Terms and Conditions of Business, Sales and Delivery
- Any contracts concluded with us are subject to the following Terms and Conditions. They are a legally binding part of the Contract for all business transactions and shall be recognized as being binding upon the Buyer when placing an order. Any variation to the terms and conditions, ancillary agreements, and changes always require an express written confirmation from us in order to be deemed effective.
- Within the meaning of the following provisions and in accordance with § 13 BGB (German Civil Code) the term “consumer” denotes any natural person, legal entity or legal partnership who enters into a transaction for a purpose which is not attributable to commercial reasons or their independent professional activity.
- An “entrepreneur” is, in accordance with § 14 BGB, a natural person, legal entity or a legal partnership, which concludes a legal transaction in exercising their commercial or independent professional activity.
- Should individual sections of the following Terms and Conditions become invalid, this shall not affect the validity of the remaining provisions.
II Offers and Concluding a Contract
- Our offers are always subject to change. References to information and illustrations in catalogs, drawings, and price lists are for illustration purposes only and do not obligate us to deliver the goods exactly as depicted or stated. Assurances, oral ancillary agreements, and amendments to the contract must be in written form in order to be effective.
- If, after a Contract has been entered into, we become aware of circumstances that do not allow proper execution of the Contract, we are entitled to suspend further deliveries, rescind the Contract in whole or in part, or to request collateral.
- Provided that the order confirmation does not state otherwise, the prices are quoted ex works. All quotations are non-binding. The current prices on the day of delivery are valid, plus applicable sales tax/VAT as valid on the day of delivery.
- Packing costs are not included in the price. Should packing costs be incurred, they will be charged at the lowest cost possible.
III Delivery, Delays, and Acceptance
- Delivery dates are always considered to be approximate and non-binding. In exceptional circumstances, such as force majeure etc., the delivery period shall be extended accordingly and shall entitle us to completely or partially rescind the contract. A claim for damages due to delayed delivery is not provided for even after a grace period. The risk of loss or damage to the goods ordered shall pass to the customer upon shipment even if partial deliveries are made. Insurance will only be taken out at the express request and at the expense of the purchaser. If no explicit delivery instructions have been specified, we shall determine the routes and means of shipping. The failure to meet delivery deadlines does not relieve the contractual partner of his acceptance obligations.
- If the Buyer refuses acceptance of the delivery item without reason, we shall provide a written extension of 8 days for the Buyer. An extension is not required if the Buyer finally and irrevocably refuses acceptance. Any damages claimed will be at an amount equal to 15% of the purchase price. The amount of the damages claim can be set at a higher or lower amount if we can prove a higher amount of damage or the Buyer can prove a lower amount of damage.
IV Payments, Late Payments and Offsetting
- Unless otherwise confirmed by us, the purchase price and prices for additional services are due upon delivery of the item purchased and delivery or transmission of the invoice.
- Deduction of discounts requires a special written agreement.
- The buyer may only offset counterclaims against the Seller if such counterclaims of the Buyer are indisputable or a legal entitlement exists. A right of retention may only be asserted if it is based on claims from the Purchase Contract.
- Representatives or other employees are not authorized to collect payments. Any payment(s) made to these persons therefore do not release the Buyer from their payment obligation towards us.
- If payments are in default, we shall charge default interest which is at least more than the respective Bundesbank discount rate. As of January 1, 1999 the so-called base rate replaced the Bundesbank discount rate, which will in turn be replaced after a three-year transitional period by a rate as yet to be defined by the legislators.
- If the buyer is in default on partial payments as agreed with two consecutive instalments, we may set a period of 14 days for the Buyer by stating that we reject the Buyer’s fulfillment of the contract after this period, notwithstanding our rights under section VI. After the expiry of this period, we are entitled to terminate the Contract by written notice or to demand damages for non-performance. If we choose to claim damages for default, Section III 2 Sentences 4 + 5 apply accordingly.
- If partial payments are agreed upon, the entire remaining debt, regardless of the maturity of any changes, becomes due immediately if
a.) the purchaser is not entered in the Commercial Register, is in default with a minimum of 2 consecutive instalments wholly or partly, and the amount of which he is in default amounts to at least 1/10 of the total purchase price; and/or
b.) the Buyer who is registered as a merchant in the Commercial Register is in arrears by 14 days, has stopped making payments or bankruptcy or insolvency proceedings have been filed against their assets.
V Transfer of Risk
- The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon handing over the goods.
- In the event that the Buyer is not a consumer, the risk shall pass to the Buyer upon shipping the goods to the Buyer, when the goods are handed over to the shipper, or when the goods have left the Seller’s warehouse for the purpose of shipping.
VI Liability for Material Defects
- The period of limitation for newly manufactured goods is 1 year, if the Buyer is not a consumer. Otherwise, a statutory period of limitation of 2 years applies. For used goods, the limitation period is 1 year. If the Buyer is not a consumer, the sale of used goods shall exclude any liability for defects.
- The Buyer’s entitlement for rectification of faults are primarily limited to a claim to remedy, in other words, repair or replacement of the item. Insofar as the Buyer is not a consumer, the Seller has the option to repair or replace the item. In case of failure of the repair or replacement, the Buyer may claim a reduction in price or rescission of the Contract. The rectification has failed if and when a deadline set by the Seller for subsequent corrective performance has elapsed without a result. The conditions for exercising the right of rescission shall be governed by § 323 BGB.
- The seller is liable under the statutory provisions if the Buyer makes a claim for damages based on malice, intent or gross negligence.
If no intentional breach of contract on the part of the Seller can be detected, his liability is limited to foreseeable, typically occurring damage. If the claim for damages is based on culpable neglect or correction of faults, it is limited in terms of installation and removal costs to the amount of the corresponding rates of the DAT / Schwacke list. Otherwise, liability for damages is excluded. The Seller is, in particular, not liable for damages which have not occurred on the delivered item.
- The Buyer must submit claims for rectification of faults to the Seller.
- In the event of a defect based on erroneous assembly instructions, the Seller’s liability for material defects exists only if the assembly or installation of the sold goods were otherwise carried out competently. The Buyer must demonstrate and prove its competent execution.
VII Retention of Title
- We reserve the right to retain title to the delivered items until receipt of all payments in accordance with the respective delivery contract. If the Buyer is a businessman or a legal person under public law, the retention of title also applies to claims we have from our current business relationship with the Buyer (including all current accounts receivable and current accounts).
- Connection, processing, remodeling, etc., of the delivered items shall be effected for us as the Seller, but without obligation to us. If our (co-)ownership thereby expires, it is hereby agreed that the Buyer’s (co-)ownership of the overall item passes to us at a proportional value (invoice value). The Buyer shall store our (joint) property free of charge. Goods to which we have (co-)ownership are hereinafter referred to as reserved goods.
- The Buyer is obligated to inform his customers of our retention of title. The Buyer may sell or process our delivered reserved goods only in ordinary business transactions. If the retention of title expires for reasons other than as stated in Section VI. 2. (processing, connection, remodeling, and such), in particular through resale, etc., any of the Buyer’s collectibles, ancillary rights, and guarantees from the resale, processing, etc., take the place of the retention of title. Ancillary rights and collateral are assigned to us in a such a case.
- Until all claims (including all unsettled balances from checking accounts, as well as current invoices), have been paid to which we are entitled from the respective Purchase Contract, or if the Buyer is a legal entity under public law or a merchant, from our ongoing business relationship with the Buyer; the above-mentioned collaterals are granted to us, which we will release upon request at our discretion, insofar as their value exceeds the claim by more than 20%.
- The Buyer is entitled to collect the claims assigned to us at any time for us until our revocation. These amounts are to be transferred to us immediately. If the Buyer defaults, this collection authorization will be canceled without revocation. If the Buyer has agreed on assignment prohibitions with third parties, we are to be immediately informed of such in writing.
- The buyer may neither pledge the delivered item nor assign it as a collateral. He must notify us immediately in case of garnishment, confiscation or other orders by third parties.
- If the Buyer is in default or fails to fulfill his obligations with regard to the retention of title, we can demand return of the delivered item from the Buyer and after a written notification stating a reasonable time period, taking into account the proceeds to the purchase price, sell it ourselves as best as possible. Such a return of goods constitutes a rescission for Contracts with installment payment transactions, unless the Buyer is registered as a merchant in the Commercial Register.
- If we demand return of the delivered item, the Buyer is to hand over the delivered item to us immediately to the exclusion of any rights of retention, unless they are based on the delay of delivery obligation. In the event of a default in payment, the Buyer authorizes us hereby irrevocably to collect the reserved goods immediately and to freely enter his business and storage premises for this purpose. All costs incurred from the return and utilization of the delivered item shall be borne by the Buyer. The utilization costs without evidence are set at 10% of the proceeds including sales tax. They are to be set higher or lower if we can prove higher costs or lower if the Buyer can prove lower costs. The proceeds will be applied to the Buyer’s account with us after deduction of the costs and other claims from the contract.
VIII Return of Goods
Goods which have been delivered according to the order cannot be returned. In exceptional cases that require our explicit consent, we are ready to accept such returned goods; however, when issuing a credit note at least 10% of the value will be deducted as a restocking fee. The prerequisite for granting credit is that the goods are in perfect, saleable condition and in their original packaging, it is returned not later than 8 days after delivery, and the delivery slip or invoice number is indicated. Special purchases are generally excluded from return.
IX Jurisdiction – Place of Fulfillment
- The place of fulfillment is the place of business of the Seller.
- To the extent that the Seller is a merchant according to the HGB (German Commercial Code), a legal entity under public law or special asset under public law, the jurisdiction is the place of business of the Seller.
Walsrode, July 2018, Wald Antriebe GmbH, Hanns-Hoerbiger-Strasse 1, 29664 Walsrode, Germany