DELIVERY AND PAYMENT CONDITIONS
OF WERMA Signaltechnik GmbH + Co. KG
– Export –
1. Scope of validity
1.1. These delivery and payment conditions for export (export conditions) apply to all purchase contracts of WERMA Signaltechnik GmbH + Co. KG with purchasers whose relevant place of business is outside the Federal Republic of Germany. The location of the branch concluding the contract in its own name is always the relevant place of business.
1.2. These export conditions do not apply if the purchaser acquires the goods for personal use or for use within the family or household and we knew or ought to have known this at the time of conclusion of the contract.
1.3. These export conditions apply to all our offers and deliveries. They also apply to all future contracts with the purchaser, even if not explicitly and separately stipulated.
1.4. Contrary provisions or provisions deviating from the provisions of these export conditions in the purchaser's general terms and conditions only apply if we have expressly agreed their validity in writing (e.g. in hard copy or email).
1.5. If we and the purchaser agree upon provisions that deviate from the individual conditions of these export conditions, the validity of the remaining provisions of these export conditions remains unaffected.
2. Conclusion of contract, tender documents
2.1. Our offer is non-binding.
2.2. Illustrations and drawings related to our goods in brochures, advertising materials and price lists and the data contained therein, e.g. related to materials, dimensions and forms, are subject to amendments and errors unless these are expressly declared to be binding.
2.3. The documents related to the offer do not constitute a guarantee of quality and durability.
2.4. Our documents are only intended for the purchaser and must not be passed on to third parties without our agreement.
2.5. The purchaser is obliged to inform us prior to conclusion of the contract if the goods to be delivered are not intended to be suitable exclusively for normal use or are to be used under conditions which are unusual or which present a particular health, safety or environmental risk or which demand increased stress resistance, or if the contract may be associated with possible atypical damage or unusually large damages of which the purchaser is or should be aware.
2.6. The purchaser is bound to an order two weeks after we receive the order.
2.7. The contract takes effect either on submission of our order confirmation in written form (e.g. email or hard copy) or when the order is fulfilled, depending on which occurs first.
3. Changes and partial deliveries
3.1. We reserve the right to make changes to the goods for the purpose of technical improvement.
3.2. We shall be entitled to make partial deliveries and render partial services if this is reasonable for the purchaser and he has an objective interest in such a partial delivery arrangement.
4. Delivery periods and unavailability of goods or services
4.1. The delivery period is agreed individually or stated by us on acceptance of the purchase order. If this is not the case, the delivery period is 2 weeks from contract conclusion, subject to the following provisions.
4.2. Subject to the following clause (4.3), the delivery period begins when we send the order confirmation.
4.3. If the purchaser is obliged to obtain certain documents himself, such as permits, approvals etc., or to make a down payment or an advance payment, the delivery period begins at the earliest when we have received all documents that the purchaser must obtain or we have received the appropriate down payment or advance payment.
4.4. Depending on the agreed delivery type, the delivery period is satisfied if the goods have left the warehouse or we have prepared the goods for the purchaser and notified the purchaser that the goods are ready for shipment by the time the delivery period expires.
4.5. If we are unable to adhere to binding delivery deadlines for reasons beyond our control and which we could not have foreseen when the contract was concluded or which we cannot avoid or overcome (impediment), we shall inform the purchaser of this immediately and at the same time inform the purchaser of the estimated new delivery deadline. If the goods or services are still not available within the new delivery period, we are entitled to withdraw from the contract entirely or partially; we will promptly refund any payments already made by the purchaser. An impediment may be, in particular, the failure of our own suppliers to deliver to us on time despite the order having been placed in good time or if neither we nor our suppliers have any influence on the impediment.
4.6. The following, in particular, shall be deemed to be impediments in accordance with clause 4.5:
a) force majeure, such as mobilisation, war, terrorist acts, riots, epidemics or similar events (e.g. strikes or lockouts),
b) virus attacks and other attacks by third parties on the supplier's IT system, insofar as these were carried out despite ensuring the usual care taken with regard to protective measures,
c) hindrances resulting from German, US American and other applicable national, EU or international regulations of foreign trade law or due to other circumstances for which we are not responsible.
4.7. Statutory provisions determine when a breach of contract is deemed to exist in relation to a delayed delivery. The purchaser must always issue a warning containing a reasonable deadline.
4.8. In the event of a breach of contract due to a delay in delivery, our liability for damages for each completed week of the delay shall be limited to 0.5% of the net order value, but only up to a maximum of 5% of the net order value. In the cases mentioned above, if the purchaser claims damages in addition to cancelling the contract, this claim for damages is limited to 10% of the net order value. The limitations of liability according to sentences 1 and 2 above shall not apply in the case of wilful misconduct or gross negligence, or in the case of injury to life, body or health.
4.9. In the event of a partial delay or partial incapability to fulfil the commitment, the purchaser may cancel the entire contract and therefore claim damages only if the partial non-performance constitutes a material breach of contract.
5. Delivery and transfer of risk
5.1. FCA (Incoterms 2020) applies to deliveries from the warehouse at Rietheim-Weilheim, Germany. However, the risk is already transferred EXW (Incoterms 2020) to the purchaser. The risk is also transferred EXW (Incoterms 2020), i.e. when the purchaser is notified of readiness for dispatch, even if in that specific case we pay the dispatch costs or the transport the goods ourselves.
5.2. We will clear the goods for export.
5.3. If dispatch is delayed for reasons beyond our control, in particular at the request of the purchaser, the risk of the goods being made available and of receipt of the notification of readiness for dispatch shall pass to the purchaser; this shall also apply if a different delivery clause has been agreed. However, we are obliged to effect insurance as requested by the purchaser on the purchaser's request and at the purchaser’s expense. The payment obligation of the purchaser remains unaffected by this.
5.4. If shipment is delayed at the request of the purchaser, the purchaser will be charged the monthly storage costs at 0.1% of the price of the sold item beginning one month after notification of readiness for shipment.
5.5. If the goods are shipped on the purchaser's request, we will, in case of doubt, select the dispatch route and means of shipment without guaranteeing to use the cheapest shipment method.
5.6. Packaging is charged according to expenditure.
6. Prices, surcharges, payment terms
6.1. In deviation from clause 5.1 sentence 1, all prices are understood to be exclusive of statutory value added tax, packaging, and the costs to transport the goods.
6.2. We charge a surcharge of €6.00 plus sales tax on below-minimum order quantities for small orders with an invoiced value of goods of up to €30.00.
6.3. The purchase price must be paid to the account stated in the invoice without deduction or expenses within 30 days after the invoice date; payment is deemed to have been made when our account is credited. If advance payment has been agreed, the order will not be processed until payment has been received.
6.4. If the purchaser misses the payment deadline, he shall pay interest on arrears at a rate of 9 percentage points above the base interest rate of the European Central Bank as lump-sum compensation for damages. The parties to the contract reserve the right to prove that the damage was significantly higher or significantly lower.
6.5. Authorised signatories, sales agents, consultants and sales representatives have no authority to collect debts or agree deferrals.
6.6. Offsetting with counterclaims is only permitted if this is based on the same contractual relationship or has been determined to be legally binding or undisputed.
6.7. The purchaser is only entitled to withhold payments due to effective and outstanding counterclaims from the same contractual relationship.
7. Transfer of ownership, security for the purchase price
7.1. If cash payments or advance payments have been arranged, full ownership is transferred to the purchaser as soon as the commodity is delivered.
7.2. If no retention of title exists at the delivery destination in accordance with the following provisions, the purchaser shall provide us with another functionally equivalent means of security (e.g. a letter of credit or bank guarantee).
7.3. Insofar as a retention of title is recognised at the delivery destination, we shall retain ownership of the goods until the purchase price as described in clauses 6.1 and 6.2 (hereinafter referred to as "retained commodity") has been paid in full.
7.4. The purchaser shall be obliged to take all necessary measures to maintain this reservation of title or a functionally equivalent security interest recognised in the country of destination (purchaser's registered office). If the purchaser fails to comply with this obligation, this shall constitute a material breach of contract.
7.5. The purchaser is obliged to treat the retained commodity with care, and in particular to insure it at his own cost and at a sufficient replacement value against damage caused by fire, water and theft.
7.6. The purchaser must inform us promptly of seizure, confiscation, damage and/or loss of the delivered items; a breach of this obligation entitles us to cancel the contract. The purchaser bears all costs for the successful reclamation of seized goods and, where applicable, for the successful replacement of the retained commodity, insofar as this cannot be reclaimed by a third party.
7.7. If we have effectively cancelled the contract, we are entitled to take back the reserved commodity provided that we have issued a warning of the imminent reclamation and stipulated a reasonable time limit. The purchaser bears the costs incurred by exercising the right to reclamation, particularly transport costs. We are entitled to utilise the reclaimed reserved commodity and to satisfy our claim using the sales proceeds if we have issued a warning of the imminent sale beforehand and stipulated a reasonable time limit. If the proceeds exceed the outstanding receivables from the contractual relationship, the excess will be issued to the purchaser.
8. Inspection and notification of defects
8.1. The purchaser must inspect the goods and any documentation without delay after their acceptance or have them inspected.
8.2. Our liability for a lack of conformity of the goods and/or documents shall lapse, without the purchaser having recourse to an excuse in this respect, if the purchaser does not notify us of this lack of conformity in writing without delay, or at the latest within 7 working days (Saturday is not considered to be a working day) after the purchaser has or should have discovered it; the notification must describe the exact nature of the lack of conformity and this clause applies irrespective of the reasons given by the purchaser for failure to comply with these requirements. The notification of defects provided by the purchaser must have been sent by the purchaser within the aforementioned period; a further condition is that we actually receive this promptly dispatched notification of defects.
8.3. By carrying out negotiations regarding a complaint, we do not waive the objection relating to late, insufficient or unfounded notifications of defects.
8.4. In any case, the purchaser loses the right to invoke the lack of conformity of the delivery item if he does not give notice of the lack of conformity within 12 months after the delivery item has actually been handed over to him.
9. Lack of conformity of the goods
9.1. In the event of a lack of conformity of the goods or documents, we are entitled to remedy this, even after the agreed delivery period, by rectifying the problem or – in the event of a material breach of contract – by providing a replacement delivery. The right to refuse fulfilment of the order under the statutory conditions remains unaffected.
9.2. No breach of contract exists in the event of unsuitable or improper use or storage, faulty assembly or commissioning by the purchaser or third parties commissioned by him, natural wear and tear, faulty or negligent handling or maintenance with reference to the documentation, or chemical, electrochemical or electrical influences.
9.3. A replacement delivery or rectification of defects shall not result in any change to the start date of the period described in clause 8.4.
9.4. Claims due to supplier regress (particularly for installation and removal costs) are excluded, particularly if the defective goods have been further processed by the purchaser or another contractor, e.g. by installation in another product.
9.5. The purchaser must allow us the time and opportunity required for subsequent fulfilment; in particular he must hand over the rejected goods for inspection purposes. If, following a notification of defects by the purchaser, a lack of conformity of the delivery item cannot be confirmed, the purchaser shall reimburse us for the costs incurred in connection with the inspection of the delivery item.
9.6. In the case of a replacement delivery, the purchaser must return the defective goods to us in accordance with legal regulations.
9.7. If the purchaser has granted us a reasonable period of grace for performance of the contract and performance of the contract has not been effected within this period or has been unjustifiably refused by us, the purchaser shall be entitled to reduce the purchase price or – in the event of a material breach of contract – to demand cancellation of the contract. If we remedy the lack of conformity within a reasonable period of grace set by the purchaser, which must be at least six weeks, then no material breach of contract shall be deemed to have occurred.
9.8. The reduction of the purchase price is limited to the amount of the damage suffered by the purchaser.
9.9. Complaints regarding parts of goods and services do not entitle the purchaser to reject the remaining goods and services unless the purchaser is entitled to withdraw from the entire contract due to the defective partial service.
9.10. We shall be liable for damages due to lack of conformity of the goods only within the limits set out in clause 10.
10. Extent of liability
10.1. We assume unlimited liability for losses resulting from death, physical injury or harm to the health caused by a negligent breach of duty on our part or by an intentional or negligent breach of duty by our legal representatives or agents, and in the case of statutory liability without fault, particularly in compliance with product liability law and in the case of liability under a guarantee.
10.2. We are liable for other damages caused by intentional or grossly negligent breach of duty on our part or by an intentional or grossly negligent breach of duty by our legal representatives or agents. In this case, liability is limited to typical damages that were foreseeable at the time of contract conclusion.
10.3. In all other cases of liability, claims for damages due to the breach of a contractual obligation shall be limited to the amount of our insurance, which is EUR 20 million. If higher damages are to be expected, the purchaser shall notify us of this prior to conclusion of the contract in accordance with clause 2.5; in this case, we will take out higher insurance cover at the request and expense of the purchaser.
10.4. We are not liable for consequential damage, additional expenses, loss of profit or other financial losses incurred by the purchaser.
10.5. The limitation of liability in the event of delayed delivery according to clause 4.8 remains unaffected.
10.6. Our liability is excluded in all other cases.
10.7. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, representatives and other vicarious agents.
10.8. The terms “damages” or “claims for damages” in these export conditions also include claims for compensation for futile expenditure.
11. Contract adjustment
11.1. If events as referred to in clause 4.6. a) - c) substantially change the economic importance or the contents of the delivery or have a considerable effect on our business, the contract may be adapted appropriately and reasonably in good faith. If this is not economically justifiable, we have the right to withdraw from the contract. The same applies if required export licences are not granted or cannot be used. If we intend to make use of this right of withdrawal, we shall inform the purchaser of this immediately after recognising the implications of the event, even if an extension of the delivery time was initially agreed with the purchaser.
12. Limitation period
12.1. The statutory limitation period applies where statutory liability without fault applies, particularly in compliance with product liability law, and in the case of liability under a guarantee.
12.2. The statutory warranty period also applies to losses resulting from death, physical injury or harm to the health caused by a negligent breach of duty on our part or an intentional or negligent breach of duty by our legal representatives or agents, for other damages caused by intentional or grossly negligent breach of duty on our part or by an intentional or grossly negligent breach of duty by our legal representatives or agents and for damages caused by an intentional or negligent violation of major contractual obligations stipulated in the respective contract by us or our legal representatives or agents.
12.3. A limitation period of five years applies to buildings, to items that are used for buildings in accordance with their normal usage and have caused the defect, and to work whose performance consists in the provision of planning or supervisory services for a building.
12.4. The warranty period is one year in all other cases.
13. Deterioration of assets and credit rating
13.1. If a substantial deterioration of the purchaser’s financial position occurs after conclusion of the contract, the statutory provisions of the UN Convention on Contracts for the International Sale of Goods shall apply.
13.2. The same applies if we become aware of facts that give rise to reasonable doubt regarding the purchaser's solvency or credit rating after conclusion of the contract, unless the purchaser can prove that we were already aware of these facts at the time of conclusion of the contract.
14. Property rights
14.1. We are not liable for the violation of third-party property rights when delivering goods that we manufacture on the basis of drawings, models or other information provided by the purchaser. The purchaser must indemnify us against claims of third parties.
14.2. We guarantee that our goods do not violate any third-party property rights in Germany. If third-party property rights are violated, we are only liable in accordance with statutory provisions. Under no circumstances will we refund the purchaser for any loss of profits if third-party property rights are violated.
15. Place of performance, governing law and jurisdiction
15.1. The place of fulfilment for deliveries and payments is Rietheim-Weilheim, Germany.
15.2. The United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG) in the English language version shall apply exclusively to these export conditions and to the entire legal relationship between us and the purchaser. Legal issues that are not regulated by this agreement or cannot be settled according to its principles shall be governed by German law.
15.3. The place of jurisdiction for all disputes arising from the contractual relationship is Stuttgart. However, we can also assert claims in the legal place of jurisdiction of the purchaser.
16. Binding nature of the contract
16.1. In the event of individual points being legally ineffective, the other provisions of the contract remain valid. This does not apply if continued adherence to the contract would constitute unreasonable hardship for one of the parties.
WERMA tax number 21083 /05258