Conditions of Use

General Terms and Conditions of Business of Hans Wilms GmbH & Co. KG - Download as PDF

§ 1 General terms - Scope of application

(1) These General Terms and Conditions of Business (in German: AGB) shall apply to all of our business relations with our customers (hereinafter referred to as "Buyer"). The Conditions shall only apply if the Buyer is an entrepreneur, a legal entity under public law or a special fund under public law.

(2) The General Terms and Conditions of Business shall in particular apply to contracts for the sale and/or delivery of movable goods (hereinafter referred to as "Goods"), irrespective of whether we manufacture the Goods ourselves or procure them from suppliers (Sections 433 and 651 BGB [German Civil Code]). The General Terms and Conditions of Business in their current version shall also apply as a framework agreement to future contracts for the sale and/or the delivery of Goods with the same Buyer without our having to refer to them again in every single case. In the case of amendments of these General Terms and Conditions of Business, the Buyer shall be notified without delay.

(3) Our General Terms and Conditions of Business shall exclusively apply. Deviating, contradictory or supplementary General Terms and Conditions of a Buyer shall only become part of the contract if and insofar as we have given our express consent. This requirement of consent shall apply in any event, even if, for instance, we unconditionally deliver Goods to the Buyer in awareness of the latter's General Terms and Conditions of Business.

(4) Individual agreements concluded with the Buyer on a case-to-case basis (including collateral agreements, supplements and amendments) shall in all instances have precedence over these General Terms and Conditions of Business. A written contract or our written confirmation shall be decisive for the validity of such agreements.

(5) Legally relevant declarations and notifications rendered to us by the Buyer after conclusion of contract (such as setting of deadlines, notifications of defects, declaration of cancellation or reduction) shall only be valid if made in writing.

(6) References to the applicability of legal provisions are provided for clarification purposes only. Consequently, even without such clarifying references, legal provisions shall be applicable unless directly amended or expressly excluded in these General Terms and Conditions of Business.

§ 2 Conclusion of Contract

(1) Our quotations are subject to change and without obligation. This shall also apply if we have provided the Buyer with catalogues, technical documentation or documents (such as drawings, plans, calculations, costings and references to DIN standards) also in electronic form.

(2) Any ordering of Goods by the Buyer shall be deemed to be a binding contractual offer. Unless otherwise indicated in the order we shall be entitled to accept the contractual offer within two weeks of receipt.

(3) Acceptance can either be declared in writing (e.g. by order confirmation) or by delivery of the Goods to the Buyer.

(4) If the Buyer orders Goods electronically via our online shop, we shall directly confirm receipt of the order by means of an electronic order confirmation.

§ 3 Delivery Period and Default in Delivery

(1) The delivery period shall be agreed upon individually or indicated by us when accepting the order. If this is not the case, the delivery period shall be approx. two weeks. The delivery period shall be calculated as from conclusion of contract, unless prepayment is agreed upon. In this case, the delivery period shall commence on full payment of the purchase price by the Buyer.

(2) If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availability of performance) we shall immediately notify the Buyer stating at the same time the anticipated new delivery period. If performance still cannot be rendered within the new delivery period, we shall be entitled to withdraw wholly or partly from the contract; any consideration already paid by the Buyer shall be reimbursed without delay. A particular instance of non-availability of performance in this respect shall be late delivery to us by our suppliers if we have concluded a congruent covering transaction, if neither we nor our supplier are at fault or if we, in particular cases, do not have any procurement obligation.

(3) Whether we are in default of delivery or not shall be determined in accordance with the statutory provisions. In any case the Buyer must send a reminder.

(4) The Buyer's rights pursuant to § 8 of these General Terms and Conditions of Business and our statutory rights if the obligation to perform is excluded (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected.

§ 4 Delivery, Passing of Risk, Acceptance, Default in Acceptance

(1) Delivery shall be carried out ex warehouse which shall also be the place of performance. At the Buyer's request and expense, the Goods will be sent to a different destination (mail order purchase). Unless otherwise agreed we are entitled to determine the type of shipment ourselves (in particular the transport company, shipment route and packaging).

(2) The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer at the latest when the Goods are handed over. However, in the case of mail order purchases, the risk of accidental loss and accidental deterioration of the Goods and the risk of delay passes to the Buyer on handover of the Goods to the forwarder, carrier or any other person or entity instructed to undertake shipment. If an acceptance inspection has been agreed upon, this will be decisive for the transfer of risk. In all other cases the statutory provisions of the [German] law on work contracts (Werkvertragsrecht) shall apply accordingly to any any acceptance of performance that may have been agreed upon. Default of acceptance by the Buyer shall be equivalent to handover or acceptance.

(3) Should the Buyer be in default of acceptance, infringe other obligations to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to request compensation for any damage incurred including any additional expenses (e.g. storage costs).

(4) During the delivery period, the manufacturer reserves the right to make changes to the design, form, colour and scope of delivery provided these changes or deviations can be deemed reasonable on the part of the Buyer while taking our interests into account.

§ 5 Prices and Terms of Payment

(1) Unless otherwise agreed in particular cases, our prices current at the time of conclusion of contract shall be valid ex warehouse plus the applicable rate of value added tax.

(2) If we recommend prices for Goods manufactured by us (recommended retail prices), these prices shall also be deemed to be net prices plus the applicable rate of value added tax, unless expressly indicated otherwise.

(3) In the case of mail order purchases (§ 4 Paragraph 1 [of these General Terms and Conditions of Business]) the Buyer shall bear the cost of transport ex warehouse as well as the cost of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges are to be borne by the Buyer. Transport packaging and all other packaging in accordance with the [German] Packaging Ordinance (Verpackungsverordnung) is non-returnable and becomes the Buyer’s property, except for pallets.

(4) Unless otherwise agreed, the purchase price is due and payable within 30 days as from invoice and delivery or acceptance of the Goods; with deduction of a 2 % cash discount for payment within 8 days. However, cash discounts shall only be permitted if all older claims arising from the business relation with the same Customer have been paid.

(5) The Buyer shall be in default on expiry of the afore-mentioned payment deadline. During the default period interest shall be due on the purchase price at the respective applicable interest rate for default. We reserve the right to claim further damage caused by default. Our claim for commercial maturity interest (Section 353 HGB [German Commercial Code]) against merchants shall remain unaffected.

(6) The Buyer shall only be entitled to rights to offset or of retention to the extent that this entitlement has been determined to be final and binding or is undisputed. In the case of defects of the delivery the opposing rights of the Buyer, particularly according to § 7 Paragraph 6 Sentence 4 of these General Terms and Conditions of Business, shall remain unaffected.

(7) If, after conclusion of contract, there are indications that our entitlement to the purchase price is at risk due to insufficient ability of the Buyer to pay (e.g. caused by an application for opening of insolvency proceedings) then according to the statutory regulations we shall be entitled to refuse performance and – if applicable after setting a deadline – to cancel the contract (Section 321 BGB [German Civil Code]). In the case of contracts concerning the production of unreasonable objects (custom-made products) we shall be entitled to declare our immediate withdrawal from the contract; the statutory regulations concerning the dispensablility of setting a deadline shall remain unaffected.

§ 6 Reservation of Title

(1) We reserve the ownership of the Goods until full payment of all our present and future claims arising from the purchase contract and current business relations (secured claims).

(2) Until the secured claims have been satisfied in full, the Goods subject to reservation of title may neither be pledged to a third party nor assigned as security. The Buyer must inform us immediately in writing of any action or attempt by third parties to gain possession of any Goods belonging to us.

(3)  In the event of contract-breaching behaviour on the part of the Buyer, in particular failure to pay the due purchase price, we shall be entitled according to the statutory regulations to withdraw from the contract and/or reclaim the Goods on the basis of the reservation of title and the withdrawal from the contract. If the Buyer does not pay the due purchase price, we may only assert these rights if we have unsuccessfully set the Buyer a reasonable time limit for payment or if setting a time limit is dispensable under the statutory regulations.

(4) The Buyer is authorised to resell the Goods subject to reservation of title in the ordinary course of business. In this case the following provisions shall additionally apply:

(a) The Buyer here and now assigns to us as security all claims against third parties arising from the resale of the Goods or product. We shall accept such assignment. The Buyer’s duties according to Paragraph 2 shall also apply with regard to the assigned claims.

(b) The Buyer remains authorised to collect the claim in addition to us. We undertake to refrain from collecting the claims as long as the Buyer fulfils its payment obligations towards us, is not in default of payment, no application for commencement of insolvency proceedings is made and its ability to pay is not otherwise impaired. However, if this is the case we can require the Buyer to provide us with details of the assigned claims and the debtors, supply all the information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.

(c) If the realisable value of the securities exceeds our claims by more than 10 %, we shall release securities at our option upon the Buyer’s request.

§ 7 Buyer’s Warranty Claims

(1) Save as otherwise provided below, the Buyer’s rights in the event of material defects and defects of title shall be governed by the statutory regulations. Special statutory provisions on final deliveries of Goods to a consumer (suppliers’ recourse according to Sections 478 and 479 BGB [German Civil Code]) shall remain unaffected in all cases.

(2) The primary basis of our liability for defects shall be the agreement made concerning the quality of the Goods. The agreement concerning the quality of the Goods shall be considered to be all product descriptions (including those of the manufacturer) idenitfiied as such and handed over to the Buyer prior to its order or incorporated in the contract in the same way as these General Terms and Conditions of Business.

(3) In the absence of any quality agreement, the existence or non-existence of a defect shall be assessed according to the statutory provision (Section 434 Paragraph 1 Sentences 2 and 3 BGB [German Civil Code]).

(4) If the Buyer is a merchant, the Buyer’s claims for defects presume that it has satisfied its statutory obligations for inspection and reporting of complaints (Sections 377 and 381 HGB [German Commercial Code]). Any defect discovered during examination or later shall be notified to us in writing without delay. Notification shall be deemed without delay if given within two weeks; the time shall be deemed observed if the notification is sent in due time. Irrespective of the afore-mentioned duties of examination and notification the Buyer shall notify obvious defects (including wrong and short delivery) in writing within two weeks from delivery; the time shall be deemed observed if the notification is sent in due time. If the Buyer fails to notify defects as stipulated above, our liability for defects not notified shall be excluded.

(5) If the delivered object is faulty, we can initially choose whether to provide subsequent performance either by remedying the defect (subsequent improvement) or by delivery of a faultless object (replacement delivery). Our right to refuse subsequent performance under the statutory requirements shall remain unaffected.

(6) We shall be entitled to make the owed subsequent performance dependent on the Buyer paying the due purchase price. The Buyer shall, however, be entitled to withhold an appropriate part of the purchase price in proportion to the defect.

(7) The Buyer shall allow us the necessary time and opportunity for due subsequent performance and, in particular, hand over the Goods concerned for inspection. In the case of replacement the Buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance does not include the deinstallation of the defective item or the reinstallation if we were not originally obligated to carry out the installation.

(8) The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, route, labour and material costs (not the costs of deinstallation and installation) shall be borne by us if there actually is a defect. However, if it is determined that a request for remedy of a defect by the Buyer is unjustified, we can request reimbursement of the costs incurred hereby from the Buyer.

(9) In urgent cases, e.g. if operating safety is jeopardised or in order to avert disproportionate damage, the Buyer shall be entitled to self-remedy of the defect and demand reimbursement from us of any objectively necessary expenses incurred. We shall be advised without delay, if possible beforehand, of any self-remedy of defects. The right of self-remedy shall not apply if we would have been entitled to refuse corresponding subsequent performance in accordance with the statutory provisions.

(10) If subsequent performance is unsuccessful or a deadline to be set by the Buyer for subsequent performance has elapsed without result or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. No right of withdrawal shall apply in the event of a minor defect.

(11) The Buyer shall be entitled to claim compensation or reimbursement of expenses incurred in vain only as provided in § 8 [of these General Terms and Conditions of Business]; otherwise such claims shall be excluded.

§ 8 Other liability

(1) Save as otherwise provided in these General Terms and Conditions of Business including the provisions below, in the case of breach of contractual and noncontractual duties we shall be liable in accordance with the relevant statutory provisions.

(2) We shall only be liable for compensation, irrespective of legal ground, in the event of intent and gross negligence. In the case of ordinary negligence we shall only be liable for damage due to injury to life, limb or health; for damage due to breach of an essential contractual duty (an obligation that has to be fulfilled to enable the contract to be duly performed and on the satisfaction of which the other party regularly relies and may rely); however, in this case our liability shall be limited to compensation for the foreseeable and typically occurring damage;

(3) The limitations of liability according to Paragraph 2 shall not apply if we conceal a defect with fraudulent intent or if we have warranted the quality of the Goods. The same shall apply to the Buyer’s claims under the [German] Product Liability Act (Produkthaftungsgesetz).

(4) The Buyer may withdraw or cancel the contract on the grounds of a breach of duty that is not a defect only if we are responsible for the breach of duty. In all other cases the statutory requirements and legal consequences shall apply.

§ 9 Period of Limitation

(1) By derogation from Section 438 Paragraph 1 Number 3 BGB [German Civil Code], the general limitation period for claims resulting from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence on acceptance.

(2) Special statutory regulations for claims for surrender in rem of third parties (Section 438 Paragraph 1 Number 1 BGB [German Civil Code]), for cases where the seller acts with fraudulent intent (Section 438 Paragraph 3 BGB [German Civil Code]) and for recourse claims against the supplier where the final delivery is to a consumer (Section 479 BGB) shall remain unaffected.

(3) The afore-mentioned periods of limitation of the law on sales shall also apply to the Buyer’s contractual and non-contractual compensation claims based on a defect of the Goods, unless application of the regular statutory period of limitation (Sections 195 and 199 BGB [German Civil Code]) would lead to a shorter limitation period in a particular case. The limitation periods according to the [German] Product Liability Act shall remain unaffected in all cases. Apart from this the statutory periods of limitation shall exclusively apply to compensation claims of the Buyer pursuant to § 8 [of these General Terms and Conditions of Business].

§ 10 Choice of Law and Venue

(1) These General Terms and Conditions of Business and all legal relations between us and the Buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. Preconditions and effects of reservation of title according to § 6 [of these General Terms and Conditions of Business] shall, however, be subject to the law of the place where the item is located if the choice of law made in favour of German law is impermissible or ineffective according to this.
If the Buyer is a merchant as defined by the [German] Commercial Code, a legal entity under public law or a special fund under public law, the exclusive and also international place of jurisdiction for all disputes arising indirectly or directly from the contractual relationship shall be our registered office. We shall, however, also be entitled to file a suit at the Buyer’s place of general jurisdiction.

04.09.2014