§ 1 Validity
(1) All deliveries, services and offers rendered by Winlong GmbH, Grünstraße 5, D-40212 Düsseldorf, Germany (hereinafter referred to as “Winlong”) are made exclusively on the basis of these General Supply Conditions. These are part of all contracts which Winlong enters into with its contract partners (hereinafter also referred to as “Clients”) concerning the deliveries or services offered by Winlong. They also apply for all future deliveries, services or offers to the Client, even if they are not separately agreed upon again.
(2) The Client’s or third-party general terms & conditions do not apply, even if Winlong does not separately object to their application in the individual case. Even if Winlong makes reference to a letter which contains or refers to the Client’s or third-party general terms & conditions, this does not entail any agreement to the application of those general terms & conditions.
§ 2 Offer and entry into contract
(1) All Winlong offers are non-binding and are subject to change insofar as they are not expressly designated as binding or do not contain a specific acceptance deadline. Orders can be accepted by Winlong within (14) days after receipt.
(2) The written purchase contract entered into, including these General Supply Conditions, is solely authoritative for the legal relations between Winlong and the Client. This fully reflects all of the agreements between the contract parties regarding the contract subject. Oral commitments by Winlong before entry into that contract are not legally binding and oral agreements by the contract parties are replaced by the written contract insofar as they do not expressly state that they continue to apply in a binding manner.
(3) Additions and amendments to the agreements entered into including these General Supply Conditions require the written form in order to be valid. Transmission by telecommunication, particularly by fax or by email, shall be sufficient to comply with the written form, provided that the copy of the signed declaration is transmitted.
(4) Information from Winlong regarding the subject of the delivery or service (e.g. weights, dimensions, load-bearing capacity, tolerances and technical data) as well as our descriptions of the same (e.g. drawings and diagrams) are only approximately authoritative insofar as the usability for the contractually-intended purpose does not require precise accordance. They are not guaranteed quality elements, but rather descriptions or designations of the delivery or service. Customary deviations and deviations which are made due to legal provisions or constitute technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not detrimentally affect the usability for the contractually-intended purpose.
(5) Winlong retains ownership of or copyright in all offers and cost quotations given by it as well as drawings, diagrams, calculations, leaflets, catalogues, models, tools and other documents and aids provided to the Client. The Client may not make these items per se or the contents thereof accessible to third parties, make them known, use them itself or via third parties or copy them without Winlong’s express consent. Upon request by Winlong, it is obliged to return them in full to Winlong and to destroy any copies made if they are no longer needed by it in the ordinary course of business or if negotiations do not result in entry into a contract. The storage of data made available electronically for the purpose of usual data backup is excluded therefrom.
§ 3 Prices and payment
(1) The prices apply for the service and delivery scope set out in the order confirmations. Additional or special services will be charged for separately. The prices are in EUR ex works plus packaging, the statutory VAT, and in the case of export deliveries, customs duties plus fees and other public dues.
(2) Invoice amounts are to be paid within 10 days without any discount insofar as nothing to the contrary is agreed upon in writing. Receipt by Winlong is authoritative for the date of the payment. Payment by cheque is excluded unless it is agreed upon separately in the individual case. If the Client does not make payment when due, then interest is to be levied on the outstanding amounts from the due date in the amount of nine percentage points above the basic interest rate (pursuant to § 247 of the German Civil Code (BGB)); the assertion of more extensive loss in the event of default remains unaffected.
(3) Set-off against the Client’s counterclaims or withholding payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been determined in a final and legally-binding manner or arise from the same order under which the pertinent delivery was made.
(5) Winlong is entitled to execute or render outstanding deliveries or services only in return for advance payment or the rendering of security if after entry into the contract Winlong becomes aware of circumstances which are significantly likely to reduce the Client’s creditworthiness and as a result of which payment of Winlong’s open claims by the Client out of the respective contract relationship (including from other individual orders for which the same framework contract applies) is jeopardised.
§ 4 Delivery and delivery period
(1) Deliveries are made ex works.
(2) Periods and dates quoted by Winlong for deliveries and services only ever apply approximately unless a fixed period or a fixed date is promised or agreed upon expressly. If shipment is agreed upon, delivery periods and dates pertain to the time of handover to the carrier, freight forwarder or other third party instructed with the transport.
(3) Winlong can ask the Client for a prolongation of delivery and service periods or a postponement of delivery and service dates – irrespective of its rights arising from default by the Client – by a period during which the Client does not comply with its contractual obligations to Winlong.
(4) Winlong is not liable for impossibility of delivery or for delivery delays insofar as these are not caused by force majeure or other events which were not foreseeable at the time of entry into the contract (e.g. operational disruptions of any kind, pandemics and epidemics, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lock-outs, shortages of labour, energy or raw materials, difficulties in the procurement of necessary official permits, official measures, or the lack of delivery, incorrect delivery or lack of timely delivery by suppliers) which are not attributable to Winlong. Insofar as such events make the delivery or service significantly more difficult or impossible for Winlong and the impediment is not only temporary, Winlong is entitled to rescind the contract. In the event of temporary impediments, the delivery or service periods are prolonged or the delivery or service dates are postponed by the period of the implement plus a reasonable lead time. If the Client as a consequence of the delay cannot be reasonably expected to accept the delivery or service, it can rescind the contract by means of written declaration to Winlong without undue delay.
(5) Winlong is entitled to make only partial deliveries if
• the partial delivery is usable for the Client in the framework of the contractual intended purpose,
• delivery of the remaining goods orders is guaranteed, and
• the Client does not suffer any substantial additional expenditure or additional costs as a result thereof (unless Winlong declares itself prepared to bear those costs).
(6) If Winlong is in default with a delivery or service or if a delivery or services becomes impossible for Winlong, regardless of the reason, then Winlong’s liability for compensation is limited in accordance with § 8 of these General Supply Conditions.
§ 5 Place of performance, shipment, packaging, transfer of risk, acceptance
(1) The place of performance for all obligations arising out of the contract relationship is Düsseldorf insofar as nothing to the contrary is stipulated. If Winlong is also responsible for the installation, the place of performance is the location where the installation has to be made.
(2) The shipment type and the packaging are subject to Winlong’s dutiful discretion.
(3) The risk is transferred to the Client at the latest upon handover of the delivery item (in which regard the commencement of the loading process is authoritative) to the carrier, freight forwarder or other third party instructed to carry out the shipment. This also applies if partial deliveries are made or Winlong has taken over other services (e.g. shipment or installation). If dispatch or handover is delayed as a consequence of a fact whose cause lies with the Client, the risk is transferred to the Client from the day on which the delivery item is ready for dispatch and Winlong has informed the Client thereof.
(4) Storage costs after the transfer of risk are borne by the Client.
(5) The consignment will be insured by Winlong only at the Client’s express request and at the Client’s expense against theft, breakage, transport, fire and water damage or other insurable risks.
(6) Insofar as an acceptance process has to take place, the purchase item is deemed to have been accepted when
• the delivery, and insofar as Winlong also has to effect installation, the installation, is completed,
• Winlong has informed the Client of this making reference to the acceptance fiction pursuant to this § 5 (6) and has requested acceptance from the Client,
• twelve working days have elapsed since the delivery or installation, or the Client has commenced using the purchase item (e.g. has started using the parts delivered) and in such case (six) working days have elapsed since delivery or installation, and
• the Client has failed to accept within that period for a reason other than due to a defect notified to Winlong which makes using the purchase item impossible or significantly detrimentally affects use of the purchase item.
§ 6 Warranty, quality defects
(1) The warranty period is one year from delivery, or – insofar as an acceptance process is necessary – from the acceptance, unless the German Product Liability Act or other legislation, particularly § 438 paragraph 1, nr. 2 of the BGB (buildings and items for buildings), § 445b of the BGB (recourse claims in the delivery chain) or § 634a paragraph 1, nr. 2 of the BGB (construction defects) prescribe longer periods. The time-barring of claims due to liability for damage and loss arising out of loss of life, personal injury or damage to health which is attributable to a negligent or intentional breach of duty by us or one of our legal representatives or vicarious agents, and for other damage and loss which is attributable to an intentional or grossly negligent breach of duty by us or one of our legal representatives or vicarious agents, is determined in accordance with the statutory provisions.
(2) The items delivered are to be carefully examined without undue delay after delivery to the Client or to a third party named by it. With regard to obvious defects or other defects which would have been identifiable in the case of a prompt, careful examination, they are deemed to have been accepted by the purchaser if Winlong does not receive a written defect complaint within (seven) working days. With regard to other defects, the delivery items are deemed to have been accepted by the purchaser if the defect complaint is not received by Winlong within (seven) working days after the point in time when the defect was revealed; if the defect was already obvious during normal use at an earlier point in time, however, that earlier point in time is authoritative for the commencement of the complaint period. At Winlong’s request, a delivery item objected to is to be returned to Winlong freight prepaid. In the case of a justified defect complaint, Winlong will reimburse the costs of the cheapest shipment method; this does not apply insofar as the costs are increased because the delivery item is in a different location than the location of the intended use.
(3) In the event of quality defects in the items delivered, Winlong in accordance with its choice to be made within a reasonable period is first obliged and entitled to effect subsequent improvement or replacement delivery. In the event of failure, i.e. the impossibility, unreasonableness, refusal or unreasonable delay of the subsequent improvement or replacement delivery, the Client can rescind the contract or reasonably reduce the purchase price.
(4) If a defect is due to fault on the part of Winlong, the Client can demand compensation subject to the prerequisites defined in § 8 hereof.
(5) The warranty ceases to apply if the Client modifies the delivery item or has it modified by a third party without Winlong’s consent and thereby makes elimination of the defect impossible or unreasonably more difficult. In any event, the Client is obliged to bear the additional costs of eliminating the defect which are caused by the modification.
(6) A delivery of used items agreed in the individual case with the Client is effected excluding any warranty for quality defects.
§ 7 Proprietary rights
(1) Winlong is responsible in accordance with this § 7 for ensuring that the delivery item is free from third-party industrial property rights or copyright. Each contract partner will notify the other contract partner in writing without undue delay if claims are made against it due to the infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright held by a third party, Winlong will, as it chooses and at its expense, modify or exchange the delivery item in such a way that no third-party rights are infringed any longer, but the delivery item still fulfils the contractually-agreed functions, or procures for the Client the usage right by entering into a licence contract with the third party. If Winlong does not manage to do this within a reasonable period, the Client is entitled to rescind the contract or reasonably reduce the purchase price. Any compensation claims by the Client are subject to the limitations in § 8 of these General Supply Conditions.
(3) In the event of right infringements as a result of products supplied by Winlong from other manufacturers, Winlong will, as it chooses, assert its claims against the manufacturer and suppliers on the Client’s behalf or assign those claims to the Client. Claims against Winlong exist in these cases pursuant to this § 7 only if the judicial enforcement of the abovementioned claims against the manufacturer and suppliers was unsuccessful, or, e.g. due to insolvency, is hopeless.
§ 8 Liability for compensation due to fault
(1) Winlong’s liability for compensation, regardless of the legal ground, particularly due to impossibility, default, defective or wrong delivery, contract breach, breach of duties during contract negotiations and tort, is limited in accordance with this § 8 insofar as fault is respectively involved.
(2) Winlong is not liable in the event of simple negligence by its organs, legal representatives, employees or other vicarious agents, insofar as there is no breach of contract-essential duties. The obligation to effect timely delivery and installation of the delivery item, its freedom from legal defects as well as quality defects which detrimentally affect its functionality or fitness for purpose more than only insignificantly, as well as advice, protection and care duties which are supposed to enable the Client to use the delivery item in a contractually-compliant way or whose purpose is the protection of life and limb of the Client’s personnel or the protection of its property against substantial damage, are contract-essential.
(3) Insofar as Winlong is liable for compensation pursuant to § 8 (2) hereof on the merits, that liability is limited to damage and loss which Winlong foresaw when entering into the contract as a potential consequence of a contract breach or should have foreseen if it had exercised the customary care. Indirect damage and loss and consequential losses which are the result of defects in the delivery item can also only be compensated for insofar as such damage and loss are typically to be expected when using the delivery item for the intended application.
(4) The foregoing exclusions and limitations of liability apply in the same scope in favour of Winlong’s organs, legal representatives, employees and other vicarious agents.
(5) Insofar as Winlong supplies technical information or acts in an advisory capacity and that information or advice is not part of the performance scope owed by it and contractually agreed upon, this occurs free of charge and excluding any liability.
(6) The limitations in this § 8 do not apply for Winlong’s liability due to intentional behaviour, for guaranteed quality elements, due to loss of life, personal injury or damage to health, or pursuant to the German Product Liability Act.
§ 9 Retention of title
(1) Winlong retains title to all of the goods supplied by Winlong until the Client has paid all of the claims arising out of the business relationship, including future claims. This also applies if individual claims by Winlong are included in an ongoing account and the balance is drawn; the retention of title then pertains to the respective balance claims. Rendering bills of exchange and cheques is not deemed to be payment until the paper has been redeemed.
(2) The Client is entitled subject to § 9 (3) hereof, in the framework of the ordinary course of business, to sell on the goods subject to retention of title. If the sale price is deferred for the purchaser, the Client is obliged to reserve title for itself on the same conditions as those above. The Client hereby assigns to Winlong the purchase-price claims to which the Client is entitled from the onward sale. In the event of onward sale together with third-party goods, this assignment applies only in the amount of the value of the goods subject to the retention of title at the time of the onward sale. The assignment is made silently provisionally; however, Winlong has the right to collect the claims itself as soon as the Client does not duly comply with its payment obligation. Upon request by Winlong, the Client must notify the purchaser about the assignment and provide Winlong with all of the information necessary and useful for the assertion of the assigned claims.
(3) The Client is only entitled to sell on the goods subject to retention of title if it is ensured that the claim arising out of the sale contract is transferred to Winlong. For this reason, the onward sale may not take place in the framework of a current account relationship, nor may the assignability of the claims arising out of the onward sale be excluded with the purchaser.
(4) If the value of the securities existing for us exceeds our claims in total by more than 10%, Winlong is obliged upon request by the Client to release securities as we choose in this respect; however, only fully-paid deliveries from the goods subject to retention of title must be released.
(5) The Client is obliged to appropriately insure the goods subject to retention of title against all usual risks, particularly fire, burglary and water hazards, and to treat and store them with care. Insurance claims arising in damage cases are to be assigned to Winlong.
(6) In the case of distraints and seizures of the goods and/or the assigned claim by third parties, Winlong is to be informed in writing without undue delay, including provision of a copy of the distraint record.
§ 10 Final provisions
(1) If the Client is a merchant, a legal entity under public law, or a public-law special asset, or if it has no general legal venue in the Federal Republic of Germany, then the legal venue for any and all disputes arising out of the business relationship between Winlong and the Client is Düsseldorf or the Client’s headquarters, according to Winlong’s choice. For lawsuits against Winlong, however, Düsseldorf is the exclusive legal venue in such cases. Mandatory statutory provisions concerning exclusive legal venues remain unaffected by this provision.
(2) The relationship between Winlong and the Client is governed exclusively by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) does not apply.
(3) Insofar as the contract or these General Supply Conditions contain unintended lacunae, it is hereby agreed that these are filled by the legally-valid provisions which the contract partners would have agreed upon in accordance with the financial objectives of the contract and the purpose of these General Supply Conditions if they had known about the unintended lacunae.
Winlong GmbH, as of: March 2021