Westfälische Gesenkschmiede GmbH – Schützenstraße 26-28 58339 Breckerfeld
I. General – Coverage
(1) The present general sales conditions (GSC) apply for all our business relations with our customers (named as buyer in the following). The GSC will only apply if the buyer entrepreneur (section 14 BGB (German Civil Code)) is a body corporate organized under public law or a public separate estate.
(2) The GSC apply especially for contracts concerning sales and/or delivery of movable property (in the following named: „goods“) without considering if the goods are manufactured by ourselves or if they are bought from suppliers (sections 433, 651 BGB (German Civil Code)). The GSC apply in the respective version as a framework contract as well for future contracts regarding the sales and/or delivery of movable property with the same buyer without us having to refer to them again in every single case.
(3) Our GSC will apply exclusively. Deviant, conflicting or amendatory general terms and conditions of the buyer become only then and insofar part of the contract as we have agreed explicitly to their application. This requirement of agreement applies in every case, as well if we fulfil the delivery implicitly to the buyer aware of the general terms and conditions of the buyer.
(4) Individual agreements made in individual cases with the buyer (including collateral agreements, amendments and changes) take precedence in every case over these GSC. A written contract or our confirmation in written form is decisive for the content of such agreements.
(5) Legally relevant statements and notices which have to be given to us from the buyer after conclusion of the contract (e.g. setting time limits, notifications of defect, statement of resignation or reduction), have to be in written form to be effective.
(6) Indications regarding the validity of statutory provisions only have clarifying significance. Also without such a clarification the statutory provisions apply, as far as they are not directly changed or explicitly excluded in these GSC.
II. Conclusion of contract
(1) Our offers are subject to change and non-binding. This applies as well if we have provided catalogues, technical documentations (e.g. drawings, plans, calculations, references to DIN), other product descriptions or documents – also in electronic form – to the buyer for which we reserve all property and copyrights. The products shown in our product catalogues as well as in other print- and online advertising material and the graphical material respectively used there can deviate from the delivered goods. Furthermore there is no information regarding the quality of the goods to be seen in the pictures.
(2) The order of the goods by the buyer is valid as a binding offer of contract. As far as nothing else results from the order we have the right to accept this offer of contract within 2 weeks after reaching us.
(3) The acceptance can be declared either in written form (e.g. order confirmation) or by the delivery of the goods and billing the buyer at the same time.
(4) The products shown in our product catalogues as well as in other print- and online advertising material and the graphical material respectively used there can deviate from the delivered goods. Furthermore there is no information regarding the quality of the goods to be seen in the pictures.
III. Terms of delivery and delay in delivery
(1) The delivery time is agreed upon individually and respectively stated by us at acceptance of the order. If it is not possible to state the delivery time at acceptance of the order it will be filed subsequently within 14 days.
(2) As far as we cannot adhere to binding delivery times for reasons beyond our control (non-availability of the accomplishment) we will inform the buyer thereof immediately and at the same time communicate the estimated delivery time. If the goods or services are not available within the new delivery time, we have the right to withdraw completely or partially from the contract; any consideration that may have already been provided will be reimbursed by us without delay. The delivery to ourselves not in due time by our supplier if we have concluded a congruent covering operation, is especially classified as a case of non-availability of the goods or services in this sense. Our legal rights of rescission and termination as well as the statutory regulations regarding the completion of the contract upon exclusion of the obligation to perform (e.g. impossibility or hardship of performance and/or supplementary performance) remain unaffected. The rights of rescission and termination of the buyer according to section 8 of these GSC remain unaffected as well.
(3) The occurrence of a delay in delivery is determined in accordance with legal provisions. In any case, however, a reminder of the buyer is necessary.
IV. Delivery, passing of risk, acceptance, default of acceptance
(1) Delivery takes place ex-warehouse, which is as well the place of performance. On request and at the buyers expense the goods will be sent to another place of destination (sale by delivery to a place other than the place of destination). As far as nothing else has been agreed on we have the right to determine the type of shipment ourselves (especially the shipping company, dispatch route and packaging).
(2) The risk of incidental destruction and incidental worsening of the sold goods is passed on to the buyer upon delivery at the latest. In case of sale by delivery to a place other than the place of destination the risk of incidental destruction or incidental worsening of the goods as well as the risk of delay is passed on to the buyer already with delivery of the goods to the forwarder, the carrier or to another person or institution designated to execute the shipment of the goods. As far as acceptance has been agreed on it is authoritative for the passing of the risk. Besides for an agreed on acceptance the legal provisions of the contract rules for work and services apply accordingly. The transfer or acceptance takes place irrespective of whether or not the buyer is present at delivery.
(3) In the event of default of acceptance by the buyer, if he refrains from cooperation or if our delivery is delayed for other reasons the buyer is accountable for, we have the right to claim compensation of the loss occurred out of this including additional expenditures (e.g. inventory costs) . We charge therefore a lump compensation of 1% of the net price per week, starting from the delivery time or – if there is no delivery time- with a notification of readiness of the dispatch. The proof of a higher damage and our legal claims (especially compensation of additional expenditures, appropriate compensation, termination) remain unaffected; however the lump sum has to be charged against further money claims. The buyer may prove that no damage at all or a remarkably lower damage than the above-mentioned lump sum has occurred.
V. Prices and payment conditions
(1) As far as there has not been any other agreement for individual cases our prices valid at the time of the conclusion of the contract do apply in fact ex warehouse plus legal value added tax.
(2) In case of sale by delivery to a place other than the place of destination (section 4 subsection 1)the buyer has to bear the transport costs ex warehouse and the costs of a transport insurance which might be requested by the buyer. As far as we do not charge the actual transport costs occurred in the individual case a transport costs lump sum (excluding transport insurance) of 5% of the net price applies as agreed on. Any customs duties, fees, taxes or other public charges have to be paid for by the buyer. Transport and any other packaging according to the packaging ordinances will not be taken back they become the buyers property, this excludes pallets.
(3) The purchase price will be due and to be paid for subject to an individual agreement within 7 days with 3% discount, 14 days 2% discount or 30 days net after billing and the delivery or respectively the acceptance of the goods. In case of contracts of a delivery value of more than EUR 10,000 we have the right to charge a deposit of 25 % of the net price. The deposit will be due and to be paid for within 7 days after billing.
(4) With the expiry of the above-mentioned term of payment the buyer will be in default. During the default, interest has to be paid on the purchase price at the in each case legally valid default interest rate. We reserve the enforcement of further default damage. For businessmen our claim for commercial maturity interest remains unaffected (section 353 HGB (German Commercial Code)).
(5) The buyer has only in so far the right of lien and set-off as his claim can be ascertained as legally valid or undisputed. In case of defects of the delivery section 7 subsection 6 remains unaffected.
(6) If after conclusion of the contract it is clearly recognizable that our claim to the purchase price will be at risk by the lack of performance of the buyer (e.g. by application for insolvency proceedings) we have the right according to the legal provisions to refusal of performance and after setting a deadline if required- to withdrawal of the contract (section 321 BGB (German Civil Code)). In case of contracts to manufacture unjustifiable things (single-unit production), we can declare a withdrawal of the contract immediately; the legal provisions regarding the dispensability of setting a deadline remain unaffected.
VI. Reservation of title
(1) Until payment of all our present and future claims from the contract of purchase and an ongoing business relation (secured claims) has been completed we reserve title to the sold goods.
(2) Before payment of the secured claims has been completed the goods which are subject to reservation of title are not to be pledged to third parties, neither to be transferred for security. The buyer has to notify us immediately and in written form if and when accesses to the goods that belong to us take place.
(3) In case of conduct in contravention of the contract of the buyer, especially non-payment of the purchase price due, we have the right to withdraw from the contract or/and to reclaim the goods due to the reservation of title according to the legal provisions. The reclamation does not include a declaration of withdrawal moreover we are entitled to merely reclaim the goods and reserve the withdrawal. If the buyer does not pay the purchase price due we can only assert these rights if we have set an appropriate deadline for the payment without success or if such setting of a deadline is dispensable according to the legal provisions.
(4) The buyer is authorized to sell and/or to process the goods subject to reservation of title within proper course of business. In this case the following provisions will apply supplementary.
(a) The reservation of title covers the products resulting from the processing, mixture or combination of our goods to their full value whereas we are considered as manufacturer. If the title of third parties remains in case of processing, mixture or combination with their goods we acquire co-ownership in the proportion of the invoice values of the processed, mixed and combined goods. Apart from that the same as for the goods subject to reservation of title applies for the resulting product.
(b) For security the buyer will already assign claims against third parties resulting from the resale of the goods or the product completely or amounting to the value of our co-ownership share according to the above-mentioned paragraph. We accept the assignment. The obligations of the buyer stated in section 2 will also apply in consideration of the assigned claims.
(c) Beside ourselves the buyer remains authorized to the collection of the claims. We commit ourselves not to collect the claims as long as the buyer meets his payment obligations towards ourselves, does not fall into arrears, no application for insolvency proceedings has been filed and no other defect of his performance is present. However, if this is the case we may claim that the buyer notifies us of the assigned claims and their debtors, furnishes all particulars necessary for the collection, hands over the corresponding documents and notifies the debtors (third parties) of the assignment.
(d) If the realizable value of the securities exceeds our claims by more than 10% we will release securities at our discretion on request of the buyer.
VII. Claims for defects of the buyer
(1) For the rights of the buyer in case of defects of quality and title (including wrong and short delivery as well as incorrect installation or defective installation instructions) the legal provisions apply as far as there is nothing else agreed on in the following. In all cases the legal special provisions at final delivery of the goods to the consumer remain unaffected (suppliers‘ recourse according to sections 478, 479 BGB (German Civil Code)).
(2) The agreement made about the quality of the products is most of all the basis of our responsibility for defects. All product descriptions which are subject matter of the individual contract are considered as agreement about the quality of the goods, it does not make a difference here if the product descriptions originate from the buyer, the manufacturer or from us. The products shown in our product catalogues as well as in other print- and online advertising material and the graphical material respectively used there can deviate from the delivered goods. . Furthermore there is no information regarding the quality of the goods to be seen in the pictures.
(3) As far as quality has not been agreed upon it has to be evaluated according to the legal provision if a defect is present or not (section 434 subsection 1 sentence 2 and 3 BGB (German Civil Code)). However, we do not accept liability for public statement by the manufacturer or other third parties (e.g. advertising statements)
(4) The claims of the buyer based on defects imply that he fulfilled his legal duty to examine and the requirement to make a complaint in respect of a defect immediately on receipt of the goods (sections 377, 381 HGB German Commercial Code). If a defect appears during examination or later we have to be notified about this immediately and in written form. The notification is considered to be immediate if it takes place within two weeks, to keep this deadline it is sufficient if the notification has been sent within this period of time. Independently from this duty to examine and requirement to make a complaint in respect of a defect immediately on receipt of the goods the buyer has to notify us about obvious defects (including wrong and short deliveries) within two weeks from delivery in written form, to keep this deadline the sending in time is sufficient here as well. If the customer misses the orderly examination and/or notification of defect our liability for the defect that we have not been notified of will be excluded.
(5) In the event that an item delivered is defective, it shall be at our discretion whether the supplementary claims is satisfied by remedy of defect (rework) or by delivery of an item free of defects (replacement delivery). Our right to refuse the chosen kind of supplementary performance under the legal requirements remains unaffected.
(6) We have the right to predicate the supplementary performance due on whether the buyer pays for the purchase price due. However, the buyer has the right to retain part of the purchase price which is appropriate in relation to the defect.
(7) The buyer has to give us the necessary time and occasion for the supplementary performance due. In particular he has to hand over the defective goods for examination purposes. In the case of a replacement delivery the buyer has to return the defective item according to the legal provisions.
(8) The expenses necessary for examination and supplementary performance especially transport costs, tolls, labour costs and material costs will be borne by us if there is indeed a defect. If a claim for remedy of defect of the buyer turns out to be unjustified we will be able to claim the costs resulting from this to be refunded by the buyer.
(9) In urgent cases e.g. danger of the industrial safety or for the defence of disproportional damage, the buyer has the right to rectify the defect himself and to claim a refund for the expenses that have been objectively necessary for this. We have to be notified immediately of such a rectification by the buyer if possible before such rectification. The right to rectify the defect oneself does not exist if we would be authorized to refuse a corresponding supplementary performance according to the legal provisions.
(10) If the supplementary performance failed or a deadline for the supplementary performance to be set by the buyer has run out unsuccessfully or is dispensable according to the legal provisions the buyer can withdraw from the contract or reduce the purchase price. In case of an irrelevant defect there will be no right to withdraw from the contract.
(11) Claims for damages of the buyer or compensation of expenses incurred in vain, respectively, do only exist according to section 8 and are excluded apart from that.
VIII. Other liability
(1) As far as nothing else results from these GSC including the following provisions we are liable in case of a violation of contractual and non-contractual obligations according to the relevant legal provisions.
(2) We will be liable for damages – irrespective of the legal ground – caused intentionally and by gross negligence. In case of negligence we are only liable
a) for damages to life, body or health.
b) for damages resulting from the violation of an essential obligation of contract (the fulfilment of such an obligation enables the proper execution of the contract at all and the compliance of such an obligation can and will be trusted by the contracting parties on a regular basis); in this case our liability is limited to the compensation of the foreseeable, typically occurring damage.
(3) The limitations on liability resulting from subsection 2 will not apply if we have concealed a defect fraudulently or if we have given a guarantee for the quality of the goods. The same applies for claims of the buyer according to the Product Liability Act.
(4) The buyer can only withdraw or terminate because of the violation of an obligation which is not a defect if we are responsible for the violation of the obligation. An unrestricted right of termination of the buyer (especially according to sections 651, 649 BGB (German Civil Code)) will be excluded. Apart from that the statutory requirements and legal consequences apply.
IX. Limitation of actions
(1) Diverging from section 438 subsection 1 no. 3 BGB (German Civil Code) the general limitation period for claims arising from defects and defects of title is one year from delivery. As far as an acceptance has been agreed on the limitation period starts with acceptance.
(2) The afore-mentioned limitation period of Purchase Law applies as well for contractual and non-contractual damage claims of the buyer, which are based on defects of the goods, unless the application of the regular, legal limitation (sections 195, 199 BGB (German Civil Code)) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act remain unaffected in any case. Apart from that the statutory limitation periods according to section 8 apply exclusively for damage claims of the buyer.
X. Choice of law and place of jurisdiction
(1) For these GSC and all legal relationships between us and the buyer the law of the Federal Republic of Germany will apply to the exclusion of all international and supranational (contracting regulations) legal systems, especially the UN-Sales Convention. Requirements and effects of reservation of title according to section 6 are however subject to the law of the respective location of the subject matter, as far as the choice of law made according to that is inadmissible or ineffective for the benefit of the German law.
(2) If the buyer is a merchant in the sense of the HGB (German Commercial Code), a body corporate organized under public law or a public separate estate, the exclusive – and also international - place of jurisdiction for all disputes resulting directly or indirectly from the contractual relationship is our business location in Breckerfeld. However, we do as well have the right to file a suit at the general place of jurisdiction of the buyer.
Breckerfeld, 15th of January 2010