General terms and conditions
I. General remarks and scope
1. The present terms apply to all business transactions entered into by Wuerth Industrial Services India Pvt. Ltd ("Wuerth" in the following) and their customers ("customer" in the following).
2. These terms shall apply exclusively to all business transactions. Any conflicting or diverging terms and conditions of the customer will not be recognized by Wuerth, unless their application was expressly agreed to by Wuerth. The present terms shall apply even if Wuerth effects delivery to the customer without reservation while being aware of such conflicting, diverging or supplementary terms of the customer.
3. Notwithstanding anything to the contrary contained herein, separate, individual agreements concluded with the customer shall take precedence over the provisions in these terms. Such individual agreements require written form and/or Wuerth's written confirmation to be effective.
4. Any legally relevant representations and notices to be made to Wuerth by the customer after conclusion of the contract (incl. deadlines or grace periods, notices of defects, revocation of the contract or price reductions) need to be made in writing to be effective.
5. References to statutory provisions are for clarification purposes only. Even without such references, legal regulations and statutory provisions generally apply without limitation unless they are expressly changed or excluded in these terms.
II. Conclusion of a contract
1. Wuerth's offers are without engagement. This provision also applies if Wuerth provides the customer with catalogs, technical documentation or other product information and documents subject to retention of title and copyrights.
2. The placing of an order by the customer constitutes a binding offer to conclude a contract. Unless otherwise specified in the order, Wuerth may accept the customer’s contract offer within 4 weeks upon receipt of the order.
3. Delivery contracts only enter into force upon written acceptance or shipment of the goods at the latest. Transmitting acceptance via telecommunications shall be deemed written acceptance.
4. In the event Wuerth uses a telecommunications or other electronic media service to conclude a contract, the customer hereby waives his right to appropriate, effective and accessible technical means for the detection and correction of type errorsand to a confirmation of receipt of the order. Any electronically transmitted order shall not be deemed received until downloaded and opened by Wuerth.
III. Prices - terms of payment
1. All prices are quoted ex warehouse and subject to VAT at the rate in effect at the time the invoice is issued.
2. In the event of a sales shipment (Section VI, paragraph 1), the customer shall bear all shipping costs ex warehouse and any transport insurance fees if an insurance is requested by the customer, if not expressly stated otherwise.
3. In the event of rejection or return of goods it has to be first communicated to Wuerth’s authorised representatives within 90 days of receipt of material at the customers end, Wuerth shall arrange for the best mode of transport to get it back to the warehouse, after this period Wuerth reserves the right to not accept the rejection if not communicated on time, &, the customer will be obliged to pay for in full for the said invoice.
4. In the event Wuerth agrees to take back goods which have already been delivered, Wuerth may charge a restocking fee of up to 20 % of the value of the goods to be restocked (agreed gross purchase price) for the additional expenses incurred, but not less than INR 500 per occurrence, unless the customer has a legal right to return the goods.
5. Wuerth charges a minimum quantity surcharge for small orders with a delivery value of less than INR 5000.
6. Unless agreed otherwise, the agreed purchase price is due and payable within 30 days of the invoice date.
7. The customer is considered to be in default once the payment term specified in paragraph 6 expires. In the event of default, the customer will be charged late-payment interest at the current applicable rate. Wuerth reserves the right to make additional claims for losses caused by default.
8. The customer may only claim a set-off or exercise its right of retention to the extent that its claim is uncontested or has become res judicata. Nothing in these terms shall exclude any opposing rights the customer may have in the event of defective deliveries.
9. Should it become apparent after conclusion of the contract that Wuerth's claim to the purchase price is jeopardized by the customer's inability to perform (e.g. the customer files for bankruptcy); Wuerth may refuse performance and - after setting a reasonable grace period - revoke the contract in accordance with statutory requirements. Subject to the statutory provisions on the immediate revocation of a contract, Wuerth may revoke a contract governing the sales of unmarketable items (products made to specification) with immediate effect.
10. Provided there are already outstanding claims for payment under the ongoing business relationship with the customer, Wuerth may refuse further deliveries until the customer has settled all claims in full. The above provision applies mutatis mutandis to any credit lines granted by Wuerth.
11. If the customer fails to pay the outstanding purchase price even though payment is overdue, this failure will be reported to the legal agencies working with Wuerth.
IV. Retention of title
1. Wuerth will retain legal ownership of the goods sold until full payment is received for all present and future claims arising out of the corresponding sales contracts and the current business transaction ("secured claims" in the following).
2. Any goods subject to retention of title may not be pledged or offered as security to third parties by the customer until all secured claims have been paid in full. The customer shall notify Wuerth immediately of any attempt by third parties to seize such goods.
3. Any breach of contract on the part of the customer including, without limitation, nonpayment of the payable purchase price, shall authorize Wuerth to revoke the contract in compliance with statutory provisions and demand the return of the goods sold on the basis of the retention of title and Wuerth's revocation of the contract. If the customer fails to pay the payable purchase price, Wuerth may only exercise the aforementioned rights after having set a reasonable grace period unless such a grace period can be dispensed with in accordance with statutory requirements.
V. Delivery periods, delivery dates, acts of God and delays in delivery
1. Delivery and/or performance periods and delivery and/or performance dates are agreed individually and/or specified by Wuerth upon acceptance of the order.
2. The beginning of the individually agreed or specified delivery or performance periods is subject to the successful clarification of all technical questions.
3. Wuerth's observation of the delivery or performance periods is further subject to the customer's due and timely compliance with all contractual obligations. Wuerth reserves the right to refuse performance if the customer fails to render the agreed consideration.
4. Wuerth shall give the customer prompt written notice in the event of failure to or delay in performance of deliveries or other obligations by sub-suppliers or subcontractors, in whole or in part, due to circumstances beyond Wuerth's reasonable control or acts of God, i.e. obstacles to performance occurring without Wuerth's fault or negligence and lasting more than 14 calendar days. In this case Wuerth may delay performance of the delivery or other obligation by a period of time equal to the duration of the obstacle to performance or revoke the contract in whole or in part on the basis of the unfulfilled part of the contract as long as the above information requirement has been met and Wuerth has not assumed the procurement and/or production risk and the obstacle to performance is not temporary. Within the meaning of the above provisions, the following circumstances shall be deemed equivalent to acts of God to the extent these circumstances are beyond Wuerth's reasonable control and occur without Wuerth's fault or negligence: strike, lockout, government intervention, energy and raw material shortages, delivery bottlenecks, business interruptions (e.g. through fire, water and machine failure) and all other interruptions occurring without Wuerth's fault or negligence.
5. In the event a binding delivery and/or performance period and/or date has been agreed and is exceeded by more than four weeks due to the circumstances described in point 4 or the continuation of the contract would pose an unreasonable hardship on the customer in the event of a non-binding performance date, the customer may revoke the contract on the basis of the unfulfilled part of the contract.
6. Commencement of default in delivery on the part of Wuerth is subject to statutory provisions. Notwithstanding the above provision, a reminder by the customer is required for the commencement of default. In the event Wuerth defaults on a delivery, the customer shall be entitled to claim lump-sum compensation for damages caused by default. Such lump-sum compensation amounts to 0.5 % of the net purchase price for every full calendar week Wuerth is in default, but no more than 5 % of the net purchase price of the delayed goods. Wuerth reserves the right to establish that the customer did not incur any or significantly less damage than the amount covered by the compensation specified above.
7. The rights of the customer set forth in Section IX below and Wuerth's legal rights including, without limitation, the exclusion of contractual obligations (e.g. due to impossibility of performance, unreasonable hardship and/or provision of a remedy) remain unaffected by these provisions.
VI. Delivery, transfer of risk, delays in acceptance
1. Delivery is effected ex warehouse, which is also the place of performance. Upon request and at the expense of the customer, the goods can be shipped to a different destination. Unless otherwise expressly agreed, Wuerth may choose the method of shipping (including, without limitation, carrier, dispatch route and packaging).
2. Wuerth may perform partial deliveries, provided this does not have any negative consequences for the customer.
3. Wuerth reserves the right to deliver consumables in commercially standardized quantities, i.e. short or excess deliveries, provided these deliveries remain within reasonable bounds and do not conflict with the customer's interests.
4. The risk of accidental loss of or accidental damage to the goods passes to the customer when the goods are handed over to the customer. In case of a sales shipment, the risk of accidental loss of or accidental damage to the goods as well as the risk of delay already pass to the customer upon delivery of the goods to the forwarder, carrier or other third party authorized to collect the goods. In the event of default of acceptance, the risk shall pass to the customer upon default.
5. In case the customer is in default of acceptance, fails to cooperate or is otherwise responsible for delaying Wuerth's delivery, Wuerth may claim compensation for the damage incurred including any additional expenses (such as storage costs).
VII. Property rights, provision of documents
1. The customer shall inform Wuerth without delay of any property right claims of third parties pertaining to the products delivered by Wuerth. Wuerth may, but is not obliged to, defend these rights at its own cost and for its own benefit.
2. The customer warrants that any accompanying goods, services and documentation provided by the customer are free of third-party rights. The customer shall indemnify Wuerth against any claims of third parties arising out of the infringement of third-party rights, unless the customer cannot be held responsible for this legal defect.
3. By providing documents to Wuerth, the customer grants Wuerth the non-exclusive right to use these documents for the contractually agreed purposes anywhere and for an unlimited period of time. In the event of product inquiries based on documents provided by the customer such as drawings and specifications (parts made to order), Wuerth may provide these documents to upstream manufacturing companies to complete the inquiry process and perform the contract through sub-suppliers. Should the customer demand changes to the specifications or additional specifications when inquiring about parts made to order without making these changed or additional specifications or drawings available to Wuerth, Wuerth may change or amend the existing drawings or specifications accordingly.
VIII. Claims for defects of the customer
1. Unless otherwise provided below, the rights of the customer in the event of material and/or legal defects are subject to statutory requirements.
2. The legal basis for any liability for defects on the part of Wuerth shall be the agreement made concerning the quality of the goods. Agreements on the quality of the goods include all product descriptions and specifications which are either contained in Wuerth's catalogs on the basis of the corresponding standards (e.g. DIN, ISO) or provided to Wuerth by the customer and expressly approved by Wuerth.
3. Any claim made by the customer based on any defect in the quality or condition of the goods is subject to the customer having fulfilled its legal obligations to examine the goods upon delivery and notify Wuerth of any defects. Any defect discovered during examination or later shall be notified to Wuerth in writing without delay. Such notice shall be deemed given without delay if delivered or mailed within two weeks. Without prejudice to the above examination and notification obligations, the customer shall inform Wuerth in writing of any obvious defects (including wrong and short shipments) by mailing a corresponding notice within two weeks after delivery. In the event the customer fails to duly observe its examination and/or notification obligations, Wuerth will not accept liability for any defects not notified to it.
4. Should the goods delivered be defective, Wuerth reserves the right to choose an appropriate remedy either by repairing the defect (rectification) or providing goods free of defects (replacement). However, nothing in this agreement shall exclude or in any way limit Wuerth's right to refuse the provision of a remedy in accordance with applicable laws.
5. Wuerth may make the provision of the remedy owed to the customer dependent on whether the customer pays the payable purchase price. The customer may, however, withhold a reasonable proportion of the purchase price.
6. The customer shall give Wuerth a reasonable period of time and the opportunity to provide the required remedy including, without limitation, returning the defective goods to Wuerth for examination purposes. In the event of replacement, the customer shall return the defective goods to Wuerth in accordance with statutory requirements. Any remedy provided by Wuerth does not include the removal nor the reinstallation of the defective goods unless the installation was originally carried out by Wuerth.
7. In the event the goods are defective, all costs incurred during the examination of the goods and the provision of a remedy including, without limitation, transport, travel, work and material costs (not removal or installation costs) shall be borne by Wuerth. Should the claim of the customer turn out to be unjustified, Wuerth may demand reimbursement of all costs incurred in connection with the customer's claim.
8. In the event Wuerth fails to remedy a defect or a reasonable grace period set by the customer expires without any results or can be dispensed with in accordance with statutory provisions, the customer may revoke the contract or reduce the purchase price. The customer has no right to revoke the contract if the defect is immaterial.
9. Except as expressly provided in Section IX, any claims of the customer for damages and/or for reimbursement of futile expenses are hereby excluded.
IX. Other liability
1. Unless otherwise specified in these terms and conditions including the following provisions, Wuerth shall be liable for any breach of contractual or non-contractual obligations in accordance with statutory requirements.
2. Nothing in these terms shall exclude or limit Wuerth's liability for claims based on willfulness or gross negligence howsoever arising. In the event of ordinary negligence, Wuerth shall only be liable for(a) death or personal injury;
(b) material breaches of contractual obligations (obligations essential for the proper performance of the contract the compliance with which the contracting partner may generally trust in). In such a case Wuerth's liability shall, however, be limited to the foreseeable damage normally covered by a contract.
3. Notwithstanding the provisions in paragraph 2, Wuerth does not exclude or limit liability for fraudulent concealment of defects or for any warranties or representations made by Wuerth as to the nature or quality of the goods.
4. In the event of a breach of contractual obligations not caused by a defect, the customer may only revoke or terminate the contract if Wuerth is responsible for this breach. In all other respects, the statutory provisions apply.
XI. Hydrogen embrittlement
1. Wuerth and the customer are aware of the numerous possible causes and problems of hydrogen-induced cracking, particularly in galvanized, high-strength and/or case-hardened items with an ultimate tensile strength of 1000 N/mm² or more and core or surface hardness of 320 HV or more, as specified in DIN EN ISO 4042. Wuerth cannot guarantee the complete elimination of hydrogen embrittlement risks.
2. In the event the risk of hydrogen embrittlement in the goods delivered by Wuerth needs to be reduced even further in special individual applications due to construction requirements or for safety reasons, the customer and Wuerth shall conclude a separate agreement on the process structure and material procurement to limit the above-mentioned risks.
3. The DIN EN ISO 4042 standard is an integral part of all agreements concluded between Wuerth and the customer.
XII. Applicable law and place of jurisdiction
1. These business transactions and all legal relationships between Wuerth and the customer are subject to the Indian Contract laws, and, the exclusive place of jurisdiction for all disputes arising out of or in connection with the contract shall be the court of competent jurisdiction at Wuerth's head office in Pune, India. Wuerth does, however, reserve the right to bring its claims against the customer at the general place of jurisdiction of the customer.