Information
Conditions of Sale
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General Terms and Conditions of Sale of Wemhöner Surface Technologies GmbH & Co. KG
1. Validity of the Terms and Conditions
1.1. We conclude contracts exclusively on the basis of our General Terms and Conditions of Sale (hereinafter referred to as “Terms and Conditions”). They apply to all contracts with the customer, including future contracts, even if they are not expressly agreed again. Any provisions deviating from the content of these Terms and Conditions require our written confirmation. The purchaser's general terms and conditions that we do not accept in writing are not binding on us. No express objection is required.
1.2. Individual agreements with the customer—insofar as they are made in writing—shall take precedence over these terms and conditions. Legally relevant declarations and notifications that the customer must submit to us after conclusion of the contract (e.g., setting deadlines, notifications of defects) must also be made in writing. The written form requirement is satisfied by text form.
1.3. These terms and conditions apply only if the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB) and has its principal place of business outside Germany. We do not supply consumers.
2. Offers, scope of delivery
2.1. Our offers are subject to change.
2.2. The documents belonging to our offers, such as illustrations, drawings, weight and dimension specifications, are only approximate unless we expressly designate them as binding. We reserve ownership rights and copyrights to cost estimates, drawings, and other documents, as well as data, regardless of the form in which they are embodied. These documents may not be made accessible to third parties without our consent.
2.3. Our order confirmation alone is decisive for the scope of delivery. Partial deliveries are permissible insofar as this is reasonable for the customer.
2.4. The customer may only assign claims against us with our consent. This does not apply to payment claims of the customer against us.
3. Prices and terms of payment
3.1. Prices are net prices plus VAT. Unless otherwise agreed, prices for deliveries are ex works excluding packaging. For deliveries abroad or to a foreign branch of the customer, we deliver ex works (EXW) Incoterms 2020.
3.2. We shall be entitled to make necessary price adjustments if we can prove that cost increases beyond our control (in particular for materials, energy, or wages) have occurred after the conclusion of the contract. Irrespective of this, we may renegotiate prices if the basis of the contract has changed significantly after its conclusion.
3.3. Unless otherwise stated in our order confirmation, the following terms of payment apply:
– 30% upon receipt of the order confirmation
– 60% upon notification that the main parts are ready for shipment
– 10% one month after transfer of risk.
3.4. If the customer is in default, we shall be entitled to charge default interest at a rate of 9% above the base rate. In addition, we shall be entitled to charge interest on arrears at a rate of 5% in accordance with Section 353 of the German Commercial Code (HGB).
If, after conclusion of the contract, it becomes apparent that our claim to the delivery price is jeopardized by the purchaser's inability to pay, we shall be entitled to refuse performance until the purchaser provides security or makes payment.
3.5. The purchaser may only assert rights of set-off and retention in respect of undisputed or legally established claims arising from the same contractual relationship.
4. Delivery time
4.1. The deadlines agreed in the order confirmation or otherwise with the customer shall apply. Compliance with these deadlines requires the timely receipt of all documents to be supplied by the customer as well as compliance with the agreed terms of payment and other obligations. If these conditions are not met in a timely manner, the deadline shall be extended by the duration of the delay.
4.2. In the case of deliveries, the deadline shall be deemed to have been met if the shipment, ready for operation, is dispatched or collected within this period. If delivery is delayed for reasons for which the customer is responsible, the deadline shall be deemed to have been met if notification of readiness for dispatch is given within the agreed period. If the goods ready for shipment are not called off for reasons for which the customer is responsible, we shall be entitled to charge the customer for the costs incurred as a result of the delay, beginning one month after notification of readiness for shipment or handover. If we store the delivery item at our premises, we shall be entitled to charge reasonable costs for this storage, at least in the amount that would be incurred for storage by a third party.
4.3. In the event of operational disruptions caused by force majeure that temporarily prevent us, through no fault of our own, from fulfilling our contractual obligations on the agreed date or within the agreed period, the agreed dates or periods shall be extended by the duration of the performance disruptions caused by these circumstances, plus a reasonable adjustment period. If such events make it significantly more difficult or impossible for us to fulfill the contract and the hindrance is not only of a temporary nature, we shall be entitled to withdraw from the contract. If such a disruption leads to a performance hindrance of more than six months or to a doubling of the originally agreed delivery period, the customer may withdraw from the contract. If it is unreasonable for the customer to adhere to the contract for a period corresponding to twice the originally agreed delivery period, they shall be entitled to withdraw from the contract at an earlier date.
4.4. In addition to natural disasters, war, embargoes, pandemics, and energy supply difficulties, force majeure in the aforementioned sense also includes other disruptions in the supply chain due to circumstances that are unforeseeable and/or uncontrollable for us.
The above provisions shall apply mutatis mutandis to delays caused by strikes or lockouts.
4.5. An impediment to performance for which we are not responsible shall also continue to exist in the event of late delivery by our supplier, if we have concluded a congruent covering transaction, as well as in the event of other disruptions in the supply chain—for example, due to force majeure—or if we are not obliged to procure the goods in individual cases.
4.6. If performance is impossible for one of the aforementioned reasons, we shall be released from our obligation, the customer's obligation to provide consideration shall lapse, and we shall immediately return any services already received.
4.7. If the aforementioned circumstances occur on the part of the customer, the same legal consequences shall also apply to his obligation to accept delivery.
4.8. Both contracting parties are obliged to notify the other party immediately of any disruptions to performance.
5. Shipping and Transfer of Risk
5.1. The risk shall pass to the customer upon dispatch. If dispatch is delayed for reasons within the sphere of influence of the customer or its vicarious agents, the risk shall pass to the customer on the day of notification of readiness for dispatch.
5.2. Insurance policies shall only be taken out at the written request of the customer and against advance payment.
6. Customer's rights in case of defects
6.1. Claims by the customer for defects presuppose that the delivery item does not have the contractually agreed quality or, if this has not been agreed, is not suitable for the use specified in the contract or for normal use. In the case of delivery items manufactured on the basis of a drawing or other specifications provided by the customer, the delivery item is free of defects if it corresponds to the drawing or other specifications.
6.2. In the event of justified complaints, we shall be entitled, at our discretion, to repair or replace the goods within a reasonable period of at least 15 working days. If the subsequent performance fails, the customer may reduce the price or – if the breach of contract is not only minor – withdraw from the contract. In addition, the customer may be entitled to claim damages or reimbursement of expenses. If the customer withdraws from the contract, they must return the delivery item to us and – irrespective of any other claims – pay a reasonable fee for the period of use in the amount of the usual rental price.
6.3. Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor, and material costs, are excluded if the expenses increase because the delivery item has been subsequently moved by the customer or a third party to a location other than the place of delivery, unless the transfer corresponds to the intended use of the delivery item or was agreed with us at the time of conclusion of the contract.
6.4. Claims by the customer for defects shall become time-barred 12 months after delivery or permanent commissioning of the delivery item. This shall not apply if the law prescribes longer periods in Sections 438 (1) No. 2, 479 (1) and 634 a (1) No. 2 BGB prescribes longer periods, namely for buildings and items for buildings, recourse claims, and construction defects.
6.5. Claims for damages by the customer against us, our legal representatives, vicarious agents, and assistants due to defects are excluded, unless the claim for damages is based on
– injury to life, limb, or health, if caused by an intentional or negligent breach of duty
or
– intentional or negligent breach of a material contractual obligation. A material contractual obligation is an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer may rely. A material contractual obligation is also an obligation whose breach jeopardizes the achievement of the purpose of the contract.
– the fraudulent concealment of defects
or
– intentional or grossly negligent breach of duty
or
– a violation under the Product Liability Act. In the event of a simple negligent breach of a material contractual obligation, any claim for damages shall be limited to the typically occurring and foreseeable damage. The burden of proof for the circumstances justifying a limitation of liability lies with us.
6.6. We shall only be liable for consequential damage caused by defects in the event of fraudulent concealment of defects or if the defect underlying the consequential damage is based on an intentional or grossly negligent breach of duty by us or by our organs or vicarious agents.
7. Limitations of liability, damages
7.1. The following limitations apply to our contractual and non-contractual (tortious) liability (including that of our legal representatives, vicarious agents, and assistants) as well as to liability for culpa in contrahendo. The burden of proof for facts justifying the limitation or exclusion of liability lies with us.
7.2. We shall not be liable for slightly negligent breaches of insignificant contractual obligations.
In the event of a slightly negligent breach of essential contractual obligations, the claim for damages shall be limited to the foreseeable damage typical for this type of contract. In the event of a grossly negligent breach of insignificant contractual obligations, we shall be liable for the foreseeable damage typical for this type of contract. Otherwise, our liability is not limited. In the event of a slightly negligent breach of duty due to delay, our liability is limited to 5% of the agreed net price.
Essential contractual obligations are those whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer may rely.
7.3. A limitation of liability shall not apply insofar as we are liable for injury to life, limb, or health.
7.4. Any claims by the customer under the Product Liability Act shall not be affected by the above limitations of liability.
7.5. We shall only be liable for consequential damage caused by defects in the event of fraudulent concealment of defects or if the defect underlying the consequential damage is based on an intentional or grossly negligent breach of duty by us or by our organs or vicarious agents.
7.6. With regard to the statute of limitations, Section VI.5 applies accordingly.
8. Retention of title
The delivered goods remain our property until the agreed price has been paid in full.
9. Intellectual property rights
9.1. If we develop or modify products for the customer, we reserve all rights to these product developments/modifications. All drawings, samples, and models remain our property.
9.2. If we manufacture items based on the customer's specifications or documents, the customer shall indemnify us against any third-party property rights.
10. Place of performance, jurisdiction and applicable law
10.1. The place of performance for all obligations arising from the contractual relationship is Herford.
10.2. The place of jurisdiction for all disputes arising from the contractual relationship shall be Herford if the customer is a merchant, a legal entity under public law, or a special fund under public law. However, we shall be free to bring an action before the court having jurisdiction over the customer's place of business.
10.3. German law shall apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (UN Convention/CISG) is excluded.
11. Data protection
The privacy policy on our homepage applies.