General terms and conditions of sale, delivery and payment of the Westfälische Rohrwerke GmbH for contractors
§ 1 General
a) These general terms and conditions of sale, delivery and payment (hereafter: Sales Conditions) apply only to persons who, upon concluding the contract, are exercising their commercial or independent professional activity (contractors) and to legal persons from the public and special funds under public law.
b) These Sales Conditions are legally binding for all legal transactions between the Westfälische Rohrwerke GmbH (hereafter: WRW) and their contract partners and they apply exclusively. These conditions come into effect with the acceptance of goods/services from WRW by the contract partner at the latest.
c) They also apply to any future business relationships, even when the involvement has not been expressly agreed upon again and/or if its validity was not pointed out separately.
d) Conflicting or contrary terms of the contract partner will not be accepted by WRW. The involvement of such terms and conditions are expressly disclaimed. These also do not apply if WRW, in knowledge of conflicting or contrary terms and conditions of the contract partner, fulfilled their obligations from the respective contracts without reservation and/or accepted the contract partner’s services without objection. Conflicting or varying terms and conditions of the contract partner only apply if WRW has expressly agreed to their validity in writing.
§ 2 Conclusion of contract
a) Offers from WRW are non-binding and subject to confirmation. This applies in any case provided the offer does not explicitly state otherwise and/or something else has been expressly agreed upon in writing.
b) If an order directed at WRW is classified as an offer according to § 145 of the German Civil Code (BGB), WRW is entitled to accept this offer within a period of four weeks. However, a contractual relationship only comes into being if WRW confirms the conclusion of the contract in writing or if the implementation of the commissioned work has already begun.
c) All agreements that are made between WRW and the contract partners are to be made in writing. Changes and additions to existing contracts must also be in written form in order to be legally effective. The written form requirement can only be reversed by a written agreement between the contract parties.
d) Illustrations, drawings, measures, weights, calculations and other documents/information are only binding if the parties have explicitly agreed on these in writing. WRW reserves the ownership rights /copyrights regarding theses documents. The contract partner is expressly prohibited to pass these documents to third parties or make them accessible to them, especially if they have been classified as “confidential“. Passing on information requires the written consent of WRW.
e)Unless otherwise stated in the order confirmation and/or WRW’s order, the indicated prices apply ex factory in Ahlen or the supplier, plus statutory sales tax. The costs for normal packaging are included. Otherwise the indicated prices do not include costs for additional packaging, freight, loading and unloading, transportation, insurance, assembly and start up. These items will be charged additionally.
f) All prices are quoted in Euro.
g) Insofar as no other arrangements have been made between the parties, WRW is bound to the offer/offer price for 30 days from the date of the offer.
h) Should cost reductions or cost increases arise after the contract has been concluded, WRW is entitled to adjust the agreed upon price. This also applies especially to price changes of material.
§ 3 Payment
a) Unless otherwise agreed upon by the parties, all invoices from WRW are to be paid after completion of the service to be provided without deduction within 14 days after the invoice has been issued.
b) WRW is entitled to initially charge contract partner payments to older contract partner debts. WRW will inform the contract partner promptly as to the type of charge to be made.
c) A payment is considered successful when WRW can dispose of the amount freely. In the case of payment by way of cheque a payment is considered successful when the cheque is deposited.
d) If the contract partner is late in making a payment, WRW is authorised to demand interest from the respective point in time onwards of 9 percent above the base interest rate. A lower interest rate is to be applied if the contract partner proves the burden to be less. WRW is permitted to prove higher damages due to delay.
e) If WRW becomes aware of circumstances that wake reasonable doubt as to the credit worthiness of the contract partner, so is WRW entitled to make the remaining debt payable and due. Furthermore, WRW can demand advance payments and/or the financial guarantee.
§ 4 Delivery
a) If WRW has specified delivery times, these are always not binding. Something else applies only if the parties have expressly agreed on a binding time of performance in writing.
b) As a rule the delivery takes place at the risk of the contract partner independent of the type and location of dispatch. The risk passes from WRW to the contract partner when the goods have been transferred to the transportation company/ person executing transportation. Anything else applies only if the parties have expressly agreed upon it beforehand in writing.
c) The transportation insurance costs are to be paid by the contract partner, in so far as he desires the conclusion of an insurance policy. The same applies if, upon request by the contract partner, the shipment should be insured for theft, fire, breakage, water damage and other insurable damages.
d) If, due to higher powers or unforeseeable circumstances that are not WRW’s responsibility (for example, insurrection, strike, interruption of operations for which we are not responsible, lock-out, etc) service delays occur, the agreed upon delivery period extends for the length of the interruption plus a reasonable start-up period. The same applies to an untimely delivery by a supplier from WRW.
e) In the case of a service delay which is not the responsibility of WRW, the contract partner can, after the fruitless expiry of the grace period of at least three weeks, withdraw from the not yet fulfilled portion of the contract, The grace period must be set in writing by registered mail. The grace period begins when the grace period setting has been received.
f) In the case of other service delays the contract partner is entitled to withdraw from the contract of he arranged a reasonable delivery deadline beforehand with WRW and this deadline expired unsuccessfully. The contract partner is only entitled to compensation claims if the delay is based on intent or gross negligence on the part of WRW.
g) WRW is entitled at any time to partial deliveries and partial services unless the contract partner is not interested in partial deliveries/partial services. WRW has the right to charge every partial delivery separately.
h) The punctual and proper fulfilment of obligations by the contract partner is expected in observing the delivery and delivery obligations.
i) If the contract partner defaults on acceptance then WRW has the right to demand compensation for the incurred damages. With the commencement of default of acceptance the risk of the accidental loss/accidental deterioration is passed onto the contract partner.
j) If WRW is obliged to take back packaging in accordance with the packaging law regulations, it is agreed that the costs incurred in this respect for taking back and recycling the corresponding packaging shall be borne by the contractual partner. The place of return of the corresponding packaging shall be the registered office of the contractual partner. In addition, the contractual partner undertakes to determine the place of return for end consumers who are entrepreneurs as prescribed and to bear the costs of taking back and recycling. Should these end consumers approach WRW directly, the contractual partner shall be obliged to indemnify WRW against any costs incurred in this respect.
§ 5 Warranty
a) The emergence of any warranty rights requires that the commercial contract partner inspects the goods delivered from WRW immediately after receiving them for any defects and notifies WRW of visible defects immediately and/or in the case of hidden defects as soon as they are discovered. If the contract partner neglects to make the necessary defect notification the goods are considered approved. Any warranty rights are then excluded.
b) As a rule, the contract partner’s warranty rights become time-barred in 12 months. The time period begins with the delivery of the goods. However, contrary to the foregoing condition, the legal limitation period, if building law or delivery item law that is used according to their usual manner of use for a building prescribes a longer statute of limitations. Also, the legal statute of limitations applies in regard to any contract partner damage claims due to damage to life, limb, health or other damages based on the intent or gross negligence of WRW.
c) There are no warranty rights if the defects are caused by the contract partner not complying with WRW’s operating or maintenance instructions and this non-compliance has become the cause of the resulting defect. The same applies if the defect can be ascribed to faulty assembly and/or start-up of operations by the contract partner themselves or a third party. Moreover, if changes have been made to products, parts replaced or consumable material used that does not correspond with WRW’s specifications, unless there is no causal
connection between the defect and the changes initiated by the contract partner or the consumable materials used.
d) Natural wearing out and damages due to improper handling are also excluded from the warranty. In particular WRW is not liable for changes to the condition of their goods due to improper storage by the contract partner.
§ 6 Retention of title
a) WRW reserves the right of ownership and the right of disposal of the delivered goods until the complete settlement of all accounts arising from the business relationship with the contract partner. This also applies in relation to all accounts that have not yet come into existence.
b) Processing or reorganising always takes place for WRW as the manufacturer, however without any obligations for WRW. If the ownership of WRW expires through connecting/mixing, processing, then the parties agree already at this point that the contract partner’s ownership of the resulting item are transferred to WRW in proportion to the value of the goods (invoice value). The (joint) ownership of WRW will be kept by the contract partner free of charge.
c) The contract partner has the right to resell the goods delivered from WRW within the framework of proper business operations. The claims stemming from reselling are transferred to WRW already at this point, including any additional rights and security interest. Also, claims from other legal grounds concerning the goods under retention of title will be transferred to WRW. WRW accepts the transfer. The transferred claims serve to secure WRW’s claims towards the contract partner in the amount of the sold goods under retention of title. Reselling before the complete settling of all accounts is not permitted, if, in regard to the prior transferred claims to WRW, an assignment prohibition has been and/or will be agreed upon with the third party.
d) The contract partner is authorised by WRW to collect claims transferred to WRW within the framework of proper business transactions in their own name and on their own account. This authorisation can be revoked if the contract partner does not comply with his payment obligations properly. The authorisation to collect the transferred claim expires if insolvency proceedings have been opened in court or outside of court or if there are cheque or bill protests.
e) The contract partner is prohibited from pawning the goods under retention of title or to transfer it as a surety to third parties. In the case of third party access to the goods under retention of title, especially in the case of pawning the goods under retention of title, the contract partner will indicate WRW’s ownership and inform WRW immediately. The contract partner is liable for out of court costs and court costs, especially for the costs of an inevitable lawsuit in accordance with § 771 ZPO.
f) The contract partner is obliged to treat the goods under retention of title with care. WRW is authorised to insure the delivered goods under retention of title at the expense of the contract partner against fire, water, theft and other damages. This does not apply of the contract partner has already concluded equivalent insurance. The contract partner must verify the conclusion of insurance to WRW at WRW’s request.
g) If payment is delayed WRW is authorised to take back the delivered goods under retention of title if WRW has already made unsuccessful payment reminders. The contract partner is then obliged to surrender to goods under retention of title. The enforcement of title retention and/or the surrender claim as well as the pawning of goods under retention of title by WRW is not regarded as intention of resignation.
h) WRW has the right to withdraw from the contract if the contract partner has initiated insolvency proceedings. In this case WRW can demand the immediate return of the goods under retention of title.
§ 7 Nondisclosure
Unless something else has been expressly agreed upon in writing the information distributed together with the orders is not considered confidential.
§ 8 Liability
Unless stated otherwise in these provisions WRW is liable for damage claims and compensation of wasted expenses according to § 284 BGB on account of a violation of contractual and non-contractual obligations only in the case of intent or gross negligence by our statutory representatives or by agents employed in the performance of our obligations, in case of fatal injury, physical injury or impairment to health, on account of the assumption of a guarantee or a procurement risk, the violation of essential contract obligations, based on mandatory liability in accordance with the German Product Liability Act or other mandatory liability. However, the damage claim for violating essential contract obligations is limited to contract typical, foreseeable damages insofar as there is no liability for intent or gross negligence by statutory representatives or agents employed by WRW or on account of fatal injury, physical injury or impairment to health, or the assumption of a guarantee or a procurement risk. A change to the burden of proof to the disadvantage of the contract partner is not connected.
§ 9 Place of fulfilment and court of jurisdiction
a) The place of fulfilment for delivery and payment is the WRW company headquarters in Ahlen.
b) Insofar as the contract partner is a businessperson according to HGB, a legal person governed by public law or public service special funds, the exclusive court of jurisdiction for disputes arising from the contractual relationship is the WRW company headquarters in Ahlen. However WRW also has the right to file a lawsuit against the contract partner in their general court of jurisdiction or the court of jurisdiction of the contract partner’s place of business.
§ 10 Governing law
The legal relationship between the parties is determined exclusively by the laws of the Federal Republic of Germany with the exclusion of the validity of the UN purchasing law.
§ 11 Protective clause
Should individual provisions of this contract be ineffective or unenforceable, the effectiveness of this contract is not otherwise affected thereby. The parties are obliged to replace the unenforceable provisions with such that most closely reflect the economic intentions of the parties. The same applies if the sales conditions are completely or partially ineffective. The other sales conditions also remain effective here.
Westfälische Rohrwerke GmbH
Tel. +49 2382 76008-0
Fax +49 2382 76008-29