GENERAL TERMS AND CONDITIONS
On this page you will find the following conditions:
- General terms and conditions of sale, delivery and payment
- General terms and conditions of purchase
GENERAL CONDITIONS OF SALE, DELIVERY AND PAYMENT
1. Structure of the terms and conditions
1.1 Deliveries, services and offers by WEMAS Absperrtechnik GmbH (hereinafter also referred to Retailer or simply „we”) are exclusively completed on the basis of these terms and conditions of business. As a result, the terms and conditions also apply to future business relationships, even if the terms and conditions are not explicitly agreed upon once again. The terms and conditions shall be deemed as accepted at the latest upon accepting the goods/delivery. We hereby object to counter confirmations of the purchaser and a reference to their terms and conditions of business and procurement.
1.2 Deviations from the terms and conditions of business shall be effective only if they are explicitly confirmed in writing.
1.3 These terms and conditions shall apply exclusively to companies, public and legal entities or special-purpose public assets as per Article 310, Section 1, German Civil Code (BGB).
2. Offers and concluding agreements
2.1 In the event that the order can be qualified as per Article 145, German Civil Code (BGB), we shall be given the option to accept it within four weeks.
2.2 Agreements concluded upon or following a conclusion of an agreement between our employees or representatives and our customers shall be valid exclusively following our confirmation; to this end, our employees’ or representatives’ representative authorities shall be
2.3 Drawings, illustrations, dimensions, weight data or other performance data represent common industry approximations with the resultthat commercially common deviations shall be permitted. We shall also reserve the right to make technical changes and changes to the shape, colour, quality and/or weight within reasonable limits. This shall also apply if samples or trials have been handed over to the ordering party. Such data shall not be deemed as guaranteed properties.
3. Delivery and service terms, delays
3.1 The start of our specified delivery terms assumes all technical queries have been clarified.
3.2 The dates and deadlines shall not be binding unless explicitly agreed otherwise. As a rule, we shall not assume any procurement risks.
3.3 Delays in delivery and the provision of services due to force majeure and due to events that considerably impair deliveries by WEMAS Absperrtechnik GmbH or make these impossible (e.g. strike, lock-outs, etc.) shall entitle us to delay the deliveries or services by the period our processes had been impaired plus a reasonable start-up time. This shall also apply if our suppliers or their sub-suppliers are affected by the aforementioned impairments.
3.4 We shall reserve the right of correct and timely deliveries to the client.
3.5 In the event that we have failed to comply with a quoted service, the purchaser shall not be entitled to withdraw from the agreement and/or demand compensation as a replacement for the entire service or futile expenses, providing the breach of duty on our behalf is insignificant.
3.6 WEMAS Absperrtechnik GmbH shall only fall behind by way of a reminder, providing legal stipulations or the agreement do not specify otherwise. Reminders and deadline specifications of the purchaser must have been formulated in writing.
3.7 Our adherence to delivery obligations requires the correct and timely compliance of purchasers with the obligations. We shall reserve the right to object to a non-fulfilment of the agreement. We shall be entitled to make partial deliveries and deliver services in part, insofar as this is feasible to the ordering party.
3.8 In the event of delays of services, the purchaser shall have the legal right to compensation and withdrawal, subject to the following specifications and requirements, in particular the limitation of liability as per Section 3.10. as well as the occurrence of legal requirements with regard to matter of fact. However, this requires the purchaser having specified a reasonable deadline to (subsequently) perform the service and this deadline has expired without any results. The specifications of Article 281, Section 2 and Article 323, Section 2 on the lack of a necessity to set a deadline shall remain unaffected.
3.9 The purchaser shall be obliged to link the extended deadline as per the previous Section 3.8 with the unambiguous declaration to refuse acceptance of the delivery and the rights resulting from the aforementioned Section 3.8 following expiry of the extended deadline without any results. In the event that the services have already been performed in part, the purchaser shall be entitled to demand compensation for the entire service only if it is in the purchaser’s interest to completely provide the entire service. Withdrawal from the entire agreement shall be possible in this case only in the event that the purchaser can provide proof that a partial performance of services does not bring about any benefits.
3.10 We shall be liable to delays in services only in the event that these result intentionally or as a result of gross negligence as per legal stipulations, also by a representative or agent. In the case of gross negligence, our liability shall be restricted to the foreseeable damage typical to this agreement, providing none of the exceptional cases as per Section 5 of this stipulation apply. In any other case, our liability due to delays and compensation in addition to the services shall be restricted to 5% and for the claim for compensation instead of the services restricted to 10% of the value of the delivery/services. Any further claims of the client shall be excluded, also following the expiry of any potential deadlines specified to us. The aforementioned restrictions shall not apply in the event of liability due to death or personal injury. The aforementioned regulations shall not be linked to a change to the burden of proof to the disadvantage of the purchaser.
3.11 The purchaser shall exclusively be entitled to withdraw from the agreement within the framework of legal stipulations, providing we are responsible for the delivery delays; this shall not be linked to a change of the burden of proof to the disadvantage of the purchaser.
3.12 In the event of a delay in acceptance on behalf of the purchaser or in the event of any other violation of other duties to collaborate on behalf of the purchaser we shall reserve the right to exercise the legal claims we are entitled to. The risk of accidental loss and/or accidental deterioration of the purchase item shall be transferred to the purchaser at the latest when there is a delay in acceptance on behalf of the purchaser
4. Transfer of risks, packaging
4.1 Insofar as no deviating agreement has been concluded, deliveries shall be agreed upon as of the WEMAS Absperrtechnik GmbH warehouse. The risk shall be transferred to the purchaser as soon as the shipment has been handed over to the entity in charge of shipment or as soon as the delivery has left our warehouse for shipment; this shall also apply if we organise the transport ourselves.
4.2 In the event that shipment becomes impossible without a fault on our behalf, the risk shall be transferred to the purchaser upon reporting the item is ready for shipment.
4.3 On request by the purchaser we shall conclude transport insurance for the delivery and the purchaser shall bear any costs incurred.
4.4 Packaging as defined in the packaging regulations, except transport packaging or multi use shipping materials (e.g. pallets, wire boxes Collico boxes, etc.), shall be non-returnable. Purchasers shall be obliged to dispose of disposable packaging at their own cost. Multi-use shipping materials shall be made available to the purchaser on a loan basis; purchasers are obliged to return them in correct condition, i.e. without residue and damage; in the event of contamination or damage to the shipping materials the purchaser shall bear the repair costs or reimburse the value of the materials if they are rendered unusable. Returned transport packaging must be clean, free from foreign materials and sorted by different packaging materials. Failing this we shall be entitled to demand any additional costs incurred as a result of repair or disposal from the purchaser.
In the event that delivery/services become impossible, we shall be liable in the event of intent or gross negligence on behalf of WEMAS Absperrtechnik GmbH, a representative or agent as per the legal stipulations. However, in the event of gross negligence our liability shall be limited to foreseeable damage typical to this type of agreement, insofar as none of the exceptional cases as per Section 5 of these terms and conditions have occurred. In all other cases our liability for compensation on the basis of impossibility and with regard to reimbursement of the lost expenses shall be limited to a total of 10% of the value of the delivery/service. Any further claims of the client on the basis of impossibility to deliver items/services shall be excluded. This restriction shall not apply in the event of liability as a result of intent, gross negligence or personal injury. This shall not affect the purchaser’s right to withdraw from the agreement.
6. Prices and payment
6.1 All prices are net prices ex warehouse or ex works excluding VAT, packaging, insurance and any other additional costs. All additional costs (e.g. shipment, insurance, export, transit, import or any other duties as well as certifications shall be borne by the purchaser. The purchaser shall also bear any type of taxes, duties, fees, etc. that have been incurred as a result of this agreement or the purchaser shall demand reimbursement from WEMAS Absperrtechnik GmbH providing the corresponding certificates and receipts are made available, in the event that WEMAS Absperrtechnik GmbH has been obliged to perform services. The purchaser shall particularly pay the VAT applicable on the day of delivery.
6.2. Price changes shall be permitted if more than six weeks lie between conclusion of the agreement and the agreed delivery date or the delivery is possible only after expiry of said six week period and the purchaser is responsible for this. In the event that wages, material costs or common market entry prices subsequently increase by the time the delivery has been completed, we shall reserve the right to increase the agreed price as per the added costs to a reasonable extent. In the event of an increase, the purchaser shall have the right to withdraw from the agreement exclusively if the increase exceeds the general costs of living between conclusion of the agreement and delivery by an unreasonable amount.
6.3 The invoice amount shall be due immediately and it shall be payable as follows, unless agreed otherwise: a) 8 days following the invoice date, 2 % cash discount b) 30 days following the invoice date without any discount
6.4 In the event that the purchaser delays payment we shall be entitled to enforce the rights resulting from Article 288 German Civil Code (BGB).
6.5 Purchasers shall have the rights to set-off only if their counter claims are legally binding, undisputed and we have given our consent. Purchasers shall also be entitled to enforce a right to retention insofar as the counter claim is based on the same contractual relationship.
6.6 In the event that we become aware of circumstances that question the purchaser’s creditworthiness we shall be authorised to demand advance payments or security deposits regardless of any further statutory claims.
6.7 We reserve the right to accept cheques and bills of exchange and these shall be valid as ayment only following encashment. Any discount or bank expenses shall be borne by the purchaser.
6.8 The goods shall be delivered under reservation of proprietary rights as per the stipulations in these terms and conditions of business. Insofar as we agree payment of the purchase price owed on the basis of a cheque/bills of exchange with the purchaser, this reservation shall also apply to encashment of the bill of exchange we accepted from the purchaser and shall not expire upon credit of the cheque to our benefit.
7.1 Purchaser warranty rights shall demand the purchaser has correctly complied with the requirements for examination and complaints as per Article 377 German Commercial Code (HGB).
7.2 The purchaser’s legal recourse claims shall apply insofar as the purchaser has not concluded any agreements with their customer beyond the legal claims for defects.
7.3 Insofar as we are responsible for a defect of the purchase item, we shall always be entitled to rework the item within an adequate period of four weeks, whereby the purchaser reserves the right to grant us an adequate period of less than four weeks, providing a minimum period of four weeks for reworking is unfeasible for the purchaser. In the event that reworking is unsuccessful, the purchaser shall be granted the legally prescribed claims and rights, subject to the following regulations. However, any claims by the purchaser relating to the expenses required for the purpose of reworking, in particular shipping, infrastructure, labour and material costs shall be excluded, providing the expenses increase because the object for delivery was completed in a location different to the place of fulfilment; unless the transfer corresponds to its intended use.
7.4 Claims for defects shall not be constituted only upon insignificant deviations from the agreed properties, in the event of only insignificant impairments of its usability, natural wear or damage after the transfer of risks resulting from incorrect or negligent treatment, excessive wear, unsuitable operating materials and/or due to extraordinary, external influences and/or which are not intended as per the agreement.
7.5 We shall not be held liable for material damage resulting from unspecified operating and maintenance instructions, non-permissible changes to the products or parts replacements and the use of unsuitable consumables, in the event that said materials and parts do not comply with the original specifications; any other regulations shall apply exclusively if the liability case is not a result of an aforementioned and verifiable reason for exclusion.
7.6 Claims regarding liability for defects shall be in lapse after twelve months; this period shall start from the moment of risk transfer. The aforementioned stipulations shall not apply in the event that the legislation in accordance with Articles 438, Section 1, no. 2 (items for buildings), 479 (recourse claim) and 634 a (building defects) in the German Civil Code (BGB) specifies longer deadlines. They shall also not apply in the event of intent, malicious non-disclosure of a defect, in the event of personal injuries or infringements of personal freedom, in the event of claims resulting from product liability legislation, grossly negligent disregard of an obligation or in the event of an infringement of essential contractual agreements.
7.7 Our liability for defects is limited as follows:
7.7.1 In the event of intent or gross negligence on behalf of the retailer or a representative or agent we shall be liable only as per legal stipulations. In any other case, we shall be liable as per product liability legislation, as a result of personal injury or due to a disadvantageous infringement of essential contractual obligations. However, the amount of compensation as a result of an infringement of essential contractual obligations is restricted to the foreseeable damage typical for this type of agreement. Our liability shall also be restricted to the foreseeable damage typical for this type of agreement in the event of gross negligence if none of the aforementioned exceptional cases apply.
7.7.2 However, liability for damage caused by the delivery item to legal property of the purchaser, e.g. damage to other items shall be fully excluded. This shall not apply in the event of intent or gross negligence or due to death or personal injury.
7.7.3 The stipulations of the aforementioned Sections 7.7.1 and 7.7.2 shall apply to compensation in addition to the services and compensation instead of services. They shall also apply to claims for replacement of futile expenditure.
7.7.4 The aforementioned limitation of liability shall not apply if the purchaser asserts compensation claims due to the assumption of a guarantee for the availability of a property, unless the purpose of the guaranteed properties merely affects compliance with the agreement for the underlying delivery, yet not to the risk of consequential damage or other damage to property.
7.7.5 Changes to the burden of proof to the disadvantage of the purchaser shall not be linked to the aforementioned stipulations.
8. Overall liability
8.1 We exclude any further liability for compensation other than that defined in Sections 3, 5 and 7 - without consideration of the legal nature of the claim brought forward - in particular as a result of an infringement of contractual obligations and from prohibited actions.
8.2 The liability disclaimer as per the aforementioned Section 8.1 shall not apply to cases of intent, gross negligence as a result of death or personal injury, liability as per product liability legislation and culpable infringements of essential contractual obligations. However, claims for confirmations as a result of essential contractual obligations shall be restricted to the foreseeable damage typical to this type of agreement. In the event of gross negligence our liability shall also be limited to the damage typical to this type of agreement if none of the exceptions as per Paragraph 1 of this agreement apply.
8.3 Providing the liability is excluded or limited on our behalf, this also applies to the personal liability of employees, workers, team members, representatives, and agents.
9. Retention of title
9.1 The delivered goods remain the property of WEMAS Absperrtechnik GmbH until the purchaser has made payment in full for all accounts receivables resulting from the mutual business relationship. Payment of individual accounts receivables as part of on-going invoices as well as the approval of the balance shall not affect the retention of title. Payment shall only be deemed complete as soon as the equivalent value is credited to our accounts.
9.2 In the event of contractual infringements on behalf of the purchaser, in particular delays in payment, we shall be entitled to withdraw the purchase item. The withdrawal of the purchase item on our behalf - also by seizure of the item - as well as issuing the demand to return the item constitute withdrawal from the agreement.
9.3 A seizure of the purchase item on our behalf always constitutes a withdrawal from the agreement. We shall be entitled to exploit the purchase item following withdrawal. The gains from exploitation shall be offset against the purchaser’s accounts payable, minus an adequate reimbursement for exploitation costs that were incurred in the process.
9.4 Purchasers shall be obliged to handle the purchase item with care and take out adequate fire, water and theft damage insurance to cover the original price of the item at their own costs. Purchasers shall perform any due maintenance and inspection work in due time at at their own costs.
9.5 In the event of seizure or any other intervention from third parties we shall be notified immediately to be able to file a suit as per Article 771 German Civil Procedure Code (ZPO) or similar, foreign legal remedies. Insofar as the third party is unable to reimburse the judicial and extrajudicial costs of a suit as per Article 771 German Procedure Code (ZPO), the purchaser shall be liable to pay the resulting loss.
9.6 The purchaser shall have the right to resell goods subject to proviso agreements: however, the purchaser shall already and immediately transfer all accounts receivable amounting to the final invoice amount (including VAT) of our accounts receivables to which the purchaser is entitled to with regard to their purchasers or any third parties as a result of resale or any other legal reason, regardless of whether or not the purchase item has been sold on with or without having processed it. We shall accept the transfer. If the accounts receivables transferred to the purchaser of the proviso goods are integrated into an on-going invoice (current account), the transfer relates to the accepted balance of our contractual partner and, in the event of insolvency of the purchaser, to the available „causal balance” of our contractual partner. The purchaser shall remain entitled to retain these accounts receivable also following a transfer. This shall not affect the permission of WEMAS Absperrtechnik GmbH to collect the accounts receivables themselves. However, we shall be obliged to not collect the accounts receivable as long as the purchaser meets the payment obligations with income received, there are no delays in payment and, in particular, there are no pending insolvency proceedings with regard to their assets or a suspension of payment has been enforced. However, if this is the case, we shall be entitled to demand the purchaser discloses the accounts receivable as well as the corresponding debtors, discloses all information required to collect the amount owed, hands over the associated documents and notifies debtors (third parties) of this transfer.
9.7 The proviso goods shall always be processed or converted for us by the purchaser without accounts payable arising from this. If the proviso goods are processed with other objects that do not belong to us, we shall also acquire shared ownership of the new item to the amount of the proviso goods’ value (final invoice amount including VAT) in relation to the other, processed objects at the time of processing. This shall also apply if the purchaser acquires sole ownership as a result of processing. The same provisions that apply to the item resulting from processing also apply to the goods supplied in proviso.
9.8 In the event that the proviso goods are mixed with other objects that do not belong to us and can consequently no longer be separated, we shall acquire shared ownership of the item in a relation equating to the value of the proviso goods (final invoice item including VAT) to the other, mixed objects at the time of mixing. If the mixing is performed in such a manner that the item of the purchaser can be regarded as the main item, the parties shall agree that the purchaser grants us shared ownership on a pro-rata basis. The purchaser shall manage the resulting sole ownership or shared ownership on our behalf.
9.9 We shall be obliged to release the securities we are entitled to upon request by the purchaser, providing that the value of the securities we are entitled to exceed the accounts receivable to be secured by more than 10%; we shall select the securities to be released.
10. Ownership of documents, forwarding
WEMAS Absperrtechnik GmbH shall reserve the ownership and copyright of any illustrations, drawings, calculation data and any other documents we created; they must not be made accessible to third parties. This applies in particular to information, most of all written documents, specified as confidential; purchasers must obtain our explicit, written consent prior to forwarding this data.
11. Applicable legislation, place of jurisdiction, partial invalidity
11.1 The registered office of WEMAS Absperrtechnik GmbH in Gütersloh, Germany, shall be the exclusive place of jurisdiction for all present and future claims resulting from the business relationship with companies, public, legal entities and special-purpose public assets, including accounts receivable from cheques and bills of exchange. However, we shall be entitled to file a lawsuit at the purchasers’ local courts.
11.2 Insofar as the order confirmation does not state otherwise, the place of fulfilment is the registered office of WEMAS Absperrtechnik GmbH in Gütersloh.
11.3 The legal stipulations of the Federal Republic of Germany shall apply to these business relationships and all legal relationships between WEMAS Absperrtechnik GmbH and the purchaser. We exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG, dated 11 April 1980, on agreements on the international purchase of goods, BGBl 1989 II S 588, b.e.r. 1990 II, 1699).
11.4 In the event that a stipulation of these terms and conditions of retail, delivery and payment is rendered invalid in full or in part or in the event that these terms and conditions contain a gap, this does not affect the remaining stipulations herein. The contractual parties shall replace said stipulations with new stipulations that come as close as possible to the original stipulation in a legal and economic sense.
(As at: May 2017)
GENERAL TERMS OF PURCHASE
1.1 All existing and future contractual relationships between the supplier and Wemas Absperrtechnik GmbH shall be governed exclusively by the following terms and conditions.
1.2 The supplier's general terms and conditions of business and deviating agreements shall only apply if they have been recognised in writing by WEMAS ABSPERRTECHNIK GMBH.
1.3 Every offer made by the supplier is free of charge and non-binding for WEMAS ABSPERRTCHNIK GMBH. The supplier must ensure that all information (technical, commercial or logistical) required for the calculation has been taken into account before submitting an offer.
2.1 Orders and changes to orders must be made in writing. The content of the oral order shall only apply if it has been confirmed in writing.
2.2 The supplier is obliged to check the order for errors and ambiguities and to inform the purchaser about the clarification.
3. Delivery periods
3.1 The delivery periods agreed in the order are binding. As soon as the supplier becomes aware that they cannot fulfil their contractual obligations or cannot fulfil them on time, they must inform WEMAS ABSPERRTECHNIK GMBH of this, stating the reasons and the expected duration of the delay.
3.2 If the supplier does not fulfil the service within the period of grace set by WEMAS ABSPERRTECHNIK GMBH, WEMAS ABSPERRTECHNIK GMBH is entitled to refuse acceptance, to withdraw from the contract or to demand compensation for non-fulfilment.
3.3 If the supplier does not fulfil the service within the agreed delivery time, they shall be liable in accordance with the statutory provisions.The regulations in section 3.4 remain unaffected.
3.4 If the supplier is in arrears, WEMAS ABSPERRTECHNIK GMBH can - in addition to further legal claims - demand lump-sum compensation for the damage caused by the delay in the amount of 1% of the net price per completed calendar week, but in total no more than 5% of the net price of the goods delivered late. WEMAS ABSPERRTECHNIK GMBH reserves the right to prove that WEMAS ABSPERRTECHNIK GMBH has incurred higher damages. The supplier reserves the right to prove that WEMAS ABSPERRTECHNIK GMBH has not incurred any damage at all or only a considerably lower damage.
4. Shipping regulations/ place of delivery
4.1 The supplier is obliged to pack the goods to be delivered in a customary and appropriate manner. The supplier is solely liable for damage resulting from improper packaging.
4.2 The dangerous goods must be labelled and packed in accordance with national and international regulations. The supplier is liable for all damage resulting from non-compliance with the shipping instructions.
4.3 Each delivery must be accompanied by a delivery note which indicates both the order number of WEMAS ABSPERRTECHNIK GMBH and the description of the contents according to type and quantity.
4.4 Unless otherwise agreed in writing, the delivery shall be made to the place of delivery specified in the order, free domicile.
4.5 Unless otherwise agreed with the supplier, delivery shall be made in mesh boxes or on exchangeable, undamaged Euro pallets.
4.6 Unless otherwise agreed, the supplier is obliged to take back the transport packaging upon delivery. If this is not taken back by the supplier, WEMAS ABSPERRTECHNIK GMBH is entitled to charge the supplier for the costs incurred for disposal.
4.7 The supplier is obliged to cover the risk of accidental loss by taking out transport insurance. The claims for compensation from the transport insurance are assigned to WEMAS ABSPERRTECHNIK GMBH.
4.8 The risk of accidental loss and accidental deterioration of the goods shall pass to WEMAS ABSPERRTECHNIK GMBH upon delivery at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk.
5.1 The agreed prices are fixed prices. The prices refer to the delivery terms DDP ("Delivery Duty Paid" according to Incoterms 2000).
5.2 Unless otherwise agreed, payment shall be made on the 15th of the following month with 3% discount or within 90 days net. The period begins with receipt of the contractual performance and a proper and verifiable invoice. A single copy of the invoice must be submitted to our head office, Edisonstraße 20 in Gütersloh.
5.3 The contractual remuneration shall cover all ancillary services (including packaging and transport).
5.4 WEMAS ABSPERRTECHNIK GMBH will not accept price increases or price escalation clauses unless these have been expressly agreed in the contract. WEMAS ABSPERRTECHNIK GMBH shall not accept surcharges for small quantities.
5.5 All correspondence must contain the following information: number and date of the order, department, delivery note and invoice, reference and number of the packaging, number of items invoiced (each type listed separately), gross and net weight. If the invoice relates to goods of different orders, the quantity belonging to each order must be specified separately.
5.6 The payment does not constitute recognition of prices.
5.7 In the case of acceptance of premature deliveries, the period shall begin at the agreed delivery date.
5.8 In the event of a faulty delivery, WEMAS ABSPERRTECHNIK GMBH is entitled to withhold payment in proportion to the value of the goods until proper fulfilment.
5.9 The assignment of claims against WEMAS ABSPERRTECHNIK GMBH to third parties is excluded.
6. Quality management
6.1 The supplier is obliged to monitor the quality of their deliveries in terms of type and scope and suitable quality systems that correspond to the latest state of the art.
6.2 Modification of the delivery item requires the written approval of WEMAS ABSPERRTECHNIK GMBH.
6.3 WEMAS ABSPERRTECHNIK GMBH is entitled to inspect the delivery items and services at any time. Furthermore, WEMAS ABSPERRTECHNIK GMBH shall be entitled to carry out a quality audit on the supplier's premises in order to ensure that WEMAS ABSPERRTECHNIK GMBH's requirements are met during production.
7. Secrecy and retention of title
illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents are to be used exclusively for the contractual performance and are to be returned to WEMAS ABSPERRTECHNIK GMBH after completion of the contract. The documents are to be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall only expire if and insofar as the knowledge contained in the documents provided has become generally known.
7.2 The above provision shall apply accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as for tools, templates, samples and other objects that WEMAS ABSPERRTECHNIK GMBH provides to the supplier for production. Such objects are to be stored separately at the supplier's expense - as long as they are not processed - and insured to an appropriate extent against destruction and loss.
7.3 Any processing, mixing or combination (further processing) of provided objects by the supplier is carried out for WEMAS ABSPERRTECHNIK GMBH. The same applies if the delivered goods are further processed by WEMAS ABSPERRTECHNIK GMBH, so that WEMAS ABSPERRTECHNIK GMBH is considered to be the manufacturer and acquires ownership of the product in accordance with the legal regulations at the latest with the further processing.
7.4 The transfer of ownership of the goods to WEMAS ABSPERRTECHNIK GMBH must take place unconditionally and without regard to the payment of the price. If, however, WEMAS ABSPERRTECHNIK GMBH accepts an offer of transfer of ownership from the supplier, which is conditional upon payment of the purchase price, the supplier's reservation of ownership shall expire at the latest upon payment of the purchase price for the delivered goods. WEMAS ABSPERRTECHNIK GMBH remains authorised to resell the goods in the ordinary course of business even before payment of the purchase price, with advance assignment of the resulting claim (alternatively, the simple reservation of title extended to resale). All other forms of retention of title are thus excluded in any case, in particular the extended, the forwarded retention of title and the retention of title extended to further processing.
8. 8. Defective delivery
8.1 The statutory provisions shall apply to the rights of WEMAS ABSPERRTECHNIK GMBH in the event of material defects and defects of title of the goods (including incorrect and short delivery as well as improper assembly, faulty assembly, operation or operating instructions) and in the event of other breaches of duty by the supplier, unless otherwise specified below.
8.2 In accordance with the statutory provisions, the supplier is liable in particular for ensuring that the goods have the agreed quality at the time of transfer of risk to WEMAS ABSPERRTECHNIK GMBH. In any case, those product descriptions which - in particular by designation or reference in the order of WEMAS ABSPERRTECHNIK GMBH - are the subject matter of the respective contract or which have been included in the contract in the same way as these GPCs shall be deemed to be an agreement on quality. It makes no difference whether the product description originates from WEMAS ABSPERRTECHNIK GMBH, the supplier or the manufacturer.
8.3 Notwithstanding § 442 Paragraph 1 S 2 BGB, WEMAS ABSPERRTECHNIK GMBH is entitled to claims for defects without restriction even if the defect remained unknown to WEMAS ABSPERRTECHNIK GMBH at the time of conclusion of the contract due to gross negligence.
8.4 The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial obligation to examine and give notice of defects, with the following proviso: The obligation of WEMAS ABSPERRTECHNIK GMBH to examine shall be limited to defects which become apparent during the incoming goods inspection at WEMAS ABSPERRTECHNIK GMBH under external inspection including the delivery documents and during the quality control of WEMAS ABSPERRTECHNIK GMBH in a random sampling procedure (for example transport damage, wrong and short delivery). Insofar as acceptance has been agreed, there is no obligation to examine. Otherwise, it depends on the extent to which an examination is feasible in the normal course of business, taking into account the circumstances of the individual case. The obligation of WEMAS ABSPERRTECHNIK GMBH to give notice of defects discovered later remains unaffected. In all cases, the complaint of WEMAS ABSPERRTECHNIK GMBH (notification of defects) shall be deemed to be immediate and timely if it is received by the supplier within 10 working days.
8.5 The costs incurred by the supplier for the purpose of inspection and rectification (including any dismantling and installation costs) shall be borne by the supplier even if it turns out that no defect actually existed. WEMAS ABSPERRTECHNIK GMBH's liability for damages in the event of an unjustified request for the rectification of defects shall remain unaffected; however, in this respect, WEMAS ABSPERRTECHNIK GMBH shall only be liable if WEMAS ABSPERRTECHNIK GMBH has recognised or grossly negligently failed to recognise that there was no defect.
8.6 If the supplier does not fulfil their obligation for subsequent performance - at the discretion of WEMAS ABSPERRTECHNIK GMBH by eliminating the defect (rectification) or by delivering a defect-free item (replacement delivery) - within a reasonable period of time set by WEMAS ABSPERRTECHNIK GMBH, WEMAS ABSPERRTECHNIK GMBH can eliminate the defect themselves and demand compensation from the supplier for the necessary expenditure or a corresponding advance payment. If the supplementary performance by the supplier has failed or is unreasonable for WEMAS ABSPERRTECHNIK GMBH (e.g. due to particular urgency, endangerment of operational safety or the threat of disproportionate damage), no deadline needs to be set; WEMAS ABSPERRTECHNIK GMBH shall inform the supplier of such circumstances immediately, if possible in advance.
8.7 Otherwise, WEMAS ABSPERRTECHNIK GMBH shall be entitled to reduce the purchase price or withdraw from the contract in the event of a material defect or defect of title in accordance with the statutory provisions. In addition, WEMAS ABSPERRTECHNIK GMBH shall be entitled to compensation for damages and expenses in accordance with the statutory provisions.
9. Supplier regress
9.1 WEMAS ABSPERRTECHNIK GMBH is entitled to the legally determined recourse claims of WEMAS ABSPERRTECHNIK GMBH within a supply chain (supplier recourse according to §§ 478, 479 BGB) without restriction in addition to the claims for defects. In particular, WEMAS ABSPERRTECHNIK GMBH shall be entitled to demand from the supplier exactly the type of subsequent performance (repair or replacement) that WEMAS ABSPERRTECHNIK GMBH owes their customer in the individual case. The legal right of choice of WEMAS ABSPERRTECHNIK GMBH (§ 439 para. 1 BGB) is not restricted by this.
9.2 Before WEMAS ABSPERRTECHNIK GMBH recognises or fulfils a claim for defects asserted by their customer (including reimbursement of expenses in accordance with §§ 478 paragraph 3, 439 paragraph 2 BGB), WEMAS ABSPERRTECHNIK GMBH shall notify the supplier and request a written statement with a brief description of the facts. If the statement is not made within a reasonable period of time and if no amicable solution is brought about, the claim for defects actually granted by WEMAS ABSPERRTECHNIK GMBH shall be deemed to be owed to their customer; in this case, the supplier shall be responsible for providing proof to the contrary.
9.3 The claims of WEMAS ABSPERRTECHNIK GMBH arising from supplier recourse shall also apply if the goods have been further processed by WEMAS ABSPERRTECHNIK GMBH or one of their customers before being sold to a consumer, e.g. by installation in another product.
10. Producer liability
10.1 If the supplier is responsible for a product damage, they must indemnify WEMAS ABSPERRTECHNIK GMBH from third party claims to the extent that the cause is within their area of control and organisation and they are liable themselves in the external relationship.
10.2 Within the scope of their obligation to indemnify, the supplier must reimburse WEMAS ABSPERRTECHNIK GMBH for expenses in accordance with §§ 683, 670 BGB (German Civil Code), which arise from or in connection with a third-party claim, including recall actions carried out by WEMAS ABSPERRTECHNIK GMBH. WEMAS ABSPERRTECHNIK GMBH shall inform the supplier - as far as possible and reasonable - about the content and scope of recall measures and give the supplier the opportunity to comment. Further legal claims shall remain unaffected.
10.3 The supplier must take out and maintain product liability insurance with a lump sum coverage of at least EUR 1 million per personal injury/property damage.
11. Limitation period
11.1 The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise provided for below.
11.2 Notwithstanding § 438 paragraph 1 No. 3 BGB, the general limitation period for claims for defects is 3 years from the passing of risk. If acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year period of limitation also applies accordingly to claims arising from defects of title, whereby the statutory period of limitation for real claims for surrender by third parties (§ 438 paragraph 1 No. 1 BGB) remains unaffected; furthermore, claims arising from defects of title do not become time-barred under any circumstances as long as the third party can still assert the right - in particular in the absence of a period of limitation - against WEMAS ABSPERRTECHNIK GMBH.
11.3 The statute of limitations of the right of purchase including the above extension shall apply - to the statutory extent - to all contractual claims for defects. Insofar as WEMAS ABSPERRTECHNIK GMBH is also entitled to non-contractual claims for damages due to a defect, the regular statutory period of limitation (§§ 195, 199 BGB) shall apply, unless the application of the limitation periods of the law of sale leads to a longer limitation period in individual cases.
12. Choice of law and place of jurisdiction
12.1 These GPC and all legal relations between WEMAS ABSPERRTECHNIK GMBH and the supplier shall be governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The prerequisites and effects of the reservation of title are subject to the law of the respective storage location of the item, insofar as the choice of law made in favour of German law is inadmissible or ineffective.
12.2 If the supplier is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising from the contractual relationship is the place of jurisdiction of WEMAS ABSPERRTECHNIK GMBH in 59469 Arnsberg. However, WEMAS ABSPERRTECHNIK GMBH shall also be entitled to file suit at the place of performance of the delivery obligation.
13.1 The supplier guarantees that the goods are free of defects in accordance with the agreed specifications and material suitability for the intended use. If the supplier is not aware of the intended use, this must be requested from WEMAS ABSPERRTECHNIK GMBH immediately.
13.2 The supplier undertakes to check the contractual objects for defects before delivery.
13.3 The defective deliveries must be replaced immediately within a reasonable period of time by goods free of defects. If the defect is not remedied within a reasonable period of grace granted to the supplier, WEMAS ABSPERRTECHNIK GMBH shall be entitled to claim damages.
13.4 All costs arising from rectification of defects shall be borne by the supplier.
13.5 The limitation period for claims arising from material defects is 36 months after the transfer of risk.
14.1 Tools that have been manufactured by the supplier for the order become the (co-)ownership of WEMAS ABSPERRTECHNIK GMBH upon payment and must be identified as such. Upon request, these tools must be handed over to WEMAS ABSPERRTECHNIK GMBH.
14.2 The supplier shall bear the costs for the maintenance, repair and replacement of the tools.
14.3 The documents provided by WEMAS ABSPERRTECHNIK GMBH (e.g. drawings, models, samples) may neither be duplicated nor made available to third parties. These documents must be sent to WEMAS ABSPERRTECHNIK GMBH after completion of the order.
15.1 With regard to liability for personal injury, property damage and financial loss resulting from the execution of the order, the supplier must ensure that there is sufficient insurance cover for the reason and the amount and must provide proof of this on request.
15.2 The liability of the supplier is not limited in amount by the conclusion of an insurance policy.
If one of the aforementioned provisions of these General Terms and Conditions of Purchase becomes invalid for any reason, the remaining provisions shall retain their full legal validity.
(Status: March 2016)
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