at his own expense in writing and he shall, moreover, cooperate with regard to our intervention. In addition to the third party the cus- tomer shall be liable for the legal and out-of-court expenses of litigation accord- ing to art. 771 ZPO (German rules of civil practice). He shall be prohibited from making agreements with his buyers which might affect our rights.
- We hereby undertake to release the securities to which we are entitled upon a request to that end by the customer and to do so at our choice provided the real- izable value of the securities exceeds the claims to be secured by more than 20 % or in case it exceeds the stated value of such by more than 50 %.
- The customer’s rights cannot be assigned.
- These terms and conditions as well as the entire legal relationship with the customer shall only be governed by the laws of the Federal Republic of Germa- ny to the exclusion of the UN sales law (CISG).
- The exclusive legal venue for all conflicts shall be our seat of business in Landsberg; however, we shall also be entitled to sue the customer at his general legal venue.
- In case individual provisions of these terms are invalid or in case these terms and conditions contain any gaps, the effectiveness of the remaining provisions shall not be affected. A provision shall be considered agreed on in place of the invalid provision which corresponds to the intention and purpose of the invalid provision. In the case of gaps a provision shall be considered agreed on which corresponds to the provision which would reasonably have been agreed on in accordance with the intention and purpose of these terms and conditions if the parties to the contract had considered the matter from the outset.