Wiha General Terms of trading
1. Area of application
1. These General Terms and Conditions of Sale only apply to companies carrying out their commercial or independent, professional activity and to legal entities under public law. They apply to all trading between Wiha Werkzeuge GmbH (hereinafter referred to as "Wiha") and the Ordering Party, even if no reference is made to them in subsequent contracts. They apply to work and services as appropriate. Inspection and approval is required for work and acceptance for services in place of receipt for delivered products.
2. Additional terms and conditions of the Ordering Party or those which contradict or deviate from these General Terms and Conditions of Sale will not form part of the contract unless Wiha expressly agrees to them in writing. These General Terms and Conditions of Sale thus also apply if Wiha makes a delivery to the Ordering Party without any reservation while aware of any conflicting, additional or differing conditions.
3. A written record must be made of any agreements which contradict, differ from or are added to these General Terms and Conditions of Sale and which are concluded between Wiha and the Ordering Party to fulfil a contract. This also applies to rescinding the requirement for written form itself.
4. This does not affect any rights to which Wiha is entitled under statutory regulations or as per other agreements in addition to the General Terms and Conditions of Sale.
2. Conclusion of agreement
1. Any quotes from Wiha are without obligation and non-binding.
2. All measurements are indicated in mm and weights in g.
3. Wiha reserves all ownership, intellectual and other property rights to all documents, in particular quote documentation. It is not permitted to give third parties access to quote documents. The Ordering Party shall return all quote documents to Wiha immediately when requested by Wiha if they are no longer required for the normal course of business. The same especially also applies to all other documents, designs, specimens, samples and models.
4. An order does not become binding until Wiha has confirmed acceptance with a written order confirmation within two weeks of placement or until Wiha fulfils the order, particularly if Wiha meets the order by sending the products. An order confirmation issued from automatic systems which does not contain a signature or name is considered a written confirmation. The order confirmation is not binding for Wiha if it contains obvious mistakes, or spelling or calculation errors.
5. A lack of response on Wiha's part to offers, orders, requests or other declarations from the Ordering Party shall only be regarded as agreement if this was previously agreed in writing.
6. Wiha is entitled to withdraw from the contract in full or in part if the Ordering Party's financial circumstances worsen significantly or a justified application to initiate insolvency proceedings or similar action regarding the Ordering Party's assets is refused due to lack of sufficient assets.
3. Scope of delivery
1. Wiha's written order confirmation is decisive regarding the scope of delivery. Any amendments to the scope of delivery by the Ordering Party requires written confirmation from Wiha to be valid. Wiha reserves the right to make changes to the design or shape of products if they constitute variances customary in the sector or if the variances lie within DIN tolerances or if the changes are not considerable and the Ordering Party might reasonably be expected to accept them. The same applies to the choice of material, specifications and design type.
2. Delivery in parts is permitted.
3. Wiha reserves the right to make excess or short deliveries of up to 3% for reasons related to production. Wiha reserves the right to make excess or short deliveries of up to 10% for custom-made products. The right to make any claims for defects is ruled out in this regard. The delivery price remains unaffected.
4. In the case of orders which do not conform to Wiha packaging unit formats, Wiha reserves the right to fulfil orders using Wiha packaging units or multiples thereof, which are indicated in the Wiha catalogue, or reject the order on the basis of non-compliance with packaging unit specifications.
4. Delivery period
1. The delivery period commences when the contract is concluded, but not before the Ordering Party has provided the documents, licences and authorisations that they need to acquire, clarification has been made regarding all technical questions and the agreed partial payment has been received or full payment has been received in the case of an international transaction. In the case of a delivery date, the delivery date is postponed to a reasonable extent if the Ordering Party does not provide the documents and licences that they need to acquire in good time, authorisations are not issued in good time, not all technical questions are fully clarified in good time, or the agreed partial payment or, in the case of an international transaction, full payment has not been received in full at Wiha. Compliance with the delivery period is dependent on the Ordering Party fulfilling their remaining obligations on time and in proper form.
2. The delivery period is met if the products leave the factory or Wiha has sent notification that the products are ready for collection or dispatch before the delivery period expires. Compliance with the delivery period is contingent on Wiha's correct and especially prompt delivery of its own supplies and raw materials unless Wiha itself is responsible for incorrect delivery of own supplies and raw materials. Wiha is entitled to withdraw from the contract in the event of incorrect delivery of its own supplies and raw materials. Wiha shall immediately inform the Ordering Party if Wiha wishes to make use of its right to withdrawal and shall return any pre-payments that the Ordering Party has made.
3. In the event of a delay in delivery, the Ordering Party is entitled to withdraw from the contract if Wiha fails to comply within a reasonable grace period which the Ordering Party set for Wiha when the delay commenced.
5. Cross-border deliveries
1. In the case of cross-border deliveries, the Ordering Party must provide all the necessary declarations for the relevant authorities regarding export from Germany and import into the country of destination. They must also make arrangements to obtain the documents needed for customs clearance and meet the requirements for any export controls or other restrictions on marketability.
2. Deliveries are subject to the condition that there are no obstacles to compliance due to national or international regulations, particularly export control provisions and embargoes or other such sanctions.
3. Delivery periods are suspended if there are any delays due to export controls.
6. Prices and payment
1. Prices are indicated in euros. They apply ex works unless agreed otherwise and do not include any shipping or packaging costs, processing fees, insurance, statutory tax, duties or other charges. Any costs incurred, particularly costs for packaging and shipping products, will be invoiced separately. Statutory sales tax will be indicated separately at the applicable, statutory rate on the day that the invoice is issued. In the case of international deliveries, prices include the costs for packaging; the remaining costs in Sentence 1 and Sentence 2 above still apply in such cases.
2. Shipping costs and processing fees amount to 8.00 euros net for small orders with a value of goods up to 300.00 euros unless agreed otherwise in writing. Wiha applies an extra charge of 3.00 euros per delivery for deliveries to German islands.
3. Entering the list price on an order form valid on the day of order or receiving an order confirmation do not constitute an agreement on a fixed price. In the event of price increases of more than 5%, the Ordering Party is entitled to withdraw from the contract. The Ordering Party shall immediately declare whether they will make use of their right to withdraw if Wiha requests them to do so.
4. Unless agreed otherwise, the net delivery price is to be paid within 14 days of the invoice date. The payment date is regarded as the actual day that Wiha has the delivery price payment at its disposal. In the event of a delay in payment, the Ordering Party must pay default interest amounting to 9% points above the applicable basic annual interest rate. This shall not affect any further claims that Wiha may wish to bring.
5. Notwithstanding Paragraph 3, payment shall be made before delivery in the case of companies outside Germany unless agreed otherwise in writing.
7. Transfer of Risk
1. Risk of accidental deterioration or damage to products is transferred to the Ordering Party as soon as the products are handed over to the person transporting them or the products leave Wiha's warehouse for shipment purposes. If the Ordering Party is to collect the products, risk is transferred to the Ordering Party when notification is given that they are ready for collection. Sentence 1 and Sentence 2 also apply if delivery is made in parts or Wiha is responsible for other services, such as transport costs or assembling or installing the products on the Ordering Party's premises.
2. If the Ordering Party delays in accepting delivery, Wiha may require compensation for damages incurred, including any extra expenses. In particular, Wiha is entitled to store the products at the Ordering Party's expense for the duration of the delay. Costs for storing the products are charged at a flat rate of 0.5% of the net invoice value per calendar week commenced. This shall not affect any further claims that Wiha may wish to bring. The Ordering Party is entitled to prove that Wiha has incurred no or fewer costs. The same applies if the Ordering Party is in breach of other obligations to cooperate unless the Ordering Party is not responsible for such a breach. Risk of accidental deterioration or damage to goods is transferred at the latest to the Ordering Party at the point in time when the delay commences. If a reasonable deadline which Wiha has set is still not met, Wiha is entitled to make use of the products elsewhere and supply the Ordering Party within a reasonable extended period.
3. If dispatch is delayed due to circumstances for which Wiha is not responsible, the risk is transferred to the Ordering Party when notification is given that they are ready for shipping.
4. The Ordering Party must also accept delivered products even if they contain insignificant defects without prejudice to their right to make claims for defects.
8. Claims regarding defects
1. The Ordering Party's rights arising from product defects require that the Ordering Party checks the delivered products on receipt and also test their use if reasonable. They must notify Wiha of any evident defects in writing immediately, two weeks after the products are received at the latest. Wiha must be informed of any hidden defects in writing as soon as they are discovered. The Ordering Party must describe the defects in writing in their notification to Wiha. The Ordering Party's right to make claims for defects also requires that they meet specifications, instructions, guidelines and conditions in the technical instructions, assembly, operation and usage instructions, and other documents pertaining to the products during their planning, construction, assembly, connection, installation, operation and maintenance. In particular, the Ordering Party must carry out maintenance correctly, provide evidence of maintenance and use recommended components.
2. In the event of product defects, Wiha is entitled to choose at its discretion between repairing the defect or supplying a defect-free product to provide subsequent performance. In the case of subsequent performance, Wiha must bear all the expenditure necessary in this regard, in particular the costs of transport, handling, labour and materials if these costs are not increased due to the products being sent to a location other than the delivery address. Personnel and material expenses which the Ordering Party claims in this connection must be invoiced on a cost-price basis. Replaced parts become Wiha's property and must be returned to Wiha.
3. If Wiha is not prepared or not able to provide subsequent performance, the Ordering Party may, at their discretion, withdraw from the contract or reduce the delivery price without prejudice to their right to make claims for damages or reimbursement of expenses. The same applies if supplementary performance is not successful, is unreasonable for the Ordering Party or is delayed beyond a reasonable period of time for reasons for which Wiha bears responsibility.
4. The Ordering Party's right to withdraw is excluded if they are unable to return the service received and this is not due to the fact that it is impossible to return the service received due to its nature or Wiha bears responsibility for such circumstances or the defect was not evident until it was processed or altered. The right to withdraw is also excluded if Wiha is not responsible for the defect and if the Ordering Party must provide compensation for lost value instead of returning the service.
5. No claims for defects can be made in the case of defects due to wear and tear, in particular wear parts, incorrect handling, installation, use or storage or if the Ordering Party or a third party makes incorrect modifications or repairs to the products. The same applies to defects which are attributed to the Ordering Party or which are due to a different technical reason other than the original defect.
6. Claims for reimbursement of expenses on the Ordering Party's part in lieu of compensation for damages to replace the service are excluded if a prudent third party would not have incurred the same expenses.
7. Wiha does not provide any warranties, in particular any warranties regarding properties or lifetime warranties unless agreed otherwise in writing in individual cases.
8. The limitation period for the Ordering Party's claims based on defects is one year. The limitation period is five years if the defective products have been used in a structure as per its customary use and have caused a deficiency in the structure or if a structure contains a defect due to defective products. A shorter limitation period of one year applies for claims relating to impermissible use which are due to a defect in the products. The limitation period commences from the moment that the products are delivered. The shorter limitation period does not apply to Wiha's unlimited liability for damages due to a breach of warranty or due to death and injury to body or health, damages caused by intent or gross negligence and for product defects or if Wiha has assumed procurement risk. If Wiha makes a response to a claim relating to defects which the Ordering Party has made, this is not to be regarded as the start of negotiations regarding the claim or the circumstances surrounding the claims if Wiha completely rejects the claim related to defects.
9. Liability on Wiha's part
1. Wiha is fully liable for damages caused by a breach of warranty or due to death and injury to body or health. The same applies to damages caused by intent or gross negligence or if Wiha has assumed procurement risk. Wiha is only liable for slight negligence if it has breached significant obligations related to the nature of the contract and which are essential in achieving the purpose of the contract. In the event of delay, breaches in such obligations and inability of performance, liability is limited to those damages which can be typically expected within the bounds of such a contract. Mandatory, statutory liability for product defects remains unaffected.
2. If the Wiha's liability is excluded or limited, this also applies to the personal liability of Wiha's employees, workers, staff, representatives and vicarious agents.
10. Product liability
1. The Ordering Party shall not modify the products; in particular, they shall not modify or remove any warnings against improper use of the products. If the Ordering Party breaches this obligation, the Ordering Party shall indemnify Wiha from liability inter se regarding product liability claims from third parties unless the Ordering Party is not responsible for the error on which the liability claim is based.
2. If Wiha needs to launch a product recall or a product warning due to a defect in the products, the Ordering Party shall cooperate, to the best of their ability, with the measures which Wiha considers necessary and purposeful. The Ordering Party shall assist Wiha in this process, particularly in the provision of the necessary customer details. The Ordering Party is obliged to bear the costs of the product recall or warning unless they are not responsible for the product defect and the damages incurred as per the principles of product liability legislation. This shall not affect any further claims that Wiha may wish to bring.
3. The Ordering Party will inform Wiha immediately in writing of any risks involved in using the products and any possible product defects that they become aware of.
11. Force majeure
1. If Wiha is prevented for fulfilling its contractual obligations, particularly the delivery of products, due to a force majeure, Wiha shall be released from its obligation to perform for the duration of the impediment and a reasonable period to restart operations without being obliged to compensate the Ordering Party for damages. The same applies if it is unreasonably difficult or temporarily impossible for Wiha to fulfil its obligations due to unforeseen circumstances which Wiha is not responsible for. Such circumstances particularly include labour disputes, actions by authorities, energy shortfall, a supplier impeded from making delivery, or significant malfunctions or breakdowns. This shall also apply if such circumstances affect sub-suppliers. This shall also apply if Wiha is already behind schedule. If Wiha is released from its obligation to deliver, Wiha shall return any pre-payments that the Ordering Party has made.
2. Wiha is entitled to withdraw from the contract after a reasonable period of time if such an impediment lasts longer than four months and it is no longer in Wiha's interest to fulfil the contract due to the impediment. After this period of time expires and on the Ordering Party's request, Wiha shall immediately declare whether they will make use of their right to withdraw or will deliver the products within a reasonable period of time.
12. Retention of title
1. The supplied products remain Wiha's property until full payment is made of the delivery price and all receivables are paid to which Wiha is entitled from the Ordering Party on the basis of the business relationship. The Ordering Party is obliged to treat the products subject to retention of title with care for the duration of the retention of title.
2. The Ordering Party is only permitted to sell products subject to retention of title in the normal course of business. Furthermore, the Ordering Party is not entitled to pledge products subject to retention of title or assign them as collateral or place them at the disposal of third parties in any other way which jeopardises Wiha's ownership of the products. In the event of seizure or other intervention by third parties, the Ordering Party must inform Wiha of the circumstances immediately in writing and provide all necessary information, inform the third party of Wiha's proprietary rights and cooperate in Wiha's actions to protect the products subject to retention of title. If the third party is not able to reimburse Wiha for the legal and extrajudicial costs of asserting Wiha's proprietary rights, the Ordering Party is obliged to reimburse Wiha for the financial loss incurred unless the Ordering Party is not responsible for the breach of duty.
3. The Ordering Party shall assign receivables from the resale of products with all ancillary rights to Wiha with immediate effect and regardless of whether the products subject to retention of title are resold without or after processing. Wiha shall accept such an assignment of receivables with immediate effect. If an assignment is not permitted, the Ordering Party shall instruct the garnishee to make any payments to Wiha only. The Ordering Party is revocably authorised to collect receivables assigned to Wiha in their own name on a trust basis on behalf of Wiha. The collected amounts are to be paid to Wiha without delay. Wiha may revoke the Ordering Party's authorisation to collect payment and the Ordering Party's right to resale for due cause. This is particularly the case if the Ordering Party does not meet their payment obligations towards Wiha in due form, defaults on payment or stops making payments. This is also the case if the Ordering Party applies to initiate insolvency proceedings or a similar procedure with regard to the Ordering Party's assets or a third party's justified application to initiate insolvency proceedings or a similar procedure with regard to the Ordering Party's assets to settle debts is rejected due to lack of sufficient assets. If the Ordering Party initiates assignment for the benefit of creditors, the receivables assigned to Wiha are to be expressly excluded from such assignment.
4. If required by Wiha, the Ordering Party is obliged to inform the garnishee immediately of the assignment to Wiha and provide Wiha with the information and documents necessary to collect.
5. In the event of a breach in the contract, particularly if the Ordering Party is in default of payment, Wiha is entitled to withdraw from the contract without prejudice to its other rights after a reasonable grace period set by Wiha expires. The Ordering Party must grant Wiha or its representatives immediate access to the products subject to retention of title and release them. After appropriate, timely notification, Wiha may reuse the products subject to retention of title elsewhere to satisfy its receivables due from the Ordering Party.
6. If the Ordering Party processes or alters products subject to retention of title, it is always on Wiha's behalf. The Ordering Party's expectant right to the products subject to retention of title extends to include the processed or altered item. If the products are processed or altered with items not belonging to Wiha, Wiha acquires joint ownership to the new item in proportion to the value of its delivered products in relation to the other processed items at the time of processing or alteration. The same applies if the products are linked or mixed with other items not belonging to Wiha with the result that Wiha loses its full ownership. The Ordering Party shall keep the new items in safe custody on Wiha's behalf. In all other respects, the same provisions apply to the item produced by processing, alteration, linking or mixing as for products subject to retention of title.
7. If the Ordering Party requires, Wiha is obliged to release the securities to which they are entitled when the feasible value of the securities exceeds Wiha's receivables from its business relationship with the Ordering Party by more than 10% after taking into account the reduction in valuation customary in banking. The valuation shall be based on the invoice value of the products subject to retention of title and the nominal value for receivables. Wiha is responsible for choosing the specific items to be released.
8. In the case of deliveries under other legal systems where such a provision on retention of title does not have the same effect of retention that it does in the Federal Republic of Germany, the Ordering Party hereby grants Wiha a suitable lien. If further measures are necessary in this respect, the Ordering Party shall do their utmost to immediately grant such a lien. The Ordering Party shall cooperate with all measures which are necessary and required to ensure that such liens are effective and enforceable.
1. The parties are obliged to keep secret all information made accessible to them which is marked confidential or which is recognisable as a business or company secret due to other circumstances for a period of five years after delivery. They shall not record, reuse or distribute such information unless required for the business relationship.
2. The obligation of non-disclosure does not apply if the receiving party's information was demonstrably known before the contractual relationship commenced or was common knowledge or generally accessible before the contractual relationship commenced or it becomes common knowledge or generally accessible through no fault of the receiving party. The receiving party bears the burden of proof.
3. The parties shall conclude a suitable contractual agreement with employees and authorised representatives working for them, in particular their freelance employees, contractors working for them and service providers to ensure that such persons refrain from any own reuse, distribution or unauthorised recording of such business and company secrets for a period of five years after delivery.
14. Final Provisions
1. The Ordering Party's rights and obligations may only be transferred to third parties after obtaining Wiha's prior written consent.
2. Counterclaims filed by the Ordering Party only entitle them to offset payment if the counterclaims have been recognised in a court of law or they are undisputed. The Ordering Party may only exercise their right of retention if their counterclaim relates to the same contractual relationship.
3. The law of the Federal Republic of Germany shall apply to any legal relationships between Wiha and the Ordering Party to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
4. The sole place of jurisdiction for all disputes arising from the business relationship between Wiha and the Ordering Party is the district where Wiha's headquarters is located. Wiha is also entitled to bring action in the district where the Ordering Party's headquarters is located or any other permitted place of jurisdiction. Arbitration clauses are expressly excluded.
5. Unless agreed otherwise, the place of performance for all services provided by the Ordering Party and Wiha is Wiha's registered domicile.
6. The language of the contract is German.