Alfred Wendland eK pdi-Metalltechnik
General Terms and Conditions
– Terms of Sale –
§ 1 Applicability
- These General Terms of Sale (hereinafter referred to as GT&Cs) apply to all of our business relationships with our customers (hereinafter referred to as Buyers). The GT&Cs only apply if the Buyer is a company (§ 14 BGB), a legal entity under public law or a special fund under public law.
- The GT&Cs apply, in particular, to contracts for the sale and/or delivery of movable assets (hereinafter also referred to as Goods) without consideration of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 651 of the BGB (German Civil Code).
The respective version of the GT&Cs also applies as a framework agreement for future agreements for the sale and/or delivery of movable assets with the same Buyer without us having to reference them again in each individual case.
- Solely our GT&Cs apply. Deviating, contradictory or supplemental GT&CS from our Buyers shall only become a component of the contract if and insofar as we have expressly agreed to their applicability. This consent requirement applies in all cases, for instance, even if we execute the delivery or service without reservation while aware of the Buyer’s GT&Cs.
- References to the applicability of statutory regulations only serve a clarifying function; even without such a clarification, the statutory regulations apply, unless they are directly modified or expressly excluded in these GT&Cs.
- Legally relevant explanations and notifications to be submitted to us by the Buyer after the conclusion of the contract (e.g. deadlines, defect claims, declarations of withdrawal or reduction) must be made in writing to be valid.
§ 2 Conclusion of the contract
- Our offers are subject to change and non-binding unless expressly designated as binding or include a specific acceptance deadline. This also applies if we have submitted technical documentation (drawings, plans, calculations, computations, references to DIN standards), other product descriptions or documents, including in an electronic format, to the Buyer.
- Only product description applies, in principle, with respect to the quality and characteristics of the Goods. Public statements, promotions or advertising statements made by us or the manufacturer do not constitute an agreement regarding the quality and characteristics of the Goods.
- We can accept orders or assignments from the Buyer within 14 days after receipt.
- The acceptance can either be made in writing (e.g. order confirmation) or by delivery of the Goods to the Buyer.
- The contract is concluded with the reservation that our suppliers supply us on time and without defects. This applies only in the event that we have concluded congruent coverage transactions with our suppliers and we are not responsible for the on-time delivery or defect-free self-delivery. We shall inform the Buyer immediately if our suppliers’ services are unavailable.
- The contract, including these GT&Cs and concluded in writing, is solely determinative for the legal relationship between us and the Buyer. These completely reflect the agreements between us and the Buyer. Verbal confirmations from us prior to the conclusion of this agreement are not legally binding. Verbal agreements between the contract parties shall be replaced by the written agreement unless they expressly state that they shall continue to be binding.
- Amendments and addenda to the concluded agreement, including these Terms of Sale, must be in writing to be valid. With the exception of the managers, our employees are not permitted to make deviating verbal agreements.
- Information from us regarding the object of delivery or service, e.g. weights, dimensions, consumption values, load capacity, tolerances and other technical data and illustrations thereof, e.g. in drawings and other figures are only approximate, unless the usability requires precise conformity for the contractually intended purpose. The aforementioned information is not a guarantee of quality or characteristics, but are descriptions or designations of our deliveries or services, unless the guarantee is made expressly and in writing.
Conventional deviations and deviations resulting due to statutory regulations or constituting technical improvements are permitted if they do not limit the usability for the intended contractual purposes and are reasonable for the Buyer. Changes in colors, shape and/or weight also remain reserved insofar as they are reasonable.
- Prototypes shall only be provided for a fee. Prototypes serve only to finalize the quality and characteristics and do not constitute a guarantee.
- The Buyer’s right to cancel, in particular in accordance with §§ 651, 649 of the BGB is excluded.
§ 3 Tools, etc.
- Tools and equipment, unless they are provided by the Buyer, are and remain our property. Subject to deviating agreements, this also applies if the Buyer participates in the tool costs or bears the full cost in the framework of a full cost invoice.
§ 4 Quantity deviations, reserves
- The Buyer is herewith informed that additional or reduced deliveries in comparison to the order quantity may arise since an exact production of the order quantity is not generally possible for production reasons. Additional and reduced deliveries up to 10% do not constitute a contractual breach of duty. The delivery and invoice shall be based on the actual quantity delivered.
- We are only obligated to maintain reserves in the event of an express written agreement. If there is such an obligation to maintain reserves, the Buyer is obligated to accept the reserved Goods, up to the amount of the quantity specified in the contract, and to pay the most recent, definitive prices no later than upon termination of the delivery contract for the specific Goods.
§ 5 Prices – payment conditions
- The prices apply to the scope of services and delivery listed in the order confirmations. Additional or special services shall be invoiced separately. The prices are in EUR ex works plus packaging, statutory sales tax and, for export deliveries, plus customs and fees and other public contributions.
- For sales shipments, the Buyer shall bear the transport costs ex works and the costs for transport insurance potentially requested by the Buyer.
- Unless otherwise agreed upon, the Buyer is obligated to pay within 14 days of receiving the invoice and delivery of the Goods.
- The Buyer is only entitled to offsetting rights or rights of retention if the Buyer’s claim has been legally established or is not in dispute. Rights of retention can also only be asserted if they result from the same contractual relationship.
- If, after the conclusion of the contract, it becomes clear that our claim, in particular our claim to the purchase price, is endangered due to the Buyer’s inability to perform (e.g. due to an application to open insolvency proceedings), we are also entitled to refuse performance and, if necessary, withdraw from the agreement in accordance with statutory request (§ 321 of the BGB). For contracts regarding the production of unacceptable objects (special designs), we can declare the withdrawal immediately; the statutory regulations regarding the dispensability of setting a deadline remain unaffected.
§ 6 Delivery deadline – default on delivery, etc.
- Projected dates and deadlines for deliveries and services are always approximately unless a fixed deadline or fixed date has been expressly confirmed or agreed upon. If shipment has been agreed upon, delivery dates and deadlines refer to the date of transfer to the shipping company, freight forwarder or other third party commissioned with the transport. We are permitted to make early delivery.
- The start of the delivery period specified by us is subject to the clarification of all technical matters. On-time and proper fulfillment of the contractual obligations and duties of the Buyer are further prerequisites. If prototypes are to be approved, a prerequisite is that the Buyer issue the prototype approval immediately after receiving the prototype or, if applicable, immediately notifies us of the reasons for the refusal of such an approval.
- Irrespective of our rights due to Buyer default, we can demand an extension of delivery and service deadlines or a postponement of delivery and service dates by the period by which the Buyer does not fulfill its contractual obligations and/or duties.
- We are not liable for the impossibility of delivery or delivery delays insofar as these are the result of force majeure or other events unforeseeable at the time the contract is concluded (e.g. operational interruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, legal lockouts, insufficient personnel, energy or raw materials, difficulties in procuring necessary official permits, official measures or missed, incorrect or late delivery from suppliers) for which we are not responsible. If such events make delivery or provision of service significantly more difficult or impossible and the obstruction is not temporary, the Buyer is entitled to withdraw from the agreement. In the event of temporary delays, the delivery and service periods extend or the delivery and service dates are postponed by the by period of the obstruction plus a reasonable ramp-up period. If the Buyer’s acceptance of the deliver or service is unreasonable as a result of the delay, the Buyer can immediately withdraw from the agreement by means of a written declaration.
- Delivery default on our part begins in accordance with the statutory regulations. In any case, a warning notice from the Buyer is required in which a reasonable grace period must be set. In general, a grace period of 14 days is considered reasonable.
- We are entitled to make partial deliveries and provide partial services if the partial delivery is usable by the Buyer in the framework of the contractually intended purpose and the delivery of the remaining ordered Goods is ensured and the Buyer does not incur substantial additional expenses or additional costs unless we declare our willingness to assume these costs.
- If we are obligated to deliver on demand, requests must be made within twelve months after the order confirmation unless otherwise agreed upon in writing. We are entitled to deliver and assert our claims, without the customer making requests, after the aforementioned, potentially agreed upon deviating on-demand deadline has passed. The Buyer is then obligated to accept and pay.
After a request, the delivery time is approx. 6 weeks unless otherwise agreed upon.
- If we go into default on delivery or performance or if a delivery or service becomes impossible, regardless of the reason, our liability is limited to compensation of damages in accordance with the provisions in § 10 (Liability – compensation of damages due to default).
§ 7 Transfer of risk – acceptance
- Deliveries are ex works. This is also the place of fulfillment. Upon request and at the Buyer’s expense, the Goods can be delivered to another destination (shipment sale). Unless otherwise agreed upon, we are entitled to determine the type of shipment ourselves (in particular the transport company, shipping route, packaging). The shipment will only be insured by us against theft, breakage, transport, fire or water damage or other insurable risks upon express request of the Buyer and at the Buyer’s expense.
- We do not accept returns of transport packaging and all other packaging in accordance with the packaging directive; ownership is transferred to the Buyer; exclusions include pallets and euro grate boxes and other transport packaging or packaging objects intended for repeated use.
- The risk of accidental loss and deterioration of the Goods is transferred to the Buyer upon transfer of the Goods. For shipment sales, however, the risk of accidental loss or deterioration of the Goods is transferred up transfer to the transport company, freight forwarder or other person or institution commissioned with executing the shipment. Unless otherwise agreed upon, this is definitive with respect to the transfer of risk. Incidentally, the statutory provisions of work and labor contract law apply to the agreed upon acceptance. The transfer or acceptance are equivalent if the Buyer is in default regarding acceptance.
- If an acceptance is required by law or contractually agreed upon, the Goods are considered accepted when
- the delivery has been concluded
- we have notified the Buyer of this with a reference to the assumed acceptance and requested acceptance from the Buyer
- 12 business days have passed since the delivery or our Buyer has begun using the purchased object and 12 business days have passed since delivery
- the Buyer has refrained from accepting within this period for another reason than a defect of which were notified which makes the use of the purchased object impossible or significantly limited.
- If the Buyer goes into default with respect to acceptance, fails to participate or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to demand compensation of the resulting damages including additional expenses (e.g. storage costs). The storage costs are 0.25% of the net invoice amount for the delivery items to be stored per started week plus sales tax. Proving greater damages and our statutory claims remain unaffected; the flat rate shall be added to further monetary claims. The Buyer is permitted to prove that we have not incurred any damages or have incurred lesser damages than the aforementioned flat fee.
§ 8 Retention of title
- We retain title to the Goods until complete payment of all claims from the ongoing business relationship. We also retain title until the receipt of all payments from a potentially existing current account relationship with the Buyer. The retention also pertains to the recognized balance.
- The Goods subject to retention of title may not be mortgaged to third parties nor assigned as collateral until all secured claims have been paid.
- Our Buyers shall keep the Goods subject to retention of title safe for us free of charge.
- If the Buyer processes or modifies the delivered object, this is always done for us. If the delivered object is processed with other objects not belonging to us, we acquire co-ownership of the new object proportionately to the value of the delivered object (final invoice amount including sales tax) and the other processed objects at the time of processing. The same conditions that apply to the Goods subject to retention of title also apply to the object resulting from the processing.
- If the delivered object is inseparably combined with other objects not belonging to us, we acquire co-ownership of the purchase object proportionately to the value of the delivered object (final invoice amount including sales tax) and the other combined objects at the time of combination. If the combination is such that the Buyer’s object is considered the primary object, the Buyer shall transfer proportionate co-ownership to us. Our Buyer shall keep the resulting solely owned or co-owned object safe for us.
- The Buyer is entitled to sell and/or process the Goods further as part of the proper course of business. However, the Buyer herewith assigns all claims against third parties resulting from the further sale to us. We herewith accept the assignment. After assignment, the Buyer is entitled to assert the claim for our invoice until cancellation or until payments or business have been halted or until an application for the opening of insolvency proceedings is submitted.
Claims assigned to us by the Buyer in the aforementioned context cannot be assigned to third parties. The same applies for hypothecations. Collateral assignments are not permitted.
- In the event the Buyer goes into default on payment and in the event payments and/or business are halted and in the event an application to open insolvency proceedings is submitted, we can demand the Buyer notifies us of claims assigned to us and the debtors and provides all information required to assert the claim, submits the corresponding documents and notifies the debtors (third parties) of the assignment. Our right to disclose the assignment in such cases and assert the claim ourselves remains unaffected.
- The Buyer is obligated to treat our solely or co-owned property with care. If maintenance and inspection work is required, the Buyer shall perform it regularly at its own expense.
- The Buyer is obligated to notify us immediately of third-party access to our solely or co-owned property for instance in the event of seizure. The same applies to any damage to or destruction of the Goods. If the ownership of the Goods is transferred or the residence changes, the Buyer must also notify us immediately.
- If the Buyer breaches the obligations specified in Paragraph 8 and Paragraph 9 or otherwise breaches the contract, in particular in the event of failure to pay the purchase price on the due date, we are entitled to demand the return of the Goods; this also applies if we do not simultaneously withdraw from the agreement. If the Buyer does not pay the purchase price due, we can demand the return of the Goods if we have previously set a reasonable grace period without success or setting such a grace period is dispensable in accordance with the statutory regulations.
If we take the Goods back, this does not constitute a withdrawal from the contract with respect to the Buyer unless we would have expressly declared this in writing. In the event business or payment are halted, the aforementioned sentences apply accordingly in insolvency proceedings, subject to the rights of an insolvency administrator. We are authorized to sell the Goods after taking them back. The profits from the sale shall be charged to the Buyer’s liability, minus reasonable sales expenses.
- We are obligated to release the collateral to which we are entitled upon request of the Buyer if the viable value of our collateral exceeds the claims to be secured by more than 10%; we shall select the collateral to be released.
§ 9 Warranty, defects
- The statutory regulations apply to the rights of the Buyer in the event of material and legal deficiencies (including incorrect or reduced delivery and improper assembly or deficient assembly instructions) unless otherwise stated in the following. In all cases, the statutory regulations upon final delivery of the Goods to a consumer remain unaffected (supplier regress in accordance with §§ 478, 479 of the BGB).
- If the quality and characteristics were not agreed upon, whether or not there is a defect shall be assessed in accordance with the statutory regulations (§ 434 Para. 1 p. 2 and p. 3, § 633 of the BGB).
- Buyer claims for defects require that the Buyer has fulfilled its potentially existing statutory obligations to inspect and file complaint (§§ 377, 381 of the HGB (German Commercial Code)). If the inspection is discovered during the inspection or later, we must be notified immediately in writing. The notification is considered immediate if it is made within 8 calendar days, whereby, sending the notification on time is sufficient to fulfill compliance with deadlines. Regardless of this obligation to inspect and file complaint, the Buyer must immediately report obvious defects (including incorrect or reduced delivery).
- If the delivered item or provided service is defective or deficient, we can choose, within a reasonable grace period, whether we will provide subsequent performance by rectifying the defect (subsequent improvement) or by delivering a defect-free object (replacement delivery). Our right to refuse the selected type of subsequent performance in accordance with the statutory prerequisites remains unaffected.
- We are entitled to made subsequent performance dependent upon the Buyer having paid the fees due. The Buyer is, however, entitled to retain partial payment proportionate to the defect or deficiency.
Our subsequent performance does not include the expansion of the defective object nor reinstallation if we were not originally obligated to install the object.
- The Buyer shall give us the required time and opportunity to provide the statutory subsequent performance, in particular to submit the returned Goods for inspection and testing purposes. In the event of replacement delivery, the Buyer shall return the defective object to us in accordance with the statutory regulations.
- We shall bear the expenses required for testing and subsequent performance, in particular, transport, route, labor and material costs if there is an actual defect. The place of fulfillment of the subsequent performance, subject to deviating agreements, is the seat of our commercial branch office; in any case, we shall not bear costs that increase due to the delivery object or service having been moved to another location than the place of fulfillment. If a demand to rectify defects made by the Buyer is determined to be unjustified, we can demand reimbursement of the resulting costs from the Buyer.
- If subsequent performance is unsuccessful or a reasonable deadline to be set by the Buyer passes without success or is dispensable in accordance with the statutory regulations, the Buyer can withdraw from the contract, reduce the purchase price, demand compensation of damages or reimbursement of expenses and assert rights of retention. However, if the defects are insignificant, the Buyer is not entitled to a right of withdrawal.
- The Buyer is only entitled to claims for compensation of damages or reimbursement of expenses in accordance with the following provision in § 10 (Liability – compensation of damages in the event of culpability) and such claims are incidentally excluded.
- The warranty is void if the Buyer modifies or has the delivered object modified by a third party without our consent and the rectification of defects thus becomes impossible or unreasonably difficult. In this case, the Buyer shall bear the additional expenses incurred due to the modification.
- When selling used Goods, the sale is concluded under exclusion of any liability for material defects unless the claim is based on an injury to life, limb or health or gross negligence or intent on our part.
- If we are at fault for the defect, our Buyer can demand compensation of damages under the conditions specified in § 10 (Liability – compensation of damages due to culpability).
§ 10 Liability – compensation of damages due to culpability
- Unless otherwise stated in these GT&Cs and the following provisions, we are liable in the event of breach of contractual or extra-contractual obligations in accordance with the relevant statutory regulations
- We are liable for compensation of damages, regardless of the legal grounds, in the event of intent or gross negligence.
- In the event of simple negligence, we are only liable
- for damages resulting from injury to life, limb or health,
- for damages result from a breach of essential contractual obligations. Essential contractual obligations are obligations that protect the Buyer’s essential contractual legal position which the content and purpose of the contract must grant the Buyer; essential obligations also include obligations required in order to even properly execute the contract and the compliance with which the Buyer generally relies and can rely upon; in this case, our liability is, however, limited to the compensation of foreseeable, typically incurred damages.
The limitations of liability in the above paragraph do not apply if we have fraudulently concealed a defect or have provided a guarantee, e.g. for the quality and characteristics of the Goods. The same applies for claims from the Buyer in accordance with the Product Liability Act (ProdHaftG).
- The Buyer may only withdraw from or cancel the agreement due to a breach of duty that is not based on a defect, if we are responsible for the breach of duty. The is not entitled to a free right to cancel, in particular in accordance with §§ 651, 649 of the BGB. Incidentally, the statutory requirements and legal consequences apply.
- The above limitations of liability do not apply in conjunction with with default on our part on a fixed date transaction.
- § 478 of the BGB (recourse of the company) remains unaffected.
§ 11 Statute of limitations
- Contrary to statutory regulations, the general statute of limitations for claims for material and legal defects is one year from the delivery or provision of service; if an acceptance is required by law or has been agreed upon, the statute of limitations begins upon acceptance. The duration of the statute of limitations for buildings and structures (§ 634a Para. 1 No. 2 of the BGB), for supplier recourse (§ 479 of the BGB) and malice (§ 438 Para. 3 of the BGB) remain unaffected.
- The aforementioned statutes of limitation also apply to contractual and extra-contractual claims for compensation of damages from the Buyer based on defective Goods/deficient services, unless the application of the standard statutory statute of limitations (§§ 195, 199 of the BGB) would have resulted in a shorter statute of limitations in the individual case. In any case, the statute of limitations in the Product Liability Act remain unaffected. Otherwise solely the statutory statutes of limitation apply to claims for compensation of damages from the Buyer in accordance with § 10 (Liability – compensation of damages due to culpability).
§ 12 Property rights
- We reserve property and intellectual property rights to all proposals and cost estimates we submit and all drawings, figures, calculations, brochures, tools and other documents or resources provide to our Buyers. The Buyer may not make these objects accessible to third parties, announce them, utilize or reproduce them or allow them to be utilized or reproduced by third parties without our express consent. Upon request, the Buyer shall return all such objects in full to us, destroy potential copies and delete electronically stored information of the aforementioned items.
- Each of the contract parties shall notify the other in writing immediately at least in text form if claims against said party due to a violation of third-party industrial property rights or intellectual property rights.
- If we manufacture based on the Buyer’s instructions or provide deliveries or services in accordance with the Buyer’s specifications, the Buyer is obligated to indemnify us from third-party claims.
- In the event the Goods violate third-party industrial property rights or intellectual property rights, we shall modify or replace the Goods, as we choose and at our expense, in such a manner that third-party rights are no longer violated, but so the delivered object still fulfills the contractually agreed upon functions or we shall procure usage rights for the Buyer by concluding a licensing agreement. If we are unable to do this within a reasonable period of time, the Buyer is entitled to withdraw from the contract or reduce the purchase price by a reasonable amount. Any claims for compensation of damages are subject to the provisions in § 10 (Liability – compensation of damages due to culpability).
- In the event products from other manufacturers delivered by us violate the law (e.g. property rights violations), we shall, as per our choice, assert our claims against the manufacturer or pre-supplier on behalf of the Buyer or we shall assign the claims to the Buyer. Claims against us only apply in these cases in accordance with this provision (Property rights – intellectual property, etc.) if the legal enforcement of the aforementioned claims against the manufacturer or pre-supplier have been unsuccessful or are pointless due to, for instance, insolvency.
§ 13 Final provisions
- The laws of the Federal Republic of Germany apply to these GT&Cs and all legal transactions between us and the Buyer, under the exclusion of all international and supranational contracts and legal systems, in particular UN Sales Law (CISG). The provisions regarding supplier recourse (§ 478 of the BGB) are excluded for legal transactions with Buyers in foreign countries. Prerequisites and effects of the retention of title in accordance with § 8 (Retention of title) are, however, subject to the laws of the respective storage location of the Goods, insofar as the choice of law to the benefit of German law is impermissible and ineffective.
- The language of the contract is German.
- The place of jurisdiction for all disputes resulting from and in conjunction with this agreement is, per our choice, our company seat or the Buyer’s company seat. For lawsuits filed against us, the place of jurisdiction is our company seat unless this is opposed by mandatory statutory provisions regarding sole places of jurisdiction.
§ 14 Severability clause
- If a current or future provision of this agreement is or becomes fully or partially ineffective/invalid or inexecutable for reasons other than those specified in §§ 305 through 310 of the BGB, the applicability of the remaining provisions of this agreement remain unaffected unless the execution of the contract constitutes an unreasonable hardship for one of the parties taking the following provisions into account. The same applies if loopholes requiring amendment are discovered after the conclusion of the agreement. The parties shall replace the ineffective/invalid/inexecutable provision or loophole requiring reworking with a valid provision that corresponds with the legal and economic content of the ineffective/invalid/inexecutable provision and the overall intent of the contract.
The Buyer acknowledges that we store data received during the contract relationship in accordance with § 28 of the Bundesdatenschutzgesetz (German Data Protection Act) for the purpose of data processing and we reserve the right to transmit the data to third parties insofar as is necessary to fulfill the contract.