Westfalenzinn J. Jost KG – General Terms of Sale and Delivery

General Terms of Sale and Delivery (GTSD)

  1. General provisions
  1. Partial deliveries shall be permitted insofar as they are reasonable for the customer.
  2. The Supplier reserves its unrestricted rights to ownership and exploitation of copyright in cost estimates, drawings and other documents. Such documentation may only be made accessible to third parties after prior consent by the Supplier and should the order not be placed with the Supplier it must be returned immediately on request. Sentences 1 and 2 shall apply mutatis mutandis to the customer’s documents; these may, however, be made accessible to third parties to whom the Supplier has rightfully subcontracted Deliveries.
  3. The GTSD shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become an integral part of the contract if and to the extent that the Supplier has specifically agreed to their validity in writing. All agreements relating to proposed or already concluded transactions shall require the written form to become effective. Undertakings and side agreements from or with the Supplier shall require the written form to become effective.
  4. Mutual written declarations shall be decisive with respect to the scope of supplies or services (hereafter: Deliveries). In addition, the GTSD shall apply to all business relationships of the supplier or service provider (in the following: Supplier) with the customer.
  1. Quotations
  1. Quotations made shall not be binding and shall be subject to change without notice regarding delivery time and delivery quantity.
  2. The order of goods by the customer shall be considered the binding contractual offer, provided that the order or other agreements do not differ from the quotation.
  1. Prices and payment conditions
  1. Unless otherwise agreed in writing, the prices shall be ex-works excluding packaging and subject to the addition of the relevant applicable sales tax.
  2. The Supplier’s invoices shall be payable within 10 days at 2 % discount or within 30 days after receipt of invoice (due date) net without deductions. The customer shall be in delay after expiry of the above due payment period. During such delay the price shall attract interest at the applicable statutory default interest rate. The Supplier reserves the right to claim for further damages caused by such default.
  3. The customer shall only be entitled to set off those claims that are uncontested or have been legally established.
  1. Reservation of ownership
  1. The Supplier reserves the right of ownership to the goods sold until full payment of all current and future claims of the Supplier from the contract and an ongoing business relationship (secured claims). Should the value of all security rights to which the Supplier is entitled exceed the amount of all secured claims by more than 10 %, the Supplier shall at the request of the customer release a part of its security rights.
  2. For the duration of the retention of title the customer shall not be entitled to any transfer of security or pledging and resale shall only be permitted for resellers in the ordinary course of business and only on condition that the reseller receives payment from its customer or reserves the right that the property only passes to such customer if it meets its payment obligations.
  3. The customer shall notify the Supplier without delay in the event of seizures, confiscations or other disposals or interventions by third parties.
  4. In the event of breaches of duty by the customer, especially default in payment, following the fruitless expiry of a reasonable period of time to the customer for performance the Supplier shall be entitled to rescind the contract and recover the goods; this shall not affect the statutory provisions on waiving a period of grace. The customer shall be obliged to return said items.
  1. Delivery deadlines; delay
  1. The observance of delivery times shall be subject to timely receipt of all documents, necessary permits and approvals to be supplied by the customer plus adherence to the agreed payment terms and other customer obligations. Should these prerequisites not be fulfilled on time, the deadlines shall be extended appropriately; this shall not apply if the Supplier is responsible for the delay.
  2. The deadlines shall also be extended appropriately if non-compliance with such deadlines be due to force majeure such as mobilisation, war, rebellion or similar events, e.g. strike or lock-out.
  3. Should the Supplier be in delay, the customer may – provided it substantiates it and has suffered a loss – require compensation of 0.5 % for each complete week of delay, but not more than 5 % of the price for the part of the deliveries that could not be taken into proper service because of the delay. The Supplier shall retain the right to prove that the amount of damage was lower.
  4. All customer claims for damages due to delayed delivery plus claims for damages in lieu of performance that exceed the limits specified in No. 3 above shall in all cases of delayed delivery be excluded, even after the expiry of a time limit set for the Supplier to make delivery. This shall not apply in cases where liability is mandatory, such as cases of wilful intent, gross negligence or loss of life, bodily injury or damage to health. Within the framework of the statutory provisions, the customer may only rescind the contract insofar as the Supplier is responsible for the delay to delivery. The above provisions shall not constitute a change in the burden of proof to the disadvantage of the customer.
  5. The customer shall be obliged when requested by the Supplier to declare within a reasonable period whether it wishes to rescind the contract due to the delivery delay or insist on delivery.
  6. Should dispatch or delivery be delayed at the request of the customer by more than one month after notification of readiness for shipment, the customer can be charged storage costs of 0.5 % of the price of the delivery items for every month commenced, but no more than a total of 5 %. Both parties shall retain the right to prove that the storage costs were higher or lower.
  1. Transfer of risk
  1. The risk of accidental loss or deterioration of the goods shall pass to the customer at the latest upon delivery. In the event of purchase for freight forwarding, however, the risk of accidental loss or deterioration of the goods shall pass upon delivery of the goods to the forwarding agent, the carrier, or any other person or institution charged with the execution of the shipment. At the request and expense of the customer the Supplier shall insure deliveries against the ordinary risks of transport.
  2. Risk shall pass to the customer should dispatch, delivery or acceptance be delayed due to reasons for which the customer is responsible or if the customer is delayed for other reasons in accepting delivery.
  1. Acceptance

The customer shall not be entitled to refuse acceptance of deliveries due to minor defects.

  1. The customer’s warranty claims
  1. The statutory provisions shall apply to the customer’s rights regarding material defects and defects in title, insofar as not otherwise determined in the following.
  2. All parts or services that are at fault within the limitation period – irrespective of the operating period – shall at the choice of the Supplier be repaired free of charge, delivered anew or newly provided, as long as its cause already existed at the time of transfer of risk.
  3. Claims for material defects shall be subject to a limitation period of 12 months. This shall not apply to the extent that the law in accordance with § 438 paragraph 1 no. 2 (Construction and construction materials), § 479 paragraph 1 (Right of recourse) and § 634 a paragraph 1 no. 2 (Construction defects) of the German Civil Code stipulates longer periods and in cases of loss of life, bodily injury or damage to health, an intentional or grossly negligent breach of duty by the Supplier and fraudulent concealment of a defect. The statutory provisions on suspension, interruption and recommencement of the limitation period shall remain unaffected.
  4. The customer shall notify defects to the Supplier in writing and without undue delay.
  5. When defects have been notified, the customer shall be entitled to withhold payments to an extent that is reasonable in proportion to such defects. The customer may only withhold payments if a notice of defect is given whose justification is beyond doubt. Should the notice of defect be unjustified, the Supplier shall be entitled to require the customer to reimburse the expenses incurred.
  6. The Supplier shall be granted the opportunity for subsequent performance within a reasonable period of time.
  7. If this subsequent performance fails, the customer shall be entitled – without prejudice to any claims for damages in accordance with Article XI – to rescind the contract or to reduce payment.
  8. Claims for defects shall not be valid in the event of insignificant deviations from the agreed quality, only minor impairment of usefulness, natural wear and tear, damage arising as a result of faulty or negligent handling after the passing of risk, excessive operational demands, unsuitable operating equipment or based on particular external influences not assumed under the contract. Claims for defects shall also not be valid if the customer or third parties should carry out improper modifications or repairs.
  9. Customer claims for expenses arising from subsequent performance – in particular transport, travel, labour and material costs – shall be excluded to the extent that such expenses increase because the subject of the delivery was subsequently transferred to a place other than the customer’s premises, unless this transfer corresponds to its intended use.
  10. The customer’s recourse claims against the Supplier according to § 478 of the German Civil Code (recourse by a commercial entity) shall only exist to the extent that the customer has not concluded any agreements with its customers that extend beyond the statutory claims arising from defects. § 478 paragraph 2 no. 8 of the German Civil Code shall also apply mutatis mutandis to the scope of the customer’s recourse.
  11. In all other respects Article XI (Other claims for damages) shall apply to claims for damages. Any further customer claims or claims other than those regulated in this Article VIII against the Supplier and its vicarious agents on account of a material defect shall be excluded.
  12. The North Rhine-Westphalia material testing office in Dortmund shall conduct any arbitral analysis. The cost of such arbitral analysis shall be borne by the party at fault.
  1. Industrial property rights and copyright; defects of title
  1. Unless otherwise agreed, the Supplier shall only be obliged to effect delivery free of industrial property rights or copyrights of third parties in the country of the place of delivery (hereafter: Property Rights). Should a third party raise justified claims against the customer due to the infringement of Property Rights by Deliveries made by the Supplier and used according to the contract, the Supplier shall be liable to the customer within the limitation period determined in Article VIII no. 2 as follows:
    1. The Supplier shall at its discretion and expense either obtain a right of use for the Deliveries, modify them in such a way that the Property Rights are not violated or replace them. Should the Supplier not be able to achieve this on reasonable terms, the customer shall be entitled to the statutory cancellation or reduction rights.
    2. The Supplier’s obligation to pay damages shall be governed by Article XI.
    3. The above obligations on the Supplier shall exist only to the extent that the customer notifies the Supplier of the claims asserted by the third party in writing without delay, does not acknowledge an infringement and all defensive measures and settlement negotiations remain reserved to the Supplier. Should the customer discontinue use of the delivery on the grounds of loss mitigation or for other good reason, it shall be obliged to notify the third party that such discontinuation of use does not constitute acknowledgement of infringement of Property Rights.
  2. Customer claims shall be excluded if it is responsible for infringement of the Property Rights.
  3. Customer claims shall also be excluded to the extent that infringement of Property Rights is caused by special customer requirements, by an application the Supplier could not foresee or by the delivery being modified by the customer or used together with products not provided by the Supplier.
  4. The customer rights set out in no. 1 a) shall apply in the event of infringements of Property Rights, in all other respects the provisions of Article VIII no. 4, 5 and 9 shall apply mutatis mutandis.
  5. The provisions of Article VIII shall apply mutatis mutandis to any other defects of title.
  6. Any further customer claims or claims other than those regulated in this Article IX against the Supplier and its vicarious agents on account of a defect of title shall be excluded.
  1. Impossibility; contract adjustment
  1. Insofar as delivery is impossible, the customer shall be entitled to claim for damages unless the Supplier is not responsible for the impossibility. The customer’s damage claims shall however be limited to 10 % of the value of the part of the Deliveries that could not be used for the intended purpose due to the impossibility. This limitation shall not apply in cases where liability is mandatory, such as cases of wilful intent, gross negligence or loss of life, bodily injury or damage to health; this shall not lead to a change in the burden of proof to the customer's disadvantage. The customer’s right to rescind the contract shall remain unaffected.
  2. If unforeseeable events within the meaning of Article V no. 2 should significantly alter the commercial importance or contents of the Deliveries or impact considerably on the Supplier’s operations, the contract shall be appropriately adjusted in good faith. Should this be deemed commercially untenable, the Supplier shall have the right to rescind the contract. If it wishes to make use of this rescission right, after recognising the implications of such an event it shall promptly inform the customer, even if an extension of the delivery period was initially agreed with the customer.
  1. Other claims for damages
  1. The Supplier shall be liable for damages – regardless of the legal basis – only in the case of intent and gross negligence. In addition it shall also be liable in case of simple negligence for loss of life, bodily injury or damage to health and for damages resulting from the violation of an essential contractual obligation; in this case, however, liability shall be limited to reimbursement of the foreseeable, typically occurring damages.
    The above limitations of liability shall not apply if the Supplier has fraudulently concealed a defect or has furnished a guarantee for the quality of the goods. The same shall apply to customer claims under the Product Liability Act.
  2. The customer can only withdraw from or rescind the contract on account of a breach of duty that is not attributable to a defect, if the Supplier is liable for such breach of duty. The customer’s free right to termination (in particular under §§ 651 and 649 of the German Civil Code) shall be precluded. Rescission or termination must be declared in writing. In all other respects the statutory requirements and legal consequences shall apply.
  3. To the extent that the customer is entitled to claims for damages under this Article XI, these shall expire after the limitation period for material defects pursuant to Article VIII no. 2. The statutory limitation provisions shall apply to claims for damages under the Product Liability Act.
  1. Place of jurisdiction
  1. If the purchaser is a fully qualified businessman the sole place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship shall be the Supplier’s registered office. The supplier shall however also be entitled to sue at the customer’s registered office.
  2. The legal relationships in connection with this contract shall be governed materially by German law under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  1. Binding nature of the contract

The remaining parts of the contract shall remain binding even if individual provisions should prove legally ineffective. This shall not apply where adherence to the contract would represent undue hardship for one of the parties.