General Terms and Conditions of Sale and Delivery of Rohrhandel Weidner GmbH
§ 1 General – Scope of validity
- Our Terms and Conditions of Sale apply exclusively; we do not recognise any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our Terms and Conditions of Sale.
- All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
- Our terms and conditions of sale shall only apply to companies within the meaning of § 310 para. 1 BGB (German Civil Code).
§ 2 Offer – Offer documents
- Our offer is subject to change unless otherwise stated in the order confirmation.
- We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to written documents that are labelled “confidential”. The customer requires our express written consent before passing them on to third parties.
§ 3 Prices – Terms of payment
- Unless otherwise stated in the order confirmation, our prices are “ex works”, excluding packaging, which will be invoiced separately.
- We reserve the right to change our prices appropriately if cost reductions or cost increases occur after conclusion of the contract, in particular due to collective labour agreements or changes in material prices. We shall provide the customer with evidence of such changes upon request.
- Statutory VAT is not included in our prices; it will be shown separately on the invoice at the statutory rate on the day of invoicing.
- The deduction of a discount requires a special written agreement.
- Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due for payment within 30 days of the invoice date. The statutory regulations regarding the consequences of default of payment shall apply.
- If we become aware of circumstances that call the customer's creditworthiness into question, in particular if the customer fails to honour a cheque or suspends payments, we shall be entitled to declare the entire remaining debt due and payable. In this case, we are also entitled to demand advance payments or the provision of security.
- If the customer finally suspends payments or if insolvency proceedings are applied for, we shall be entitled to withdraw from the part of the contract that has not yet been fulfilled.
- We are entitled to offset payments against the customer's oldest debts first. The customer must be notified of the offsetting against older debts. If costs and/or interest have already been incurred, we shall be entitled to offset the payments first against the costs, then against interest and finally against the principal performance.
- The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognised by us. The customer is also authorised to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 4 Delivery time
- The start of the delivery period stated by us is subject to the clarification of all technical questions.
- Our delivery obligation is subject to correct and timely delivery to us, unless we are responsible for the incorrect or delayed delivery to us.
Compliance with our delivery obligation also presupposes the timely and proper fulfilment of the customer's obligation. The defence of non-performance of the contract remains reserved. - If the customer is in default of acceptance or culpably violates other obligations to co-operate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.
- If the conditions of paragraph (4) are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
- We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a fixed-date transaction within the meaning of Section 286 (2) No. 4 BGB or Section 376 HGB. We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to assert that his interest in the further fulfilment of the contract has ceased to exist.
- We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
- We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is due to the culpable breach of a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
- In the event of a delay in delivery, the purchaser shall be entitled to withdraw from the contract or to claim damages in lieu of performance in accordance with the statutory provisions, unless we can prove that we are not at fault.
§ 5 Grades and dimensions
- The quality and dimensions of the material supplied by us shall be determined exclusively in accordance with German works standards, unless the application of foreign works standards has been expressly agreed. If no DIN/EN standards exist, commercial usage shall apply.
- References to standards such as DIN/EN or their components, as well as information on grades, dimensions, weights and usability are not assurances of properties or guarantees, nor are notifications of conformity, manufacturer's declarations and corresponding labelling such as CS and GS.
§ 6 Transfer of risk – Packaging costs – Call-off orders
- Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.
- Separate agreements apply to the return of packaging.
- In the case of call-off orders, goods notified as ready for despatch must be called off immediately. Otherwise we shall be entitled, after issuing a reminder, to dispatch them at our discretion at the expense and risk of the purchaser or to store them at our discretion and invoice them immediately.
§ 7 Liability for defects
- Claims for defects on the part of the customer presuppose that the customer has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code).
- Insignificant, reasonable deviations in the dimensions and designs - particularly in the case of repeat orders - do not justify complaints unless absolute compliance has been expressly agreed. Technical improvements and necessary technical modifications shall also be deemed to be in accordance with the contract, provided that they do not constitute a deterioration in usability.
- If the buyer does not immediately give us the opportunity to convince ourselves of the material defect, in particular if he does not immediately make the rejected goods or samples thereof available at our request, all rights due to the material defect shall lapse
- If there is a defect in the purchased item, we shall be entitled, at our discretion, to subsequent fulfilment in the form of rectification of the defect or delivery of a new item free of defects. In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance.
- If the subsequent fulfilment fails, the customer is entitled, at his discretion, to demand withdrawal or a reduction in price.
- We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of wilful breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.
- We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
- Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
- Unless otherwise stipulated above, liability is excluded.
- The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
- The limitation period of 12 months shall also apply to goods that are used for a building in accordance with their normal use and have caused its defectiveness. This shall not affect our liability for intentional and grossly negligent breaches of duty or the limitation period for statutory recourse claims.
- In the event of subsequent fulfilment, the limitation period shall not begin to run again.
- The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it is five years, calculated from delivery of the defective item.
§ 8 Overall liability
- Any further liability for damages other than that provided for in § 6 is excluded, irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for material damage in accordance with § 823 BGB.
- The limitation according to paragraph (1) shall also apply if the customer demands compensation for useless expenses instead of a claim for damages.
- Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
§ 9 Retention of title
- We reserve title to the purchased item until all payments arising from the delivery contract have been received. If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the purchased item. If we take back the purchased item, this shall constitute a cancellation of the contract. After taking back the purchased item, we shall be authorised to sell it; the proceeds from the sale shall be offset against the customer's liabilities - less reasonable selling costs.
- The customer is obliged to treat the purchased item with care; in particular, he is obliged to insure it adequately at his own expense against fire, water damage and theft at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
- In the event of seizure or other interventions by third parties, the customer must notify us immediately in writing so that we can take legal action in accordance with Section 771 of the German Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
- The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer shall remain authorised to collect this claim even after the assignment. Our authorisation to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer fulfils his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
- The processing or transformation of the purchased item by the customer is always carried out on our behalf. If the purchased item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the purchased item delivered under reservation of title.
- If the purchased item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall keep the resulting sole ownership or co-ownership for us.
- The customer shall also assign to us the claims to secure our claims against him which arise against a third party through the combination of the purchased item with a property.
- We undertake to release the securities to which we are entitled at the customer's request to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; we shall be responsible for selecting the securities to be released.
§ 10 Place of jurisdiction – place of fulfilment – partial invalidity
- If the customer is a merchant, our registered office is the place of jurisdiction; however, we are also entitled to sue the customer at the court of his place of residence.
- The law of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.
- Unless otherwise stated in the order confirmation, the place of fulfilment shall be our registered office.
- Should one or more provisions of these terms and conditions be or become invalid, this shall not affect the validity of all other provisions and agreements between the parties.
Status: August 2007