Terms and conditions
Terms of Trade and Delivery for merchants
- Last revised in February 2012 -
Section 1 - General
The following Terms of Trade and Delivery shall apply exclusively for all deliveries and services, whether now or in the future, even if future transactions do not expressly make reference to them or even if the Buyer uses other terms. The Buyer's Terms of Trade shall not be included in this Contract.
Section 2 - Subject matter of the Contract
1. Our products (cables and wires) may only be used for applications specified in the Association of German Electrical Engineers' [VDE] guidelines and in our product data sheets. The technical information on our products (composition, dimensions, weights etc.) is also set out in the Association of German Electrical Engineers' guidelines and in the product data sheets.
The Supplier's product data sheets may be examined on the Internet at the following address: www.waskoenig.de or they will be forwarded by the Supplier at the specific request of the Buyer.
It should be pointed out that the details in the Supplier's product data sheets are only descriptive details. No guarantee is provided.
Any agreement regarding product properties, features or applications which deviate from the specifications in the Association of German Electrical Engineers' guidelines and in the product data sheets published by the Supplier shall require express confirmation by the Supplier.
2. The Supplier reserves the right to change the dimensions and/or weights of cables and wires, if this shall be necessary for manufacturing reasons or for reasons relating to the supply of raw materials and if the Buyer can be reasonably expected to tolerate this. This shall also apply, where appropriate, to the composition of cables and wires. Furthermore, the Supplier reserves the right to supply up to 10% of orders in lengths that deviate from the norm (shorter or longer lengths), if this is necessary for manufacturing reasons and if the Buyer can be reasonably expected to tolerate this.
3. The Supplier shall also be entitled to deliver by instalments, if the Buyer can be reasonably expected to accept this.
Section 3 - Returns
If returns of ordered goods are accepted in special cases, the Buyer shall bear all costs associated therewith, including, but not limited to, the following: Any losses incurred when reselling the returned goods, storage costs, KTG costs, shipping costs, etc.
Section 4 - Prices
1. The prices specified in quotations submitted by the Supplier shall not be binding. Only contractually agreed prices shall be binding.
2. If the agreed pricing does not include metal (hollow material or basic price), a metal surcharge shall be added to the contract price. This surcharge shall be based on the German electrolyte copper price for conductor material, the aluminium price or the lead price based on the standard industry metal pricing plus procurement costs.
3. Metal pricing specified in quotations shall not be binding. The prices published on the day after order confirmation shall be binding instead.
4. All prices shall be ex works and shall not include packaging and shipping.
5. All prices shall be exclusive of statutory VAT.
Section 5 - Payments
1. The invoices issued to the Buyer by the Supplier shall be payable immediately.
2. In the event of payment default by the Buyer, the Supplier shall be entitled not to provide agreed deliveries and services until such time as either the default is eliminated or else an appropriate guarantee is provided by the Buyer or by a third party on behalf of the Buyer.
3. The Buyer shall be entitled to offset counterclaims only if they have been acknowledged or are legally enforceable.
4. Should the Supplier become aware of circumstances which give rise to serious doubts about the Buyer's solvency or creditworthiness, then the Supplier shall be entitled, regardless of the agreed credit period, to make all outstanding invoiced amounts (whether deferred or not) immediately payable and to make further deliveries to the Buyer subject to advance payments or the provision of valuable security.
5. All accounts receivable must be covered by a corresponding credit line which W+W applies for with a credit insurance of their own choice, at any time. Should the credit line be insufficient the supplier shall be entitled to make any amount exceeding the respective credit line become due at once or demand advance payment. This applies especially for the case that the credit insurance company reduces or cancels the credit line.
Section 6 - Bearing of risk
1. All deliveries are ex works.
2. The goods are shipped to the delivery address by a forwarder only after a separate order from the Buyer.
3. If we pay transport costs on behalf of the Buyer, such costs will be included in the price.
Section 7 - Reservation of title
1. The Supplier shall retain title to the goods up to full payment of all present and future outstanding accounts from the business connection, including ancillary claims and claims for compensation.
2. The reservation of title shall also remain in force even if individual outstanding accounts of the Supplier are included in a current account and the balance is drawn and credited.
3. If goods subject to the ownership reservation are processed by the Buyer into a new movable object, then the processing shall be carried out for the benefit of the Supplier, without any obligation being incurred by the Supplier. The new object shall become the property of the Supplier. In the event of processing, mixing or combination with goods that do not belong to the Supplier, the Supplier shall acquire joint ownership in the new object in the proportion that the invoice amount of the goods subject to ownership reservation bears to the total value.
4. The Buyer shall only be entitled to resell, to reprocess or to install the reserved goods subject to the following terms and subject to the condition that the outstanding accounts are actually assigned to the Supplier in accordance with the following terms.
5. a) The Buyer hereby assigns to the Supplier the title with all subsidiary rights from the resale of the reserved goods - including possible balance claims.
b) If the goods have been processed, mixed or combined and if the Supplier has acquired joint ownership to the extent of his invoice amount, he shall be entitled to a purchase price claim pro rata to the value of his rights to the goods.
Should the Buyer acquire claims for wages against third parties from the processing of the reserved goods, he shall assign these now to the Supplier in the sum of the invoice amount for the reserved goods, together with all ancillary rights.
c) If the Buyer has sold the title on a genuine factoring basis, then the Supplier's claim shall become immediately payable and the Buyer shall assign the claim arising against the factor to the Supplier and shall immediately pass on his sale proceeds to the Supplier.
d) The Supplier shall accept the aforesaid assignments.
6. The Buyer shall be entitled to collect the assigned claims so long as he fulfils his obligations to pay. The entitlement to collect shall expire with revocation, but at the latest in the event of payment arrears by the Buyer or substantial deterioration in the financial circumstances of the Buyer.
In this case, the Supplier shall be hereby authorised by the Buyer to inform the purchasers of the assignment and to collect the outstanding claims himself.
7. If the value of the guarantee provided for the Supplier should exceed all the outstanding accounts by more than 20 per cent, the Supplier shall be obliged, when requested by the Buyer or by a third party adversely affected by the Supplier's additional protection, to release guarantees of his choice for the excess amount.
8. The pledging or mortgaging of the reserved goods or the assigned claims are forbidden. The Supplier is to be immediately notified of any pledges and details of the pledgee.
9. The Supplier may obtain satisfaction by sale in the open market of any returned reserved goods.
Section 8 - Deadline for deliveries
1. The observance of deadlines for deliveries shall be dependent upon the prompt arrival of materials and receipt of releases, in particular of plans, as well as the observance of the agreed payment terms and other obligations by the Buyer. If these prerequisites are not fulfilled in good time, then the deadlines shall be extended appropriately; this shall not apply if the Supplier is responsible for the delay.
2. Acts of God, riots, strikes, lock-outs, unforeseen shortages of raw materials, lack of correct or punctual self-supply and work stoppages caused by outside influences shall automatically extend an agreed delivery date by their durations.
3. If there is a delay on the part of the Supplier, the Buyer may request, in addition to the delivery, compensation for any loss incurred through the delay; in the event of ordinary negligence by the Supplier, this claim shall be limited to a maximum of 5% of the agreed purchase price for that part of the delivery which could not be put into useful service due to the delay.
4. If the supplier is entitled to claim compensation instead of performance due to a delay on the part of the supplier, this claim shall be limited in the event of ordinary negligence on the part of the supplier or his agents to a maximum of 30% of the additional purchase price for that part of the delivery which could not be put into useful service due to the delay.
The claim for compensation instead of performance shall be limited in the event of ordinary negligence on the part of the supplier or his agents to a maximum of 30% of the purchase price for that part of the delivery which could not be put into useful service due to the delay.
5. The liability limitations envisaged in Sections 2 and 3 shall not apply if the Supplier is conclusively liable due to deliberate or grossly negligent breach of obligations.
The Supplier shall also be liable without limitation for damages culpably caused due to a violation of life, body or health according to the statutory requirements.
Section 9 - Packaging, KTG drums
1. Cable drums supplied by Kabeltrommel GmbH & Co. KG based in Cologne (KTG) (the "KTG cable drums") are delivered under KTG's conditions for providing cable drums (the "KTG conditions").
KTG drums can be recognised by the KTG logo. The order confirmation and the delivery note also specify any KTG drums supplied.
When KTG drums are delivered, KTG offers the recipient of the drums to enter into a contract with KTG under the KTG conditions. By accepting the KTG drum the recipient accepts this offer.
The KTG conditions can be viewed online at www.waskoenig.de and are available on request.
Please note that KTG drums are the property of KTG and the supplier provides said KTG drums on behalf of KTG. If the KTG drums are not returned on time, the buyer will have to pay rent to KTG.
The buyer shall commit itself to the supplier and – by way of a contract on behalf of a third party – also to KTG to always use KTG's conditions when providing cable drums to third parties.
For this purpose, the purchaser shall be obliged to include a binding and legally effective reference to the KTG conditions in its terms and conditions, quotations and order confirmations. The Buyer shall be obliged to explicitly and separately mention to a recipient of a KTG drum the clause contained in the KTG conditions requiring such recipient to pay rent to KTG following the expiry of the rent-free period. The Buyer shall also be obliged to explicitly and separately mention KTG's property rights.
2. Outer packaging" (e.g. panel boards, timber strips) as well as non-returnable packaging (e.g. crates, pallets, one-way drums) shall be charged separately to the Buyer and shall become his property.
If the Supplier delivers products to the Buyer on euro-pallets, then the Buyer undertakes to return to the carrier or haulier standard euro-pallets of the same value by way of exchange.
Section 10 - Obligation to notify defects
Obvious defects, the delivery of other items or the delivery of a short quantity must be immediately notified by the Buyer in writing, at the latest 7 days after receipt of the goods at the destination. Concealed defects should be notified in writing immediately and no later than 7 (seven) days after discovery of the faults.
Section 11 - Material defects/short quantities
The Supplier shall be liable for material defects as follows:
1. If the Buyer provides metals or if the Supplier has to deliver in accordance with the Buyer's drawings, specifications, samples etc., then the Buyer shall bear the risk that metals provided or the drawings, specifications, samples etc. that are made available, are suitable for the application envisaged.
2. In the event of the existence of a material defect, the delivery of another object or the delivery of a short quantity, the Supplier shall be liable for rectification, price reduction, cancellation, and reimbursement of expenses in accordance with legal provisions and to the extent of the law.
3. If the statutory requirements are met, the supplier shall also be liable for compensation instead of performance. In the event of merely a negligent breach of duty by the Supplier or his agents, the entitlement to receive compensation instead of performance shall be limited to the foreseeable losses that are typical for the Contract.
4. If other claims for compensation are substantiated due to material defects (other than compensation instead of performance), then the Supplier shall be liable according to the provisions of Section 12 of these terms.
5. Claims for material defects shall become statute-barred 12 (twelve) months from transfer of risk.
If there is compliance with the provisions of either Section 438 Para. 1 No. 2 of the German Civil Code (buildings and goods which have been used in accordance with their customary manner of use for a building), or Section 479 Para. 1 of the German Civil Code (claim under a right of recourse for the purchase of consumer goods) or Section 634 a Para. 1 No. 2 of the German Civil Code (construction defects), then the legally prescribed, longer deadlines shall apply.
6. Consequential or other claims by the Buyer against the Supplier or his agents due to a material defect shall be excluded.
Section 12 - Other claims for compensation
1. We shall be liable in accordance with legal provisions and to the extent of the law,
- for all violations to life, body and health and
- under the German Product Liability Law and
- in the event of fraudulent deception, particularly fraudulent concealment of material defects and
- with the assumption of a guarantee for the composition of the object and
- in the event of deliberate or grossly negligent causation of the loss, even by agents.
2. We shall be liable in accordance with legal provisions
- if we have expressly or conclusively assumed a qualified position of trust with regard to the avoidance of the sustained loss
- if and in so far as a disclaimer of liability or a limitation of liability should deviate irreconcilably from important legal principles and
- if and in so far as a breach of duty should be so significant that it puts at risk the attainment of the purpose of the contractual relationship.
In such cases our liability shall be limited to the foreseeable losses that are typical for the Contract.
3. If a loss should occur as a consequence of simple negligence, without there being a case under Items 1 and 2, and if the loss should not be founded on default, claims for compensation due to a breach of duty and claims for compensation due to violation of the obligation to take into consideration the interests, rights and legal assets of the Buyer shall be excluded.
In this case we shall also not be liable in the event of minor or gross negligence for compensation instead of performance or the reimbursement of unnecessary expenses unless the claim relates to material defects for which we are liable under Section 11 Items 2 and 3 of these terms.
Section 13 - Place of performance and place of jurisdiction
1. The place of performance for all services shall be the Supplier's registered office.
2. For both parties, the place of jurisdiction shall be Cloppenburg.
Section 14 - Applicable law
German law applies for the contractual relations to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Section 15 - Concluding provisions
The remaining sections of these Terms of Trade and Delivery shall remain binding even in the event of the legal invalidity of individual points.