General Terms and Conditions
I. Scope and Contracting
I. Scope and Contracting
The following General Terms and Conditions shall apply to all including future agreements, distributions and other services as far as a written agreement with the customer does not stipulate something different. The customer acknowledges these General Terms and Conditions by placing the order or accepting the delivered goods. This shall also apply in case WAKO has not explicitly objected any contrary conditions.
Subsidiary arrangement, changes and amendments to these General Terms and Conditions by the customer have to be confirmed in written by WAKO in any case.
The offers made by WAKO are subject to change without notice. A contract with WAKO shall only be legally binding upon a written order confirmation or upon acceptance of the delivery the latest.
Force majeure or other unexpected impediments shall release WAKO from contractual obligation to deliver in due time for its term. This shall only apply if they are outside WAKO’s responsibility. The agreed terms of delivery shall be extended by the term of the disruption. Both parties shall be entitled to withdraw from the contract in case a disruption should continue for more than two months. Warranty claims by the customer shall be excluded in this respect. WAKO shall be entitled to amend the price accordingly if the events of the aforementioned nature should lead to a substantive increase of costs. The customer shall be entitled to withdraw from the contract if he refuses these increased prices.
The contract parties shall treat all commercial and technical details which are not obvious facts and which shall become known during the commercial relationship as business secrets.
WAKO shall be entitled to make deliveries in instalments. These must be paid as individual deliveries.
WAKO shall store the goods for customer’s own risk and account in case of a default of acceptance by the customer or if the customer should be responsible for the delay of acceptance otherwise. WAKO can withdraw from the contract after an unsuccessful expiration of an extended term for accepting the goods. Additional rights shall remain unaffected.
Terms of payment shall be agreed separately with the customer.
WAKO’s prices shall be ex factory. The customer shall pay for all shipping costs including packaging, transport costs and transport insurance as well as customs duties and the applicable VAT. The risk of the goods shall be passed to the customer by handing over the goods to the carrier. This shall also apply if the parties have agreed on a shipping free of transportation charges.
In case of a delay of payment the customer will be charged for a default interest of 8% above the current base lending rate (Basiszinssatz). This shall not effect the assertion of further rights.
In case of a breach of the payment obligations by the customer or in case of substantial deterioration of the financial situation of the customer which becomes know to WAKO after the conclusion of the agreement WAKO shall be entitled to complete outstanding payments only upon advance payment(s) by the customer or upon deposit(s). After an unsuccessful expiration of an extended term WAKO shall be entitled to partially or completely withdraw from the contract.
The customer shall not be entitled to deny payments based on not accepted or not finally and absolutely established counterclaims of the customer. A set-off by the customer shall be excluded.
IV. Reservation of ownership
WAKO reserves ownership title to the goods delivered by it until the customer has discharged all of its current and future obligations arising out of the business relationship including all additional costs. WAKO can enforce the obligation to return based on the reservation of ownership title in case of a delay of payment of the customer without fixing a deadline or declaration of withdrawal.
The customer shall be entitled to sell the goods delivered by WAKO in the ordinary course of its business. The customer herewith now assigns to WAKO a first-priority creditor right to its accounts receivable resulting from the resale of the goods subject to reservation of title or any other claim resulting from them. WAKO herewith now accepts such assignment. The customer shall be entitled to collect the assigned accounts receivables as long as it complies with its payment duties. The right to sell ends in case the customer terminates its payments.
The customer my neither pledge nor transfer the goods subject to reservation of title nor burden them with any other third party rights.
The customer shall provide to WAKO at any time all desired information about the goods subject to the reservation of title and on claims, which have been assigned to WAKO based on these General Terms and Conditions. The customer will immediately notify to WAKO any arrests by third parties to such goods subject to the reservation of title by providing the required documents.
Insofar as the value of the security granted exceeds the amount of the overall claims by more than 20%, the customer shall be entitled to demand a release from WAKO.
V. Warranty Claims for Defects
In case the goods delivered by WAKO should have a defect WAKO will on its own choice rectify the defects or deliver replacement goods according to the applicable legal provisions and the provisions in this section V. Claims based on defects shall only exist in the amount set forth in section VI of these General Terms and Conditions. All goods and parts that have been replaced shall be the property of WAKO.
The customer is obliged to analyse the delivered goods immediately upon receipt for defects. A warranty claim shall be excluded if the customer did not notify WAKO in written within eight days upon receipt of the goods about any objections of the delivery quantity and all defects that are identifiable within a due analysis. The same applies for objections of hidden defects that WAKO did not receive within eight days upon its discovery.
The limitation period for warranty claim for defects shall be one year following the delivery of the goods. Section 479 para 2 German Civil Code (BGB) shall remain unaffected.
VI. Damage Claims
WAKO shall only be liable for damages that were caused by intentional misconduct or gross negligence or as a result of a negligent violation of essential contractual obligations of WAKO or its legal representatives or its vicarious agents.
WAKO’s liability in case of negligence shall be limited to the amount of the typical and foreseeable losses resulting from comparable business activities that were foreseeable for WAKO at the time of the conclusion of the agreement or when committing the misconduct.
Damage claims based on the German Product Liability Act (Produkthaftungsgesetz) and based on the violation of life, body and health shall remain unaffected.
VII. Place of Performance, Place of Jurisdiction
The laws of Germany shall be exclusively applicable. The UN Convention on Contracts for the International Sale of Goods (CISG), the Uniform Commercial Code (Einheitliches Kaufgesetz) and the Uniform Contract Code (einheitliches Kaufabschlussgesetz) shall not apply
Place of Performance shall be Neuss. As far as the customer is a businessman (Kaufmann), a legal person according to public law or a special asset under public law the place of jurisdiction shall be Düsseldorf. However, WAKO may elect to sue the customer at any other place of legal jurisdiction.
In case individual provisions should be legally void this shall not affect the remaining provisions.