GENERAL TERMS AND CONDITIONS OF SALE, DELIVERY AND PAYMENT OF WÜRTH LIMITED
§ 1 Scope of application
(1) The following General Terms and Conditions of Sale, Delivery and Payment (GENERAL TERMS AND CONDITIONS) are basis for all business relations between the Würth Limited (hereinafter: “Seller“) and their customers (hereinafter: “Buyer“). They apply insofar as no individual agreement has been settled with the Buyer in a particular case.
(2) The GENERAL TERMS AND CONDITIONS of the Seller apply exclusively. GENERAL TERMS AND CONDITIONS of the Buyer do not apply, unless the Seller has assented to them explicitly and in written form in advance. This approval requirement applies in each case, especially even if the Seller is aware of GENERAL TERMS AND CONDITIONS of the Buyer and delivers without any reservations.
(3) If not agreed upon otherwise, these GENERAL TERMS AND CONDITIONS are applicable for future business relations between the Seller and the Buyer in the version valid at the time the order is placed. A reference to the GENERAL TERMS AND CONDITIONS shall not be necessary.
§ 2 Conclusion of the Contract, Ordering
(1) The Seller informs the Buyer about availability, prices and delivery period of products at the Buyer’s request. These offers are non-binding. This also applies if the Seller hands out catalogues, technical documents, other product specifications or other documents to the Buyer or from on-line e-shop.
(2) By placing the order the Buyers makes a binding offer to purchase the relevant product. The Seller is not bound to explanations prior this order.
(3) The Seller shall be entitled to accept the offer after the receipt of the order.
(4) The acceptance may be declared either in written form or by delivering the goods to the Buyer. The order confirmation, containing details about quantity, amount and date of delivery, shall not be an acceptance, unless it contains an explicit declaration.
§ 3 Delivery
(1) The parties agree upon a period of delivery, respectively the Seller announces a period of delivery along with the order confirmation which receipt will be the starting date for its calculation. The compliance with the delivery period shall not be substantial for the fulfilment of the contract.
(2) If the product chosen by the Buyer is not or just partly available at the time of the order, the Seller shall inform the Buyer thereof in the order confirmation, immediately. In case the product is not in stock permanently, the Seller will not accept the offer. The contract will not be concluded.
(3) If the ordered product is only temporarily not available, the Seller shall inform the Buyer thereof in the order confirmation, immediately, too. Events of major force, strikes, lockouts, shortage of materials, disruption to transport and business, states of war or emergency or other circumstances for which the Seller is not responsible, the Seller shall be entitled with the exclusion of any claims to compensation by the Buyer to delay the execution of the order or to withdraw from the contract, entirely or partly. In case of a withdrawal the Seller is obligated to reimburse all payments by the Buyer without undue delay.
(4) The risk of accidental destruction, damage or loss of the delivered product shall pass to the Buyer at the latest with the handover of the goods. In case of a Sale to Destination, such risk shall pass to the Buyer upon delivery of the product to the carrier.
§ 4 Packaging
(1) The Seller does not take back packaging.
(2) `Packaging marked with the trademark of the Seller may only be used in connection with goods of the Seller.
§ 5 Prices
(1) The Seller informs the Buyer about prices in the communication prior the ordering at the Seller’s request.
(2) The prices named by the Seller are understood exclusive of VAT, transportation, and other applicable charges have to be agreed upon or else as quoted in the ensuing correspondence.
§ 6 Conditions of Payment
(1) If nothing else is agreed upon in the order confirmation, the net sales price is payable immediately on cash basis only.
(2) If the buyer has a credit agreement in place, the said credit agreement payment period must be respected.
(3) Furthermore, in the event of a payment default, the Seller shall be entitled (a) to perform future and already ordered deliveries with advance payment and/or (b) to declare all receivables from the business relationship due at once.
§ 7 Disclosures / application-technical consultation
Product specifications, any information the Seller may give about the ways in which products can be processed or used, technical consultancy service and any other statements the Seller may make are provided according to the best of the Seller’s knowledge, non-binding basis and to the exclusion of any liability. Advice on technical applications by the Seller verbally or in writing do not release the Buyer from carrying out his own examination of the products for their suitability for the intended processes and purposes.
§ 8 Warranty
(1) The statutory regulations shall apply to the rights of the Buyer in case of defects of quality and title, insofar as not otherwise determined below. The primary basis of the Seller’s liability for defects shall be the agreement made concerning the quality of the goods. In the absence of any agreed specification of the goods, the existence of defects therein shall be determined in accordance with statutory provisions.
(2) Buyer's claims arising from a defect require that the buyer has fulfilled his legal duty to examine the goods and to give notice of defects. In the event that a defect is revealed during the inspection or at a later date, the Seller must be notified without delay in written form. If the Buyer fails to carry out the proper inspection and/or report of defects the liability of the Seller for the defect which was not reported is excluded.
(3) In the event that any products prove to be defective, the Seller may choose whether the next action is to remedy the defect or deliver an item which is free of defects. The right of the Seller to refuse supplementary action according to the legal provisions remains unaffected. The Seller shall be entitled to make these arrangements dependent on the fact that the Buyer pays the due purchase price. The Buyer is however entitled to retain a part of the purchase price which is reasonable in the ratio to the defect.
(4) The Buyer shall give the Seller the time and the opportunity which may be needed to take remedial action. In case of replacement, the Buyer has to return the defective goods in accordance with statutory provisions. The expenses necessary in connection with examination and subsequent performance, in particular as regards transport, travel, labour and materials, shall be to the Seller’s account if a defect does indeed exist. Otherwise, however, the Seller may claim reimbursement of arising costs (especially examination and transport), if the request for supplementary performance is unjustified, unless the missing deficiency is not instantly identifiable.
(5) If the remedial action fails or a reasonable deadline which is to be set by the Buyer for the remedial action has expired unsuccessfully or it is dispensable according to the statutory regulations the Buyer can withdraw the contract or reduce the purchase price. This right of withdrawal does not exist with an insignificant defect.
(6) Claims of the Buyer for damages or reimbursement of fruitless expenses shall only exist according to § 9 (Liability) and are incidentally excluded.
§ 9 Liability
(1) Unless otherwise has not been agreed upon in these GENERAL TERMS AND CONDITIONS including the following provisions, the Seller is liable according to the relevant statutory regulations in case of a breach of contractual and non-contractual duties.
(2) In connection with fault-based liability the Seller is liable – regardless of the reason – in the event of intent or gross negligence. In case of slightly negligence the Seller is only liable subject to a milder scope of liability according to the statutory regulations (e.g. the same care as in own affairs)
a. for damages arising from injury to life, body and health,
b. for damages arising from a significant infringement of an essential contractual duty (duties whose fulfilment generally only allows the proper realization of the contract and on whose observance the user regularly trusts – so called “cardinal obligation “); in this case, the Seller’s liability shall be limited in its amount to the foreseeable, typically occurring damage.
(3) A Buyer can only withdraw from the contract when a breach of duty, which does not constitute a defect, is the Seller's responsibility. A free right of cancellation for the Buyer is excluded. Otherwise the statutory requirements and legal consequences shall apply.
§ 10 Retention of Title
(1) The Seller reserves the right to the property of the sold goods until the full payment of all of the Seller’s current and future claims from the purchase contract and a current business relationship (secured claims).
(2) Prior to complete payment of the secured claims, the goods for which ownership is reserved can neither be pledged nor assigned by way of security to third parties. The Buyer shall inform the Seller without undue delay and in written form if an application is made for opening insolvency proceedings r if any third party claims rights (e.g. attachment) in goods which the Seller has delivered subject to retention of title.
(3) If the Buyer acts in a way contrary to the contractual obligations, in particular in the event of a default in payment, the Seller shall be entitled after granting an appropriate grace period - to withdraw from the contract and/or to demand the return of the goods on the basis of the reservation of title and the rescission. Any demand for the return of goods shall not be deemed to include a simultaneous declaration of withdrawal; on the contrary, the Seller shall be entitled to demand solely the return of the goods and reserve the right to withdraw from the contract. In the event that the Buyer does not pay the due purchase price, the Seller may only assert such rights if the Seller has previously set the Buyer a reasonable period for payment without result or if the setting of such a period is superfluous according to the statutory regulations.
(4) Until revoked according to clauses below, the Buyer may sell and/or process the goods under retention of title within the scope of proper business practices. In this case the following provisions shall apply in addition:
The Buyer shall retain the right to collect the receivables in addition to the Seller. The Seller undertakes to refrain from collecting the receivables provided that the Buyer complies with its payment obligations towards the Seller, no lack of the Buyer’s financial capacity occurs and if the Seller does not invoke retention of title. However, if this is the case the Seller may demand to be notified by the Buyer of the assigned receivables and their debtors, to be provided by the Buyer with all data required to collect the receivables and with the relevant documents and that the Buyer notifies the debtors (third parties) of the assignments. Furthermore, the Seller shall be entitled to revoke the authority of the Buyer to resell and process the goods under retention of title.
§ 11 Concluding Provisions
(1) These GENERAL TERMS AND CONDITIONS and all legal relationships between the Seller and the Buyer shall be governed by the laws of Malta.
(2) The place of jurisdiction – including international jurisdiction – for all disputes arising directly or indirectly from the contractual relationship is exclusively Malta.
(3) If one of the provisions of these GENERAL TERMS AND CONDITIONS is or becomes invalid or impracticable, the contract in its entirety and the remaining stipulations remain unaffected with the exception of the cases, when due to the separate provisions cancellations one of the Parties is so inadmissibly infringed, that one cannot insist on demanding enforcement.