Paul Wiegand GmbH — General Terms and Conditions of Business (Date: 05.01.2006)
1. For our deliveries, performances and offers only the following general terms and conditions of business shall apply. They apply for all business relations and are taken as basis for all offers.
2. We do not accept deviating terms and conditions of business of the business partner, even if we have not specially contradicted. Our general terms and conditions of business apply even then when we perform orders of our business partner knowing about his terms and conditions deviating or conflicting with ours.
3. Orders and agreements need our written confirmation to become effective. The same applies for subcontracts, changes, additions and assurances of characteristics.
4. Figures, measures, weights and colours in catalogues, price lists and other printed matters are only then binding, if they are specially marked by us as binding. We reserve the right to essential technical changes or urgent necessary changes in design.
II. Quotations — Offers
1. Quotations are only then binding, if they have specially been declared by us as such. We reserve the right to exceed the quotation up to 15 % for necessary works without giving notice to the business partner before.
2. Offers are not binding and without obligation, as far as they are not marked as binding offer.
III. Prices – Values of Pawns
1. Prices stated in catalogues are guard prices at the date of publication. Price changes are possible at any time. Prices in EURO plus VAT at actual legal amount stated in the confirmation of order are prevailing. Insurance and other extra charges as customs are not included in the price. The Buyer shall bear the costs for these charges. Package will be chosen by us according to its purpose and can be returned to us if postage paid in the scope of our legal obligations.
2. If there is an essential change in cost factors related to the order (such as packaging, charges for unscheduled runs, additional costs for transportation), the price agreed upon can be modified at a fair share according to the influence of these cost factors
3. In addition to the purchase price, the value of the agreed pawn will be charged, which will be reimbursed after arrival of the corresponding old part, as far as this old part is usable and in good condition. Hydraulic cylinder and plates of all kind will be sold as well, but only under calculation of our actual valid value of the pawn, if there was no special agreement of the value of the pawn.
4. If our delivery or performance according to the contract has to be performed later than 3 months after conclusion of contract, then we are entitled to charge the increased prime costs up to the time of delivery additionally.
5. Insurance of goods will only be made by special request of the business partner.
1. If there is no other agreement, all invoices are due after delivery of goods and receipt of invoice. Principally the invoice has to be paid within a period of 14 days after date of invoice with granted 2 % discount or within 21 days net.
2. Payments are only then made, if we have control over the amount.
3. At non-payment within the period stated on the invoice, we charge default interest at a rate of 8 %-points over the actual base lending rate after the following day.
4. Credited payments will be used by us according to our choice for clearance of the oldest orlowest secured debt.
5. The right for counterbalancing with other debts as such, which are adopted indisputably or legally, is excluded.
6. Cheques or bills of exchange shall merely be accepted as conditional payments. The business partner shall bear the costs, bank charges etc. caused by acceptance of bills of exchange; they haveto be paid immediately on request
7. We are entitled to assign or sell our debts from the business completely or partially.
V. Changed Conditions at Business Partner
1. If the financial situation of the business partner deteriorates essentially (e. g. at dishonour at a cheque or bill of exchange as well as an application for initiating insolvency or conciliation proceedings for the property of the business partner), if he has goods outside of the regular business
which were delivered under reservation of title by the seller, or if he winds up his business, we are entitled to make all debts become payable, to repurchase all bills of exchange at business partner’s expense and will only deliver against prepayment or securities.
2. In case of suspension of payments or debt overload of the business partner or at application for initiating insolvency or conciliation proceedings for his property, on our own choice we are entitled either to set up before mentioned rights or to withdraw from the contract according to legal regulations.
1. Delivery time starts with sending confirmation of order as far as such is placed, but not before the business partner came up with documents, approvals and releases as well as agreed first instalment received.
2. Delivery time is met, when shipment has been made during delivery time or if the business partner has been informed of readiness of shipment.
3. In cases of force majeure and circumstances, which prevent us temporarily of shipment at a time or within a period agreed upon, we are entitled to postpone delivery or performance for the time of obstruction plus an appropriate starting-up time. If delivery time prolongs or if we get free of
our liabilities, the business partner has no right to claim damages. If such disturbances lead to a delay in excess of four months, the business partner has the right to withdraw from contract. Other rights to withdraw from contract remain untouched.
4. If the business partner has damages which are grown out of a delay of delivery on our account, the business partner’s claim of damages is limited to replacement of the damage caused by the delay at an amount of 0.5 % for each full week of delay with value of the part of the delivery
which cannot be used in time or according to contract because of the delay as basis of calculation, but not more than 15 % of value of delivery , as far as the delayed delivery is not caused on purpose or gross negligence.
5. All further claims of damages and compensations are excluded, unless there is conclusive liability based on purpose or gross negligence or legal regulations. A change of burden of proof to purchasers disadvantage is not affiliated with that.
6. Reasonable partial deliveries are admissible.
1. The danger of incidental failure or deterioration of goods passes over to the business partner with leaving the warehouse.
2. In all cases shipment is made on account of the business partner with postage paid. As far as the business partner has not made any shipping instructions, shipment will be done at the best discretion of us without guarantee on the cheapest and fastest way.
3. Damages in transit have to be reported immediately and will be compensated on presentation of the carrier’s acceptance of the damage.
VIII. Redelivery — Delivery
1. On principle there is no obligation for taking back regularly delivered parts. Nevertheless, if we are willing to take back ordered and faultless parts, the goods have to be packed safely and must arrive at us with invoice and copy of delivery note within 8 days after arrival at the purchaser. We will charge 15 % of the part-value for deposition and administration as well as for possible cost of freight. On principle specially produced, extra provided or repaired parts cannot be taken back. The customer is liable for loss and damage of returned goods.
2. On principle delivery of repair parts and old parts shall be made carriage paid. Cost of freight or cartages paid by us in advance will be charged by us in return.
IX. Warranty of Quality
1. We guarantee the ordered goods to be faultless according to the latest developments in technology. There is no guarantee for defaults that are caused by unsuited or inexpert treatment, incorrect assembly or start-up by the purchaser or third parties, normal use, incorrect or careless treatment just as there is no guarantee for consequences of inexpert changes or changes made without our agreement or repairs made by the purchaser or third parties.
2. Business partner’s claims to correction of faults is at first limited to rework, that means repairs or replacement. We are free to choose repair or replacement. If we miss repair or replacement, the business partner may call for reduction of price or withdraw from contract. If and as far as the period of rework is expired without result, repair is missed. The assumption for exercise of right to rescind is determined by § 323 BGB.
3. The term of limitation for defects is one year after delivery of newly manufactured goods. For sale of used goods any warranty is excluded.
4. We are liable according to legal regulations as far as the business partner claims for damages, which are based on malice, on purpose or gross negligence including malice, on purpose or gross negligence of our representatives or persons employed by us in the performance of our obligations. As far as we cannot be blamed for intentional breach of contract, liability is limited to the predictable, typically suffered damage. For all other cases warranty is excluded. In so far we are specially not liable for damages, which did not arose at the object delivered, unless there is an injury of life, body and/or health. The compelling liability according to the law of product liability remains untouched as well.
5. In case of repair we are obliged to bear all expenses to correct faults, specially to costs of transport, cartages, work and material as far as the cost did not arise by the fact that the purchased goods have been brought to another place than the place of delivery.
6. Regulations mentioned before do also apply for damages that occur during correction of faults or replacement of products in the scope of liability for material.
7. The right of the business partner to claim due to the liability for material presumes, that he has met his obligations of examination and reprimand in due form and in time. Any faults, damages and deviations in quantities have to be reported to us immediately in writing, namely at obvious faults etc. latest within one week after delivery, at other faults, which could not be found during this time even when carefully examined, latest within one week after discovery. Without notice of defects in due time, such faults cannot be claimed against us any longer.
8. In case of notice of defects we reserve the right to inspect and examine the complained goods in unchanged condition.
9. If any faults at our work are discovered during assembly of body assemblies or other construction elements in a foreign workshop, we have to be informed to correct the faults before continuation of assembly. Without this notice the additional costs or other disadvantages caused by
that shall be on account of the business partner.
10. The warranty concerns accurate skilled work for repairs and maintenance as well as accurate dimensions and maintenance of stability and carrying capacity of the repaired vehicle parts.
X. Recourse to Entrepreneur
1. If the business partner has sold the purchased goods to a consumer in the scope of his commercial trade, and if he has to take back or reduce the price of these goods due to their defectiveness, then the business partner is entitled to claim material damages against us according to the following: if the purchaser was obliged to take back the goods, we are entitled to repair or replacement within a reasonable time. As far as the business partner was obliged to reduce the price, the selling price reduces accordingly. There is only a right of recourse for newly produced goods.
2. In addition to that the business partner may claim for expenses, which he had to bear in
proportion to the consumer, if the fault set up by the consumer has already existed before danger
passed to the business partner. Expenses are specially costs of freight, cartage, work and material.
3. The business partner is not entitled to claim damages in the scope of this recourse to entrepreneur.
4. The business partner’s obligation of reprimand according to § 377 HGB remains untouched from this.
XI. Warranty in Other Cases
1. A compensation exceeding the enshrined warranty under IX is excluded, no matter what legal norm of the claim set up may be. This shall specially apply to claims due to responsibility at conclusion of contract, other breach of duties or liabilities in tort for material damages according to § 823 BGB.
2. The limitation according to paragraph 1 does also apply, if the business partner claims for useless expenses instead of performance in the scope of compensation.
3. As far as the liability for damages against us is excluded or limited, this shall also apply for the personal liability of our employees, workers, staff, representatives and persons employed by us in the performance of our obligations.
XII. Securing and Reservation of Title
1. Goods remain our property until final credit entry of the purchase price or balance on our account. For an open invoice the reservation of title secures our monetary claims and remains for individual deliveries as well.
2. If payment is made by bills of exchange or cheques, payment shall become effective with entry on our account. The business partner is not entitled to assign the goods neither for pawnage nor for security. We have immediately to be informed about accesses by third parties, specially about pawnages.
3. With each complete settlement of our account, the title of reservation for all goods delivered up to that time shall lapse.
4. The business partner is revocably entitled to sell the delivered goods in the scope of the regular business transactions. In case of a resell of held out goods, the claims for the purchaser resulting from that resell shall already now be assigned to us up to that amount of our actual claim. The business partner is entitled and obliged to collect the claim assigned to us, as long as we do not cancel this authorization. On demand he has to give us notice in writing to whom he resold the goods and which claims from this resell he is entitled to.
5. Manufacturing and connection of our goods with other products shall always be made for us as manufacturer, but without any obligation for us. If our ownership of the goods delivered by us lapses by this, already now shall be agreed upon that we acquire joint-ownership of those objects which are produced by manufacturing or connection. The new object produced by that is held-out goods as defined in these conditions. Our part of joint-ownership shall be determined by that fraction, which corresponds to the proportion of the invoice value of our goods to the value of the produced object. The claim resulting from the resell shall already now be assigned to us to the amount of the before mentioned fraction.
6. If the value of the securities exceeds 20 % of our claims, the business partner may call for release of other collateral securities to the overshooting amount.
7. The purchaser’s claims from resell of hold-out goods shall already now assigned to us for security of all our claims from this business relation, no matter, if the hold-out goods are sold to one or more consumer before or after manufacturing.
8. If the purchaser should be guilty of an essential breach of contract, specially in default in payment, we are entitled to take back after reminder; the purchaser is obliged to return. By taking back or enforcement of reservation of title or of pawnage of hold-out goods by us, there is no withdraw from contract, unless we had explicitly declared this.
We are entitled to an entrepreneurial lien for arising costs and expenses caused by the repair on the objects that have been returned to us for repair.
XIV. Place of Fulfilment – Legal Domicile – Applicable Law — Others
1. For all rights and duties arising from deliveries and performances, for both parties place of fulfilment is Fulda. Place of fulfilment for purchaser’s obligation to pay is Fulda.
2. In business transactions with business man and legal person of public law, Fulda becomes legal domicile. The law of the Federal Republic of Germany shall exclusively be applicable. UNConvention on International Sale of Goods (CISG) is excluded.
3. Should single or several appointments of these terms and conditions of business be invalid, so the activity of the contract and the conditions for the rest shall not be touched. Invalid appointments will be replaced by legal regulations.