Terms and conditions of sale
1. Area of Applicability
Deliveries by the Seller shall take place subject only to the following terms and conditions of sale. Agreements or business terms and conditions of the Purchaser which deviate from these terms and conditions shall – to the extent they conflict with these terms and conditions – require the express written consent of the Seller in order to be effective. The Seller‘s terms and conditions of sale shall become an integral part of the Contract at the latest with acceptance of the delivery.
2.1 Unless otherwise agreed in writing, quotations given by the Seller are without obligation. The Purchaser‘s delivery terms are valid only if confirmed in writing by the Seller.
2.2 Deemed to have been agreed is the price applicable on the day of delivery plus the taxes to be shown separately in the invoices. Price lists given to the Purchaser are deemed to represent the subject matter of the Contract unless they conflict with the general terms and conditions of sale and/or separate agreements. If you voluntarily supply us with personal-related data, we shall not use, process or transfer these data beyond the limits permitted by statute or defined by yourself in your declaration of consent. Furthermore, we will transfer your data only, if we are obliged to do so by official or court orders. Any changes to this Privacy Statement will be published on this page. This enables you to inform yourself at any time about which data we are storing and how we collect and use such data.
3. Duties of the Purchaser
3.1 If the Purchaser is in default with acceptance, the Seller shall be entitled, after setting a reasonable period of extension, to withdraw from the Contract or claim damages instead of performance. In the latter case the Seller is entitled to claim, unless the Purchaser can prove that actual damage was lower, either 10% of the agreed invoice amount ander Article 2.2 or compensation of the actual damage suffered.
3.2 The delivered goods may only be sold unchanged in the original packaging.
4.1 The invoice amounts shall be payable by bank debit entry or subject to the Seller‘s terms as stipulated in the confirmation of the order or in the invoice. Payment periods specified in the confirmation of the order and/or in the invoice, in particular for calculation of the time limits for discount deductions, shall begin with the invoice date. Discount agreed may only be deducted provided that no other invoices are outstanding. In the event of default in payment, the Seller shall be entitled to claim interest at a rate of 8% over the relevant base interest rate of the European Central Bank. Default interest shall be payable immediately. The Purchaser may only exercise a right of withholding in case of claims or setoff claims that are andisputed or are final and legally binding by court decision.
4.2 Without regard to the agreed method of payment, the Seller may require the furnishing of security prior to delivery in the event that reasonable doubt arises, after conclusion of the Contract, as to the solvency or creditworthiness of the Purchaser, if the Purchaser fails to comply with essential aspects of the agreed payment and delivery terms and/or material changes occur in the business circumstances of the Purchaser. If the Purchaser refuses to furnish security within a reasonable period set for this purpose, the Seller may rescind wholly or in part all Contracts entered into with the Purchaser. All rights to more extensive claims are reserved.
4.3 Employees of the Seller shall only be entitled to collect payments upon presentation of special authorisation.
5.1 In the absence of a special instruction from the Purchaser, the Seller shall select the transport route at his due discretion. Cartage at the place of destination, any agreed freight charges and the extra freight charges for express goods and air freight are in each case at the expense of the Purchaser. Freight reimbursements in the event of collection by the Purchaser shall be charged at the freight rate most favourable to the Seller at that time.
5.2 For determination of the weight of the shipment, the weight measured at the time of shipping from the Seller‘s plants or warehouse shall be binding.
5.3 The agreed delivery time shall begin with the sending of the order confirmation, however, not before the furnishing of the documents, authorisations and releases to be procured by the Purchaser. If an agreed delivery date is exceeded by more than two weeks, the Purchaser is entitled to grant the Seller a subsequent extension of another two weeks together with the threat of rejection after that date. If the obligation to deliver has not been met by the end of the extension, the Purchaser shall have the right to withdraw from the Contract. Withdrawal must be declared in writing without delay after expiry of the extension given, however, within two weeks of expiry of this time limit at the latest.
5.4 Events beyond the Seller’s control that make delivery or transport impossible or unreasonably difficult give the Purchaser the right to withdraw from the Contract if these events persist for longer than three months. Independent thereof is the right of the Seller to delay delivery until obstacles to delivery have been removed. These circumstances shall be communicated to the Purchaser by the Seller without delay. Any partial deliveries already made are deemed to constitute independent transactions; payment of the partial delivery may not be refused on account of the quantities still outstanding. In the event that the delivery is postponed for the above reasons, the Purchaser has no right to set a extension or to withdraw from the Contract. In the event of delayed delivery/partial delivery or complete or partial failure to deliver as a result of at least gross negligence, claims for damages are limited to the typical and foreseeable damages. Other claims for damages or compensation are excluded.
6. Passing of the Risk
Unless otherwise agreed, the risk passes to the Purchaser at the time of dispatching the consignment from the delivering works or warehouse. The Purchaser shall bear the risk for all returned deliveries during their return transport and for packaging during outward and return transport.
7. Liability for Defects
7.1 Obvious defects must be reported to the Seller without delay, at the latest within 8 days of receipt of the consignment at the place of destination. Samples taken from the consignment complained of must be sent in. If samples were taken at the loading point by an impartial sample-taker, these are solely binding for the evaluation of the consignment. Deemed equivalent to samples taken by an impartial sample-taker are any original parts remaining with the Purchaser from the original shipment used for processing or forwarding. The same applies to parts of the production batch remaining with the Seller which were the origin of the shipment complained of.
In the event of defects – unless otherwise agreed – the Purchaser may only require elimination of the defect or replacement delivery. If subsequent performance/delivery is unsuccessful, the Purchaser is entitled to reduce the purchase price or withdraw from the Contract. The agreed liability for defects applies to the elimination of defects for all deliveries. Unless otherwise stipulated below, all other claims on the part of the Purchaser are excluded. This also applies in particular to claims for compensation based on breach of duties ander the contractual relations and based on tort. In the event of intent or gross negligence, the Seller is liable in accordance with the statutory provisions. The liability of the Seller is limited in any case to the typical and foreseeable damages provided there was no intent or omission on the part of the Seller‘s statutory agents and provided that no major contractual duty has been breached. This does not affect liability ander the Product Liability Act (Produkthaftungsgesetz). The aforesaid limitation of liability also does not apply in the event of harm to life, physical injury or harm to health. The extent to which liability of the Seller is excluded or limited also applies for the benefit of his employees in the event that claims are brought against them directly by the Purchaser.
7.2 The unreserved acceptance of the consignment by the railways, shipping company or other carrier shall exclude liability of the Seller based on improper packaging or loading unless the Seller has mandatory liability as a result of intent or gross negligence.
7.3 If an EAN code is used, the Seller shall ensure that it is legible. However, the Seller accepts no liability for the legibility.
7.4 Any oral and written advice on application techniques given by the seller is without obligation and does not release the Purchaser from his own duty to examine the products for their suitability.This also applies when the delivered goods are generally recommended for a specific purpose. If the question of liability of the Seller should nevertheless arise, the terms agreed on liability for defects apply mutatis mutandis. It is solely incumbent on the Purchaser to comply with any intellectual property rights of third parties, e.g. patents or utility models, and statutory provisions relating to the processing of the consignment.
7.5 Warranty claims become time-barred within one year of delivery of the goods unless otherwise mandatorily prescribed by statute, in particular for goods that were used in accordance with their normal purpose for a building structure and which are responsible for its defective nature.
8. Reservation of Title
8.1 The consignment shall remain the property of the Seller until satisfaction in full of all outstanding claims arising from the business relations including interest and costs or until cheques or bills of exchange given for this purpose have been fully honoured. The Seller is entitled to claim reservation of title by simple declarations. Reservation of title shall also extend to resold goods and products resulting from processing. In the event of the goods being combined or mixed with material that does not belong to the Seller, the Seller shall always acquire co-ownership in the manufactured new items in the ratio of the value of the reserved-title product to the value of the new item. In this case the Purchaser is deemed to be custodian for the Seller. If the Seller does not acquire co-ownership with respect to a combination of several items, then the Purchaser shall already now assign the co-ownership share specified ander sentence 4 to the Seller.
8.2 The Purchaser shall be revocably entitled to sell the delivered goods in the normal course of business. No other disposal, in particular attachment, chattel mortgage or relinquishment by way of exchange is permitted. The Seller shall be notified without delay of attachments andertaken by third parties – also after mixture or processing – as well any other impairment to the Seller‘s rights of title to the consignment. The Purchaser already now assigns to the Seller who accepts the same all accounts receivable and ancillary rights accruing to the Purchaser out of the resale of the delivered goods and out of the business relations with his customers resulting from the resale, regardless of any processing. In the event that the Purchaser sells the consignment together with other goods not belonging to the Seller, the assignment of the purchasing price applies only to the value of the consignment.
8.3 The Purchaser shall be revocably empowered to collect all receivables arising out of the resale.The power of collection and the right to process shall extinguish, also without express revocation, in the event that the Purchaser ceases to make payments, in the event of clause 4.2, of protest of a cheque or bill of exchange or successful attachment. Assigned outstanding amounts thereafter received shall be accumulated immediately in a special account with the special title to be given by the Seller. Upon request of the Seller, the Purchaser shall inform the Seller of the debtors of the assigned claims in writing without delay and notify the debtors of the assignment. The Seller agrees to release, at his discretion, the securities given to him at the request of the Purchaser so far as their realisable value exceeds the total claim of the Seller to be secured by 20%.
8.4 If the Purchaser should default on his payment obligation to the Seller or if he breaches one of the duties resulting out of the agreed reservation of title, then the remainder of the debt shall become due immediately. In these cases, the Seller is entitled, subject to §107(2) Insolvency Act (Insolvenzordnung), to require surrender of the consignment and to collect it from the Purchaser.
The Purchaser has no right of possession. The Seller shall be entitled to inform the Purchaser’s customers of the assignment to the Seller of the Purchaser’s receivables and to collect the receivables. Any taking back of goods takes place for the purposes of security only and shall not be interpreted as withdrawal from the Contract, even if the right to pay in instalments is subsequently granted.
9. Returnable Packaging/Pallets
9.1 In the event of agreement to deliver goods on pallets, the Seller may deliver goods, at his discretion, on Euro pool pallets measuring 800 x 1200 mm or on non-returnable EW-10 pallets. Delivery on Europallets takes place on a one-to-one exchange basis only, i.e. the same number of andamaged, empty pallets (Euro pool pallets only) must be returned for exchange as the number of pallets used to deliver the goods. For Euro pool pallets returned to the Seller in a damaged but reparable condition, the costs for the repair shall be invoiced to the Purchaser and, for pallets unable to be repaired, their replacement value unless the Purchaser can prove that he was not responsible for the damage. For pallets that are lost, the Purchaser is obliged to provide replacements or to pay a sum equal to their replacement costs to the Seller, unless he can prove that he is not responsible for their loss. If delivery is made on non-returnable EW-10 pallets, transfer of the goods from one pallet to another and disposal of the non-returnable pallets are incumbent upon the Purchaser.
9.2 As far as half-size or quarter-size Eurodisplay pallets are used, these are CHEP pallets which remain with the Purchaser for collection by CHEP.
9.3 For other returnable packaging materials or loading devices provided by the Seller, the following conditions shall apply: The returnable packing provided by the Seller (identified as such in the invoice) as well as any loading devices shall remain the inalienable property of the Seller. They must be handled with care and may not be used for purposes other than the storage of the products delivered. The Purchaser shall be liable for any damage resulting from failure to comply with these requirements unless he can prove that he is not responsible for the damage.
Returnable packing material and loading devices must be returned free of charge and in proper, usable condition immediately after emptying addressed to the department specified in the invoice at the indicated or agreed receiving point for empties.
A maximum of eight weeks from the date of delivery is allowed for the return of returnable barrels, containers and stacking tanks and other returnable packing material and loading devices. If returnable packaging and/or loading devices are not returned on time or become unfit for use as a consequence of non-compliance with the wishes of the Seller, the Seller reserves the right to invoice them at the current price for brand-new packing material of the same type or to claim rental fees. These amounts are payable immediately. The empties account will not be credited until after receipt of the empties unless the Purchaser proves that he is not responsible for the delayed return or the unusability of the returnable packaging and/or loading devices.
9.4 Non-returnable packaging material is taken back in accordance with the regulations of the Packing Regulation (Verpackungsverordnung) in its applicable version as well as, if appropriate, any additional agreements or arrangements made.
10. Concluding Provisions
10.1 If individual provisions of these terms and conditions of sale or of the delivery transaction are or become void, this shall not affect the validity of the other provisions. The contractual parties shall be obliged to agree on a new provision which comes closest to the purpose intended by the invalid provision.
10.2 Unless otherwise agreed, place of performance for all obligations arising out of a delivery transaction and court of jurisdiction for all disputes arising in connection with a delivery transaction and/or a summary procedure based on documentary evidence shall be exclusively Wächtersbach.
10.3 The relations between the Seller and the Purchaser shall be subject exclusively to the law of the Federal Republic of Germany. Application of the UN Convention of 11.4.1980 (Vienna Sales Convention) on contracts for the international sale of goods is excluded.
Wolfin Bautechnik GmbH, 63607 Wächtersbach