General Purchasing Terms and Conditions of Karl Wörwag Lack- und Farbenfabrik GmbH & Co. KG 2010
Unless otherwise individually agreed to in writing, the legal relationship between the supplier and the purchaser (Wörwag) shall be based exclusively on the following Terms and Conditions. Any other terms and conditions shall not apply, even if Wörwag fails to expressly oppose such terms and conditions in any given case.
By accepting orders from Wörwag, the supplier declares its agreement with these purchasing conditions. Should our order be confirmed by the supplier notwithstanding our Conditions, our Purchasing Conditions shall remain applicable, even if we do not oppose same. Variations shall thus only be valid, if they have been explicitly confirmed by us in writing. Should the supplier disagree with this procedure, it shall immediately inform us in a separate letter. We reserve the right in this case to withdraw the order without assuming liability for claims of any kind. Our Conditions shall also apply to all future sales and other supply contracts even if no express reference is made to them in the contract, insofar as they have only been received by the ordering party in an order confirmed by us.
1. Supply contracts (orders and acceptances) and delivery schedules as well as their modification and amendment must be in writing or in text form.
2. Wörwag is entitled to revoke its order free of charge if the supplier fails to confirm such order within 5 business days after receipt.
III. Delivery dates and consequences after transgressions of deadlines
1. The agreed delivery dates for goods and services are binding. If any delays are anticipated or in fact occur, the supplier shall promptly notify Wörwag thereof in writing.
2. If the supplier fails to perform its contractual duties within a reasonable period of grace stipulated by Wörwag, Wörwag shall have the right to decline acceptance without warning, to withdraw from the contract or to demand that the supplier reimburse Wörwag for necessary expenses and additional costs incurred as a result. Wörwag shall also be entitled to withdraw from the contract if the supplier is not responsible for the delay.
3. Wörwag reserves the right to demand an agreed contractual penalty due to non-performance (§ 341 BGB – German Civil Code) until final payment.
IV. Processing and delivery
1. The supplier may only sub-contract with the consent of Wörwag, unless such sub-contracts relate simply to the supply of marketable components. Any supply requests concerning the type and quantity of the requested goods and the delivery schedule are binding. Installment deliveries require the consent of Wörwag.
2. A delivery note must accompany each delivery, and must indicate Wörwag’s order number and describe the contents according to type and quantity.
3. Software products shall be deemed duly delivered only after all the documentation (-technical system documentation as well as user documentation) has been delivered. With respect to any programs specifically written for Wörwag, the program must also be delivered in source code format.
1. The claim on the fee shall become due for payment at the earliest after receipt of the goods and the invoice of the supplier. The date of payment shall be the day on which the bank has received the transfer order from Wörwag or the day on which the check was sent.
2. Payments made by Wörwag shall not constitute recognition that the goods or services are conform to the specifications of the contract. The supplier may not assign its claims against Wörwag to third parties.
3. Wörwag shall not be in default, if Wörwag does not make payment within 30 days after an invoice or a comparable payment schedule is due or has been received.
VI. Notice of defects
Wörwag shall promptly notify the supplier of any obvious defects in the goods or services supplied, as soon as such defects are identified in the ordinary course of business. In this respect the supplier agrees to waive any expenses arising from a delayed notice of defect.
1. The contractual partners undertake to keep all non-published commercial and technical details which become known to them through the business relationship in strict confidence.
2. Illustrations, samples, formulations and similar items may not be disclosed to unauthorized third parties. The reproduction of such items is only allowed in line with management’s requirements and copyright provisions.
3. Sub-suppliers shall be committed to secrecy accordingly.
4. The contractual partners may only advertise their business relationship with their prior written consent.
VIII. Safety and environmental protection
1. All goods and services of the supplier must comply with the statutory provisions in particular those concerning safety and environmental protection including the directive on hazardous substances and the safety recommendations of the competent German professional associations e.g. VDE and DIN. . Any relevant certifications, testing reports and evidence must be furnished free of charge along with the goods and services.
2. The supplier has to indicate hazardous substances and those which are to be avoided in the specifications according to the valid laws and regulations. If applicable, safety data sheets have to be submitted already along with the offers or the delivery note of the first delivery (at least in German or English). Wörwag must be immediately informed of any transgressions of substance restrictions and delivery of hazardous substances.
3. The supplier shall be solely responsible for adhering to the rules on accident prevention. According to these rules, the required safety precautions and any other manufacturers’ guidelines must be furnished free of charge along with the goods and services.
IX. Delayed delivery
1. The supplier is obligated to compensate Wörwag’s damages caused by default.
2. In the event of slight negligence, compensation shall be restricted to the reimbursement of additional freight charges, retrofitting costs and, after an unsuccessful period of grace or in the event of loss of interest in the delivery, to additional expenses for replacement purchases.
3. Force majeure events, industrial disputes, disturbances, official measures, and other unpredictable, unavoidable and serious events shall release the contractual partners from their duty of performance for the duration of the disturbance and to the extent of their effect. The contractual partners shall be obligated to provide the necessary information without delay within the bounds of what is reasonable and to adapt their duties to the changed situation in good faith.
X. Passing of risk, acceptance, reservation of title
1. Irrespective of the agreed pricing, the risk of loss on the delivery of goods not involving installation or assembly shall pass to Wörwag upon receipt of such goods at the delivery address stipulated by Wörwag and, with respect to the risk of loss on the delivery of goods involving installation or assembly, risk shall pass upon the successful completion of such installation or assembly, which shall be documented in an acceptance record. Wörwag’s operational start-up or use shall in no way constitute formal acceptance.
2. Title to the delivered goods shall be transferred to Wörwag after payment. Any extended or expanded reservation of title is excluded.
XI. Warranty for defects of quality and defects of title
1. The supplier warrants that the goods delivered and all services performed must reflect state of the art technology at the time of contract conclusion and complies with the respective regulatory provisions and the rules and guidelines of authorities, trade associations and professional associations and that forthcoming changes are not known to it (cf. also Section 8.1 above).
2. Defective goods must be promptly substituted with defect-free goods, and any defective services must be repeated in a defect-free manner. In the event of any development or construction errors, Wörwag shall be entitled to promptly enforce the rights set forth in Section 11.3
3. Should the supplier not fulfill its obligation to remedy the defect even within the reasonable grace period set, Wörwag may withdraw from the contract or reduce the remuneration and claim additional damages.
4. In emergency situations, specifically where operational safety is at risk or to avoid extraordinarily high damages, and also in order to eliminate minor defects as well as in the event of the supplier being behind schedule in eliminating the defect, Wörwag shall, after having given notification and after having set a deadline for the supplier, have the right to remedy the defect and any damages resulting therefrom itself at the supplier’s expense or to have a third party remedy such defects. The aforementioned shall also apply if the supplier is late in delivering the goods or services and Wörwag is required, as a result of such defect, to immediately remedy the defect to avoid its own delivery default.
5. The warranty period for any defects in quality and defects of title shall be 36 months following the transfer of risk. The warranty period shall be tolled for the period commencing on Wörwag’s dispatch of any defect notice to its receipt of the defect-free good or service.
6. If the supplier has to deliver according to the plans, drawings, formulations, formulation developments or other special specifications by Wörwag, the conformity of the delivery or performance with the specifications shall be explicitly guaranteed. Should a delivery or performance deviate from the requirements, Wörwag shall immediately be entitled to the rights set forth in Section 11.3.
7. Wörwag’s legal rights shall remain unaffected thereby.
XII. Repeated impairments of performance
If the Supplier provides goods or services of substantially the same or similar nature which, despite repeated written warnings having been issued by Wörwag, are again defective or delayed, Wörwag shall be entitled to immediately withdraw from the contract, namely also with respect to such goods or services that the Supplier shall be obligated to render based on this or any other contractual relationships with Wörwag in the future.
XIII. Release from material defects and defects of title
The supplier shall release Wörwag from all claims raised against Wörwag by third parties - whether in contract, tort, negligence or otherwise – because of a material defect, a defect in title or any other defect in the product delivered by the supplier to Wörwag and shall reimburse Wörwag the necessary costs for legal proceedings in this regard. If Wörwag has to execute a product recall action as a result of such an event or has to reimburse the costs of recall action to the customer, Wörwag may charge the supplier for any expenses and costs accruing in this respect. The supplier shall be obligated to release Wörwag thereof on first request, as far as it is liable pursuant to §§ 830, 840 and 426 BGB. This shall apply in particular to possible recall actions within the scope of the Product Safety Act.
XIV. Recourse against the supplier
Should a claim be made against Wörwag by a customer under the terms of a consumer goods purchase and this claim is based on a defect of the product delivered by the supplier, recourse claims against the supplier shall lapse only at the end of five years from the date of delivery of the product by the supplier.
XV. Technical documents, trial protocols, trial institutions, trial documents
Technical documents, trial protocols, plant specifications, trial institutions, trial documents, etc. provided by Wörwag constitute the intellectual property of Wörwag; all trademark rights, copyrights and other protective rights shall remain vested in Wörwag. These documents shall be returned to Wörwag immediately after executing the order without Wörwag having to request the supplier to do so. In this respect, the supplier shall not be entitled to enforce any right to withhold performance to Wörwag. The supplier may use the aforementioned items only in connection with carrying out the order and may not disclose such items to unauthorized third parties or otherwise provide access thereto. Any duplication or reproduction of the aforementioned items may be carried out only to the extent that it is absolutely necessary for carrying out the order placed by Wörwag.
XVI. Right to cancellation due to the supplier’s inability to fulfill its obligations
Wörwag shall be entitled to withdraw from the contract, if it becomes apparent after conclusion of the contract that the delivery claim of Wörwag is at risk due to the supplier’s inability to fulfill its obligations (e.g. economic downturn, actual impediments to performance, etc).
1. The place of performance shall be the place indicated in the delivery address.
2. The place of jurisdiction shall be the place where Wörwag’s has its registered offices. However, Wörwag shall be entitled to institute legal action against the supplier at the place of its registered offices as well.
3. The substantive law of the Federal Republic of Germany shall govern this contractual relationship. The provisions of the UN Convention on Contracts for the International Sale of Goods are excluded. If any provisions of these General Purchasing Terms and Conditions are or become invalid or unenforceable, either in whole or in part, then the validity of the remaining provisions shall not be affected thereby. In such an event, the parties shall be obligated to replace any invalid or unenforceable provisions with other valid provisions, which match or most closely reflect the commercial intent of the invalid provisions. This shall not apply in the event of invalidity due to violations of the regulations contained in Section 2 of Book no. 2 of the BGB titled « Constitution of contractual obligations by general terms and conditions » pursuant to §§ 305 BGB. In this case, the legal provision shall be valid insofar as there is no additional interpretation of the contract for the purpose of filling the gap.