General Conditions of Sale of Goods & Services
General: Any delivery of goods and services by C. Woermann GmbH & Co. KG as the seller to the customer, whose registered office is located outside Germany, shall be subject to the General Conditions of Sale set forth herein to the extent no other agreements have been explicitly made. The Customer’s general terms and conditions that are inconsistent with the General Conditions of Sale set forth herein shall only be applicable to the extent the seller has explicit approved in writing.
Non-conforming contract products: The contract products do not conform with the contract of sale if at the time the risk passes they are clearly different to the specifications laid down in this contract, or in absence of agreed specifications, the contract products are not fit for the purpose usual in Germany. The seller is not liable for the contract products complying with further reaching expectations of the buyer or for their compliance with legal requirements existing outside of Germany. Irrespective of the byer’s remedies, the seller is entitled to repair non-conforming contract products or to supply substitute goods.
Third party claims: Without prejudice to further legal requirements, third parties’ rights or claims founded on industrial or other intellectual property only found defect in title to the extend that the industrial or intellectual property is registered and made public in Germany. Third parties not involved in the conclusion of this contract of sale, in particular those purchasing from the buyer, are not entitled to demand delivery to themselves, to rely on any remedy provided for in this contract of sale or to raise claims against the seller, founded on delivery of non-conforming contract products or defect in title.
Product liability: Without prejudice to the seller’s continuing legal rights and waving any defence of limitation the buyer will indemnify the seller without limit against any and all claims of third parties which are brought against the seller on the grounds of product liability, to the extent that the claim is based on circumstances which were caused by the buyer after risk passed.
Avoidance by the seller: Without prejudice to its continuing legal rights, the seller is entitled to avoid this contract of sale without compensation if insolvency proceedings relating to the assets of the buyer are applied for or commenced; if the seller does not receive the price properly or in time; if required export licenses, permits, approvals or consents are not granted by the German authorities; or if for other reasons the seller cannot be expected to fulfill its obligations by means which are unreasonable in particular in relation to the agreed counter-performance.
Retention of Ownership: The seller retains ownership of the purchased items until payment of all claims has been made in full as agreed in the sales contract.
Damages and amount of damages: The Seller is only obliged to pay damages pursuant to this contract of sale if it deliberately or in circumstances amounting to gross negligence breaches obligations owed to the buyer. This limitation does not apply if the seller commits a fundamental breach of his obligations. Without prejudice to its continuing legal rights the seller is not liable for a failure to perform any of its obligations if the failure is due to impediments which occur, e.g. as a consequence of natural or political events, acts of state, industrial disputes, sabotage, accidents or similar circumstances and which cannot be controlled by the seller with reasonable means. The buyer is required in the first instance to rely on other remedies and can only claim damages in the event of a continuing deficiency. The amount of damages for late delivery is limited to 0.5 per cent of the respective delivery value for each week, up to a maximum of 5 per cent of the respective delivery value, and for other breaches of contract is limited to the delivery value. This limitation of liability does not apply if the seller deliberately or in circumstances amounting to gross negligence breaches obligations owed to the buyer.
Place of Performance: Without prejudice to the articles above, the place of the performance and payment for all obligations arising from the legal relationship between the seller and the buyer is Hamburg, Germany. In particular, this provision also applies in the case of restitution of performances already rendered.
Applicable law: The legal relationship with the buyer is governed by the United Nations Convention of April, 11th, 1980 on Contracts for the international sale of Goods (UN Sales Conventions/CISG) in the English version. Where standard terms of business are used, the Incoterms 2010 of the International Chamber of Commerce and the provisions stipulated in this respect in this Contract of Sale apply. Outside of the application of the UN Sales Convention, the contractual relationship between the parties is governed by the non-uniform Swiss law, namely by the OR (Swiss Law of Obligations).
Jurisdiction: All disputes arising out of or in connection with this contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the said Rules. One of the arbitrators has to be chairman judge of a chamber of commerce at a German Landgericht. The arbitration takes place in Hamburg, Germany. The language of the arbitration shall be English.