Terms of service
TERMS AND CONDITIONS
1. GENERAL PROVISIONS
1. The following terms and conditions of Wilox Strumpfwaren GmbH (Wilox) apply to all transactions with entrepreneurs within the meaning of § 14 of the German Civil Code (BGB).
2. Wilox rejects the Purchaser standard purchasing terms and conditions. They will only apply provided and to the extent that Wilox has expressly consented to them in writing.
1. The Purchaser is bound by his offer until it is cancelled, whereby the written form is obligatory, at least however for a period of four weeks.
2. The purchase contract will come into force when confirmed by Wilox, which must be in text form, or when the goods ordered are delivered.
3. Should the Purchaser have its registered office in a different member-state of the EU, it is required to notify Wilox immediately of its VAT identification number.
4. Fixed delivery dates require an express agreement, that must be in text form.
In the absence of any agreement to the contrary, Wilox’s prices are to be understood as including standard packaging plus freight and the turnover tax stipulated by law.
1. The Purchaser is required to pay Wilox’ invoices when they become due.
2. The Purchaser will be in arrears with his payments at the latest after 60 days from the invoice date.
3. In the event of doubt as to when the invoice was received, the Purchaser will be in arrears 60 days after the goods have been delivered.
4. Once payments are in arrears, in addition to interest on these arrears at the rate of 8% over base rate, Wilox may demand compensation for any additional damages due to the arrears.
5. Wilox may rescind the contract and demand compensation instead of performance 14 days after the Customer falls into arrears.
6. Once payment terms have been exceeded, all accounts receivable arising from the entire business relationship with the Purchaser will become due for immediate payment. In this case, cash discounts, rebates, price concessions etc. will be considered not to have been agreed/granted.
7. The Purchaser will only be entitled to withhold payment or offset counter-claims provided and to the extent that the counter-claims have been acknowledged in writing or established in law.
8. Should Wilox become aware of circumstances (repeated payment arrears, contested bills of exchange or cheques, foreclosure measures etc.) that make its claims appear endangered, it will be entitled to refuse services due from it – also under other contracts - or only to perform such services in return for payment in advance or suitable collateral (bank guarantee etc.). Should the Purchaser fail to comply with such a demand within a reasonable period of time, Wilox may wholly or partially rescind all contracts concluded with the Purchaser not completely fulfilled and demand compensation.
9. The place of fulfilment for all payments arising from the business relationship is Wilox' registered office.
1. Wilox is entitled to make part-shipments and to deliver shipments prematurely but must give notice of such shipments in time.
2. In the event of section 2.3, should the Purchaser not have notified Wilox of its VAT identification number prior to the shipment, Wilox will be entitled to make the delivery dependent on pre-payment of the German VAT.
3. Wilox’ obligation to deliver is subject to the proviso that its suppliers deliver on time and according to contract. A delivery date will be extended accordingly in cases of force majeure or should unforeseen obstacles arise, particularly in the event of unforeseen operating breakdowns, shortages of labour, energy and raw materials, strikes, lock-outs, traffic and transport hindrances and official orders.
4. The agreed delivery date will have been met should Wilox have handed the goods over to the freight forwarder beforehand or, should it not be required to deliver, have notified the Purchaser that the goods are ready to be shipped. Risk will also pass to the Purchaser at this time.
5. After the agreed delivery date has expired, a grace period of 12 days for the delivery will start to run, without any additional information. The Purchaser may not claim any rights until this deadline has expired.
6. Should the Purchaser wish to rescind the contract and/or to demand compensation instead of performance due to arrears on the part of Wilox, the Purchaser is required, within the subsequent delivery deadline in paragraph 5, to set Wilox, in writing, a reasonable grace period of at least eighteen days together with a threat to refuse fulfilment of the contract.
7. The Purchaser may only demand compensation subject to the additional conditions and to the extent referred to in section 7.
8. Should the Purchaser refuse to accept the goods as it is required to do, in addition to reimbursement of transport costs, it will be required to pay Wilox a commitment fee of 5% of the price of the goods for every part-day since the refusal to accept the goods. Wilox and the Purchaser are free to prove that the actual costs were higher or lower. Any additional claims by Wilox are not affected.
1. Wilox is required to deliver an article that, at the time risk passes, corresponds with the agreed quality and is free from legal defects. Should the quality not have been agreed, Wilox is only required to deliver an article that is suitable for normal use and is of a quality that is customary in goods of a similar type and that the Purchaser may expect, given the nature of the article.
2. The Purchaser may not invoke minor defects. This applies particularly to differences in quality, colour, size, weight, fittings or design that are customary in the trade, negligible or technically unavoidable.
3. The Purchaser will forfeit the right to claim a defect should it fail to examine the goods delivered immediately on arrival and fail to report immediately in writing every defect that it has identified or should have identified, whereby the report must describe exactly the nature of the defect and the date on which it was identified.
4. The following apply in the event of a major defect:
4.1 The Purchaser may demand the elimination of the defect within a reasonable period of time as subsequent fulfilment.
4.2 Should Wilox fail to eliminate the defect within a reasonable period of time or ultimately refuse to eliminate the defect or should the repair not be successful, which will be presumed after more than three failed attempts, the Purchaser may demand delivery of a flawless article (replacement shipment) instead of the elimination of the defect within a reasonable period of time simultaneously with the return of the defective article, in accordance with the provisions of the law.
4.3 Should Wilox refuse to replace the goods or to replace them within a reasonable period of time, the Purchaser may rescind the contract or demand a price reduction; the Purchaser will forfeit the right to rescind the contract, should the right not be exercised within a reasonable period of time.
4.4 Wilox may reject subsequent fulfilment in particular should and to the extent that this is only be possible at a disproportionate expense or is impossible due to the nature of the article or the defect.
4.5 Wilox will not be required to reimburse the costs required for the purpose of subsequent fulfilment should and to the extent that these are higher because the Purchaser moved the article to a different place than the contractually agreed destination subsequent to transfer of risk or used the article in a manner that was not foreseeable in accordance with the contract.
4.6 The Purchaser may only demand compensation subject to the additional conditions in section 7.
5. The Purchaser’s warranty claim will expire in two years. The period will begin on delivery.
6. The Purchaser is required to pursue rights of recourse due to complaints of its customers immediately. Paragraph 3 will apply subject to the additional condition that the Purchaser is required to report its customers’ complaints and warranty claims as well as the manner in which customers’ claims are fulfilled.
7. Any claims by the Purchaser are excluded should the goods purchased have been used or be second-choice. This will not apply in the event of fraud and should Wilox have assumed a guarantee.
1. Wilox is only liable for damage or expenses incurred by the Purchaser that are due to an intentional or grossly negligent infringement of obligations on the part of Wilox or one of its legal representatives or vicarious agents.
2. The limitation on liability in paragraph 1 does not apply to damage or expenses incurred due to injury to life, limb or health.
3. The limitation on liability in paragraph 1 also does not apply to damage or expenses incurred due to a culpable infringement of essential contractual obligations. Apart from cases of deliberate intent and gross negligence, Wilox’ liability here is limited to typical and foreseeable damage.
4. The limitation of liability described in paragraph 1 does not affect compensation claims that are dealt with as mandatory in law.
8. RESERVATION OF TITLE
1. Goods delivered will remain Wilox’ property until all payment claims arising from the entire business relationship are completely fulfilled (reserved goods).
2. The Purchaser is nor permitted to pawn reserved goods or to transfer title as collateral.
3. Wilox and the Purchaser are agreed that all accounts receivable resulting from the re-sale of reserved goods as well as any substitute claims with regard to reserved goods are ceded to Wilox in advance.
4. The Purchaser is only entitled to re-sell reserved goods under the following conditions:
- the reserved goods may only be disposed of as part of normal and regular business operations.
- the reserved goods may only be disposed of subject to reservation of title.
- the Purchaser may not be in arrears with its payment obligations to Wilox.
5. The Purchaser is required to accept payments from its customers for Wilox’ account and to use them primarily in order to settle Wilox’ claims that are due.
6. The Purchaser is required to do everything to prevent attachment, confiscation or any other seizure of reserved goods by third parties and to notify Wilox immediately.
7. In the event of behaviour in contravention of obligations and Wilox’ security interest, particularly payment arrears and a failure to comply with the terms and conditions dealt with in the above paragraphs, the Purchaser will forfeit any right to dispose of the reserved goods and Wilox is entitled to demand the return of all or part of the reserved goods at the Purchaser’s expense also without rescinding the contract or to remove the goods from the Purchaser’s business premises and/or warehouse. The provisions of section 4.8 are not affected.
8. Should the value of existing securities exceed the amount of secured claims by more than twenty per cent, Wilox will, at the Purchaser’s request, release an appropriate amount of securities of its choice.
PLACE OF JURISDICTION, APPLICABLE LAW
1. The district court or regional court responsible for Wilox’ registered office is the responsible court for any dispute arising from the delivery contract. Wilox is also entitled to submit a claim at the Purchaser’s registered office.
2. Legal relationships between Wilox and the Purchaser are subject to German law.