Conditions of Sale and Delivery
Offer and contract conclusion
- Our deliveries and services shall be provided exclusively on the grounds of the following Conditions of Sale and Delivery. Terms and conditions or conditions of purchase of the purchaser shall only be effective for us if explicitly acknowledged by us in writing. Our conditions shall be deemed accepted, at the latest, on acceptance of our delivery or service.
- Offers shall be subject to change. Orders shall only be of a binding nature for us if confirmed by us or fulfilled by us through shipping the goods. Other understandings shall only be binding for us if confirmed by us in writing.
Prices and terms of payment
- The prices shall be net cash ex works or warehouse and exclusive of the cost of freight and packaging, plus value-added tax.
- Invoicing shall always be subject to the prices applicable on the day of delivery. Where these prices are higher than the prices applicable at the time of contract conclusion, the purchaser shall be entitled to withdraw from the contract, in respect of the not yet accepted quantities, within 14 days after communication of the price increase. Prices / pricing terms having been fixed separately by the parties in the context / at the time of contract conclusion shall be exempt from this clause. Surcharges (alloy surcharges, scrap price surcharges etc.), which are to be invoiced subsequently, shall likewise be subject to the surcharges applicable at the time of delivery. The number of units or weight determined at our premises shall be the relevant number of units or weight for purposes of invoicing.
- Invoices shall be payable in euro on the dates agreed, yet no later than within 30 days after the date of the invoice without any deductions. Cash discount deduction shall only be admissible following explicit agreement. Cheques and bills of exchange shall be accepted on account of payment, with bills of exchange only being accepted on condition of our explicit consent. In case of bills of exchange, the purchaser shall bear the note tax as well as the cost of discounting and collection. Credit notes regarding bills of exchange and cheques shall be subject to receipt of the respective amount with validation as per the day, on which we are able to dispose of the equivalent value.
- In the event of delayed payment, we shall be entitled without the need of a reminder to charge interest according to the debit interest rates customary in the banking trade, yet at least 3 percentage points above the discount rate of the German Central Bank p. a. The assertion of more far-reaching damage shall remain reserved.
- Non-compliance with the terms of payment or circumstances, which come to our knowledge after conclusion of the contract and are able to lower the creditworthiness of the purchaser, shall cause our accounts receivable to become due immediately. In addition, such circumstances shall entitle us to execute any still pending deliveries only in return for advance payment or to demand securities and withdraw from the contract and demand compensation for damages because of non-performance following an appropriate period of grace.
- The purchaser shall only be entitled to offset or retain payments to such extent as they are acknowledged by us as existent and due or have been established as final and absolute.
- Where we provide the purchaser with the means to pay the purchase price by endorsing to the purchaser a bill of exchange issued by us and accepted by the purchaser (cheque procedure), the purchase price shall not be deemed paid until the bill of exchange has been cashed / redeemed and our endorser’s liability has expired.
Period of delivery and performance
- Delivery periods and delivery dates shall only apply on an approximate basis unless referred to as binding by us explicitly and in writing.
- Delivery periods shall begin on receipt of the order confirmation and be understood ex works or warehouse. Delivery periods or dates shall be deemed observed as soon as notice is given of the readiness for shipment in the event that the goods cannot be shipped in due time through no fault of ours.
- The agreed delivery period shall be extended – without prejudice to our rights because of delay on the part of the purchaser – by the period of time, by which the purchaser is in delay with fulfilling his obligations under this contract or another contract. In the event of subsequent changes to the contract by the purchaser, which affect the delivery periods, the period of delivery shall be extended to an adequate extent even if no explicit written agreement was reached on the change of the delivery period.
- Where we have undertaken to comply with a date or period, the purchaser shall be under obligation to set us an adequate period of grace in writing if we come in default. Following the unsuccessful expiry of that period of grace, he shall be entitled to withdraw from the contract in respect of deliveries and services, which have not been reported as ready for shipment or not been executed by the time of expiry of the period of grace. He shall only be entitled to withdraw from the entire contract if the already provided partial deliveries or partial services are of no interest to him. The purchaser shall only have claims for the compensation of damages if we are responsible through wilful misconduct for the delay of delivery or performance or for the non-delivery or non-performance.
- Events of force majeure shall entitle us, even where they occur within the scope of our suppliers or their sub-suppliers, to postpone the delivery or service by the period of impairment plus an appropriate preparatory period, or to withdraw from the contract in whole or in part with regards to the not yet fulfilled part of the contract. All circumstances making delivery or performance essentially more difficult or impossible for us, such as strike, lockout, impediment of infrastructure, operational disruptions, production of rejects on our part or on the part of a supplier, lack of raw materials or lack of energy, shall be of equal significance to force majeure.
- Deliveries ordered and finished on call shall be accepted within two months after confirmation of the order. In case of contracts requiring ongoing delivery, we shall be notified of the calls and scheduling / classification of types in good time for approximately identical monthly quantities; the overall quantity must be scheduled and called up within one year after conclusion of the contract. Where the purchaser does not meet this obligation, we shall be entitled, following the unsuccessful setting of a period of grace, to do the scheduling / classification ourselves and deliver the goods or withdraw from the part of the contract, which is still pending / in arrears, and claim compensation for damages. Where the contractual quantity is exceeded as a result of the purchaser’s individual calls, we shall be entitled to deliver the surplus quantity. We shall be entitled to invoice the surplus quantity at the prices applicable at the time of the call or delivery.
- We reserve the right to deliver the ordered quantity with a deviation of up to 10% more or loss due to operational reasons. The weights shall be determined by our check weighmen at our points of delivery and be authoritative for purposes of invoicing. Evidence of the weight shall be provided, on an incontestable basis, by submitting the weighing note. In case of delivery by whatever means of transportation, the overall weight shall be authoritative for purposes of invoicing. No warranty is assumed for any number of units or packages stated in the invoice. Differences in comparison to the arithmetical individual weights shall be distributed proportionately among these weights.
- The material will be delivered without packaging and anti-corrosive protection. We will provide for packaging, protective agents and / or transportation aiding equipment on the basis of our experience at the expense of the purchaser and to the exclusion of our liability. Packaging, protective agents and transportation aiding equipment will not be taken back.
- Where the dispatch of shipping documents and other supporting documents, which we owe under the contract, is delayed after shipment of the goods, we shall only be liable for the consequences in the event of gross negligence.
- In case of damage in transit, the purchaser shall arrange for an assessment of the facts by the competent bodies / authorities without delay.
Shipping and transfer of risk
- In the absence of any specific agreement, we shall select the packaging, shipping route and means of transportation at the best of our discretion. Packaging units, which are usable several times, will be credited by us at two thirds of the value invoiced as soon as they are sent back to us in usable condition carriage free and exempt from charges.
- As soon as the goods are handed over to a forwarding agent or haulage contractor, yet no later than once they leave the plant or warehouse, the risk shall be pass over to the purchaser even in the event of free delivery to the destination.
- Goods reported as ready for shipment must be called up immediately even if they represent partial delivery. Otherwise, we shall be entitled to forward the goods at our choice or store them at the expense and risk of the purchaser. Furthermore, we shall be entitled to make partial delivery to the purchaser in a scope reasonably acceptable for the purchaser.
Reservation of proprietary rights
- All objects delivered shall remain our property (goods subject to the reservation of proprietary rights) until all accounts receivable, including in particular the respective outstanding balance claim, which we are entitled to receive from the purchaser on whatever legal grounds, are fulfilled. This shall also apply if payments are made in respect of specifically indicated accounts receivable.
- Machining and processing of the goods subject to the reservation of proprietary rights shall take place on behalf of us as the manufacturer within the meaning of § 950 BGB (German Civil Code), without placing us under any commitment. Where the goods subject to the reservation of proprietary rights are processed, combined and merged by the purchaser with other objects, we shall be entitled to joint ownership of the new object in accordance with the proportion between the value of the goods subject to the reservation of proprietary rights and the value of the other goods used at the time of processing. Where our ownership expires as a result of combination or merging, the purchaser already now transfers to us the rights of ownership, to which he is entitled in respect of the new object, to the extent of the invoice value of the goods subject to the reservation of proprietary rights, and he shall store them for us free of charge. The rights of co-ownership arising under this clause shall be regarded as goods subject to the reservation of proprietary rights within the meaning of Subsection 1.
- The purchaser may only sell the goods subject to the reservation of proprietary rights in his regular course of business in accordance with his usual terms and conditions and as long as he is not in default of payment, provided the accounts receivable arising from the resale plus ancillary rights, to the extent resulting from the following paragraphs, pass over to us. He shall not be entitled to any other disposal in respect of the goods subject to the reservation of proprietary rights.
- The purchaser’s accounts receivable that arise from resale of the goods subject to the reservation of proprietary rights are ceded to us already now. They shall serve to secure our accounts receivable to the same extent as the goods subject to the reservation of proprietary rights.
- Where the purchaser sells the goods subject to the reservation of proprietary rights together with other goods not having been delivered by us, the cession of the accounts receivable arising from the resale shall only apply to the amount of our invoice value of the goods subject to the reservation of proprietary rights, which are sold respectively. In case of the sale of goods, in which we hold co-ownership shares pursuant to Subsection 2, the cession of the account receivable shall apply to the amount of these co-ownership shares.
- Where the purchaser uses the goods subject to the reservation of proprietary rights to fulfil a contract for services or contract for works and materials, Subsections 4 and 5 shall apply correspondingly to the accounts receivable under such contract.
- The purchaser shall be entitled to collect accounts receivable arising from a sale pursuant to Subsections 3 and 6 until our revocation, which shall be admissible at any time. Where the value of existing securities exceeds the secured accounts receivable by more than 10%, we shall release a corresponding scope of securities of our choice at the purchaser’s request.
- Where the cheque procedure is agreed (ll Subsection 7), ownership of the goods shall only pass over to the purchaser once the bill of exchange is cashed / redeemed and our endorser’s liability has expired.
- The purchaser shall be under obligation to notify us without delay of any measures of compulsory execution by third parties against the goods subject to the reservation of proprietary rights or against the accounts receivable ceded to us or against other securities, including the submission of any documents required for intervention. This shall also apply to impairments / interferences of any other kind.
- In the event of delayed payment on the part of the purchaser, we shall be entitled – also without exercising the right of withdrawal and without setting a period of grace – to demand and execute the provisional release of the goods subject to the reservation of proprietary rights at the purchaser’s expense, as far as this does not have a sustained adverse impact on the purchaser’s process of production. The purchaser therefore undertakes to provide us with evidence, on request and at any time, of the physical existence of the goods subject to the reservation of proprietary rights, and to grant us access to his business premises.
- If the reservation of title or the cession under the law, in the jurisdiction of which the goods are located, is ineffective, the provision of security corresponding to the reservation of title and the cession in this jurisdiction shall be deemed agreed. Where the purchaser’s cooperation is required within this context, he shall take all measures necessary for the approval and obtainment of such rights.
Defects / warranty
We shall provide warranty for defects of the goods delivered, including for the lack of warranted attributes / properties, in accordance with the following regulations:
- No warranty shall be assumed for any damage having arisen because of the following reasons: Unsuitable or improper use, deficient assembly or initial operation by the purchaser or third parties, natural wear and tear, deficient or negligent handling, inappropriate working equipment, substitute materials, chemical, electro-chemical or electrical influences unless they are attributable to our fault.
- To carry out all mending activities and replacement deliveries deemed necessary by us on the basis of equitable discretion, the purchaser shall give us the necessary time and opportunity following prior understanding. Otherwise, we shall be exempt from the liability for defects. Only in urgent cases, in which operational safety is at risk or where damage of a disproportionate extent is to be prevented, and of which we shall be notified immediately, shall the purchaser be entitled to resolve the damage himself or have it resolved by third parties and demand reimbursement of the necessary expenses by us. In case of any improper change or repair activity being implemented on the part of the purchaser or third parties without our prior consent, our liability for the consequences resulting from such activities shall cease to apply. More far-reaching claims of the purchaser, in particular any claims for the compensation of damages not having been caused to the delivery item itself, shall be ruled out.
- The time at which the goods leave the supplier’s plant shall be decisive for determining their contractual condition.
- Notices of defect shall be submitted to us in writing immediately after receipt of the goods at the place of destination, yet no later than within 10 days after receipt of the goods.
Defects, which cannot be detected within this period of time despite a careful inspection, shall be reported to us immediately after their detection, yet no later than one month after receipt of the goods. Any possible processing of the goods reported as defective shall be stopped without delay. Warranty claims shall come under the statute of limitations no later than one month after our written rejection of the defects. In the case of goods sold as declassed materials, e.g. so-called ll a material, the purchaser shall not be entitled to any claims because of possible defects.
- Defective goods shall be returned to us upon request and will be either repaired or replaced with faultless goods, at our choice, provided the complaint is justified. As the case may be, we shall be at liberty to credit to the purchaser the value invoiced for the goods returned. The purchaser shall not have any more far-reaching claims such as redhibitory action, reduction of the purchase price or compensation for damages. When it comes to partial deliveries, claims for compensation within the meaning stated above may only be raised in respect of the individual deliveries. Where we enter into negotiations on complaints, this shall not constitute a waiver of the objection that the notice of defect was delayed or incomplete.
- The provisions stated above shall also apply to deliveries and services in relation to objects / subject matters other than the ones governed by this contract.
- When executing wage contract work, we shall be liable for the proper execution of the works assumed by us only up to the amount of the wage costs engaged or incurred.
Our liability shall be subject exclusively to the agreements laid down in the sections above. All claims not explicitly granted there – including claims for compensation on whatever grounds – shall be ruled out.
- The place of performance for all obligations of the purchaser and the seller shall be Iserlohn / Germany.
- The place of jurisdiction shall be the Local Court of Iserlohn or, at our choice, the Regional Court of Hagen.
- The law applicable in the Federal Republic of Germany is agreed. The provisions of the Hague Convention on Contracts for the International Sale of Goods are ruled out.
- In case of deliveries for exportation to territories outside the Federal Republic of Germany, we shall not assume any liability if our products give rise to a violation of third-party trade mark rights. The purchaser shall be under obligation to provide us with compensation for any damage caused by the exportation of materials, which we did not explicitly deliver for purposes of exportation.
- Where goods not destined for the territory of the Federal Republic of Germany are collected by the purchaser or his agents / commissioners, the purchaser shall present us the exportation evidence required for purposes of taxation. Otherwise, the purchaser shall pay us the amount equivalent to the value-added tax rate payable on the amount invoiced in the case of domestic delivery.
- Data accruing from the contractual relationship shall be stored for data processing purposes.
- In case of products of the common market of the European Coal and Steel Community, the purchaser shall be under obligation to adhere to verdicts 30/53, 31/53 and 37/54 of the High Authority in their respective applicable versions as far as his own price lists and the terms of sale for reselling in unchanged condition, except for sales from the warehouse, are concerned.
- Should individual provisions of these Conditions of Sale and Delivery be ineffective in whole or in part, the other provisions shall remain effective.
Conditions of Purchase of GWI Werkzeug und Stahl Vertriebs GmbH, hereinafter referred to as GWI
- All orders shall be subject exclusively to these Conditions of Purchase. Changes and amendments as well as general terms and conditions of the supplier, which deviate from the GWI Conditions of Purchase, shall only be deemed accepted if approved in writing by GWI as an addition to its Condition of Purchase. The same shall apply if the order confirmation deviates from the order. In that respect, the principles regarding silence in response to a commercial letter of confirmation shall be waived. Likewise, the acceptance of deliveries or services and the payment of such deliveries or services shall not constitute approval of the supplier’s general terms and conditions.
- The execution / design of the goods or services shall be subject to the specifications, drawings, descriptions and other documents agreed upon between GWI and the supplier.
Contracts shall be concluded on the basis of an order by GWI (offer) and a confirmation (acceptance) by the supplier, each of which shall be in written form. Individual orders or rolling delivery allocation by GWI shall be possible.
- Individual orders and delivery allocations shall be confirmed by the supplier immediately after receipt. Delivery call-offs shall be deemed accepted unless objected to by the supplier without delay (within 3 days).
- Where the supplier does not accept the order within 2 weeks after its receipt, GWI shall no longer be bound by the order.
- GWI shall be entitled to demand changes to the contractual objects / items in terms of their construction and execution / design in the framework of what is reasonably acceptable to the supplier. In this context, the impact especially in terms of increased or reduced costs and of the dates of delivery shall be mutually agreed between the parties on the basis of what is appropriate.
- Changes or amendments to the order shall only be effective if confirmed in writing by GWI.
- Delivery dates, delayed delivery
- Agreed delivery dates shall be binding and related, unless agreed otherwise, to receipt at the point of receipt mentioned in the order. Where delivery “ex works” is not agreed, the supplier shall hold the goods ready in due time, in consideration of the usual time for loading and shipping. GWI shall not be under obligation to accept any delivery prior to expiry of the delivery date.
- Recognisable delays of delivery shall be reported to GWI without delay, and the further course of action shall be agreed with GWI.
- In the event of non-compliance with agreed delivery dates due to a circumstance, for which the supplier is responsible, GWI shall be entitled, without prejudice to more far-reaching legal regulations, to demand compensation for damages after an adequate period for performance has elapsed. Where GWI or its customers incur “standstill costs” due to non-compliance with promised delivery dates, the supplier shall be obliged to reimburse such costs upon provision of corresponding evidence. Furthermore, GWI shall be entitled to withdraw from the contract. Acceptance of the delayed delivery or service / performance shall not constitute a waiver of claims for compensation.
- In the event of repeatedly delayed delivery, GWI shall be entitled – after a prior reminder – to terminate the entirety of orders not yet executed at this point in time with immediate effect.
- Transport, packaging, transfer of risk
- Unless agreed otherwise, delivery shall be ex works including all ancillary costs and packagings.
- In any event, the risk shall only be transferred after delivery of the goods at the agreed point of receipt. This shall also apply if the freight charges are to be borne by GWI on the grounds of a special agreement. As far as transportation is carried out at the expense of GWI, GWI’s shipping instructions shall be observed, and goods shall be shipped at the respective lowest cost.
- When objects ordered are handed over to GWI, the GWI personnel shall only act as the supplier’s auxiliary persons.
- A delivery note in duplicate shall be attached to any delivery in the designated / specifically marked place.
- The data specifically indicated in the ordering form shall be stated in all correspondence.
- Payments and terms of payment
- Unless agreed otherwise, GWI shall make payment on the 15th day of the month following the issue of the invoice / performance of the service less a 3% cash discount, or 60 days net. The payment period shall begin once the delivery has been fully provided and the properly issued invoice has been received.
- For invoicing and payment of the deliveries, the weights or quantities determined at the point of unloading shall be authoritative. In case of faulty / deficient delivery, GWI shall be entitled to retain a proportionate share of the payment up to the time of proper performance. Drafts, drawings and samples shall only be paid if a corresponding written agreement was reached beforehand.
- Payments shall not constitute acknowledgement of the contractual nature of deliveries or services.
- Without prior written consent from GWI, which must not be denied inequitably, the supplier shall not be entitled to cede his accounts receivable or have them collected by third parties. Where an extended reservation of proprietary rights is in place, the consent shall be deemed granted. Where the supplier cedes his accounts receivable from GWI to a third party, without GWI’s consent and hence in a manner contrary to Sentence 1, the cession shall be effective nonetheless. However, GWI shall be entitled to make its payment, at its choice, to either the supplier or the third party with discharging effect.
- Defect claims
- Acceptance of the deliveries / services shall be subject to an inspection of correctness and fitness for purpose. GWI will complain about defects of the delivery without delay as soon as such defects are detected in accordance with the circumstances of a proper course of business. In this respect, the supplier waives the objection of delayed notification of defects.
- The supplier warrants that contractual objects / items are free of defects and of the agreed quality, have the warranted properties where applicable and are in line with state-of-the-art technology and the safety regulations applicable at the time of delivery or service / performance.
- Where the delivery or service is defective, GWI shall be entitled to demand free subsequent performance at GWI’s choice (i.e. either defect resolution or replacement delivery). This shall also apply to deliveries, in which inspection is limited to random sample checks.
- If subsequent performance remains unsuccessful, GWI shall be entitled to withdraw from the contract in whole or in part without compensation, demand reduction of the price, compensation for damages or the reimbursement of futile expenses.
- In urgent cases, especially to avoid excessive damage, GWI shall be entitled to carry out the necessary scope of possible defect resolution itself or to have it carried out by third parties or, where applicable, procure defect-free contractual objects / items from third parties so as comply with its own delivery obligations. The costs required for this purpose shall be borne by the supplier following prior consultation.
- If incoming goods inspections exceeding the usual scope become required due to defective delivery, the cost shall be borne by the supplier.
- The supplier shall bear the cost and risk of the return shipment, sorting out or scrapping of defective delivery items / objects.
- Where a defect is only detected after further processing of the contractual objects / items, the supplier shall be under obligation to bear all costs associated with the exchange or subsequent improvement of the defective contractual objects / items, especially the inspection, transportation, infrastructure and labour costs and the cost of materials. This shall also include the cost of a necessary exchange and / or repair of products, in which GWI has installed defective contractual objects / items, as well as the costs of handling and warranty processing (ancillary material costs).
- Material defect claims shall come under the statute of limitations in 24 months. The period of limitation for material defect claims shall begin upon delivery of the contractual object / item (transfer of risk).
- In the case of defects of title, the supplier shall hold GWI harmless of possible third-party claims. The period of limitation for defects of title shall be 10 years.
- As far as GWI or a third party incurs damage due to a delivery of defective components or the deficient execution of a service or any other infringement of contractual obligations, the supplier shall be under obligation to provide compensation for damages.
- For measures taken by GWI or GWI’s customer to avert damage (such as call back campaigns), the supplier shall be liable as far as the damage has been caused by a defect in the product delivered by the supplier.
- For all deliveries and services carried out by the supplier, the supplier undertakes to take out product liability insurance with an amount of cover appropriate for the risks existing within the automobile industry in respect of damage to property and damage to persons including the coverage of call back campaigns, and to maintain such insurance for at least 15 years beyond the delivery / service. The kind and extent of the insurance cover including the appointment of the main insurer shall be reviewed and agreed in the respective individual case.
- Material provided
- The materials provided by GWI shall remain the property of GWI and be stored, marked and administered free of charge. Using them shall only be admissible in order to execute the purchaser’s orders. The supplier shall insure these materials in the framework of his insurances against damage or loss. The supplier shall be liable in the event of destruction, damage or loss / perishing of the material provided.
- Prior to the start of manufacturing, the supplier shall inspect the material provided for visually recognisable defects and carry out an identity check. During the process of manufacturing, the supplier will conduct further examinations as far as they are agreed specifically with GWI or necessary under his quality management system. Where the supplier detects quality defects in respect of the materials provided by GWI, GWI shall be notified thereof without delay in order to coordinate further measures.
- Processing of the materials provided by GWI shall take place in any event on behalf of GWI. As far as the value of the materials provided by GWI exceeds the value of the agreement and, where applicable, of the other components of the new manufactured items, the new manufactured items shall become the property of GWI. Otherwise, GWI shall acquire co-ownership of such items according to the proportion between the value of the material provided and the value of the overall result.
- Tools, moulds, non-disclosure
- Tools, moulds, models, samples, drawings, standard sheets etc. made available by GWI as well as objects manufactured by means of / according to such tools, moulds, models, samples, drawings and standard sheets must not be passed on to third parties or used for purposes other than the contractual ones without GWI’s written consent. They must not be made accessible to third parties unless this is necessary for performing the contract. If the supplier breaches this obligation, GWI shall be entitled to demand release and compensation for damages subject to the assertion of further rights.
- The supplier must not make any information obtained in the context of executing the order accessible to third parties unless the respective information is in the public domain or otherwise known on a lawful basis.
The deliveries shall be covered by transport insurance taken out by GWI. The contractor shall prohibit the forwarding agents from using a forwarding, logistics and storage insurance (SLVS) certificate. Possible SLVS premiums shall be borne by the contractor.
- Supplementary provisions
Should a provision of these conditions and the further agreements reached by the parties be or become ineffective, the validity of the other provisions shall remain unaffected. The contractual partners shall be under obligation to replace the ineffective provision with a regulation that comes as close as possible to the commercial effect of the original regulation.
- Place of performance
The place of performance for the deliveries and services shall be the place, to which the contractual object / item is to be delivered in accordance with the order.
- Place of jurisdiction, applicable law
The place of jurisdiction shall be Iserlohn / Germany. The contract shall be subject to German law.
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