Sales and delivery terms of the company W.AG Funktion + Design
- Inclusion of the General Sales and Delivery Terms and Validity of the Future Deals
1.1 We work exclusively on account of the following delivery, performance and payment conditions. Deviating arrangements, in particular contradicting terms of business of our buyers are only valid if we accept them expressly in writing. We contradict different terms and conditions of our buyers right now. With acceptance of the delivery our buyers accept our delivery, performance and payment conditions as generally and solely binding.
- Offer and Conclusion of Contract
2.1 Our offers are noncommittal and non-binding. All contracts are valid at the time of receipt of our written confirmation of order or, at the latest however, with handing over of the product. Agreements deviating from the authoritative confirmation of order and our general sales and delivery terms before or with conclusion of the contract always require our explicit written confirmation.
- Delivery Time and Delivery
3.1 Our delivery time specifications follow company experiences and are aimed to observe the delivery times stated by us. Besides, our performance and delivery obligation stands always under the reservation of correct and timely delivery. 3.2 The delivery date describes the departure from the plant or from the warehouse. 3.3 Partial deliveries are allowed and are valid as independent deals. 3.4 We send from plant or from warehouse. If nothing different is agreed, dispatch place conditions, promotion and protective means are of our own choice. By delivery from plant the dispatch follows not free and on account of the buyer. A transport insurance is arranged here only on explicit demand of the seller. By delivery free place of destination a suitable transport insurance policy about the forwarding agent will be taken out by us. Damages in transit and losses are to be asserted immediately on delivery of the product and to note and to confirm by the carrier on the shipping note. 3.5 If the delivery date described by us is exceeded by unpredictable circumstances and through no fault of our own by more than 2 weeks, (e.g. labour disputes, operational disturbances, transport obstacles, raw material shortage, official measures – in each case also at our presupplier – as far as no timely selfdelivery) the buyer is entitled to fix an adequate subsequent delivery time limit to us. If the obligation of delivery is not fulfilled up to the expiry of the extension, the buyer has the right to withdraw from the contract. The withdrawal must be declared in writing immediately at the end of the legal subsequent delivery period. A right to withdraw does not exist if we cannot meet the deadline of the subsequent delivery period through no fault of our own. In this case we are authorised to postpone the delivery for the time of the duration of the prevention. Compensation claims because of late delivery or because of non-delivery are excluded in every case. 3.6 In case of delivery on call the receipt of the goods has to occur in amounts very evenly distributed over the term, provided that nothing different is agreed. At the end of the agreed call period we are entitled to deliver the whole rest batch immediately; in case of delayed receipt we reserve the right to calculate the current price.
- Delay of the Buyer
4.1 If the buyer does not take the product, we are entitled to withdraw from the contract after settlement of an extension period of two weeks or to claim compensation because of default. In the later case we are entitled, either without proof of damages to claim 10% of the order value or the substitute of the really resulted damage.
5.1 Sample specimen are manufactured by hand. Hence, we reserve the right to deliver products with unimportant divergences and production-conditioned changes. We reserve the right to manufacture usual quality, strength, and colour divergences, also more and short deliveries up to 3%. The objections which are raised for this reason cannot be recognized by us.
6.1 Information, recommendations and application tips doesn’t release the buyer from own aptitude test. They represent no assured qualities in the sense of the law, even if they follow on account of our test results, so that compensation claims cannot be justified with it.
7.1 The tools which are manufactured on account of our experiences and subscriptions become our property even at calculation of the expenses on account of the buyer.
- Notice of Defect of Quality and Guarantee
8.1 We perform guarantee for recognizable and concealed defects of quality or for the absence of assured qualities within six months after the day of the delivery exclusively in the way that we after our choice repair free of charge or supply free of defects or give credit. Other claims of the buyer because of defects of quality or the absence of assured qualities, in particular compensatory damages claims because of direct and indirect damages are excluded. 8.2 If the guarantee is declined by us after paragraph 8.1, or is not carried out properly, or we are in delay with it in spite of setting an adequate extension, the buyer can only withdraw from the contract; compensatory damages claims, for whatever legal reason, also because of compensation for the indirect damages are excluded. Same is valid if the realisation of the guarantee after paragraph 8.1 turns out to be impossible. 8.3 Notices of defect of quality must be raised immediately in writing at the latest within 8 days after receipt of the product, and in case of concealed defects at the latest after the discovery. In case of neglect of these periods claims to guarantee cannot be asserted any more. 8.4 We are not obliged to perform the guarantee after paragraph 8.1, as long as the buyer does not fulfil his contractual obligation, in particular doesn’t make due payments. 8.5 The guarantee duty becomes void if the delivered product is changed, improperly treated or processed. We are not liable for someone else’s products. Nevertheless, we assign our guarantee claims against the supplier of the foreign product to our buyers. For used product no guarantee is provided. 8.6 Provided that defects of quality are based on an instruction or other requirements of the customer, we are liable according to the legal regulations and these sales and delivery terms only if we beforehand assumed in writing towards the customer the risk of the occurrence of defects of quality as a result of instructions or other defaults.
- Prices and Payments
9.1 The prices quoted by us are authoritative. Only in the non-business relations the legal sales tax is included in the price. Provided that nothing else expressly agreed, the prices are valid ex plant or from warehouse excluding packaging. The customer has to bear additional costs for requested express dispatch or express train dispatch. 9.2 We reserve ourselves the right to raise the prices according to the incoming cost increases, in particular on the basis of wage agreements or materials price rises, at contracts with an agreed delivery time of more than four months. Does the rise amount to more than 5 % of the agreed price, a right to resignation is entitled to the customer. 9.3 Our invoices are made out when the goods are ready for sending. They are payable on receipt without discount, as far as it concerns services. Pure deliveries of goods are payable in cash within 10 days with 2% of cash discount or within 30 days net. 9.4 Preceding cash discount is granted provided that all payment obligations from former deliveries are fulfilled completely. In case of exceeding aims we reserve ourselves the right to calculate interests for delay at the rate of at least five percentage points above the basic rate of interest per year.
- Delay and Deterioration of Assets and Capital
10.1 A payment is valid only when we can finally dispose of the amount. In case of acceptance of bills of exchange or cheques we do not take over any liability concerning protest elevation and timely presentation. All with the collection of bills of exchange or cheques originating business expenses or other expenses are on account of the customer. 10.2 In case of exceeding aims we reserve ourselves the calculation of interests on arrears at the rate of at least five percentage points above the basic rate of interest per year. 10.3 If the customer is in delay with the payment of debt or an essential property deterioration is given by which the fulfilment of his payment duty is endangered, we are entitled to put the whole rest debt due, even if we have already accepted bill of exchange or cheques. Moreover, in this case we are entitled to demand payments in advance or payments for security. If our demand is not fulfilled within an adequate time limit set by us, we are entitled to withdraw from the contract or to claim compensatory damages because of default. In case of bankruptcy or insolvency of the customer the settlement of an extension is not necessary.
- General Liability
11.1 Compensatory damages claims against us because of later impossibility of performance, liability within conclusion of the contract (culpa in contrahendo), injury of accessory obligations, from tort, in particular claims from product liability according to Section 823 German Civil Code (Bürgerliches Gesetzbuch), as well as claims from the German Statute for road traffic (Straßenverkehrsgesetz) are excluded. Claims from the German Product Liability Statute (Produkthaftungsgesetz) are not enclosed by the exclusion. 11.2 The preceding liability exclusion is not valid, as far as the damage cause is based on intention or coarse carelessness. 11.3 If the customer is a businessman, the liability exclusion is valid anyhow if the damage was caused by coarse carelessness of a fulfilment assistant or assistant, unless, the damage is based on the injury of a contractual main duty. The obligation to indemnify towards a businessman is limited to the predictable damage for the user. 11.4 As far as our liability is excluded and is limited, this is also valid for the personal liability of our office workers, employees, sales representatives and fulfilment assistants.
- Right of Retention, Settling of Account
12.1 We are entitled to a right of retention in the goods standing in our power of control or materials of our buyers in relation to all due and non-due claims against our buyers, for whatever legal reason. This right of retention also has towards non-businesspeople (consumers) the effect of the business right of retention. Section 369, paragraph 3 German Code of Commerce (Handelsgesetzbuch) is not valid. 12.2 The buyer is not entitled to assert a right of retention related to our due payment claims or to declare the settling of account. 12.3 The customer is only entitled to declare the settling of account if his counterclaims are ascertained legally, are undisputed or recognised indisputably by us. Moreover, he is authorised to exercise the right of retention in this respect when his counterclaim is based on the same contractual relationship.
- Retention of Title
13.1 We retain to ourselves the property of the delivered goods up to the time of complete repayment of all demands we are entitled to included in the business relationship with the buyer and still originating demands including all additional claims, for whatever legal reason. Cheque and bill of exchange are valid only with the redemption as paid-up. 13.2 The buyer is entitled to process the delivered goods within the scope of his proper business enterprise. As far as the property on the product ends due to the processing, the buyer in order to protect our claims arising from paragraph 13.1 transfers to us right now the property of the object originating from the processing. He is obliged to keep the object originating from the processing for us free of charge. 13.3 The buyer is authorized to further dispose of the delivered goods or the object originating from the processing any time until revoked within the scope of his proper business enterprise. He assigns to us right now all the claims he is entitled to due to the further disposal and the claims arising out of the business relation to his buyer in connection with the further disposal with all subsidiary rights. The assigned demands serve to secure all claims after paragraph 13.1. 13.4 The buyer is authorized to collect the claims assigned to us and is obliged, as long as we do not revoke this authorisation. The collection authorisation also finishes without explicit cancellation if the buyer stops his payments. The buyer has to inform us immediately in writing on demand to whom he has disposed of the product and which claims arise to him from the disposal. 13.5 To other orders about the reservation goods or about the demands assigned to us the buyer is not authorised. He has to inform us immediately of any interference of the rights in the reservation product. We commit ourselves to transfer to the buyer the property in the goods we are entitled to and the claims assigned to us, as far as their value exceeds the value of the demand being entitled to us about 25%.
14.1 All to our possession by the client provided as well as from us as a service company for the client finished and still stored goods are to be insured by the client against fire and burglary. We are in no case liable for damage events like fire and burglary, also not due to fault of ours.
- Payment in Advance Duty
15.1 In case of reasonable doubts arising about the solvency or credit rating of the buyer after contract conclusion, we are entitled to claim either immediate payment or performance for security before delivery or handing over already delivered products at our choice or to withdraw from the contract and to demand substitute of our expenditure from our buyer. Compensatory damages of the buyer are excluded, without consideration for which legal basis they are based upon.
16.1 Returns need in every single case our previous written approval.
- Applicable Law
17.1 The right of the Federal Republic of Germany is valid for the whole legal relations between the customer and us. The application of the arrangement of the United Nations about contracts about the international goods purchase (Convention on the International Sale of Goods – CISG) is excluded.
- Alteration of Contract
Any change of our performance, delivery and payment terms needs to be valid our written confirmation. If these conditions are partially changed by written arrangement, the conditions remain, for the rest, valid.
- Partial Invalidity
If individual provisions of these conditions or of the contractual relationship are or become null and void, the remaining regulations are not touched thereby. The contracting partners are obliged to agree on a new regulation which comes closest to the purpose of the void regulation.
- Place of Performance and Legal Venue
20.1 Place of performance for all delivery is Geisa. 20.2 Legal venue for all litigations in connection with the contractual relation is exclusively the district court Fulda.