General Terms and Conditions of Delivery and Payment
WADRA GmbH
Tecklenborn 49
D-44143 Dortmund
T +49 231 51989-0
F +49 231 51989-39
Scope of validity
1. These terms and conditions of sale apply to corporate entities, legal entities under public law and special funds under public law.
Our deliveries and services are undertaken solely on the basis of the following terms and conditions.
Other party’s terms and condition shall not apply unless they have been expressly acknowledged by us.
General terms and conditions
2. The parties to the agreement shall confirm oral agreements in detail in writing without delay.
3. Orders shall not become binding until our order confirmation is issued.
4. The information and illustrations contained in prospectuses and catalogues are approximate values usual in the industry, unless expressly designated by us as binding.
Long-term and call-off agreements, price adjustment
5. Agreements without a time limit may be terminated at 3 months notice.
6. If in the case of long-term agreements (agreements with a term of more than 6 months and agreements without a time limit), labour, material or energy costs substantially change, either partner may ask for a price adjustment which takes these factors into consideration.
7. Unless a binding order quantity has been agreed, we base our calculation on the non-binding order quantity expected by the other party for a specific period of time (target quantity).
If the other party takes less than the target quantity, we may increase the unit price as appropriate. If it takes more than the target quantity, we shall reduced the unit price, if the partner has notified us of the additional requirement at least 3 months before delivery.
8. If call-off agreements have been reached, we must be notified of binding quantities by call-off at least 2 months before the delivery date, unless otherwise agreed.
Additional costs incurred due to delayed call-off or subsequent changes to the call-off with regard to time or quantity caused by the other party will be charged to the partner; here our calculation is decisive.
Confidentiality
9. Each party to the agreement shall use only for common purposes all documents (these include patterns, models and data) and knowledge to which it has become privy under the business relationship and, if the other party to the agreement has designated such documents and knowledge as confidential or has an obvious interest in keeping such documents and knowledge secret, exercise the same care in not making such documents and knowledge accessible to third parties as it would exercise in tha case of its own documents and knowledge.
This obligation shall take effect at the time at which the documents or knowledge are acquired for the first time and end 36 months after the end of the business relationship.
10. The obligation shall apply not only to documents and knowledge which are generally known or were already known to the other party to the agreement on receipt of the documents and in respect of which it was not bound to observe secrecy or which are thereafter communicated by a third party entitled to pass them on or which are being developed by the receiving party to the agreement without the exploitation of documents or knowledge belonging to the other party which are to be kept secret.
Drawings and specifications
11. If one party to the agreement makes available to the other drawings or technical documents on the goods to be delivered or their manufacture, such drawings and technical documents shall remain the property of the party to the agreement making them available.
Patterns and production equipment
12. The cost of manufacturing samples and production equipment (tools, moulds, templates, etc.) shall, unless otherwise agreed, be charged for separately from the goods to be supplied. This also applies to production equipment which have to be replaced because of wear.
13. The cost of maintenance and appropriate storage as well as the risk of damage to or destruction of the production equipment shall be borne by us.
14. If during the period when the patterns or production equipment are being manufactured the other party discontinues or terminates the collaboration, all manufacturing costs incurred up until that time shall be borne by him.
15. The production equipment shall remain in our possession at least until completion of the delivery agreement, even if the other party has paid for them. Thereafter the other party may demand the surrender of the production equipment, if a mutually agreeable ruling has been reached about the time of surrender and the other party has fulfilled in full his obligations under the agreement.
16. We shall keep the production equipment free of charge for three years after the last delivery to the other party. We shall then ask the other party in writing to state within 6 weeks its directions for further use. Our duty to keep the production equipment shall end, if within these 6 weeks no directions have been received or no new order is placed.
17. Purchaser-specific production equipment may be used by us for deliveries to third parties only with the prior written permission of the other party.
Prices
18. Our prices are in euros and do not include sales tax, packing, freight, carriage and insurance.
Terms and conditions of payment
19. All invoices are due for payment within 30 days from the invoice date.
20. If we have indisputably delivered partly defective goods, the other party shall nevertheless make payment for the defectfree part, unless the part delivery is not of interest to him. Otherwise the other party may set off only against legally effectively established or undisputed counterclaims.
21. If the target is exceeded, we may charge penalty interest at the rate which the bank sets for credits in current account but at at least 8 percentage points above the respective basic interest rate set by the European Central Bank.
22. In case of arrears of payment we may after written notice to the other party suspend performance of our obligations until payment is received.
23. Bills and cheques will be accepted only by agreement and only for the purpose of performance and only on condition that they are discountable. Discount charges will be applied from the date at which the invoice amount becomes due for payment. No guarantee can be made for the presentation of the bill and cheque in due time and for entering a bill protest.
24.
If after conclusion of the agreement it becomes evident that our payment claim is put at risk by the other party’s inability to perform, we may refuse performance and set the other party an appropriate period of time to pay for delivery contemporaneously or to provide security. If the other party refuses or the period expires without effect, we may withdraw from the agreement and demand indemnity.
Delivery
25. Unless otherwise agreed, we shall deliver “ex works”. The notice of readiness for despatch or collection shall be decisive for adherence to the delivery date or the period of delivery.
26. The period of delivery shall begin to run when our order confirmation is sent and shall be extended as appropriate if the conditions set out in section 55 apply.
27. Part deliveries may be made to a reasonable extent. They will be charged for separately.
28. Over- or underdeliveries caused by production shall be permitted within a margin of 10 per cent of the total quantity. The total price shall accordingly change proportionately.
Despatch and passing of risk
29. Goods which have been notified as ready for despatch must be accepted by the other party immediately. Otherwise, we may at our discretion despatch them or store them at the other party’s cost and risk.
30. Unless specifically agreed otherwise, we shall choose the means and form of transport.
31. The risk shall pass to the other party when the goods are handed over to the railway company, the forwarding agent or the carrier or when storage begins but at the latest when the goods leave the works or warehouse, even if we have undertaken to make delivery.
Delay of delivery
32. If we can foresee that the goods cannot be delivered within the delivery period, we shall without delay notify the other party in writing of the fact, notify it of the reasons and as far as possible specify the expected date and time of delivery.
33. If delivery is delayed due to any of the circumstances set out in section 55 or due to an act or omission of the other party, an extension of the delivery period appropriate to the circumstances shall be granted.
34. The other party may withdraw from the agreement only if we are responsible for non-adherence to the delivery date and it has set us a suitable further period which has expired without effect.
Reserve of title
35. We shall reserve title to the delivered goods until all claims arising from the business relationship with the other party have been met.
36. The other party may sell these goods in the ordinary way of business, if it fulfils its obligations under the business relationship with us in due time. However, it may neither pledge the goods subject o reserve of title or transfer title to them. It shall safeguard our rights against the event that the goods subject to reserve of title are resold on credit.
37. If the other party breaches its obligations, particularly by delay of payment, we may after expiry of an set period appropriate for the other party for performance withdraw from the agreement and take back the goods; legal requirements relating to dispensing with setting a period for performance shall not be affected thereby. The other party shall surrender the goods.
We may withdraw from the agreement, if an application is made to institute insolvency proceedings against the other party’s assets.
38. The other party shall assign now as security all and any claims and rights arising out of the sale or any lease allowed the other party of the goods to which we have title. We herewith accept the assignment.
39. The other party shall always undertake for us any processing or working of the goods subject to reserve of title. If the goods subject to reserve of title are processed or inseparably mixed with other materials not belonging to us, we shall acquire joint ownership to the new thing in the ratio of the invoice value of the goods to which title is reserved to that of the other processed or mixed materials at the time of processing or mixing.
If our goods are combined or inseparably mixed with other moveable objects to make a homogeneous thing and the other thing can be regarded as the principle thing, the other party shall transfer joint ownership to us proportionately to the extent that the principal thing belongs to him. The other party shall keep for us the goods owned or co-owned by us. The same applies to the thing created by processing or compounding or mixing as to the goods subject ot reserve of title.
40. The other party shall notify us without delay of any levy of execution against the goods subject to reserve of title, the claims assigned to us or other securities and hand over the documents necessary for an intervention. This applies also to impairments of other kinds.
41. If the value of the existing securities exceeds the secured claims altogether by more than 20 per cent, we shall at the other party’s request and at our discretion release securities proportionately.
Defects of quality
42. The nature of the goods is determined solely by the agreed technical delivery requirements. If we must deliver in accordance with the drawings, specifications, patterns, etc. of the other party, the other party shall accept the risk of fitness for the intended purpose. The time at which the risk passes in accordance with section 71 shall be decisive for the condition of the goods in accordance with the agreement.
43. We do not accept responsibility for defects of quality resulting from unsuitable or incorrect use, defective assembly or putting into operation by the other party or third parties, fair wear and tear or defective or negligent treatment or for the consequences of incorrect changes or repairs made by the other party or third parties or changes and repairs made by the other party or third parties without our approval. This also applies to defects which only slightly diminish the value or the fitness of the goods for purpose.
44. Unless otherwise agreed, limitation of claims arising from defects of quality shall be determined by the law.
45. If acceptance of the goods or initial sample inspection has been agreed, notification of defects which the other party could have identified by a careful acceptance procedure or initial sample inspection is excluded.
46. We must be given the opportunity to identify the defect of which we have been notified. Goods which are claimed to be defective must on request be returned to us without delay; we shall bear the cost of transport, if the notice of defect is justified. If the other party does not fulfil these obligations or without our approval makes changes to the goods already claimed to be defective, he shall lose any claims for defects of quality.
47. If the notice of defect is justified, we shall at our discretion make good the goods complained about or deliver a faultfree replacement.
48. If we do not fulfil these obligations or do not fulfil these obligations within an appropriate period of time and in accordance with the agreement, the other party may set us in writing a final period within which we must fulfil our obligations. If this period expires without effect, the other party may demand a reduction of the price, withdraw from the agreement or undertake the necessary repair itself or have the repair made by a third party at our cost and risk. A refund of cost is excluded, if the costs increase, because the goods have been taken to another place after we delivered them, unless this is in keeping with the correct use of the goods.
49. Other claims, liability
50. Unless otherwise stated in the following, other and further claims by the other party against us are excluded. This applies especially to indemnity claims for the breach of obligations arising from the contractual obligation and from tortious acts. We shall therefore not be liable for damage which is not sustained to the delivered goods themselves. Above all we shall not be liable for lost profit or other loss of assets by the other party.
51. The aforegoing liability limitations shall not apply in cases of premeditation, gross negligence by our legal representatives or senior employees and in the case of culpable breach of material obligations under the contract. In the event of culpable breach of material obligations under the contract we shall – except in cases of premeditation or gross negligence by our legal representatives or senior employees – be liable only for damage which is typical of agreements of this kind and could be reasonably foreseen.
52. The limitation of liability shall also not apply in cases in which under the law of product liability there is liability in the case of defects in the delivered goods for damage to persons or objects of private use. This shall also apply in cases of injury to persons or impairment of the health of persons and the absence of warranted qualities, if and in so far as the warranty had as its aim to safeguard the other party against damage not done to the delivered goods themselves.
53.
Exclusions and limitations of our liability shall also apply to the personal liability of our clerical staff, employees, colleagues, legal representatives, assistants and agents.
54. Legal requirements with regard to the burden of proof shall remain unaffected thereby.
Force majeure
55. Force majeure, industrial disputes, public disturbances, measures of local government, failure by our suppliers to make delivery and other unforeseeable, unavoidable and serious events release the parties to the agreement from their duties of performance for the duration of the disturbances and to the extent of their effect. This also applies if these occurrences occur at a time at which the party to the agreement concerned defaults, unless it has caused the default maliciously or through gross negligence. The parties to the agreement shall without delay provide the necessary information so far as is reasonably possible and in good faith accommodate their obligations to the changed circumstances.
Place of fulfilment, place of jurisdiction and law applying
56. Unless otherwise stated in the order confirmation, our place of business shall be the place of fulfilment.
57. the place of jurisidiction for any legal disputes, including those in respect of a summary procedure relating to bills of exchange or cheques shall be our place of business. We may also take legal action at the other party’s place of business.
58. Relations under the agreement are subject solely to the law of the Federal Republic of Germany.
The United Nations Convention of 11th April 1980 on Contracts for the Sale of Goods (CISG – “Vienna Sales Convention”) shall not apply.