General Terms and Conditions
General Terms and Conditions of Supply and Payment
of B&W International GmbH
- May 2018 -
I. Scope of Application
1. The below General Terms and Conditions of Supply and Payment shall apply to all business relation-
ships between our customers and us, that is, to any and all agreements, supplements, extensions and amendments of agreements (hereinafter referred to as “Agreement”).
2. To the extent to which the Customer was provided with these General Terms and Conditions in the context of the order confirmation process, they shall accept them to be legally binding on them in relation to the respective Agreement and to any and all pending and future business transactions. At the same time, they shall accept that their own general terms and conditions shall not be applicable. In fact, their general terms and conditions shall in no case be of the essence, not even if we fail to expressly reject them or perform deliveries nonetheless, unless we previously accepted them in writing. Such general terms and conditions shall not be applicable, either, if they are contrary to our General Terms and Conditions not at all or only to a partial extent. In the event that the Customer’s general terms and conditions include equivalent protective clauses, the statutory provisions shall be applicable instead of these General Terms and Conditions.
3. We shall always have the right the amend or supplement these General Terms and Conditions,
including the appendices, in compliance with a reasonable notice period. Any purchase orders which we received prior to this shall be processed on the basis of the General Terms and Conditions of Supply and Payment applicable at the time of purchase order receipt.
II. General Provisions
1. Agreements with us shall be legally concluded only if an acceptance declaration/order confirmation is delivered, whereby the latter shall determine the type and the scope of deliveries. In the absence of such acceptance declaration/order confirmation or in cases of advance deliveries, the Agreement shall be con-cluded once we supply any goods.
2. By placing a purchase order, the Customer guarantees they are an entrepreneur, that is, to be
performing their commercial or freelance activities at the time of contract conclusion. In addition, the Customer shall be obliged to ensure that data collected during the contract conclusion process are true.
3. Verbal agreements, agreements by telephone or those concluded with agents shall require written confirmation from our part to be legally effective; this shall also apply to amendments of the written form requirement.
4. The place of fulfilment for any and all obligations resulting from this Agreement shall be our registered office.
5. The law of the Federal Republic of Germany shall apply, whereby the provisions under the United Nations Convention on Contracts for the International Sale of Goods (CISG) and those under the law of conflicts in terms of international private law shall be excluded. The place of jurisdiction for both
contractual parties shall be the courts of Münster (Westphalia) if the Customer is an entrepreneur, a body corporate organised under German public law or a German public-law special fund. This shall also apply if the Customer has no general place of jurisdiction in Germany or if their place of residence is unknown
or situated in other countries; applicability shall extend to legal disputes in the framework of special
proceedings restricted to documentary evidence, deciding claims out of a bill of exchange and asserting claims concerning the payment of a cheque. We shall be entitled to file a lawsuit at the Customer’s general place of jurisdiction.
6. Should single provisions of these General Terms and Conditions of Supply and Payment be or become invalid, this shall not affect validity of the remaining provisions. Any invalid provisions shall be replaced by statutory provisions, unless the contractual parties reach an agreement which serves the intended pur-pose of the invalid provision.
III. Prices, Payment Terms
1. The prices shall be factory prices exclusive of freight charges, customs duties, ancillary import duties, packaging costs and valueadded tax; packaging shall be invoiced at cost.
2. We shall not be bound by the previous prices for follow-up orders.
3. If any cost factors change after making the offer or delivering the order confirmation, we shall have the right to make adequate changes to the prices and to the share of tool costs.
4. Invoices must be paid without any deductions within 30 days from invoice receipt; payments must be effected in Euro to our bank account which we indicated on the invoice. We shall have the right, but no obligation, to accept cheques or any other deeds establishing a payment liability, whereby this shall
always occur on account of performance without us incurring any costs or expenses.
5. Should the Customer fail to comply with the payment term, we shall have the right, without expressly warning the Customer, to request the payment of default interest to the amount of 9% above the base
lending rate in compliance with sec. 247 of the German Civil Code. However, we may also withhold supplies or, at our exclusive discretion, request advance payments for outstanding amounts and/or the provision of a security. This shall also apply in the case where we become aware of the Customer’s
financial situation considerably deteriorating so that the claim for payment is at risk. If the Customer failed to make advance payments and/or to provide a security at the end of the reasonable grace period, we may totally or partially withdraw from single or all Agreements; the right to as-sert additional claims shall not be affected by this. After having warned the Customer in writing without success, we shall have the right to commission a collection agency with the collection of outstanding payments, whereby the
Customer must bear the standard costs.
6. Only if their counterclaims are undisputed or legally determined by a court shall the Customer have a right to offsets. The Customer may exercise a right of retention only to the extent to which their
counterclaim is based on the same Agreement and to which this is undisputed or legally determined by a court; this shall also apply to the notification of defects.
7. Non-compliance with payment terms or circumstances coming to our attention after contract
conclusion which might adversely affect the Customer’s credit standing have the effect that all of our claims become immediately due for payment, that we may perform pending deliveries only against
advance payments and that we may, upon expiry of a reasonable grace period, withdraw from the
Agreement or, by rejecting the supply, claim damages instead of performing.
IV. Supply Terms, Supply
1. The supply term shall commence once we received all the documents required for purchase order processing and, if applicable, contractual advance/partial payments.
2. We are generally able to comply with supply terms indicated in the offer if the purchase order is placed immediately; the exact term will be determined only upon purchase order receipt. We guarantee to comply with supply terms only if such terms were expressly agreed in writing as being binding. In the event that we fail to comply with supply periods, the Customer may withdraw from the Agreement on the condition that such delay is within our control and that a reasonable grace period granted by the Customer lapses
without success. If, however, our suppliers supply their goods not at all or not on time, the supply term shall be extended accordingly on the condition that this is beyond our control. Should the above
circumstances significantly change either the economic significance or the Agreement contents or should this impact on our business operations, the Agreement shall be reasonably adjusted. To the extent that contractual performance is unacceptable for economic reasons, we shall have the right, under exclusion of the Cus-tomer’s claims for damages, to totally or partially withdraw from the Agreement.
3. Supplies shall be made at our exclusive discretion and – even if carriage-free supplies were agreed upon – at the Customer’s risk. The risk shall be transferred to the Customer once the goods were handed
over to Deutsche Bahn, Deutsche Post or any other forwarding agent. If hand-over or shipment is
delayed for reasons beyond our control, the risk shall be transferred once the notification of readiness for delivery was provided and the delivery term shall be deemed to be complied with in this case. Should the
Customer be in default of acceptance, we may request compensation for any damage resulting from this.
4. Upon the Customer’s written request, we shall purchase insurance for the goods at their cost against breakage, transport and fire damage.
5. Force majeure events shall extend the supply term by the period during which they exist, including a reasonable start-up period. If such force majeure events persist for more than six (6) months, the Supplier may withdraw from the Agreement. Force majeure events shall include interference by public
authorities, energy and raw materials supply difficulties, strikes, lockouts, accidents, unforeseeable
production difficulties, illnesses, epidemics and any other events rendering supplies considerably more difficult or making them even impossible.
6. Partial supplies shall be admissible to a reasonable extent. We reserve the right to make deliveries exceeding or falling short of the ordered quantities by a maximum of 10%.
7. With call-off orders, we shall be entitled, at our exclusive discretion, to request a call-off of outstanding quantities and to invoice them at the end of a six-month term from the time of order confirmation subject to a 14-day period or to request damages in lieu of performance.
V. Retention of Title
1. Any and all items supplied by us are goods subject to reservation of title and shall remain our property until all principle and the ancillary claims to which we are entitled on the basis of the business relationship were paid, including any and all outstanding current account balance claims (“retention of title”). The Customer shall store the goods on our behalf by applying commercial due diligence and they may sell them only in the context of ordinary business transactions. In the case of connection, mixture and blending with other goods, we shall acquire co-ownership which the Customer must store on our behalf.
2. Right from the beginning and as an assignment by way of security, the Customer shall assign to us any claims based on reselling our goods subject to reservation of title, including any ancillary rights and to the full amount, and we shall accept this assignment right from the beginning. Upon request, the Customer shall also be obliged to grant us a written special assignment with regard to these claims. Should the Customer resell the goods subject to retention of title after they were connected, mixed or blended with other goods, this assignment of claims shall be considered agreed only to the amount of the price jointly determined by us and the Customer, plus a security margin corresponding to a value of 10%.
3. We hereby undertake to release, upon the retailer’s request, any securities to which we are entitled in terms of the above to the extent to which their value permanently exceeds the value of claims to be collateralised by more than 10%.
4. The goods subject to reservation of title may not be pledged nor transferred for collateralisation
purposes; the costs of possible interventions shall be borne by the Customer.
VI. Liability for Defects, Inspection Obligation and Product Liability
1. Contractual supply item quality levels shall be exclusively determined based on the initial sample which we provided to the Customer and the Customer shall be exclusively responsible for proper constructional design of the goods and for the goods being fit for the intended purpose, even if we provided consultancy services to them during the development process. We reject any additional obligations to assume liabilities (guarantee) as to supply item quality. Information in catalogues, price lists and other information material submitted to the retailer shall not be considered guarantees of special quality levels with regard to the supply items.
2. We reserve the right to make technical enhancements and minor deviations and modifications, such as colours, forms and materials, due to production changes, unless this is contrary to any specifications under the purchase order and unless this is inacceptable for the Customer.
3. Complaints on the basis of apparent material defects, wrong supplies and quantity deviations shall only be considered if the Customer communicates them without undue delay and in no case later than five (5) days from goods receipt; otherwise, the supply contents shall be considered to corresponds to invoice or delivery note information and free from recognisable defects. Hidden defects must be reported in writing immediately after they were detected and a one-year defect notification period from the time of supply shall apply to such defects.
4. We shall be liable for manufacturing, material or packaging defects caused by our suppliers only to the extent to which our suppliers themselves are liable. In this case, our liability shall be limited to assigning our claims against the suppliers to the Customer; beyond this, we shall only be liable in the case where our supplier fails to fulfil their obligations determined by a court. We shall pay compensation to the Customer for any costs which they cannot collect from our suppliers.
5. In cases of slight negligence, our liability for violations of insignificant contractual duties shall be
excluded. If we are in default of performance due to slight negligence, if we are prevented from
performing or if we violated significant contractual duties, we shall be liable for material and property
damage attributable to us and to be reasonably expected at the time of contract conclusion up to the value of the typical foreseeable damage; this shall also apply if our legal representatives and vicarious agents act in a slightly negligent manner. In cases of wilful intention or gross negligence and in cases where the items do not have the contractual features, our liability for any damage attributable to this shall not be limited in any way and liability shall also be unlimited with regard to injuries to the life, limb or health. If we receive justified complaints, we shall provide remedy, at our exclusive discretion, by rectifying the
relevant defect, by supplying items free from defects or by reimbursing the invoice or lower value.
Additional defect liability or compensation claims shall be excluded, in particular any claims due to indirect damage or claims for dam-ages due to direct damage to the extent to which we did not cause such damage in a grossly negligent or wilfully intentional manner.
6. The period of limitation concerning the Customer’s warranty rights shall be one year from the time of goods shipping by the retailer. However, the statutory periods of limitation shall be applicable to the
Customer’s claims for damages and their rights in the case of maliciously concealed or wilfully caused defects.
7. On the condition that the Customer themselves or the Customer’s contractual partner directly or
indirectly delivers the supply item to a consumer in accordance with the relevant regulations, claims for recourse against us shall become time-barred not earlier than two months after the Customer fulfilled the claims as-serted by the consumer or by any other purchaser.
8. Defects with parts of the scope of supplies shall establish no right to withdraw from the Agreement, unless the retailer is not interested in partial deliveries. The same shall apply for the retailer’s claims for damages in lieu of complete contract performance.
9. Should the retailer re-sell the goods without any modifications or after them being connected, mixed or blended with other goods, they shall exempt us, with regard to the internal relationship, from any third-party product liability claims to the extent to which they are responsible for the error on which such case of liability is based.
VII. Tools, Drawings and Samples
1. The Customer shall bear a certain share of the relevant tools costs (such as for moulds which we ourselves or any third parties manufacture for processing purchase orders). These tool costs shall be payable without any deductions based on the following: one third each upon purchase order placement, mould validation and readiness for production (even if modifications are still required). Any changes prior to tool production completion resulting in delayed initial sample submission shall give us a right to request immediate payment of the tool costs share which we incurred up to that moment. Should the Customer fail to place an order corresponding to the offer within six (6) months, we shall be entitled to charge to the Customer the difference between the share in the tool costs and the overall tool costs. Any costs for tool modifications requested by the Customer shall be entirely borne by them; they shall not be reimbursed.
2. We shall diligently store the tools for possible follow-up purchase orders, purchase insurance protection against fire damage and maintain them. However, we shall bear the costs of replacing any tools which can no longer be used only on the condition that we are culpable thereof. Our obligation to store the tools shall cease to exist if the Customer does not place any additional orders within one (1) year from the last delivery.
3. Since the tools costs share does not cover our expenses for tool construction, running-in, ongoing maintenance, servicing etc., the tools shall continue to be our property and we shall not be obliged to return them.
4. The tools shall be exclusively used for the Customer’s purchase orders. Should the Customer fail to meet their payment obligations for any supplies and services, we shall have the right to use the tools for other purposes.
5. The costs relating to testing facilities, gauges, equipment and other special devices shall be included neither in the tool costs nor in the unit prices. To the extent to which they are required, the Customer shall deliver them to our production site on a carriage-free basis, but they shall continue to be the Customer’s property.
6. Only upon the Customer’s previous express request shall we return any drawings and samples
provided to us; otherwise, we shall be entitled to destroy them three months after offer submission.
VIII. Protection Rights
1. If we must supply goods in compliance with the Customer’s drawings, models, samples or other
specifications, they shall guarantee that this does not violate any third-party rights and they shall indemnify and hold us harmless from and against any third-party claims in this regard and the costs of required legal defence. In addition, the Customer undertakes to take all reasonable efforts to provide us with
information and documents required for legal defence against third parties. Should any third parties
prohibit the Cus-tomer from manufacturing or supplying the goods by invoking any protection rights of which they are the owners, we shall be entitled – without assessing the legal situation – to suspend our activities and to request compensation for our expenses.
2. Should the Customer withdraw from the supply agreement for this reason, we shall have the right to request, without the need to produce evidence, the payment of 10% of the purchase price, plus the value of the goods planned for the relevant order.