General terms of conditions

§ 1 

Scope of application, Exclusion of third-party terms and conditions

(1) All our offers, deliveries and services are based on these terms and conditions (hereinafter referred to as “Terms and Conditions”). The conditions set forth below apply solely to entrepreneurs as defined in Section 14 of the German Civil Code [BGB], legal entities under public law or a public law special fund (hereinafter collectively referred to as “customer”).

(2) Our terms and conditions shall apply exclusively. As a rule, the applicability of other terms and conditions shall be excluded, unless we have expressly agreed to their application in writing.

(3) Our Terms and Conditions shall also apply if we complete the delivery to the customer, without prior reservation in the knowledge of conflicting or deviating terms and condition of the receiving customer.

(4) In the event of lasting business relationships, our Terms and Conditions shall apply to future offers, deliveries, and services to customers without further express notice.

§ 2 

Conclusion of contract, Scope of delivery, Prohibition of assignment

(1) As a rule, our offers are free of charge and subject to change, unless otherwise agreed upon in writing. Contracts and agreements become binding only upon our written order confirmation or by our delivery. The same applies to amendments, modifications, or ancillary agreements. 

(2) Unless expressly agreed otherwise, the contract is concluded subject to us receiving correct and timely deliveries by our suppliers. This applies solely to the event that we cannot be held responsible for non-delivery, and, in the case of having concluded a congruent cover transaction with our supplier, in particular. The customer shall be notified immediately of the unavailability of our service. Any consideration already provided will be repaid.

(3) All product information, in particular the illustrations, dimensions and performance data provided in our quotations and brochures, as well as other data, are approximate average values. Industry-standard tolerances in quantities, weights, number of units or lot size, as well as dimensions are expressly reserved. We also reserve the right to make technical changes.

(4) The scope of delivery and service is ruled by our written order confirmation or, if this has not been provided, our quotation. 

(5) Partial deliveries are permitted if acceptable for the customer.

(6) Our offer is based on documents and records, such as technical drawings, illustrations, descriptions, weights, and dimensions, however, they are subject to the contractual agreement only if expressly agreed upon in writing. We reserve the right to make such amendments and adjustments that do not significantly affect the purpose of the contract and the delivery. 

(7) All quotation documents, plans, drawings, cost estimates, records, and documents, including those in electronic format, remain our property and may not be retained, modified, copied, otherwise reproduced, or be made available to third parties by the customer. Upon our request, they shall be either returned to us or deleted immediately. All and any intellectual property rights in these documents in our favour maintain such status, even in the event of leaving them with the customer. The customer is not authorised to use or distribute sample copies, samples, or models.

(8) Any assignment of claims by the customer against us is permitted only upon prior express agreement in writing. The same applies to any legal claims of the customer that may arise from the contractual relationship.

(9) We reserve the right to modify the purchased item during the period of delivery, insofar as the object of purchase and its appearance are not changed fundamentally, and the contractually-stipulated purpose of the delivery is not curtailed in a manner that is unreasonable for the customer. Production-related over- or under-deliveries are permitted within a tolerance of 10% of the total order volume.

§ 3 

Prices, Payment, Partial payment

(1) Unless otherwise agreed upon, our prices apply to “Ex works” Incoterms 2020 delivery and are shown as net prices. Freight, customs, applicable sales taxes, and packaging expenses are to be paid in addition by the customer, even if these are expressly shown.

(2) Prices are shown without the statutory valued added tax. It will be invoiced additionally, if applicable, in the statutory amount in force at the day of the invoice.

(3) Unless otherwise agreed upon in writing, we are entitled to adjust our prices and/or freight tariffs, if our expenses for wages and salaries, raw or operating materials, energy expenses, freight costs and customer, as well as other material, increase in a significant manner. This right also extends to deliveries and services from a continuing obligation.

(4) Depending on the progress of the order, we may request appropriate partial payments for partial services delivered.

(5) All payments must be made in EURO and exclusively to us. Any exchange rate risks are borne by the customer.

(6) Unless otherwise agreed, our invoices are due immediately without reduction. 

(7) The customer shall be in arrears no later than 30 days after receipt of the invoice, unless other circumstances for a delay have been agreed upon (this may be, but not limited to, a remainder or payment, an agreed-upon shorter payment period, or a calendar-specific payment period). From the date of arrears, the customer owes default interest in the amount of 9 percentage points above the actual base interest rate. Furthermore, in the event of arrears, we reserve the right to charge a default flat fee of € 40.00. Other contractual or legal rights remain unaffected.

(8) All payments are applied first to the costs, then to the interest, and finally to oldest main claims, regardless of the customer’s provisions to the contrary.

(9) Cheques and/or bills of exchange are accepted as payment by us only if we have previously agreed in writing to such type of payment. Any expenses arising from such payment shall be borne by the customer.

(10) An offset against counter-claims by the customer is permitted only if such counter-claims are undisputed or have been legally established.

(11) If payment terms are not complied with, or circumstances become known or recognised which, in our obligatory commercial assessment, give rise to reasonable doubts in respect to the creditworthiness of the customer, including those facts which were present already at the time of conclusion of the contract, but were not known to us or should have been known, we shall be entitled, without prejudice to further statutory rights, to discontinue ongoing orders or deliveries, and to demand, at our discretion, advance payments or the provision of securities for outstanding deliveries. We shall also be entitled to withdraw from the contract, without prejudice to any other statutory rights, in the event of the unsuccessful expiry of a reasonable period of grace. The customer is obligated to compensate us for any damage arising from the non-execution of the contract.

(12) All our claims become due immediately in the event of a delay in payment by our customer, suspension of payment or application for the opening of insolvency proceedings regarding the customer’s assets. This applies also if payment terms have been agreed upon or if claims are not yet due for other reasons. Furthermore, this applies as well to bills of exchange accepted by us, regardless of their duration.

§ 4 

 Delivery periods 

(1) Delivery times are determined by the agreements of the contractual parties.

(2) The agreed-upon period of delivery is an intended period, unless otherwise expressly agreed-upon in writing.

(3) The agreed-upon period of delivery commences, at the earliest, with signing of the contract and requires the prior resolution of all commercial and technical issues. Prerequisite for the commencement of the delivery period is that the customer has provided all necessary documents and approvals, and submitted any advance payments, if agreed-upon. 

(4) Upholding the delivery period shall be subject to correct and punctual delivery by our suppliers.

(5) Delivery is made “Ex works”, Incoterms 2020. The customer undertakes to collect the goods immediately after notification of readiness.

(6) The delivery period for the “Ex works” delivery, Incoterms 2020, is complied with when the purchased goods are separated and ready for dispatch within the agreed-upon period and this has been communicated to the customer. In the case of a purchase to be dispatched, the delivery period is met when the purchased goods have been handed over to the forwarding agent within the period, or have been ready for delivery but not been handed over, without us being at fault.

(7) Cases of force majeure (in particular, but not limited to, riot, strike, war, flooding, lockout, fire, epidemic, pandemic, seizure, cyberattack, boycott, legal or official orders and restrictions), or any other incorrect or delayed delivery by our suppliers, or any other external, unforeseeable, or unavoidable events that cannot be prevented despite utmost care, and affecting us or our suppliers, unreasonably complicate or make impossible our obligations to deliver and perform, shall extend our obligations to deliver and perform by the duration of the occurrence of the case(s) or event(s) with an appropriate re-start time, provided that we had been unable to meet our obligations despite reasonable measures having been taken.

(8) An extension of the obligations to deliver and perform pursuant to para. (7) above shall apply also if such cases or events occur at a time when we are in default. 

(9) If obligations to deliver and perform pursuant to para. 7 due to such cases or events have been extended to a reasonable period, each party shall be entitled to withdraw from the contract after the expiry of these extensions. If the customer has defined partial deliveries, he can also withdraw from parts of the contract. Insofar as we have provided partial deliveries and/or performances, the customer may withdraw from the entire contract only if he has no demonstrable interest in a partial delivery and/or performance by us. Further legal or contractual rights to withdraw from the contract remain unaffected.

(10) In the event of us delaying the delivery, and after the fruitless expiry of a reasonable grace period as set by the customer, the customer is entitled to withdraw from the contract, or insofar as the customer has defined partial deliveries from us, to withdraw from parts of the contract. Further claims of the customer, in particular, claims for damage due to poor performance or delays, are excluded, unless they are expressly acknowledged in Section 8 below.

(11) Deliveries prior to the expiry of the delivery period and partial deliveries are permitted insofar they are reasonable for the customer.

(12) If the customer is in default of acceptance or otherwise is responsible for a delay in dispatch, we can store the products at the risk and expense of the customer and charge them as "ex works” delivered. We have the right to charge at least 1.5% of the value of the goods per month as a storage fee. The assertion of any further damage is expressly reserved. After setting and fruitless expiry of a grace period for the acceptance of the products, we can withdraw from the contract and claim damages instead of the service. Other rights remain unaffected. Setting a grace period is not necessary if the customer seriously and definitively refuses acceptance, or if it is obvious that he is not able to pay the purchase price or to accept the delivery even within the grace period. Damage is considered to an amount of 20% of the value of the order. The damage will be offset against any down payment. The parties are free to prove that the damage was, in fact, higher or lower.

§ 5 

Transfer of risk, Dispatch, Packaging

(1) Unless otherwise agreed in writing, a delivery “ex works”, Incoterms 2020, is agreed. 

(2) The risk of accidental loss and accidental deterioration of the items to be delivered is thus transferred to the customer with the notification of readiness for dispatch and the separation of the purchased item(s). This also applies if we have assumed additional services such as loading, transporting, or unloading. If a dispatch of the item(s) is delayed due to circumstances within the control of the customer, the risk of accidental loss shall be transferred to the customer with the notification of readiness for dispatch. 

(3) If a purchase with shipment has been agreed upon, the risk of accidental deterioration or accidental loss shall be transferred to the customer, at the latest, upon dispatch of the item(s) or handover to the transporting entity “ex works” or place of dispatch. If the dispatch is delayed due to the customer, the risk passes to the customer with the notification of readiness for dispatch. Section 5 (2) Clause 3 applies accordingly.

(4) Insofar as we carry out the transport for the customer, the manner of packaging and dispatch of the items is our responsibility, unless otherwise agreed-upon in writing.

(5) Unless otherwise agreed, the customer is responsible for taking out transport insurance. 

(6) If it is agreed that we bear the risk of accidental loss and accidental deterioration of the delivery items, the customer is obliged to check the shipped goods for external transport damage, immediately upon arrival of the goods and in the presence of the carrier. The customer undertakes to notify the carrier of externally-recognisable losses or damage to the delivery item at the latest upon delivery with sufficiently-clear identification of the loss or damage and to notify us immediately in writing Losses or damages that are not externally-recognisable must be reported to us in writing within 5 calendar days. In addition, the provisions of Section 438 of the German Commercial Code (HGB) as well as the duty of inspection and notification in accordance with Section 7 (4) apply.

§ 6 

Retention of title

(1) We reserve the title to all items delivered by us until full payment of all claims against the customer arising from the business relationship, including such claims from cheques and bills of exchange. In the case of payments by cheques and bills of exchange, we reserve ownership of the delivered items until the risk of recourse has expired.

(2) The customer undertakes to visibly mark the subject matter of the contract, which is subject to retention of title, at any time at our request, and in the event of an application for insolvency, with "in the property of Walter Wörner Gesellschaft für textilen Service mbH".

(3) The customer is obliged to treat the reserved goods with care; in particular, he is obliged to sufficiently insure them at his own expense against fire, water, and theft damage at replacement value. If maintenance and inspection work is required, the customer must complete those on time, and at his own expense.

(4) If the customer processes the goods subject to retention of title, this shall be carried out for us as a manufacturer within the meaning of Section 950 of the German Civil Code (BGB). If the goods delivered by us are processed or inseparably mixed with other objects, we shall acquire co-ownership of the new items, in proportion to the invoiced value of our goods to the invoice value of the other goods used. The customer may process the delivered goods during a normal business process, provided that the aforementioned security interests are safeguarded. 

(5) The customer may resell the delivered items during a normal course of business, as long as our retention of title to the items is maintained in accordance with paragraph (6) below. Transfer, transfer of security, pledging, and similar measures are not permitted to the customer. 

(6) In the event of a resale of the delivered items, the customer assigns to us all claims against third parties that arise from such resale. We hereby accept this assignment. Insofar as we are only co-owners of the sold goods, the assignment is made only up to the amount of our claims against the customer.  

(7) We hereby authorise the customer to collect the claim assigned to us for our invoice in his own name. This authorisation may be revoked at our discretion. A revocation of this authorisation is only permissible if the customer does not properly fulfil his obligations under this contract, in particular, his payment obligations, he becomes insolvent or incapable of paying, if an application for the opening of insolvency proceedings has been filed, or if such an application has been rejected for want of assets. In the event of revocation of the authorisation to collect our claims, the customer must notify the debtor of the assignment of the claim to us. We are also free to disclose the extended retention of title to the third party. 

(8) The customer's right to dispose of the goods subject to retention of title, to process them, or to collect the assigned claims shall also expire without express revocation if insolvency proceedings are opened on the customer's assets or if it is rejected for want of assets, in the event of suspension of payments, or submission of an application for the opening of insolvency proceedings by the customer or a third party, or in the event of insolvency or over-indebtedness. In these cases, as well as in the cases of the foregoing paragraph (7), we have the right to withdraw from the contract after a reasonable period of time, with the result that we are entitled to take back the goods subject to retention of title. The customer is obliged to hand over the goods subject to retention of title. The proceeds of any exploitation of the reserved goods will be credited to the customer – minus the exploitation expenses – against his obligations towards us.

(9) In the event of the revocation of the authorisation to collect the assigned claims, the customer is obliged to disclose to us immediately and in writing, any claims against third parties from assigned title and in what amount.

(10) If the collateral provided to us exceeds the claims to be secured by more than 20%, we are obliged, upon the customer's request, to release reasonable amounts of collateral at our discretion.

(11) The customer is required to notify us in writing immediately, if third parties have access to the reserved goods, the assigned claims, or any other documents and records. All costs of legal defence of our reserved goods, including those against third parties, are to be borne by the customer.

§ 7 

Warranty

(1) If the contractual relationship between us and the customer is a purchase or a work contract, we shall be liable for material and legal defects of the delivered items already existing at the time of the transfer of risk in accordance with the following provisions. Relevant legal provisions also apply.

(2) Warranty claims against us are only available to the immediate buyer and are not assignable without our consent.

(3) As a rule, certain properties are only deemed to have been warranted by us, if we have expressly confirmed this in writing. A warranty is only deemed to have been assumed by us if we have described a quality as "warranted" in writing. 

(4) Within the scope of applicability of Section 377 of the German Commercial Code (HGB), we must be notified in writing of any defects, missing quantities, or incorrect deliveries without delay, but, at the latest, within 14 days after delivery, and in any case before connection, mixing, processing or installation; otherwise, the delivered item shall be deemed to have been approved, unless we or our legal representatives or vicarious agents are charged with malice. Hidden defects must be reported in writing to us immediately, but no later than 14 days after their discovery. The provisions of Section 377 German Commercial Code (HGB) also apply. Section 5 para. (6) remains unaffected by this.

(5) We must be given the opportunity to jointly identify the complaints indicated and to be present at the taking of material tests.

(6) Inasmuch as the products have been developed and/or manufactured on the basis of certain specifications made by the customer (e.g. individual productions), we shall only be liable for the fact that the production is carried out in accordance with the customer's specifications, but not for the correctness and/or technical feasibility of the customer's specifications.

(7) Subject to the following provisions of this para. (7), the limitation period for the customer's claims for defects shall be one year, starting with the commencement of the statutory limitation period. Should we have fraudulently concealed a defect, the statutory time limits shall apply to any claims for damage. Statutory time limits also apply to the limitation period for any claims for damage by the customer due to defects, if we are guilty of intent or gross negligence, or if the claim for damage is based on injury to life, body, or health.

(8) Our warranty for material and legal defects is limited to supplementary performance. As part of our obligation to supplementary work, we shall be entitled, at our discretion, to repair or delivery of a replacement. If we do not fulfil this obligation within a reasonable period of time or if a rectification fails despite repeated attempts, the customer is entitled to reduce the purchase price or to withdraw from the contract. Cancellation of the contract is excluded if the defect is of an insignificant nature. Furthermore, insofar as we have delivered partial deliveries free of defect, a cancellation of the entire contract is only permissible if the customer's interest in the partial deliveries made has been proven to have ceased to exist. Claims, and claims for reimbursement of expenses or claims for damages, in particular, exist only within the scope of the provisions of Section 8. Replaced parts shall become our property or will remain our property and shall be returned to us at our expense upon request.

(9) At his risk, the customer must send us the defective goods for repair or replacement, unless a return is not possible due to the type of delivery. We shall bear transport, travel, labour, and material costs incurred for the purpose of subsequent performance, but only from the place to which the purchased goods had been delivered as intended, and up to the maximum value of the delivered item in faultless condition.

(10) The customer is obliged to give us the time and opportunity required for the repair or delivery of a replacement. Only in urgent cases of endangerment of operational safety, prevention of disproportionately large damages or in the case of a delay in the rectification of defects by us, does the customer have the right to rectify the defect by himself or by third parties, after prior notification to us, and to demand compensation from us for the costs incurred. 

(11) However, there are no warranty claims if the customer (i) changes the delivered item or has it modified by third parties, and/or (ii) does not replace or replace parts of the delivered item with original spare parts from us, but by spare parts of a third party, without this being necessary for the contractual use of the delivered item due to our delay with regard to an obligation and inconclusive expiry of a grace period set by the customer or for significant other reasons. This does not apply if the customer proves that the defects in question were not caused by the changes made by him or the third party to the delivered item, or the spare parts supplied by a third party.

(12) Recourse claims pursuant to Sections 478, 479 of the German Civil Code (BGB) or pursuant to Sections 445 a, 445 b of the German Civil Code (BGB) only exist if the claim by the customer was justified, and only to the legal extent, but not for goodwill regulations not agreed with us. They also require compliance with the obligations of the person entitled to recourse, in particular the compliance with any complaint obligations.

(13) Further processing or installation of goods delivered by us shall always be deemed to be a waiver of the notification of defects, as far as the defect was detectable.

(14) In the case of justified complaints of defects, payments by the customer may be withheld only to the extent that is proportionate to the material defects that have occurred. If the notification of defects has been wrongly reported, we shall be entitled to demand compensation from the customer for the expenses incurred by us as a result.

(15) Claims for defects do not exist in the event of only insignificant deviation from the agreed-upon or usual quality or usability, e.g., insignificant deviations in colour, dimensions and/or quality or performance characteristics of the products.

(16) Defects and their resolution must always be recorded in writing.

(17) Our warranty does not extend to the suitability of the delivered item for the intended use by the customer, which, however, differs from the usual use, unless this has been agreed upon in writing.

(18) Our warranty obligation extends only to the delivery of newly-manufactured products. Unless otherwise agreed, used products will be sold “as is”, excluding any warranty.

(19) No warranty claims exist, in the following cases in particular: Inappropriate or improper use of the products, including accidental or intentional destruction of, or damage to, the products, damage caused by the customer or a third party, wear and tear and natural wear, incorrect or negligent handling, mechanical, chemical, electronic, electrical, and comparable influences that do not correspond to the specified average standard influences.

(20) Furthermore, warranty claims do not exist if the customer changes the delivered item itself or has it changed by third parties, and/or replaces parts of the delivered item not with original spare parts supplied by us, but by spare parts of a third party. This does not apply if the customer proves that the defects in question were not caused by the changes made by him or the third party to the delivered item, or the spare parts supplied by a third party.

§ 8 

Liability

(1) For damages, for whatever legal reason, we are only liable:

a) insofar as we, our legal representatives or vicarious agents are charged with intent or gross negligence,

b) For culpable injury to life, body, or health,

c) For culpable breach of essential contractual obligations, 

d) For defects that we have fraudulently kept secret or whose absence we had warranted,

e) Insofar as liability is made in accordance with the Product Liability Act for personal injury or damage to property in privately used objects.

We are not liable for further claims for damages.

(2) Essential contractual obligations are those that must be fulfilled to enable the proper execution of the contract in the first instance, and the compliance of which the ordering party regularly trusts and may rely on.

(3) In the event of a slightly-negligent breach of essential contractual obligations (excluding intent and gross negligence), however, we shall only be liable to a limited extent for the damage typical of the contract, and which is reasonably foreseeable. 

(4) The foreseeable damage, typical of the contract, shall be assessed in the amount of the contractual value of the service concerned.

§ 9 

Intellectual property rights and Legal deficiencies

(1) Unless otherwise agreed, we are obliged to provide the delivery, only within the Federal Republic of Germany, free of industrial property rights and copyrights of third parties (hereinafter referred to collectively as "intellectual property rights"). Insofar as a third party asserts legitimate claims against the customer due to the violation of intellectual property rights by deliveries provided by us in accordance with the contract, we shall be liable to the customer according to the following provisions:

(2) We will, at our discretion, either obtain a right of use for the relevant deliveries, to change them in such a way that the intellectual property right is not infringed or exchange them. If we are unable to do so under reasonable conditions, the customer is entitled to the statutory rights of withdrawal and reduction.

(3) Our obligation to pay damages is governed by Section 8.

(4) The above-mentioned obligations on our part exist only if the customer has notified us immediately in writing of the claims asserted by the third party. They do not acknowledge a violation, and we reserve all defensive measures and settlement negotiations. If the customer discontinues the use of the delivery for damage reduction or other reasons, he is obliged to notify the third party that the suspension of use does not involve an acknowledgement of any infringement of intellectual property rights. 

(5) Claims of the customer are excluded, provided that he is responsible for the infringement of intellectual property rights.

(6) Claims of the customer are further excluded, if the infringement of intellectual property rights is caused by particular specifications made by the customer, or by an application that we could not anticipate, or by the fact that the delivered item has been modified by the customer, or it is used in conjunction with products not supplied by us.

(7) In the event of other legal deficiencies, the provisions of Section 7 shall apply accordingly.

(8) Further or other claims of the customer against us than those stipulated in Sections 9 and 7 are excluded.

§ 10 

Acceptance

(1) Insofar as acceptance has been agreed upon, or is required in accordance with the applicable statutory provisions, the following provisions of this Section 10 shall apply.

(2) Acceptance takes place in consultation with the customer and at the customer's factory, unless otherwise agreed in writing.

(3) The customer is obliged to accept the services provided by us as soon as he has been notified of their completion and all testing has taken place, as has been stipulated contractually.

(4) If the customer detects deviations from the original sample or the contractually -agreed specifications during this inspection, he shall immediately notify us in writing. This communication should contain a sufficiently precise description of the deviation found, to enable us to identify and eliminate the deviation.

(5) The customer cannot refuse acceptance if the deficiency is insignificant in nature. Defects of this kind will be rectified by us within the scope of the warranty. 

(6) We will remedy any significant deficiency as soon as possible and then submit them to the customer for acceptance; this new acceptance test shall be limited to establishing the elimination of the deviation. Insignificant deviations are documented as a defect by the customer in writing in the declaration of acceptance, and which are eliminated by us within the scope of the warranty.

(7) If the customer refuses acceptance without authorisation or without giving reasons, we can set him, in writing, a period of 14 days to declare acceptance. Acceptance shall be deemed to have taken place if the customer does not accept the work within this period, or if the material defects, he has identified are not specified in writing. 

(8) In any case, the work result is deemed to have been accepted if the customer uses it productively or could use it. From this point on, the warranty period will be in force, and we are entitled to the payment of any remaining balance.

(9) The customer is not entitled to refuse acceptance due to disruptions during acceptance, for which we are not responsible.

(10) Acceptance signifies the end of our liability for perceivable deficiencies unless the customer has reserved the right to claim a defect of which he is aware.

§ 11 

Place of performance, Jurisdiction, Applicable law 

(1) The place of performance for all claims arising from the business relationship between us and the customer is the registered office of our company. 

(2) The exclusive place of jurisdiction for all claims arising from the business relationship, including those arising from cheques and bills of exchange, is the place of performance, provided that the customer is a merchant, a legal entity under public law or a public law special fund. However, we are also entitled to take action against the customer at his general place of jurisdiction. 

(3) The law of the Federal Republic of Germany shall apply exclusively to all disputes arising from contracts to which these General Terms and Conditions apply, and to all disputes arising from the business relationship between us and the customer. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) and private international law is excluded.

§ 12 

Final provisions 

Should individual provisions of these General Terms and Conditions be completely or partially ineffective, the validity of the other provisions shall remain unaffected. 

Walter Wörner Gesellschaft für textilen Service mbH

Benzstrasse 22

D-72793 Pfullingen

Version: 10/11/2020