General Terms and Conditions of Sale and Delivery
of Paul Wiegand GmbH | Status 2019
§ 1 General, scope of application
(1) These General Terms and Conditions of Sale and Delivery (GTCSD) apply to all our business relationships with our customers ("Buyer"). The VLB shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GTSD apply in particular to contracts for the sale and/or delivery of movable goods ("Goods"), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 651 BGB). Unless otherwise agreed, the GTSD in the version valid at the time of the Buyer's order or in any case in the version last communicated to him in text form shall also apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case.
(3) Our GTSD shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer's General Terms and Conditions.
(4) Legally relevant declarations and notifications to be made to us by the Buyer after conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of withdrawal or reduction) must be made in text form to be effective.
(5) To the extent necessary for business purposes, we are authorized to store and process the Buyer's data by EDP within the framework of the data protection laws.
§ 2 Contractual declarations
(1) Our range of products and services is subject to change. This shall also apply if we have provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form.
(2) The order of the goods by the Buyer shall be deemed a binding offer of contract. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 2 weeks of its receipt by us.
(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.
§ 3 Delivery, transfer of risk, default of acceptance, partial performance
(1) The International Commercial Terms - Incoterms® 2020 - published by the International Chamber of Commerce shall apply to deliveries in Germany and abroad. Reference is made to the relevant clause in every order confirmation (EXW = Ex Works, DAP = Delivered At Place). Unless otherwise agreed, in the case of EXW (Incoterms® 2020), we as the seller will arrange and organize the loading of the means of transport at the loading ramp and customs clearance for export from the EU as a paid service, which will be invoiced additionally.
(2) If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).
(3) In the case of call-off orders, the goods shall be purchased in approximately equal monthly quantities, unless otherwise agreed. The entire order quantity shall be deemed to have been called one month after expiry of the period agreed for the call-off, in the absence of such an agreement twelve months after conclusion of the contract. If the buyer does not carry out a division of the ordered goods for which he is responsible within one month of expiry of the period agreed for the division at the latest, or in the absence of such an agreement within one month of our request at the latest, we may divide and deliver the goods at our discretion and at the buyer's expense.
(4) We are permitted to provide partial services and corresponding settlements unless they are unreasonable for the Buyer.
(5) Incorrectly ordered goods will not be taken back.
§ 4 Force majeure, disruption of the basis of the contract, reservation of performance
In the event of force majeure affecting us or our suppliers, our performance and delivery obligations shall be suspended for the duration of the disruption. The same applies in the event of energy or raw material shortages, labor disputes, official decrees or traffic or operational disruptions. If there is a significant change in the circumstances existing at the time of conclusion of the contract, as a result of which we cannot reasonably be expected to adhere to the contract, we shall be entitled to withdraw from the contract. Our fulfillment of the contract is subject to the proviso that we neither violate the provisions of national and international foreign trade law nor infringe sanctions or embargoes.
§ 5 Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or specified by us upon acceptance of the order.
(2) The commencement of the delivery or performance period stated by us shall be subject to the clarification of all technical questions and the timely and proper fulfillment of the Buyer's obligations.
(3) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this immediately and at the same time inform the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the Buyer. A case of non-availability of the service in this sense shall also include, in particular, the failure of our supplier to deliver to us in good time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
(4) If an agreed delivery or performance date is exceeded for reasons for which we are responsible, the Buyer shall set us a reasonable grace period for delivery or performance in writing. This grace period shall be at least two weeks. If the delivery or service does not take place after the grace period has expired and the buyer wishes to withdraw from the contract or demand compensation instead of the service, he is obliged to expressly notify us of this in writing beforehand, setting a reasonable further grace period and requesting delivery or service. At our request, the buyer is obliged to declare within a reasonable period of time whether he will withdraw from the contract due to the delay in delivery or performance and/or demand compensation instead of performance or insist on delivery or performance.
(5) The Buyer's rights pursuant to § 9 of these GTSD and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 6 Prices and terms of payment
(1) Our prices are EXW (Eschengrund 5, 36124 Eichenzell) Incoterms® 2020. Unless otherwise agreed, our prices do not include the costs of packaging, insurance, freight and VAT.
(2) In the case of sale by delivery to a place other than the place of performance, the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
(3) The purchase price is due and payable within 14 days of invoicing and delivery with a 2% discount or within 21 days net. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
(4) The Buyer shall be in default upon expiry of the above payment period. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages caused by default. Our claim to commercial maturity interest (§ 353 HGB) against merchants remains unaffected.
(5) The Buyer shall only be entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer's counter-rights shall remain unaffected, in particular in accordance with § 8 (6) sentence 2.
(6) If the date of delivery or performance is later than three months after conclusion of the contract, we shall be entitled, after timely notification of the Buyer and prior to delivery or performance, to adjust the price of the goods or service agreed at the time of conclusion of the contract, including transportation, to the extent that this is reasonable due to cost developments beyond our control (e.g. advance service costs, exchange rate fluctuations, changes in customs duties and fees). In the case of framework agreements containing price agreements, the three-month period shall commence upon conclusion of the framework agreement.
§ 7 Retention of title
(1) We reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer must inform us immediately in text form if an application for the opening of insolvency proceedings is filed or if third parties have access to the goods belonging to us (e.g. seizures).
(3) If the Buyer acts in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and the withdrawal. If the buyer does not pay the purchase price due, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(4) Until revoked in accordance with (c.) below, the Buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The Buyer hereby assigns to us as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the Buyer stated in § 5 (2) shall also apply in consideration of the assigned claims.
(c) The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets his payment obligations to us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right in accordance with § 5 (3). If this is the case, however, we may demand that the Buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, we shall also be entitled to revoke the Buyer's authorization to resell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer's request.
§ 8 Claims for defects of the buyer
(1) The products supplied by us comply with the applicable German regulations and standards. We assume no liability for compliance with other national regulations. If the products are used abroad, the customer undertakes to check the conformity of the products with the relevant legal systems and standards himself and to make any necessary adjustments.
(2) The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below.
(3) The Buyer's claims for defects presuppose that he has complied with his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect is discovered during the inspection or later, we must be notified of this in text form without delay, but in any case within one week. The timely dispatch of the notification is sufficient to preserve the rights. Irrespective of this obligation to inspect and give notice of defects, the Buyer must notify us of obvious defects (including incorrect and short deliveries) in text form without delay, but in any case within one week, whereby the timely dispatch of the notification is also sufficient to meet the deadline. If the Buyer fails to carry out the proper inspection and/or report defects, our liability for the unreported defect shall be excluded.
(4) If the delivered item is defective, we shall, at our discretion, either make a subsequent delivery or rectify the defect (subsequent performance). The Buyer shall grant us the opportunity to do so within a reasonable period of at least 15 working days. The buyer must hand over the rejected goods to us for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall not include the removal of the defective item or its reinstallation if we were not originally obliged to install it.
(5) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions, if a defect actually exists, provided that the expenses are not increased by the fact that the object of the delivery has subsequently been moved to a location other than the original place of delivery, unless the transfer corresponds to its intended use. If there is actually no defect, we may demand reimbursement from the Buyer for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to the Buyer.
(6) If the subsequent performance fails, the customer may reduce the remuneration or withdraw from the contract. Withdrawal is only permissible, however, if the customer expressly threatens us with this in text form beforehand with a reasonable further grace period. There is no right of withdrawal in the case of an insignificant defect.
(7) Claims of the Buyer for damages or reimbursement of futile expenses shall only exist in accordance with § 9, even in the case of defects, and are otherwise excluded.
§ 9 Other liability
(1) Unless otherwise stated in these GTSD, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We shall be liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in cases of intent and gross negligence. In the event of simple negligence, we shall be liable in accordance with statutory provisions as follows:
(a) for damages resulting from injury to life, limb or health,
(b) for damages resulting from the breach of a material contractual obligation (an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for foreseeable, typically occurring damage.
(c) In all other cases, we shall not be liable for damages that have not occurred to the goods themselves, in particular not for loss of profit or other financial losses of the customer.
(3) The limitations of liability resulting from § 9 (2) shall also apply to breaches of duty by or in favor of persons whose fault we are responsible for according to statutory provisions. They shall not apply if we have assumed a guarantee for the quality of the goods and for claims of the Buyer under the Product Liability Act.
(4) The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. Withdrawal or termination must be declared in writing, whereby the written form is not satisfied by email or fax. Otherwise, the statutory requirements and legal consequences shall apply.
(5) The aforementioned provisions shall apply accordingly to the Buyer's claims for reimbursement of futile expenses.
§ 10 Statute of limitations
The limitation period for claims due to defects in our deliveries and services as well as for claims due to our liability for damages is one year from delivery. This shall not apply if longer periods are prescribed by law or in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty on our part and in the event of claims for damages under the Product Liability Act.
§ 11 Choice of law and place of jurisdiction
(1) These GTSD and the contractual relationship between us and the Buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in 36124 Eichenzell, Germany. However, in all cases we shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTSD or an overriding individual agreement or at the Buyer's general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.