1. VALIDITY OF THE CONDITIONS
1.1 The following General Terms & Conditions shall apply to all contracts with traders and non-traders for the delivery of goods which we offer for sale in catalogues, at trade fairs, through representatives and in the online shop. They shall always be made part of the con- tract in business transactions with nontraders when contracts of the types mentioned are concluded, as required under section 305 of the German Civil Code (Bürgerliches Gesetzbuch – BGB).
1.2 The validity of any differing conditions of purchase specified by the buyer shall be strictly subject to the written agreement of the seller. Any confirmation countered by the buyer making reference to different conditions shall not be acknowledged.
1.3 The legal invalidity of any part of these Terms & Conditions shall not affect the validity of the remaining content thereof.
1.4 Where specific arrangements are not included in these T&C, the content of the contract shall be governed by the statutory provisions applicable in the Federal Republic of Germany. The provisions of the Vienna UN Convention of 11 April 1980 on the International Sale of Goods (CISG, UN Sales Convention) shall not apply.
2. CONCLUSION OF CONTRACT
2.1 Quotations issued by the seller shall be subject to confirmation
in all cases. The buyer shall be bound to any orders until notice of refusal is issued by the seller but at the latest until an acceptance period of eight weeks has expired. The contract shall enter into effect on notice of acceptance by the seller (order confirmation) and according to its content or by delivery or service within the acceptance period.
2.2 The sales representatives of the seller shall only be authorised to accept purchase orders, not to conclude purchase contracts.
2.3 Any individual agreements on delivery times, price agreements, assurances of certain properties, and any arrangements at variance with our T&C must be set out in writing to be valid. This requirement cannot be waived.
2.4 Details on shape, colour and performance as well as illustrations shall be approximate and non-binding unless expressly said to be binding. Minor deviations in quality, weight, shape and colour are unavoidable and shall not constitute defects.
3. CANCELLATION OF ORDERS
3.1 Any notice of cancellation of orders placed by the buyer must be sent to the seller in text form as a minimum.
3.2 In cases where part of an order is cancelled after the conclusion of the contract or in cases where unjustified complaints are submitted about defect-free goods, 15 % of the net value of the goods shall be charged as a processing fee.
3.3 In case of outstanding accounts receivable or negative credit infor- mation, the seller shall be entitled to ask for payment in advance from the buyer within a reasonable period of time, irrespective
of the terms of payment agreed in the purchase contract. If the buyer fails to comply within the specified period, the seller shall be entitled to withdraw from the contract. In this case, 15 % of the net value of the goods shall also be charged as a processing fee.
4.1 On conclusion of a purchase contract, the seller undertakes to deliver the goods to the buyer free of defects within the agreed delivery period. In the absence of any specific agreement in this respect, a delivery period of eight (8) weeks shall be deemed
to have been agreed, calculated from the time of conclusion of contract.
4.2 Deliveries shall be made free domicile within Germany from an order value of € 1,200.00 before VAT per delivery address and delivery date at the risk of the buyer. Orders below € 1,200.00 before VAT shall be delivered ex works. For orders below our minimum order quantity of € 500.00 before VAT, the seller shall add a minimum quantity surcharge of € 15.00 plus VAT.
4.3 In the case of remaining stock sold off at special prices that differ from the normal catalogue prices of the seller, deliveries shall generally be made ex works Cologne freight collect.
4.4 The minimum order value shall be € 500.00 before VAT in Germany, € 600.00 for deliveries ex works in other EU countries and in Switzerland, and € 1,200.00 for deliveries ex works in all other countries.
4.5 No charge shall be made for packaging, nor shall packaging be taken back.
4.6 If the delivery of custom-made products by the seller depends on the prior provision of documents by the buyer, such as drawings, templates, patterns or suchlike, the delivery period shall only com- mence on the day on which the seller has received all the relevant documents and has confirmed the order.
4.7 If requests for changes or additions are taken into account, the delivery period shall be extended accordingly.
4.8 If the seller is in default of delivery or performance and the buyer claims compensation for damages arising due to the delay, the liability of the seller shall be limited to 15 % of the order value, unless damages are caused by injury to life, limb or health and this damage is not due to gross negligence or wilful breach of duty on the part of the seller or one of its legal representatives or vicarious agents.
5. SAMPLE DELIVERIES
5.1 The seller ships sample orders exclusively in the smallest packa- ging unit, they are always charged and shipped ex works. Sample deliveries must generally be confirmed by the seller. Any contracts in this regard shall only enter into effect on explicit confirmation by the seller.
5.2 Sample deliveries may not be returned or exchanged even if an order is placed.
6.1 The prices stated in the price lists, advertisements and brochures published by the seller shall be subject to change at any time and shall be deemed to have been agreed only upon written order confirmation. The latest prices applied by the seller can be found on our website at www.wurmkg.de.
6.2 The prices shall be quoted in EURO net exclusive of value added tax. The prices applicable on the day of the conclusion of the contract shall be taken as a basis for the calculation. These prices shall be listed in our online shop as applicable on any given day.
6.3 Approved discounts or freight reimbursements shall not apply in the case of judicial or extrajudicial settlement negotiations con- cerning claims, nor shall they apply in the case of insolvency or in cases where the buyer is over two months late with payment.
7. PLACE OF PERFORMANCE
7.1 Cologne shall be the place of performance in respect of the payment obligations of the buyer.
7.2 Cologne shall be the place of performance in respect of the delivery obligations of the seller.
8.1 Advance notice of returns must always be given on the shipping form provided by the seller and must be confirmed in writing by the seller. The shipping form shall be enclosed with the goods in each delivery and may be downloaded from the website of the seller if required.
8.2 In the event of justified complaints, the seller shall send the buyer a return voucher if necessary or arrange for the rejected goods
to be collected. The returned goods shall be inspected then the return shall be credited.
8.3 The seller reserves the right to advise the buyer of the proportionality of a complaint.
9.1 Buyers who are traders must notify the seller in writing of any defects within eight working days of delivery, otherwise the delivery or service shall be deemed to have been approved. Buyers who are entrepreneurs, as defined in section 14 BGB, but are not traders shall have the same notification period in case of obvious defects from the time of discovery of the defect. A defect shall
be deemed to be obvious if it is so evident that it even strikes the average customer without the attention of an expert eye.
9.2 If the delivered goods are defective, the buyer shall only be entitled to claim rectification and, if this is impossible, replace- ment delivery from the seller in lieu of the statutory warranty claims. Only when the second attempt at rectification or the first replacement delivery has failed may the buyer choose to request the reduction of the agreed price or the cancellation
of the sales contract.
9.3 The seller shall be liable for damages resulting from injury to life, limb or health as well as for damages resulting from deliberate
intent or gross negligence on the part of the seller or its legal representatives or vicarious agents. The seller shall also be liable for damages resulting from failure to honour a warranty furnished by itself or due to fraudulently concealed defects.
9.4 The seller shall be liable for damages resulting from slight neglect of fundamental contractual obligations by the seller or its legal representatives or vicarious agents up to the amount typically encountered and foreseeable in such contracts. Funda- mental contractual duties shall be understood to be such duties as must be fulfilled to enable due performance of contract and upon compliance with which the buyer may routinely rely.
9.5 The buyer may not make any claims for damages further to those provided for in paragraphs 4.8 and 9.2 to 9.4
9.6 The limitations set out above shall also apply for the benefit of the legal representatives and vicarious agents of the seller if claims are asserted directly against them.
10. DUE DATE FOR OF THE PURCHASE PRICE
10.1 Unless otherwise agreed in writing, the purchase price for delivered goods shall generally be due for payment in the month immediately following and on the same calendar day as the invoice date (e.g. invoice date 3 March, payment due date 3 April). The payment day shall be shown on the invoices as a calendar date.
10.2 The date on which the payment is received by the seller rather than the date on which the payment is remitted shall determine whether the purchase price has been paid on time.
10.3 For early payments, in case of prepayment and authorization for immediate direct debit (SEPA), the seller grants 1% discount and for payments within a period of 10 days from the invoice date. The respective purchase price invoiced is due within 30 days. This applies only under the condition that the buyer is not in default with the payment of other, due invoices.
10.4 If the agreed deadline for payment is exceeded, any deferment of payment agreed for all other invoices shall lapse. This shall apply both if insolvency proceedings are opened or provisional insol- vency proceedings are ordered and if notice of protest is issued in respect of cheques and bills of exchange.
10.5 Discounting costs, bill of exchange charges, dunning costs and default interest shall be borne by the buyer.
11. INTEREST ON ARREARS
11.1 Both contracting parties shall be entitled to claim interest at the customary bank rate on debit balances, but at least 9 % for the year, from the due date for their mutual pecuniary claims under the purchase contract and for such as arise from obligations under cheques and bills of exchange.
11.2 In addition to the default interest levied, the seller shall be entitled to charge an administrative fee of € 4.50 per reminder.
11.3 The obligation to pay interest shall not apply in the following cases:
a. as long as the outstanding debt is deferred;
b. if the creditor is in default of acceptance under the conditions set out in sections 293 ff. (section 301 BGB);
c. if the debtor was entitled to deposit a cash payment and depo- sited the amount in due time.
11.4 If an outstanding debt is subsequently deferred, this shall not extinguish the obligation to pay interest accrued up to that point.
12. RETENTION OF TITLE
12.1 The goods shall remain the property of the seller until such time as all receivables, including ancillary claims, have been paid in full, claims for damages have been met, and cheques and bills of exchange have been cashed.
12.2 The retention of title shall also remain in effect if individual receivables due to the seller are included in a current account and duly netted out and acknowledged.
12.3 The buyer shall only be entitled to resell the goods subject to retention of title in due consideration of the following provisions and with the proviso that the claims pursuant to paragraph 9.5 are actually transferred to the seller.
12.4 The entitlement of the buyer to sell goods subject to retention of title in the ordinary course of business shall cease to apply upon revocation by the seller as a consequence of a sustained deterio- ration in the financial situation of the buyer but upon cessation of payments at the latest, or upon application for, or opening of, insolvency proceedings against the assets of the buyer.
12.5 The buyer hereby assigns to the seller the claim ensuing from the resale of the goods subject to retention of title, including any balance claims and all ancillary rights. The seller shall accept said assignment.
12.6 The buyer shall be authorised to collect the assigned claims as long as it duly discharges its payment obligations towards the seller. The collection authorisation shall expire in the event of revocation, but at the latest in the event of default in payment on the part of the buyer or in the event of a significant deterioration in the financial circumstances of the buyer. In this case the seller shall be authorised by the buyer to inform the customers of the assignment and to collect the claims itself.
12.7 If the invoice value of the security provided for the seller exceeds the claims of the seller (including ancillary claims, e.g. interest, costs) by more than 20 % in total, the seller shall be obliged to release securities of its choice at the request of the buyer or of
a third party disadvantaged by the excess security.
The buyer may only set off payments against claims of the seller for the purchase price or assert a right of retention if the counter- claim of the buyer is undisputed or if title is legally established. This restriction shall not apply to claims of the buyer due to defects resulting from the same contractual relationship as the payment claim of the seller.
14. RIGHTS TO ILLUSTRATIONS
14.1 On the purchase of goods from the seller, the buyer shall acquire from the seller a non-exclusive licence free of charge to use the photographs, graphics, drawings, texts and the like (material) provided for distribution purposes. The licence shall, in terms of time, be limited to the duration of the business relationship in any given case. The material provided shall be protected by copy- right and shall be the property of the seller. The licence shall not include the right to grant sub-licences to third parties or a right of adaptation.
15. AGREEMENT ON JURISDICTION, FINAL PROVISIONS
15.1 The sole place of jurisdiction for the assertion of all pecuniary claims arising from the contract shall be the registered office of the seller in Cologne for both contracting parties, if no place of exclusive jurisdiction is established for the action. This shall
apply in the event that both contracting parties are traders, legal entities under public law or special funds under public law. This shall also apply – even if the buyer is not a trader – if the buyer has no place of general jurisdiction in Germany. The seller shall be entitled in all cases, however, to also take legal action against the buyer at its place of general jurisdiction.
15.2 Paragraph 15.1 shall also apply in the event that the contracting party against whom legal action is brought transfers its domicile or habitual abode from the territory of the Federal Republic of Germany after conclusion of the contract or if its domicile or habitual abode is not known at the time the action is filed.
15.3 The language of contract is German. If the contract and/or these General Terms & Conditions are translated into another language, the German version of the contract and these General Terms & Conditions shall prevail in all cases.