I. Scope/General 1. wedi GmbH’s general terms and conditions shall apply for all contracts concerning the provision of goods concluded between us and the customer. They explicitly do not apply for services such as relocation, installation, use or the assembly of building materials or building elements.
2. Our products are not intended for use in air planes, motor vehicles or water vessels due to special approval and test method as as well as relevant fire regulations, unless prior, explicit approval is provided by us in writing in individual cases. Guarantees, compensation for damage and any other claims arising as a result are otherwise excluded.
3. Our Terms and Conditions also apply for all future business relationships without explicit reference being made. These conditions are regarded as having been accepted upon the receipt of goods at the latest. Customer terms and conditions that deviate from our own and which we have not expressly recognised are unbinding for us, including if we have not explicitly objected to them. They are only binding once we have explicitly confirmed them in writing. Upon placing an order, our customers state that they expressly recognise our terms and conditions.
4. Provided that no contradictory regulations have been agreed upon and the customer does not act as a consumer within the meaning of Sections 474 et seq. in conjunction with Section 13 Civil Code (BGB), Incoterms 2010, including the amendments valid at the time of the conclusion of the contract, shall apply for the interpretation of trade terms.
II. Quotation and Conclusion of Agreements 1. Our quotations, as well as our samples, prospectuses, drawings and other performance data are without commitment and non-binding, unless we have explicitly indicated these to be binding.
2. If delivery is made after four months following the confirmation of the order, we reserve the right to increase prices provided that there has been a considerable change in the cost factors determined in the contract, e.g. wages, freight and energy costs, raw materials, taxes etc. The amount of the remuneration is influenced by the cost factor on percentage basis. This does not apply if there is an ongoing obligation. Unforeseen costs that arise as a result of non-compliance on the part of the customer and which are significant for the fulfilment of our contractual obligations are calculated separately.
2. The customer is bound to orders that are classified as an offer to conclude a purchase contract for two weeks. They require our written order confirmation within two weeks of receipt of the order in order to be legally valid. Acceptance of the order by us can also be made through execution of the order within the same period. In the case of immediate execution, the invoice shall serve as order confirmation.
3. Quotations apply for the country in which the customer has its headquarters (hereafter ‘country of export’). The customer is responsible for all disadvantages and obligations that arise through the use of goods outside the country of export.
4. In the confirmation, we indicate the observance and existence of certain technical requirements and conditions needed in order to guarantee complete functionality in installation, modification or other processes. In the case of non-compliance with these requirements and conditions, we accept no liability for any consequences that may ensure.
5. Illustrations, samples, prospectuses, drawings and/or all other documents belonging to the quotation are not quality specifications. Characteristics, assurances or guarantees are therefore not connected, unless this has been agreed upon separately in writing.
6. We retain ownership, copyright as well as all other intellectual property rights for all illustrations, samples, prospectuses and other documents. The customer may not pass these on to third parties without our approval in writing, regardless of whether we have indicated these to be confidential or not, and these are to be returned to us immediately upon our request.
7. Personal data is processed electronically exclusively for business purposes and is processed and forwarded in accordance with the provisions of the Federal Data Protection Act. Printed correspondence with data processing documents is legally valid even if not signed.
III. Prices 1. Our prices represent net prices ex Emsdetten works, including normal transport packaging plus transport costs, unless otherwise determined in the order confirmation; the prices taken from the respective price list valid at the time of the order being accepted plus statutory VAT are regarded as having been agreed upon. Provided that the customer provides us in good time and within 14 days of order confirmation at the latest with precise information regarding applicable packaging, weighing and customs regulations of another country, we commit to complying with these. Associated additional costs are to be borne by the customer.
2. If delivery is made after four months following the confirmation of the order, we reserve the right to increase prices provided that there has been a considerable change in the cost factors determined in the contract, e.g. wages, freight and energy costs, raw materials, taxes etc. The price increase is based on the amount of the cost increase. Costs that are unforeseeable upon the conclusion of the contract and which are attributable to the customer and which are significant for the fulfilment of our contractual obligations are calculated separately.
3. For deliveries abroad, our prices are net of FCA or FOB from German ports unless otherwise agreed and unless the customer is a merchant.
4. For agreements regarding a CIF delivery, costs that arise for unloading, lighterage or landing, port dues and wharfage at the port of destination are not included in the price.
5. Customs, consular fees and taxes, duties, fees as well as associated costs due as a result of regulations outwith the Federal Republic of Germany are to be borne by the orderer. In the case of delivery, the price stated is based on the rates applicable at the time of the quotation being provided including customs or other duties. The actual costs are calculated. Statutory VAT applicable is calculated separately if any is due.
6. Sales rebates or other discounts require our explicit confirmation in writing.
IV. Delivery Deadline and Delivery Date 1. Delivery deadlines begin on the day of order confirmation or execution; they are non-binding unless a delivery date has been expressly agreed upon in writing. We do not accept procurement costs as a rule.
2. Adherence to the delivery deadline is subject to the customer fulfilling its contractual obligations. Delivery deadline periods begin upon the conclusion of the contract at the earliest, however not before the complete provision of all documents, approvals, technical clarifications that the customer is obliged to supply. Subsequent requests for alterations and amendments from the customer extend the delivery deadline period appropriately. The deadline is regarded as having been adhered to if the item for delivery has left our factory by the deadline or readiness for dispatch has been communicated or if the goods have not been sent on time for reasons not attributable to us. Should unforeseeable events and/or force majeure occur, including for our subcontractors, the delivery deadline shall also be extended by an appropriate period.
3. Should we be in default for reasons for which we are responsible, liability for damages in the case of simple negligence is excluded. The limitation of liability above shall not apply if the default is due to us having culpably violated a significant contractual obligation. In all cases of liability, our liability is limited to foreseeable damage typical for the contract. In the case of a delivery delay for which we are responsible or in the case of short selling within the meaning of Section 286 Paragraph 2 no. 4 BGB or Section 376 Commercial Code (HGB), the customer may, after a written reminder, set a suitable further deadline with reference being made to the fact that it shall reject acceptance of the object of the contract following expiry of the deadline. Only after the expiry of the further deadline period and all other legal requirements is the customer entitled to withdraw from the contract through written declaration.
4. Should we not provide a service due or not render it as agreed, the customer may not withdraw from the contract, may not demand compensation for damage instead of the full performance or compensation for expenses incurred in vain if our violation of obligations is not considerable. If part of the service has already been performed, the customer may only demand compensation for damage instead of the full performance if interest in the total performance so requires. A withdrawal from the contract as a whole is only possible in this case if the customer can prove that they have no interest in partial performance.
5. We are entitled to provide part deliveries and part performance at any time.
6. Should the customer be in default, we are authorised to request compensation for damages and any additional expenses that arise. This also applies if the customer culpably violates obligations to cooperate. Upon the occurrence of acceptance default or debtor default, the risk of accidental deterioration and accidental destruction is transferred to the customer.
V. Delivery Conditions, Transfer of Risk 1. The costs for sending the goods are borne by the customer.
2. Insofar that no deviating agreements have been concluded, it is agreed that delivery take place ex our Emsdetten warehouse or via export FCA or FOB from German ports. In the case of the purchase of used goods (Section 474 in accordance with Section 13 BGB), the risk of accidental loss of or accidental damage to the goods passes to the customer when the goods are handed over to the customer. In all other cases, the risk is transferred to the customer once the goods have been handed over to the forwarder. This also applies in the case of delivery taking place using own transport vehicles and own staff on behalf of the customer. The transfer of risk takes place by the time the items have left our company or warehouse at the latest. If delivery is not possible for reasons for which we are not responsible, the risk is transferred to the customer upon the notification that the products are ready for shipment. Should the purchase transaction not be a commodities purchase within the meaning of Sections 474 et seq. in conjunction with Section 13 BGB and a price setting has not been agreed, should another regulation regarding transfer of risk be foreseen for Incoterms 2010, including the amendments valid at the time of the conclusion of the contract, this different regulation shall apply otherwise.
3. If the customer is obliged to provide the mode of transport for the delivery and does not supply this within the contractually agreed time, we shall be released from our obligation to deliver through storing and insuring the goods at the customer’s expense and risk. The Forwarder's Certificate of Receipt certifies delivery in accordance with the contract.
4. At the express wish and expense of the customer, we shall insure the delivery against damage in transit and other risks.
VI. Payment Terms, Delay 1. The purchase price is due immediately upon receipt of the invoice by the customer (without any reduction) if no other payment date is specified in the order confirmation.
2. Payment may only be made to the accounts listed on our invoice or to a person authorised by us with power to collect.
3. Cheques and bills of exchange, which we expressly reserve the right to accept, are only valid as payment following their redemption. Any discounts and bank charges are borne by the customer. To the extent that we and the customer have agreed payment of the purchase price debt based on the cheque/bill of exchange procedure, the retention also extends to the customer's honouring of the bill of exchange we accept and does not expire as a result of the crediting of the received cheque by us.
4. Should a transfer of payments not be possible from the country from which payment is to be made at the time that it is due, the customer is to pay the equivalent value of the amount owed on time at a bank in this country. In the case of an exchange rate drop in the not agreed currency with which payment is made, the customer is obliged to compensate for this through a subsequent payment.
5. Should facts become known which suggest that, in our dutiful commercial estimation, the customer’s credit rating is dangered, we are also entitled after the conclusion of the contract to demand advances or security payments without prejudice to further legal claims. Should the customer not comply with the advances or demands for security payments, we shall have a right of retention. Alternatively, we may withdraw from the contract following the absence of a successful outcome to the demand for advances or security payments after a grace period. We can also request claims for compensation for damages.
6. Invoices are regarded as having been accepted if they have not been objected to in writing within 14 days of receipt of the invoice with specific objections referred to. Recognition is only provided if it is separately requested on the invoice.
7. An off-set is only possible with undisputed and legally effective claims.
8. The buyer may only assert a right of retention insofar as claims arise from the contractual relationship itself.
9. The following provisions shall apply should the customer be in default of payment. Default interest on our payment claims arising herefrom is to be paid by the customer at an interest rate in the amount of 8% above the basis rate of the European Central Bank. Higher payment may be due if we have evidence of higher damage.
VII. Guarantee, Notification of Defect 1. The customer only has a right to claim for defects if he duly complies with his obligation of examination and notification of defects in accordance with Section 377 HGB. This does not apply if the customer is a consumer within the meaning of Section 477 BGB in conjunction with Section 13 BGB.
2. In the case of legitimate defects, excluding the rights of the customer to withdraw from the contract or to reduce the purchase price (decrease), we are obliged to provide supplementary performance, unless we are entitled to refuse subsequent performance based on legal provisions. The customer is to guarantee us an appropriate period to provide the subsequent performance. The customer is entitled to choose between rectification of defects or replacement delivery. In the case of the rectification of defects, we bear all expenses that arise, provided that these do not increase due to the subject matter of the contract being at another location than the place of fulfilment. Should the attempts at remedy fail, the customer may withdraw from the contract as a whole following a further grace period without effect in the presence of legal requirements or reduce the purchase price (reduction). Customer claims regarding expenses necessary for the purposes of subsequent performance, in particular transport, travel, work and material costs, are excluded if the expenses increase as a result of the delivery item being brought to another place than the place of fulfilment subsequently, unless the transfer corresponds to its intended use. Claims for compensation for damages under the following conditions due to defects can only be asserted by the customer if the supplementary performance has failed. The customer’s right to the enforcement of further claims for compensation for damages under the following conditions remain unaffected hereby.
3. The following applies for the rectification of defects: a. Recognisable damage, incorrect deliveries or shortfalls in quantities are to be communicated to us immediately and within a week of receipt of the goods at the latest; b. Defects that cannot be discovered immediately despite careful testing are to be communicated in writing immediately upon their discovery; c. Defective gods may not be further processed; They may not be further used if no agreement is reached via the reclamation or in the case of a lack of agreement, procedures for the safeguarding of evidence by an expert appointed by the Chamber of Industry and Commerce at the headquarters of the customer; d. Even rejected goods are to be made available for the purposes of verifying the defect. e. The customer has to inform us immediately in the event of a claim under warranty asserted by the user; f. In all other respects, the legal provisions in force apply.
4. In accordance with the legal provision, we are obliged to carry out the recovery of new goods or reduction of the purchase price including without the otherwise necessary grace period, if the customer’s buyer, as consumer of the sold, recently moved item (consumer goods), can demand the recovery of goods or reduction in the purchase price as a result of a defect in these goods or assert a right of recourse against the customer that arises as a result.
5. We are furthermore obliged to compensate customers for expenses, in particular transport, travel, labour and material costs, that arise in relation to the end user as part of supplementary performance due to defects in the goods present upon the transfer of risk from us to the customer. The claim is excluded if the customer does not duly comply with its obligation of examination and notification of defects in accordance with Section 377 Commercial Code (HGB).
6. Claims do not exist in the event of a non-significant deviation from the agreed condition, in the case of a non-significant effect on usability, in the case of natural depreciation and/or damage, improper and/or negligent treatment following the transfer of risk, excessive loads, unsuitable operating means and/or due to particular external influences and/or in the case of conditions that are not required in accordance with the contract.
7. Customer claims for defects become time-barred - with the exception of Section 438 Paragraph 1 No. 2 and Section 634a Paragraph 1 BGB as well as in the case of a commodity purchase (Sections 474 et seq. BGB) - in one year, unless we have maliciously concealed the defect; BGB) - in one year, unless we have maliciously concealed the defect; legal provisions shall apply in this case.
8. Notification of processing and application possibilities for wedi products, technical recommendations or advice and other information from our employees (technical assistance) is provided in accordance with their best knowledge, but is non-binding in nature and is to the exclusion of any liability. They do not release our customers and their buyers from their own checks and attempts to make the products suitable for the intended procedures and purposes.
9. Technical assistance does not arise from any separate contractual legal relationship/consultant relationship. We are in no case liable for intent and gross negligence and in general our liability is limited to foreseeable damage typical for the contract. The limitation of liability does not apply in the case of death or bodily injury.
VIII. Reservation of Title, Security Rights 1. The ownership of goods delivered is reserved until the complete payment of all receivables from the business relationship. In the case of goods that the customer receives while executing its commercial or independent professional activity, we retain the ownership of the goods until all claims against the customer arising from the current business relationship, including receivables that arise in the future as well as from contracts concluded at the same time or later, as well as all demands relating to the current account balance and in the case of the acceptance of bills of exchange or cheques paid by their redemption. Our receipt of the countervalue counts as payment.
2. The processing or transformation of the goods subject to the retention of title by the customer is always to be carried out for wedi GmbH. Should these goods subject to the retention of title be processed or transformed with other items not belonging to us, wedi GmbH shall acquire joint ownership in the new items at the time of the processing or transformation in relation to the invoice value of the goods subject to the retention of title (final invoice amount plus VAT). The same applies for the new item resulting from the processing or transformation as for the goods subject to the retention of title.
3. Should these goods subject to the retention of title be inseparably mixed with other items not belonging to us, wedi GmbH shall acquire joint ownership in the new items at the time of the mixing in relation to the invoice value of the goods subject to the retention of title (final invoice amount plus VAT). Should the items be mixed in such a way that the customer’s items are to be viewed as the primary item, it shall be regarded as having been agreed that the supplier shall transfer proportional ownership to us. We hereby expressly accept the transfer. In these cases, the customer is to guarantee the item for us free of charge in sole ownership or joint ownership of wedi GmbH.
4. The customer is entitled to sell or use the goods subject to retention of title for orderly business, provided that it is not in arrears. The authorisation for the further resale shall expire if the customer has agreed to a ban on assignments with its buyer. Pledges or bills of sale are not permitted.
5. If goods subject to the retention of title are sold by the customer on their own or together with goods that do not belong to wedi GmbH, the customer shall assign to us all of the demands (including all demands relating to the current account balance) arising from the resale or other legal basis by way of security in their full extent; wedi GmbH hereby explicitly accepts the assignment.
6. The customer is revocably authorised by wedi GmbH to collect all receivables assigned to wedi GmbH on its own account and in its own name. The authorisation to collect can be revoked at any time if the customer does not properly comply with its payment obligations, has agreed to a ban on assignment with its buyers or an application to open insolvency proceedings has been made or payments have been suspended. On request, the customer is obliged to inform its customers of the assignment and to transfer all information and documents required for the collection to us.
7. If the goods subject to the retention of title is used by the customer to fulfil a work contract or contract for labour and materials, the receivables from the work contract or contract for labour and material shall be assigned to wedi GmbH in advance to the same extent as had been determined previously. Wedi GmbH hereby explicitly accepts the assignment.
8. Should the goods subject to the retention of title be integrated into the property of a third party as a significant component thereof, the customer assigns to us the demands arising against third parties or against it for remuneration in the amount of the value of the goods subject to the retention of title with all ancillary rights, such as the right to the granting of a debt-securing mortgage, with priority over the rest; we hereby accept the assignment. Should the goods subject to the retention of title be integrated into the property of a third party as a significant component thereof, the customer assigns to us the demands arising from the commercial sale of the property or property rights in the amount of the value of the invoice value of the goods subject to the retention of title with all ancillary rights; we hereby explicitly accept the assignment.
9. The customer is to inform wedi GmbH immediately of seizures of goods, foreclosure measures or other interventions made by third parties in the goods subject to the retention of title or the assigned claims by providing the documents necessary for their contradiction in order for us to be able to assert our rights; he is to indicate our ownership or ownership of receivables. Insofar as the third party is not in the position to reimburse us for the court or out of court costs which arose in relation to this, the customer shall be liable for this.
10. Upon the suspension of payments and/or application for the opening of insolvency proceedings, the right to resale, processing, connecting or mixing the goods subject to the retention of title or the authorisation to collect assigned claims shall expire; the authorisation to collect shall also expire in the case of a contested cheque or bill of exchange. This does not apply to the rights of the insolvency administrator.
11. If the retention of title is not valid in its existing form in accordance with the law of the country of destination, the customer is to cooperate in the drafting of a security provision corresponding to the regulations of its country for wedi GmbH.
12. Should the value of the securities granted exceed the claims by more than 20%, wedi GmbH is obliged to re-transfer or release, depending on the customer’s choice upon its request.
13. It is particular obliged to protect them sufficiently from damage from fire, water and theft at their own expense. Insofar as maintenance and inspection work is required, the customer is to carry this out in good time at its own cost.
14. Should the customer behave in a way that is contrary to the contract, in particular in the case of payment default, we are entitled to reclaim the purchased goods. The reclaiming of the purchased goods does not constitute a withdrawal from the contract, unless we have expressed this explicitly in writing. If there additionally exist claims for compensation for damages in place of the provision of services and we take the goods back, the parties to the contract agree that wedi GmbH shall compensate the customer at the usual sale value of the goods at the point in time of the recovery. At the request of the customer, which can only be expressed immediately following the recovery of the goods, a publicly appointed and sworn expert of the Chamber of Industry and Commerce will determine the usual sale value at the customer’s discretion. The customer shall bear all costs for the recovery of the goods. The recovery costs amount to 5% of the resale value. This may be higher or lower if wedi GmbH can provide evidence of higher costs or the customer can provide evidence of lower costs.
15. We are always allowed to withdraw from the contract in the event of the purchased item being seized. We are entitled to recover the purchased item once it has been returned. The recovery proceeds are to be adjusted to the customer’s liability less recovery costs.
IX. Liability 1. wedi GmbH’s liability is in accordance with the following provisions: a. In the case of a slightly negligent violation of contractual obligations for which we are responsible, the compliance with which the customer is and may regularly be entrusted; in this respect, liability is limited to typical damage foreseeable upon the conclusion of the contract; b. In accordance with legal provisions for damage to life, body and health in the case of a negligent or intentional violation of obligations on our part, our legal representatives or vicarious agents; c. In accordance with legal provisions for other damage that have not been covered under IX.1.b., and which are based on an intentional or grossly negligent violation of obligations on our part, our legal representatives or vicarious agents; d. Independent of debt in the case of the fraudulent concealment of the defect, in the case of the assumption of a quality or durability guarantee and in accordance with the product liability law; for damage which results from the lack of guaranteed quality or durability, but which does not directly arise from the goods, we are only liable if the risk of such damage is evident from the quality and/or durability guarantee.
2. Should intellectual property rights be violated by the customer or another third party as part of the use of the goods, regardless of its kind, a liability on our part is excluded provided that we have not committed an intentional or negligent violation of obligations on our part.
3. Further liability is excluded regardless of the legal nature of the damage, provided that these terms and conditions do not include deviating provisions. Insofar as our liability is excluded or restricted, this also applies for the personal liability of our legal representatives, vicarious agents and all employees.
X. Place of Fulfilment, Place of Jurisdiction, Applicable Law, Severability Clause 1. In the event the customer is a businessperson within the meaning of the German Commercial Code, a public law entity or a special fund under public law, the exclusive and international place of jurisdiction for all disputes arising directly or indirectly out of or in connection with the contractual relationship, including bills of exchange or cheque disputes, shall be the Rhine Local Court or Münster District Court. This also applies if the customer does not have any general place of jurisdiction within Germany, if it moves its registered office or habitual residence to outside Germany following the conclusion of the contract or its registered office or habitual residence is not known at the time of the dispute being raised.
2. These terms and conditions and the entire legal relationship between the parties to the contract shall be subject to the laws of the Federal Republic of Germany under exclusion of the UN Convention of 11 April 1980 on Contracts for the International Sale of Goods, BGBL 1989 II p. 588).
3. Should one of the provisions of these business conditions be or become invalid or unenforceable, the validity or enforceability of the remaining provisions shall not be affected thereby. In such a case, the parties commit to agree, in place of the invalid or unenforceable provision, a valid and enforceable provision that comes as close as possible to the invalid or unenforceable provision based on its content and the wishes of the parties. The same applies should a gap in the contract be discovered which needs to be filled.