General terms and conditions
Explore our general terms and conditions
Section 1 Scope
- All deliveries, services and offers supplied by W. Söhngen GmbH (hereinafter referred to as the “supplier“) are made exclusively on the basis of these General Delivery Conditions. They are part of all contracts that the supplier concludes with its contracting partners (hereinafter also referred to as „customers“) for the deliveries or services offered by the supplier. They also apply to all future deliveries, services or offers made to the customer even when they are
not expressly subject to separate agreements.
- Terms and conditions of the customer or third parties do not apply even if the supplier does not object separately to their validity in the individual case. Even if the supplier makes reference to a letter that contains the terms and conditions of the customer or a third party or refers to them, this does not constitute any agreement on the validity of those terms and conditions.
Section 2 Offer and Conclusion of the Contract
- All offers made by the supplier are subject to change and non-binding unless they are expressly identified as binding or contain a specific term of acceptance. The supplier can accept orders or jobs within (14) calendar days of receipt.
- Additions and amendments to the agreements made including these General Delivery Conditions must be in writing to be effective. With the exception of CEOs and authorised representatives, employees of the supplier are not entitled to conclude oral agreements that deviate from the written agreement. To satisfy the requirement for the written form, transmission by telecommunication, in particular by fax or email, is sufficient provided that a copy of the signed declaration is transmitted.
- Information from the supplier about the subject of the delivery or service (e.g. weights, dimensions, values in use, resilience, tolerances and technical data) and our representations of these (e.g. drawings and figures) are only approximately authoritative unless precise agreement is required for usability for the contractually intended purpose. They are not guaranteed characteristics; they are descriptions or identifiers of the delivery or service. Customary deviations and deviations that occur as a result of legal regulations or technical improvements and the replacement of components with equivalent parts are permissible provided they do not impair usability for the contractually intended purpose.
- The supplier retains ownership or copyright of all offers and cost estimates issued by the supplier and of drawings, figures, calculations, brochures, catalogues, models, tools and other documents and tools provided to the customer. The customer may not use these items as such or make the content accessible to third parties, disclose it or use or duplicate it themselves or allow it to be used or duplicated by third parties without the express consent of the supplier. At the request of the supplier, the customer must return these items to the supplier in
full and destroy any copies made if they are no longer needed as part of the ordinary course of business or if the negotiations do not lead to the conclusion of a contract. The exception to this is the storage of data provided electronically for the purposes of customary data security.
Section 3 Prices and Payment
- The prices apply to the scope of services and delivery listed in the order confirmations. Additional or special services are charged separately. The prices are in EUR ex works plus packaging, postage, the statutory VAT applicable in each case and, in the case of export deliveries, customs charges and fees and other public charges.
- If the agreed prices are based on the supplier‘s list prices and the delivery is to take place more than four months after conclusion of the contract, the supplier‘s list prices valid at the time of the delivery apply (in each case less the agreed percentage or fixed discount).
- Invoice amounts must be paid within 14 days of the invoice date without deductions unless otherwise agreed in writing. Receipt by the supplier is definitive for the date of payment. Payment by cheque is excluded unless this is agreed separately in the individual case. If the customer does not pay the invoice when it is due, interest of 5% p.a. is due on the outstanding amounts from the due date; the right to claim higher interest and further damages in the event of default remains unaffected.
- Offsetting with counterclaims on the part of the customer or the withholding of payments as a result of claims of this type is only permissible if the counterclaims are undisputed or have been legally established or result from the same order as part of which the delivery in question was made.
- The supplier is entitled to deliver outstanding deliveries or provide outstanding services in return for payment in advance or a security only if the supplier becomes aware, after conclusion of the contracts, of circumstances which are capable of reducing substantially the creditworthiness of the customer and as a result of which payment of the open claims of the supplier by the customer arising from the contractual relationship in question (including from other individual jobs for which the same framework agreement applies) is jeopardised.
Section 4 Delivery and Delivery Time
- Deliveries are ex works (Taunusstein Incoterms 2020).
- Deadlines and dates proposed by the supplier for deliveries and services are always only approximate unless a fixed deadline or a fixed date is expressly accepted or agreed. If shipment was agreed, the delivery deadlines and delivery dates refer to the time of transfer to the carrier, freight forwarder or third party otherwise commissioned with the transport.
- Irrespective of the supplier‘s rights arising from delay on the part of the customer, the former can request an extension of the delivery and service deadlines or a shift in the delivery and service dates from the customer by the period of time for which the customer fails to meet their contractual obligations to the supplier.
- The supplier is not liable for an inability to deliver or any delays in delivery if they were caused by force majeure or other events that were not foreseeable at the time of conclusion of the contract (e.g. malfunctions of any type, difficulties with procuring material or energy, transport delays, strikes, lawful lockouts, lack of workforce, energy or raw materials, difficulties procuring the necessary official approvals, official measures or the lack of, incorrect or delayed delivery from suppliers despite a congruent cover transaction concluded by the supplier) for which the supplier is not responsible. If events of this type make the delivery
or service significantly more difficult or impossible for the supplier and the obstruction is not merely temporary, the supplier is entitled to withdraw from the contract. In the event of temporary obstructions, the delivery or service deadlines are extended or the delivery or service dates are postponed for the period of the obstruction plus an appropriate lead time. If it is no longer reasonable for the customer to accept the delivery or service because of the delay, they can withdraw from the contract by sending a written declaration to the supplier immediately.
- The supplier is entitled to provide partial deliveries only if
- the partial delivery can be used by the customer as part of the intended contractual use,
- the delivery of the remaining goods ordered is ensured and
- no significant additional effort or additional costs arise for the customer as a result (unless the supplier agrees to cover these costs).
- If the supplier is in arrears with a delivery or service or if a delivery or service is impossible for any reason, the liability of the supplier for compensation is limited according to Section 8 of these General Delivery Conditions
Section 5 Place of Performance, Shipping, Packaging, Transfer of Risk, Acceptance
- The place of performance for all obligations arising from the contractual relationship is Taunusstein unless otherwise specified. If the supplier is also tasked with the installation, the place of performance is the location where the installation is to take place.
- The type of shipping and the packaging are chosen at the supplier‘s discretion.
- The risk passes to the customer no later than delivery of the delivered item (the start of the loading process is definitive here) to the carrier, freight forwarder or third party otherwise determined for carrying out the shipment. This also applies in the event of partial deliveries or if the supplier has taken on other services (e.g. shipping or installation). If the shipping or the handover is delayed as a result of a circumstance for which the customer is responsible, the risk transfers to the customer on the day on which the delivered item is ready for shipment and the supplier has informed the customer of this.
- The customer shall bear the storage costs after the transfer of risk. In the event of storage by the supplier, the storage costs are (0.25)% of the invoice amount of the delivered items to be stored per full week. The right to claim and provide evidence of additional or lower storage costs remains reserved.
- The shipment is insured by the supplier against theft, breakage, transport, fire and water damage or other insurable risks only at the express wish of the customer and at their expense.
- Insofar as acceptance is required, the purchased item is considered to be accepted when
- the delivery and, insofar as the supplier is also responsible for the installation, the installation is complete,
- the supplier has communicated this to the customer indicating notional acceptance according to this Section 5 (6) and has requested acceptance,
- (twelve) working days have passed since the delivery or installation or the customer has started using the purchased item (e.g. the system delivered has been put into operation) and in this case (six) working days have passed since the delivery or installation and
- the customer has refrained from acceptance within this period for a reason other than a defect reported to the supplier that makes the use of the purchased item impossible or significantly impairs it.
Section 6 Warranty, Material Defects
- The warranty period is one year from delivery, or from acceptance if acceptance is necessary. This deadline does not apply to claims for compensation on the part of the customer arising from damage to life, limb or health or from an intentional or grossly negligent breach of obligations on the part of the supplier or their agents which lapse in accordance with the statutory provisions.
- The delivered items must be examined carefully immediately after delivery to the customer or to the third party commissioned by the latter. They are considered to be approved by the buyer with regard to obvious defects or other defects that would have been identified in an immediate, careful examination if the supplier does not receive a written notice of defects within (seven) working days of delivery. With regard to other defects, the delivered items are considered to be approved by the buyer if the supplier does not receive a notice of defects within (seven) calendar days of the time at which the defect was identified; however, if the defect was obvious at an earlier point during normal use then this earlier time applies for the notice period. A delivered item about which a complaint has been made should be returned to the supplier free of charge at the supplier‘s request. In the case of justified complaints, the supplier will reimburse the costs of the most cost-effective shipping method; this does not apply if the costs are increased because the delivered item is in a location other than the location of intended use.
- In the event of material defects in the items delivered, the supplier is initially obliged and entitled to repair or replace the items at their discretion within a reasonable period of time. If this is unsuccessful, in other words the repair or replacement is impossible or unreasonable, is rejected or would result in an inappropriate level of delay, the customer can withdraw from the contract or reduce the purchase price accordingly.
- If a defect is due to fault on the part of the supplier, the customer can request compensation under the conditions set out in Section 8.
- In the event of defects in components from other manufacturers that the supplier is unable to remedy for licensing or factual reasons, the supplier can choose whether to make their warranty claims against the manufacturer and supplier on behalf of the customer or whether to transfer these rights to the customer. Warranty claims against the supplier in the event of defects of this type only apply under the other conditions and according to these General Delivery Conditions if the legal enforcement of the claims mentioned above against the
manufacturers and suppliers was unsuccessful or is futile, for example because of insolvency. The relevant warranty claims on the part of the customer against the supplier are inhibited for the duration of the legal dispute.
- The warranty does not apply if the customer changes the delivered item or allows it to be changed by third parties without the consent of the supplier and hence makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer must pay the additional costs of remedying the defect arising from the change.
- A delivery of used items agreed with the customer in an individual case is made to the exclusion of any warranty for material defects.
Section 7 Proprietary Rights
- According to this Section 7, the supplier is responsible for ensuring that the delivered item is free from third-party industrial property rights or copyrights. Each contracting partner will inform the other contracting partner in writing immediately if claims are made against them for the breach of rights of this type.
- In the event that the delivered item breaches a third-party industrial property right or copyright, the supplier can choose whether to amend or exchange the delivered item at their expense in such a way that no further third-party rights are breached but the delivered item continues to fulfil the contractually agreed functions, or to obtain the right of use for the customer by concluding a licence agreement with the third party. If the supplier is unable to achieve this within a suitable period of time, the customer is entitled to withdraw from the contract or to reduce the purchase price accordingly. Any claims for compensation on the
part of the customer are subject to the restrictions of Section 8 of these General Delivery Conditions.
- In the case of infringements by products from other manufacturers delivered by the supplier, the supplier can choose whether to make their claims against the manufacturers and upstream suppliers on behalf of the customer or to transfer them to the customer. Claims against the supplier in these cases apply according to this Section 7 only if the legal enforcement of the claims mentioned above against the manufacturers and upstream suppliers was unsuccessful or is futile, for example because of insolvency.
Section 8 Liability for Damages for Fault
- The liability of the supplier to pay compensation regardless of legal grounds, in particular because of impossibility, default, defective or incorrect delivery, breach of contract, breach of duties in contractual negotiations and unlawful acts is restricted according to this Section 8 insofar as fault is involved in each case.
- The supplier is not liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other agents unless the breach involves material contractual obligations. The following are material contractual obligations: the obligation to ensure prompt delivery and installation of the delivered item, its freedom from legal defects and material defects that impair its functionality or usability to more than just an insignificant extent, and advice, protection and care obligations that should enable the customer to use the delivered item as specified in the contract or are intended to protect the life and limb of the customer‘s staff or to protect the customer‘s property from significant damage.
- If the supplier is liable for compensation on the basis of Section 8 (2), this liability is limited to damages that the supplier foresaw or should have foreseen if using due diligence and care as a potential consequence of a breach of contract on conclusion of the contract. Indirect damage and consequential damage that is the result of defects in the delivered item are also eligible for compensation only if this damage would typically be expected when the delivered item is used as intended.
- In the event of liability for simple negligence, the obligation of the supplier to pay compensation for material damage and additional financial losses resulting from this is limited to EUR 10,000.00 per claim, even if a breach of material contractual obligations is involved.
- The above exclusions and restrictions of liability also apply to the same extent to the bodies, legal representatives, employees and other agents of the supplier.
- If the supplier provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services, this is done free of charge and to the exclusion of all liability.
- The restrictions in this Section 8 do not apply to the liability of the supplier for deliberate actions, for guaranteed characteristics, for injury to life, limb or health or according to the Product Liability Act.
Section 9 Reservation of Title
- The reservation of title agreed below serves to safeguard all current and future claims on the part of the supplier against the buyer that may arise from the delivery relationship between the contracting partners (including balance claims arising from a current account relationship limited to this delivery relationship).
- The goods delivered by the supplier to the buyer remain the property of the supplier until full payment of all secured claims has been made. The goods and the goods covered by retention of title that replace them according to the provisions below are referred to as „reserved goods“ below.
- The buyer stores the reserved goods for the supplier free of charge.
- The supplier is entitled to process and sell the reserved goods in the normal course of business until the enforcement event occurs according to paragraph 9. Pledges and assignments as security are not permitted.
- If the reserved goods are processed by the buyer, it is agreed that the processing is carried out in the name of and on behalf of the supplier as manufacturer and the supplier directly acquires ownership or, if materials from several owners are processed or the value of the processed item is higher than the value of the reserved goods, acquires co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. If no acquisition of ownership on the part of the supplier occurs, the buyer transfers their future ownership or co-ownership, in the abovementioned ratio, of the newly created item to the supplier as security. If the reserved goods are connected with other items to form a single item or inseparably mixed and if one of the items is to be considered the main item so that the supplier or buyer acquires sole ownership, the party that owns the main item transfers co-ownership of the single item to the other party in the ratio mentioned in clause 1.
- In the event of the further sale of the reserved goods, the buyer transfers the claim arising from this against the acquirer to the supplier as security. In the event of co-ownership of the reserved goods on the part of the supplier the transfer is proportionate to the part co-owned. The same applies to other claims that replace the reserved goods or otherwise arise with respect to the reserved goods, such as insurance claims or claims arising from unlawful acts in the event of loss or destruction. The supplier gives revocable authorisation to the buyer to
collect the claims transferred to the supplier in their own name. The supplier may revoke this direct debit mandate only in the event of enforcement.
- If third parties access the reserved goods, in particular through seizure, the buyer will refer them immediately to the ownership of the supplier and inform the supplier of this immediately so the latter can exercise ownership rights. If the third party is unable to reimburse the supplier for the legal or extrajudicial costs arising in this connection, the buyer is liable to the supplier for this.
- The supplier will release the reserved goods and the items or claims that replace them if their value exceeds the level of claims secured by more than 50%. It is for the seller to select the counterpart to be released afterwards.
- If the supplier withdraws from the contract in the event of conduct contrary to the contract on the part of the buyer (enforcement event), in particular default of payment, they are entitled to reclaim the reserved goods.
Section 10 Traceability
Each reseller is obliged to maintain the traceability of the supply chain to their end customers so that, in the event of safety corrective actions and/or recall actions according to Regulation (EU) 2017/745 of 5 April 2017 on Medical Devices (MDR), end users can be informed accordingly. This obligation continues to apply for the period after the end of the business relationship.
Section 11 Final Provisions
- If the customer is a merchant, a legal person under public law or a special fund under public law or if they do not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction of any disputes arising from the business relationship between the supplier and customer is Wiesbaden at the discretion of the supplier. For actions against the supplier the exclusive place of jurisdiction is also Wiesbaden in these cases. Mandatory statutory provisions on exclusive places of jurisdiction are unaffected by this regulation.
- The relationships between the supplier and the customer are subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.
- If the contract or these General Delivery Conditions contain regulatory gaps, the legally effective regulations that the contracting parties would have agreed based on the economic objectives of the contract and the purpose of these General Delivery Conditions if they had known about the regulatory gaps are deemed to be agreed.
Version of 1 April 2023