GW FASTENER PRODUCTS USA CORP.
1. Scope of application
General Terms and Conditions of Sale and Delivery
- for business-to-business transactions only -
1.1. These General Terms and Conditions of Sale and Delivery (TOS) apply to all our business relationships with you as our trading partner.
1.2. These TOS apply in particular to contracts for the sale and supply of movable goods, regardless of whether such goods are manufactured by us or purchased by us from third-party suppliers. These TOS, as amended from time to time, also apply as a framework agreement to any contracts for the sale and supply of movable goods entered into with you in future without any particular reference to their application being required from us in each individual case.
1.3. These TOS apply to the exclusion of all others. Deviating, conflicting or complementary terms and conditions from you shall only be incorporated in the agreement if and to the extent that we have expressly consented to their application. Such consent shall be required in any circumstances whatsoever, including, for example, where we have knowledge of conflicting terms and conditions from you and effect deliveries to you without reservation.
2. Offer, conclusion of contract
2.1. Your purchase order shall constitute a binding offer to contract which we may accept within a period of four weeks by sending an order confirmation or by making delivery of the goods. Any previous offers made by us are without obligation and subject to change without notice.
2.2. Our minimum order value of an international purchase order is US$ 5,000.00 net and minimum order value of a domestic purchase order is US$ 100.00 net. We shall not execute orders below such amount, unless expressly agreed otherwise.
2.3. In case of purchase orders placed via electronic means, we shall promptly acknowledge the receipt of the order. Such acknowledgement of receipt shall, however, not constitute an acceptance of your offer by us.
None of our employees, except chief executive officers and authorized signatories, have the authority to enter into any oral agreements deviating from these TOS. That applies in particular, to any assumption of guarantees.
2.4. Unless otherwise provided for, customary trade terms shall be construed in accordance with Incoterms 2010, including amendments valid at the time of the conclusion of the contract.
3. Specification of the goods
3.1. Unless otherwise expressly agreed, we shall not be obliged to verify whether the goods serve or are suitable for any purpose or use intended by you. 3.2. Where we provide models or samples to you, these are merely intended to describe more specifically the supplies or services to be provided by us. They shall not be regarded as any guarantee of quality.
3.3. The specification of our cable ties shall be in accordance with the requirements of UL 62275 (Underwriters Laboratories Inc.) as amended at the time of the conclusion of the contract.
3.4. In order to ensure full compliance of our goods with the specification, their storage must be in accordance with our storage instructions. You will find our storage instructions in our product catalogue and on our website.
4. Prices and terms of payment
4.1. Unless otherwise agreed in individual cases, prices charged shall be our list prices current at the time of the conclusion of the contract; prices shall be quoted ex distribution centre Ontario, CA (USA), exclusive of packaging and statutory VAT. 4.2. Unless otherwise agreed, in case of sale by delivery to a place other than the place of performance at your request (section 5.2.), the costs of transport, the costs of any requested transport insurance as well as any customs or other public duties shall be borne by you.
4.3. Unless otherwise agreed, we shall not clear goods for shipment or make them available for collection before payment of the purchase price is received without deductions. 4.4. Upon expiry of an agreed payment period, you shall be in default. During the period of default, the purchase price shall bear interest at the applicable statutory default interest rate. We reserve the right to claim damages for any further losses caused by default. Our rights against merchants to claim interest from the due date shall remain unaffected.
5. Delivery, passing of risk, delay in acceptance
5.1. Where we have indicated delivery periods and made them the basis of purchase orders, such periods shall be extended in the event of strike and cases of force majeure for the duration of any such delay. The same applies where you fail to comply with any duty of active co-operation.
5.2. Delivery shall be ex warehouse; the latter place shall also be the place of performance. Goods shall be delivered to another place of destination at your request and expense (sale by delivery to a place other than the place of performance at your request). Unless otherwise agreed, we shall determine the method of shipment in our own discretion (including without limitation carrier, routing, packaging).
5.3. The risk of accidental loss or accidental deterioration of the goods shall pass to you no later than upon delivery. However, in case of sale by delivery to a place other than the place of performance at your request, the risk of accidental loss or accidental deterioration of the goods as well as of any delay in delivery shall pass to you upon hand-over of the goods to the forwarder, carrier or other person or agent entrusted with the shipment. Delivery shall also be deemed to have occurred if you are in default of acceptance.
5.4. During the period in which you are in default of acceptance, you shall reimburse us for any storage costs. Such costs shall be US$15 net / m² of floor space per day. You remain entitled to prove that any expenses incurred by us were not incurred at all or were incurred in a lesser amount.
6. Liability for defects
6.1. Unless otherwise provided for in the following, your rights as the purchaser in respect of defects in quality or title shall be governed by statutory provisions. Special statutory provisions concerning final deliveries of goods to a consumer shall in any case remain unaffected.
6.2. Our liability for defects shall primarily be based on the agreement on the specification of the goods. Product descriptions which are referred to as such and have been provided to you prior to your purchase order or incorporated in the agreement in the same way as these TOS shall be regarded as such an agreement on the specification of the goods.
6.3. In the absence of any agreement on the specification, the existence of defects shall be determined in accordance with statutory provisions.
6.4. Your claims in respect of defects shall be subject to the proviso that you have complied with your statutory obligations of examination and notification of defects. If goods are found to be defective during such examination or afterwards, we shall immediately be notified thereof in writing. The notification shall be deemed immediate if made within one week; dispatch in due time shall suffice to meet the deadline. Irrespective of such obligation of examination and notification of defects, you shall notify in writing all apparent defects (including incorrect deliveries and short deliveries) within three days of receipt of delivery; dispatch in due time shall suffice to meet the deadline. If you fail to examine goods and/or notify defects as required, our liability for any non-notified defects shall be excluded.
6.5. We shall be entitled to make any subsequent performance owed conditional upon your payment of any due purchase price. You shall, however, be entitled to withhold a fraction of the purchase price which is in reasonable proportion to the defect. 6.6. You shall allow us such time and opportunity as is necessary to effect any subsequent performance owed, which shall particularly require you to deliver to us any rejected goods for purposes of examination. In case of replacement delivery, you shall return the defective item to us as provided by statutory provisions.
6.7. In order to ensure a timely examination of your complaint, we recommend you fully complete our complaint form and send us, along with the rejected goods, a closed packet from the original delivery.
6.8. If subsequent performance has failed or if a reasonable period to be set for subsequent performance has expired to no avail or was not required to be set according to statutory provisions, you may withdraw from the contract or reduce the purchase price. The right to withdraw from the contract is, however, excluded in case of minor defects.
6.9. Except for claims for damages, any claims based on defects in quality shall be subject to a limitation period of one year. The Goods must be used under the condition of complying UL 62275 usage guideline and/or be stored in the proper storage environment of our recommendation. The information can be referred to our catalogue. Claims for damages and claims for reimbursement of wasted expenditure shall be subject to the provisions in section 7.
6.10. Claims for damages and/or wasted expenditure shall be subject to the limitations according to section 7 and shall be excluded except as admitted thereunder.
7. Liability for damages
7.1. Unless otherwise provided for in these TOS, including the following provisions, our liability for any breach of contractual and non-contractual duties shall be governed by the applicable statutory provisions.
7.2. We shall be liable for damages – on whatever legal grounds – in case of intentional conduct and gross negligence. In case of simple negligence, we shall only be liable a) for damage caused by injury to life, body or health,
b) for damage caused by breach of an essential contractual obligation (the fulfilment of which is fundamental to the proper execution of the contract and may regularly and justifiably be relied upon by you); in such case, our liability shall, however, be limited to foreseeable, typically occurring damage.
7.3. The limitations of liability as set forth in section 7.2. shall not apply where we have fraudulently concealed a defect or assumed a guarantee of quality for the goods. The same applies to claims under the Consumer Protection Act.
8. Retention of title
8.1. All goods sold shall remain our property until receipt of full payment of all claims arising now or in future from the sales contract and from the ongoing business relationship (secured claims).
8.2. Any goods delivered subject to retention of title shall neither be given in pledge nor assigned as collateral security to any third party until full payment of the secured claims is received. You shall promptly notify us in writing of any action or attempt by third parties to seize or take possession of goods owned by us.
8.3. If you act contrary to the contract, including without limitation if you fail to make payment of the purchase price when due, we shall have the right in accordance with statutory provisions to withdraw from the contract and to claim restitution of any goods on the grounds of the retention of title and the withdrawal from the contract. If you fail to make payment of the purchase price when due, we shall be entitled to exercise such rights only if we have set you a reasonable period for payment to no avail or if such a period was not required to be set according to statutory provisions.
8.4. You shall be permitted to resell and further process any goods subject to retention of title in the ordinary course of business. In such case, the following provisions apply in addition: ㄒ a) The retention of title shall extend to any products in their full value which have been manufactured by further processing, mixing or combining our goods with other goods; in such case, we shall be deemed to be the manufacturer. Where such further processing, mixing or combination involves goods which continue to be subject to third-party ownership rights, we shall become a joint owner of the manufactured product in such proportion as corresponds to the invoice values of the processed, mixed or combined goods. Unless otherwise stated, such manufactured product shall be subject to the same provisions as any goods delivered subject to retention of title.
b) Any claims against third parties arising from the resale of goods or products are now assigned to us by you as collateral security in their full amount and/or, as the case may be, to the extent of our joint ownership as provided in the foregoing paragraph. We accept such assignment. All your obligations provided in section 8.2 shall also apply in respect of the assigned claims.
c) You shall remain authorized, apart from us, to collect any outstanding claims. We agree to refrain from any collection of such claims for as long as you continue to fulfil your payment obligations to us, you do not default on your payment obligations, no petition to commence insolvency proceedings is filed and your financial circumstances are not otherwise unfavourable. In the event, however, that one of the aforementioned circumstances occurs, we may require you to notify us of the assigned claims and their debtors, to provide any information necessary for purposes of collection, to deliver any documents relating thereto as well as to notify the third-party debtors of the assignment of those claims.
8.5. If the realizable value of collateral securities exceeds our claims by more than 10 %, we shall, upon your request, release securities of our own choosing.
9. Set-off, retention, assignment
9.1. You shall be entitled to set off against our claims only if your counterclaims have either been finally adjudicated upon or accepted by us or are undisputed. Furthermore, you shall be entitled to exercise any right of retention only if and to the extent that your counterclaim arises from the same contractual relationship.
9.2. You may not without our consent assign or transfer to any third party any rights or obligations arising from the agreements entered with us.
9.3. Where any assignment made without our consent is legally effective, that shall not affect our right to set off counterclaims against you (former creditor).
10. Choice of law, place of jurisdiction
10.1. These TOS as well as any legal relationships between you and us shall be governed by the laws of the United States of America, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and any conflict of laws provisions providing for the application of any law other than that of United States of America. 10.2. Any action arising from or brought under this TOS, United States District Court for the Central District of California shall be the court for the first instance.
Last revised: 1 June 2020