General Terms and Conditions of Sale and Delivery of W.AG Funktion + Design GmbH
in business transactions
1. general
Scope of application
1.1 These terms and conditions apply to entrepreneurs, legal entities under public law or special funds under public law (hereinafter: customer).
1.2 Our deliveries, services and offers are made exclusively on the basis of these Terms and Conditions of Sale and Delivery. They shall also apply to all future transactions with the Customer, insofar as they are legal transactions of the same or a related nature, without us having to refer to them again in each individual case.
1.3 The customer’s terms and conditions of business or purchase are hereby rejected. Deviating general terms and conditions of the customer shall not be recognised unless the supplier expressly agrees to their validity in writing.
1.4 Legally relevant declarations and notifications by the Buyer in relation to the contract (e.g. setting of deadlines, notification of defects, cancellation or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declaring party, shall remain unaffected.
2. offer
and conclusion of contract
2.1 Our offers are subject to change and non-binding, unless we have expressly designated them as binding. This shall also apply if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards), other product descriptions or documents – including in electronic form – to which we reserve ownership rights and copyrights.
2.2 The presentation of our goods and the granting of the opportunity to place an order does not constitute a binding offer on our part. Only your order constitutes an offer to us to conclude a purchase contract. Acceptance can be declared by us either in writing (e.g. by order confirmation) or by delivery of the goods to the buyer.
2.3 Drawings, illustrations, dimensions, weights or other performance data are only binding if this is expressly agreed in writing.
2.4 The contract shall be concluded in German.
3 Delivery
3.1 Our acceptance of the customer’s contractual offer is subject to correct and timely delivery to us, unless we are responsible for the incorrect or delayed delivery to us.
3.2 We are entitled to make partial deliveries and render partial services if these are of interest to the customer in accordance with the purpose of the contract and the customer does not incur any significant additional expense as a result.
3.3 Information on delivery times is approximate, unless otherwise agreed with the customer. Delivery periods shall only commence after complete clarification of all execution details and shall be subject to the timely and proper fulfilment of the customer’s obligations.
3.4 If the customer is in default with the call-off, acceptance or collection of the goods, we shall be entitled to demand compensation for the damage incurred by us; the risk of accidental deterioration and accidental loss shall pass to the customer upon the occurrence of default of acceptance.
3.5 In the case of delivery on call, the goods must be accepted in quantities distributed as evenly as possible over the term, unless otherwise agreed. Upon expiry of the agreed call-off period, we shall be entitled to deliver the entire remaining batch immediately.
3.6 Delivery shall be made to the delivery address specified by the customer.
3.7 If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service, force majeure such as natural disasters, war, civil war, terrorist attack, pandemics or similar), we shall inform the Buyer of this immediately and at the same time inform the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already paid by the buyer. A case of non-availability of the service in this sense is in particular the failure of our supplier to deliver to us in good time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
3.8 We may also refuse performance if this requires an effort that is grossly disproportionate to the customer’s interest in the fulfilment of the purchase contract, taking into account the content of the purchase contract and the requirements of good faith. Amounts already paid will be refunded immediately.
4 Transfer of risk, acceptance, default of acceptance
4.1 Delivery shall be ex warehouse, which is also the place of fulfilment for the delivery and any subsequent performance. At the request and expense of the Buyer, the goods shall be dispatched to another destination (sale to destination). Unless otherwise agreed, we are entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) ourselves.
4.2 The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person or organisation otherwise designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. If the buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance. If dispatch is delayed at the customer’s request, the risk shall pass to the customer upon notification of readiness for delivery.
4.3 If the Buyer is in default of acceptance, fails to co-operate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we shall charge a lump-sum compensation of EUR 750.00 per calendar day, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for dispatch.
Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, cancellation) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The Buyer shall be entitled to prove that we have suffered no loss at all or only a significantly lower loss than the above lump sum.
5. prices and
Payment
5.1 Our prices are ex works or warehouse plus freight and the applicable value added tax.
5.2 Unless otherwise agreed with the customer, we shall charge the usual packaging for transport/shipping at cost price. The choice of the protective means/packaging to be used shall be at our discretion. In the case of sale by despatch (§ 4 para. 1), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. If we do not invoice the transport costs actually incurred in the individual case, a lump sum for transport costs (excluding transport insurance) of EUR 980.00 shall be deemed agreed. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
5.3 Our invoices are due for payment immediately and without deduction. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
5.4 The Buyer shall only be entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. Such a claim by the customer must also be reciprocal to our claim. The customer is only authorised to exercise a right of retention if his counterclaim is based on the same contractual relationship.
5.5 If the customer defaults on payment, the statutory provisions shall apply.
5.6 If it becomes apparent after conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is jeopardised by the Buyer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible goods (customised products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
6 Retention of title
6.1 The delivered goods shall remain our property (goods subject to retention of title) until final payment of all claims arising and accruing on the basis of the business relationship. In the case of several claims or a current account, the retention of title shall serve as security for the balance claim, even if individual deliveries of goods have already been paid.
6.2 The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The buyer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties have access to the goods belonging to us (e.g. seizures). In the event of access by third parties to the goods subject to retention of title, in particular seizures, the customer shall draw attention to our ownership and inform us immediately so that we can enforce our ownership rights.
6.3 In the event of non-contractual behaviour of the Buyer, in particular in the event of non-payment of the due purchase price, we are entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand the goods on the basis of the reservation of title. The return request does not at the same time contain a declaration of withdrawal; rather, we are entitled to demand only the goods out and reserve the right to withdraw. If the Buyer fails to pay the due purchase price, we may only assert these rights if we have previously unsuccessfully set the Buyer a reasonable deadline for payment or if such a deadline is not necessary in accordance with statutory regulations.
We are entitled to use the reserved goods after taking them back. After deduction of a reasonable amount for the disposal costs, the proceeds of disposal shall be set off against the amounts owed to us by the customer.
6.4 The customer is entitled to process and sell the reserved goods in the normal course of business as long as he is not in default. No pledges or transfers of security shall be permitted. The customer assigns all claims arising from the resale or any other legal ground (insurance, tort) in respect of the reserved goods to us as a security. We revocably authorise the customer to collect the claims assigned to us on his own behalf on behalf of the customer. The right of collection expires if the customer fails to meet its payment obligations properly, becomes in payment difficulties, enforcement measures are taken against the customer or insolvency proceedings are opened over the customer’s assets or the opening of insolvency proceedings is refused due to lack of assets.
6.5 Processing or alteration of the goods is always carried out for us as the manufacturer, but without any obligation on our part. If the delivery items are processed with other items that do not belong to us, we acquire co-ownership of the new item in proportion to the value of the delivery items to the other processed items at the time of processing. If the delivery items are combined or inseparably mixed with other items that do not belong to us, we acquire co-ownership of the new item in proportion to the value of the delivery items to the other combined or mixed items. If in connection or mixing the customer’s item is to be regarded as the main item, it is agreed that the customer transfers to us the co-ownership of the new item proportionally. The customer keeps the resulting co-ownership for us.
6.6 The purchaser assigns all claims against third parties arising from the resale of the goods or the product to us as security in full or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The aforementioned obligations of the purchaser shall also apply in respect of the assigned receivables. The Buyer shall be entitled to collect the receivable together with us. We undertake not to collect the claim as long as the buyer fulfils his payment obligations towards us, there is no lack of performance and we do not assert the reservation of title. However, if this is the case, we may demand that the purchaser informs us of the assigned receivables and their debtors, provides all the information required for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the purchaser’s right to further sell and process the goods subject to retention of title.
6.7 If the realisable value of the collateral exceeds our receivables by more than 10%, we shall release collateral of our choice at the request of the purchaser.
7. Derogations
7.1 View patterns are handmade. We therefore reserve the right to make minor deviations and production-related changes from the viewing pattern upon delivery. Usual quality, thickness and colour deviations, as well as over and under deliveries of up to 3 % are insignificant. Complaints raised by the customer below this threshold will not be accepted by us.
8. Tools
8.1 Unless otherwise agreed, we retain title to all models, drawings, templates, shapes, templates, fixtures and tools relating to this Agreement.
8.2 The customer undertakes to comply with all provisions in para. 1 and in our possession to handle and store with care and to use only for the purposes agreed upon in the contract.
8.3 We have the right to cancel all claims in para. 1 and in our possession to demand from the customer at any time. The customer has to hand over the requested items in proper condition to our company headquarters in Geisa after a declared request for release.
9. Guarantee
9.1 In the event of a breach of a contractual obligation, the customer shall be entitled to the statutory rights against us in accordance with the following regulations.
9.2 The customer is only entitled to warranty claims if he has complied with his investigation and complaint obligations in accordance with § 377 HGB.
9.3 In the event of justified and timely notification of defects, the customer is entitled to supplementary performance during the warranty period; we are entitled to choose the type of supplementary performance – elimination of the defect or delivery of a defect-free item. Our right to refuse subsequent performance under the legal conditions remains unaffected. We are entitled to make the subsequent performance due conditional on the Buyer paying the due purchase price. However, the purchaser is entitled to retain a proportion of the purchase price that is reasonable in relation to the defect.
The Buyer shall give us the time and opportunity necessary for the subsequent performance due, in particular to hand over the objected goods for inspection purposes. In the event of a replacement delivery, the buyer has to return the defective item to us in accordance with the statutory regulations.
If the subsequent performance fails or further attempts at subsequent performance are unreasonable for the customer, the customer is entitled to reduce or withdraw from the contract. A right of withdrawal exists only in the case of significant defects. However, we do not assume any liability for public statements made by other manufacturers/third parties (e.g. advertising statements) that the purchaser has not pointed out to us as decisive for his purchase.
9.4 If the customer is claimed by his customer or a consumer due to a defect in the delivered goods that was already present at the time of transfer of risk or has been claimed by a consumer as final customer, the legal claims of recourse of the customer against us according to §§ 478, 479 BGB remain unaffected.
9.5 Claims for damages under the conditions stipulated in Clause 10 due to a defect can only be asserted by the customer if the subsequent performance has failed or if we refuse the subsequent performance. The right of the customer to assert further claims for damages under the conditions stipulated in Clause 10 remains unaffected.
9.6 Claims against us due to defects are only available to the customer and are non-assignable.
9.7 The limitation period for claims for defects is one year from the passing of risk. This does not apply to the extent that the Act pursuant to §§ 438 para. 1 No. 2 (Buildings and objects for buildings), 478, 479 (supplier recourse) and 634a para. 1 No. 2 BGB (construction defects) prescribes longer periods as well as in cases of injury to life, limb or health, in case of a wilful or grossly negligent breach of duty by us and in case of fraudulent concealment of a defect. The warranty for used goods is accordingly excluded.
10. Liability
10.1 We shall only be liable for damages incurred insofar as these are based on a breach of an essential contractual obligation or on intentional or grossly negligent behaviour on the part of us, our legal representatives or vicarious agents.
10.2 In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. due diligence in our own affairs; negligible breach of duty),
a) for damages resulting from injury to life, limb or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation the fulfilment of which makes the proper execution of the contract possible in the first place and on which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
10.3 The provisions of para. The limitations of liability resulting from 1 and 2 also apply to third parties as well as in the event of breaches of duty by persons (also on their behalf) for whose fault we are liable according to statutory regulations. They do not apply insofar as a defect has been fraudulently concealed or a warranty has been assumed for the quality of the goods and for claims of the purchaser under the Product Liability Act.
10.4 Due to a breach of duty which does not consist in a defect, the Buyer may only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular according to §§ 650, 648 BGB) is excluded. Otherwise, the legal requirements and legal consequences apply.
11. Partial invalidity and contractual amendments
11.1 Should any provision of these conditions be or become invalid or should this condition contain a gap, the legal validity of the remaining provisions shall remain unaffected. Instead of the invalid provisions, an effective provision shall be deemed to have been agreed that comes closest to the one desired by the parties in a legally permissible manner. The same applies in the event of a gap.
11.2 Amendments and additions to these terms and conditions, including the amendment or cancellation of this written form clause, must be in writing in order to be effective.
12. Place of performance/ Jurisdiction/ Applicable law
12.1 The place of performance for all delivery obligations on our part and for the other contractual obligations of both parties is Geisa.
12.2 This Agreement and these Terms and Conditions as well as the entire legal relationship between the Customer and us shall be governed by the law of the Federal Republic of Germany to the exclusion of all references to other legal systems and international agreements. The application of UN Sales Law is excluded.
12.3 If the Buyer is a merchant within the meaning of the German Commercial Code, a legal person under public law or a special fund under public law, Fulda is the exclusive – including international jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the buyer is an entrepreneur within the meaning of § 14 BGB. However, we are also entitled to sue the customer at his place of business. Priority statutory provisions, in particular those relating to exclusive competences, remain unaffected.
As of 30 September 2020