General Terms and Conditions of the Gerhard Weber Kunststoff-Verarbeitung GmbH (as of: 25.11.2019)
§ 1 General
The Terms and Conditions shall apply for all present and future business relationships. Any opposing General Terms and Conditions of customers, suppliers or other business partners shall, provided that they oppose these Terms and Conditions, be non-binding for us. We hereby reject any modifications of these Terms and Conditions – particularly any deviations or supplemental Terms and Conditions of the contractual partners. Any silence on our part with regard to orders or confirmations from customers, suppliers or other business partners, which refer to deviating or supplemental Terms and Conditions, shall not be regarded as an approval. Such Terms and Conditions shall also not be valid for us during the implementation of the contract. Rather, the contractual partner shall accept our General Terms and Conditions upon the implementation of the contract.
§ 2 Offers and Prices
(1) Our offers shall be without obligation and non-binding. This shall also apply if we have sent catalogues, technical documentation (e.g. drawings, plans, computations, calculations and references to DIN norms), other product descriptions or documents – including in electronic form – to the contractual partner to which we reserve our property rights and copyrights. The respective offer shall not include all supplemental services which are rendered by us due to subsequent changes to the order such as, for example, changed construction plans, sketches, designs, materials, etc. and these shall be charged separately. In the absence of other agreements, such separate services shall be determined on the basis of standard prices. The indicated prices do not include the statutory VAT ex works excluding packaging, loading costs, customs duties and transport insurance. All assignments and orders issued by us shall only become valid after we have confirmed them in text form. The ordering of goods by the customer is considered a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within five working days of its receipt. The acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the customer.
(2) Our order shall be binding at the earliest upon written submission or confirmation. For obvious errors (e.g. typing errors and miscalculations) and incompleteness of the order, including the order documents, the supplier must inform us before acceptance for the purpose of correction or completion; otherwise the contract is considered not concluded. The supplier is obliged to confirm our order in writing within a period of three working days or in particular to carry it out unreservedly by sending the goods (acceptance). A late acceptance is considered a new offer and requires acceptance by us.
(3) The contractual partner agrees that we obtain information about his creditworthiness and solvency from credit insurance providers and credit agencies. After the confirmation of the order and/or in the event that the implementation of the delivery/service has already begun, we reserve a right of rescission from the contract, if credit information becomes available which casts doubt on the contractual partner´s solvency.
(4) Insofar as the order amount exceeds a gross amount of € 50,000.00, the contractual partner shall, upon our request, make an advance payment of 40 % of the order amount.
(5) We expressly reserve the right, in the framework of customary deviations and quality tolerances, to make technical modifications which become necessary due to the redrafting of statutory directives, the conversion of the production process, the detailed renovation of buildings or due to requirements prescribed by the structural engineer.
§ 3 Delivery Periods
(1) Delivery deadlines and delivery periods can be agreed upon in a binding or a non-binding manner. A binding agreement requires the text form upon the conclusion of the contract. The delivery address shall also be specified in text form upon conclusion of the contract.
(2) If we are not able to comply with binding delivery periods for reasons for which we are not responsible (unavailability of the service), we will inform the customer about this immediately and inform him about the expected new delivery period. If the service is also not available within this new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any payments already made by the customer. Cases of the unavailability of the service in this sense shall include in particular the delayed self-delivery by our suppliers, if we have concluded a congruent hedging transaction, if neither we nor our suppliers are responsible for the delayed self-delivery or if we are not obliged to procure the products in individual cases.
(3) If an assignment or an order prescribes the rendering of services in definable and verifiable partial services (e.g. manufacturing, delivery, assembly), we are entitled to render partial services. We are also entitled to have the order implemented by third-party companies.
(4) If the contractual partner is in default of acceptance or we are in default of delivery, if the contractual partner fails to act in cooperation or if the delivery is delayed for other reasons for which the contractual partner is responsible, we are entitled to demand compensation for the damages resulting from this delay including additional expenses (e.g. storage costs). A lump-sum compensation amounting to 0.5 % per calendar week can be charged for this, commencing with the delivery period or – in the absence of a delivery period – with the notification that the goods are ready for shipment, but max. 5 % of the price. In the event of final non-acceptance, a lump-sum compensation amounting to 10 % of the agreed price can be charged. The proof of higher damages and legal claims (in particular, compensation for additional costs, reasonable compensation, termination) shall remain unaffected by this; the lump sum, however, shall be offset against further monetary claims. The contractual partner shall remain entitled to proof that we did not suffer any damages at all or only substantially less damages than the aforementioned lump sum.
§ 4 Shipping/Delivery Acceptance
(1) The shipping shall be performed at the expense and risk of the contractual partner as soon as the goods have left our storage/ production site and without taking into consideration who assumes the freight costs. We are entitled to choose the shipping method and shipping route. If the transport is subject to certain guidelines (e.g. temperature guidelines) and cannot be complied with for reasons beyond our control (e.g. weather conditions), we may withhold transport until compliance with the guidelines is possible; we are not in default of delivery for that long.
(2) Deliveries without assembly services free construction or usage site shall be made without our unloading the goods. In these cases, the unloading period must be kept appropriately short based upon the scope of delivery.
(3) A formal acceptance of the delivery/service shall only take place if this is requested by one of the contractual parties within 3 working days after the receipt of the delivery/service at the latest. If no delivery acceptance is requested within 3 working days, the work product which can be accepted and is ready for acceptance shall be considered to have been accepted upon the expiration of 12 days after its receipt unless the contractual partner has expressly declared his refusal of acceptance. If the contractual partner is not an entrepreneur, we shall be obliged to notify the contractual partner of the declaration of acceptance which is triggered through his silence. In the event of any type of intended use, acceptance shall be considered to have been made after the expiration of 6 working days after the beginning of the use.
(4) If an assignment or an order prescribes the rendering of services in definable and verifiable partial services (e.g. manufacturing, delivery, assembly), we are entitled, with regard to such partial services after notification of their completion in text form, to request their acceptance or to make such partial deliveries available for acceptance. Otherwise, in these cases, with regard to partial services, the same shall be regulated as with regard to the acceptance of the overall work product in paragraph 4.3 of these General Terms and Conditions.
§ 5 Payment Conditions
(1) The invoice amount shall become due and must be paid within 10 days after invoicing and delivery/rendering of the service and/or acceptance of the goods. An advance payment according to § 2 par. 4 shall become due and must be paid within 10 days after invoicing. The contractual partner shall automatically be considered to be in default of payment after the expiration of the payment or advance payment period.
(2) Any discounts which are granted must be agreed upon in text form and shall require that there are no other payment claims from due invoices against the contractual partner. Only the pure value of the goods including VAT shall be discountable.
(3) In case of non-compliance with the payment conditions or if, after the conclusion of the contract, circumstances become known which are suitable for casting doubt on the contractual partner´s credit worthiness, all our payment claims shall immediately become payable regardless of the duration. In this case, we are entitled to implement any additional deliveries only against advance payment.
(4) The customer is only entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the case of defects in the delivery, the counter-rights of the purchaser remain unaffected, in particular pursuant to § 6 par. 4 sentence 3 of these General Terms and Conditions.
§ 6 Claims for Defects
(1) Unless otherwise agreed upon in the following, the statutory provisions shall apply for the rights in case of material defects and defects of title (including incorrect or short delivery as well as improper assembly or faulty assembly instructions). Claims of recourse against the supplier are excluded, if the defective product was further processed, e.g. by installation in another product, by the customer or by another entrepreneur.
(2) The basis of the liability for defects is particularly the agreement concluded with regard to the quality of the goods. If the quality was not agreed upon, it shall be assessed according to the statutory regulation if a defect exists or not. We assume no liability for public statements by the manufacturer or by other third parties (e.g. advertising statements).
(3) The claims for defects require that the legal inspection and complaint obligations have been complied with. If a defect is detected during the delivery, inspection or at any later point in time, this shall be notified immediately in text form. In any case, obvious defects shall be notified in text form within 5 working days after delivery and defects which were not detectable during the investigation shall be notified in text form within the same period after the detection.
(4) If the goods delivered by us are defective, we may initially choose whether we render subsequent performance by eliminating the defect (rectification) or through the delivery of flawless goods (replacement delivery). We are entitled to make the owed subsequent performance dependent on the condition that the customer has paid the due price. However, the customer is entitled to withhold an appropriate portion of the price based on the scope of the defect. The customer shall grant us the time necessary for the owed subsequent performance and the opportunity to particularly transfer the goods complaint about for inspection purposes. In case of the replacement delivery, the customer shall return the defective goods to us according to the statutory provisions. The subsequent performance neither includes the disassembly of the defective goods nor the reinstallation if we were not obliged to install the goods in the first place. We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs as well as disassembly and installation costs according to the statutory provisions if there really is a defect. Otherwise, we are entitled to request the customer to reimburse the costs incurred by the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable for the customer. In urgent cases, e.g. if the operational safety is endangered or for the prevention of disproportionate damages, the customer is entitled to remedy the defect himself and to request us to reimburse the expenses objectively necessary for this purpose. The customer shall inform us immediately, if possible beforehand, about such a remedy by the customer. The customer´s right to remedy defects shall not apply if we would be entitled to refuse a respective subsequent performance according to the statutory provisions. If the subsequent performance failed or if a reasonable period for the subsequent performance to be determined by the customer has expired without success or if the subsequent performance is unnecessary according to the statutory provisions, the customer can reduce the price or in the case of a substantial deficiency alternatively also withdraw from the contract. The customer´s claims for compensation of damages or compensation for fruitless expenses shall, also in case of defects, only exist according to § 7 and are excluded in all other cases. Apart from this, we shall be entitled to reduce the price or to withdraw from the contract in case of a material defect or a defect in title according to the statutory provisions. Furthermore, we are entitled to receive compensation for damages and expenses according to the statutory provisions.
(5) The following shall apply if the goods delivered to us are defective: The supplier shall bear the expenses necessary for the purpose of inspection and subsequent performance, even if it becomes apparent that there actually did not exist any defect. Our liability for damages in case of unjustified requests to remedy a defect shall remain unaffected; in this case, however, we shall only be liable if we recognised or were grossly negligent in failing to recognise that there actually was no defect. The following shall apply without prejudice to our legal rights and to the above-mentioned regulations of this paragraph: If the supplier does not comply with his obligation for subsequent performance - at our choice by remedying the defect (rectification) or through the delivery of flawless goods (replacement delivery) - within a reasonable time set by us, we shall be entitled to remedy the defect ourselves and demand compensation for the expenses necessary for this or an appropriate advance payment from the supplier. If the subsequent performance by the supplier failed or is unacceptable for us (e.g. due to particular urgency, endangerment of the operational safety or impending occurrence of disproportionate damages) there shall be no need to set a deadline; we will inform the seller about such circumstances immediately, if possible beforehand.
§ 7 Recourse against Suppliers
(1) In addition to the claims for defects, we shall have unrestricted entitlement to our legally determined rights of recourse within a supply chain (recourse against suppliers according to §§ 445a, 445b, 478 BGB (German Civil Code)). The purchaser is entitled to request the supplier to perform precisely the type of subsequent performance (rectification or replacement delivery) which the purchaser owes to his customer in individual cases. The statutory right to choose of the supplier (§ 439 par. 1 BGB) shall not be restricted by this.
(2) Before the purchaser accepts or fulfils a claim for defects asserted by his customer (including compensation for expenses according to §§ 445a par. 1, 439 par. 2 and 3 BGB), the purchaser shall inform the supplier and, giving a brief account of the facts, shall ask him to give a written statement. If a substantiate statement is not given within a reasonable period and if no amicable solution is found, the claim for defects actually granted by the purchaser shall be considered as owed to his customer. In this case, the supplier is subject to the obligation to proof the contrary.
(3) The claims of the purchaser from recourses against suppliers shall also apply if the defective goods have been further processed by the purchaser or by another entrepreneur, e.g. by installation in another product.
§ 8 Manufacturer Liability
(1) If the supplier is responsible for a product damage, he has to indemnify us against claims from third parties provided that their origin falls within the seller´s domain and organisation and provided that the seller is personally liable to third parties.
(2) Under his obligation to indemnify, the supplier must reimburse any expenses according to §§ 683, 670 BGB that arise from or in connection with any recourse taken by third parties including for recall campaigns carried out by us. We will inform the supplier of the content and scope of the recall measures - to the extent possible and reasonable - and give him opportunity for a statement. Further legal claims shall remain unaffected.
(3) The supplier shall take out and maintain a product liability insurance granting a lump-sum coverage of at least 5 million EUR per case of personal injury/property damage, which also includes the disassembly and installation costs in the frame of warranty.
§ 9 Other Liability
(1) We assume liability for compensation of damages – irrespective of the legal basis – in the frame of fault-based liability in case of intent and gross negligence. In case of minor negligence, we shall only be liable subject to a mitigating standard of liability according to the legal provisions (e.g. for diligence in our own affairs) for
a) damages resulting from the destruction of life, personal injury or health damages,
b) damages resulting from the significant breach of an essential contractual obligation (obligation the fulfilment of which enables proper implementation of the contract in the first place and on the fulfilment of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to the compensation of the foreseeable, typically occurring damage.
(2) The limitations of liability resulting from par. 1 shall also apply in case of breaches of duties by or in favour of persons, for which we are responsible according to the statutory provisions. These limitations shall not apply if we have deceitfully concealed a defect or if we have assumed a warranty for the quality of the goods and for claims by the customer according to the product liability law.
(3) The customer can only withdraw from or terminate the contract due to a breach of an obligation which is not attributable to a defect, even if we are responsible for such a breach. A free right of termination of the customer (in particular according to §§ 651, 649 BGB) is excluded. Otherwise the statutory requirements and legal consequences shall apply.
§ 10 Confidentiality and Design Protection
(1) We reserve all property rights and copyrights to illustrations, plans, drawings, calculations, executive instructions, product descriptions and other documents. Such documents may exclusively be used for the contractual performance and shall be returned to us after the completion of the contract. The documents must not be disclosed to third parties during the term of the contract or after the termination thereof. The obligation of confidentiality expires if and to the extent that the information included in the provided documents has become generally known.
(2) The above provision shall apply accordingly for substances and materials (e.g. software, finished products and semi-finished products) as well as for tools, models, samples and other objects we provided to the supplier for production. Such objects shall be – unless they are processed – stored separately and insured against loss and destruction to an appropriate extent at the supplier´s expense.
§ 11 Data Protection
(1) The contractual partner has been instructed and expressly accepts that we store and process the data we collect in connection with the contract and its implementation in order to fulfil the contract according to the provisions of the BDSG (German Data Protection Act), the TMG (German Telemedia Services Act) and the TKG (German Telecommunications Act) to the extent this is required and purposeful for the implementation of the contract.
(2) The contractual partner has been instructed and also accepts that we may disseminate the collected data and the received information within all the companies which are part of our group of companies.
(3) Otherwise, the data obtained shall be subject to the strictest level of confidentiality and may not be transferred to third parties which are not part of our group of companies.
§ 12 Reservation of Ownership
(1) We reserve the right to the property of the delivered goods until the full payment of all of our current and future claims from the contract and a current business relationship (secured claims).
(2) The goods subject to reservation of ownership may neither be pledged to third parties, nor assigned as security before the full payment of the secured claims. The customer shall inform us immediately in writing if an application has been filed for the opening of insolvency proceedings or if third parties gain access (e.g. seizure) to goods which belong to us.
(3) If the customer acts in breach of the contract, in particular in case of non-payment of the due price we are entitled to withdraw from the contract according to the statutory regulations and/or to request that the goods are returned due to the reservation of ownership. Any demand for the return of goods shall not be deemed to include a simultaneous declaration of withdrawal; on the contrary, we are entitled to demand solely the return of the goods and reserve the right to withdraw from the contract. If the customer does not pay the due price, we may assert these rights only if we have first set the customer an appropriate grace period for payment, and such grace period has elapsed without payment being made, or where the setting of any such grace period is not required by law.
(4) Until further notice according to (c), the customer is entitled to resell and/or process the reserved goods during the course of ordinary business dealings. In this case, the following supplemental provisions shall be valid.
(a) The reservation of ownership shall extend to the products created by the processing, mixing or combination of our goods at their full value whereby we shall be considered to be the manufacturer. If, during the processing, mixing or combination with third-party goods, their third-party ownership rights remain valid, we shall acquire co-ownership based upon the proportional value of the invoice value of the goods being processed, mixed or combined. Otherwise, the same shall apply for the created products as for the goods supplied under the reservation of ownership.
(b) The customer hereby now already assigns the claims against third parties resulting from the resale of the goods or product in total or in the amount of our possible co-ownership share to us as security according to the aforementioned paragraph. We hereby accept such assignment. The customer´s obligations which are specified in paragraph 2 shall also apply for the assigned claims.
(c) In addition to us, the customer shall remain authorised to collect the payment claim. We undertake not to collect the payment claims as long as the customer meets his payment obligations towards us, there is no deficiency in his financial capability and we do not assert the reservation of ownership by exercising a right according to paragraph 3. However, if this is the case, we may demand that the customer allows us to collect the assigned claims and discloses the parties to us who owe such claims, provides all data which are required for debt collection purposes, hands over the related documents and notifies the debtors (third parties) of such assignment. In this case, we are also entitled to revoke the authorisation of the customer to resell and process the reserved goods.
(d) If the realisable value of the securities exceeds our claims by more than 10 % we shall, upon request of the customer, release securities at our choice.
(5) A processing, mixing or combination (further processing) of provided objects shall be carried out for us by our suppliers. The same shall apply for the further processing of the supplied goods by us, so that we are considered to be the manufacturer and acquire the ownership of the product upon further processing according to the statutory provisions at the latest.
(6) Our supplier shall transfer the goods to us unconditionally and regardless of whether the purchase price has been paid. However, if we accept in individual cases a transfer offer by the supplier which is subject to the payment of the price, the supplier´s reservation of ownership shall cease to apply upon payment of the price for the delivered goods at the latest. In proper business dealings, we shall remain entitled to resell the goods while assigning the resulting claims in advance even prior to the payment of the price (alternative application of the simple reservation of ownership and the reservation of ownership extended to resale). All other forms of the reservation of ownership, in particular the amplified and the forwarded reservation of ownership and the reservation of ownership extended to resale, shall be excluded in any case.
§ 13 Note according to § 36 VSBG (German Consumer Dispute Resolution Act)
We will not participate in dispute resolution proceedings before a Consumer Arbitration Board according to VSBG and are also not obliged to do so.
§ 14 Applicable Law, Place of Performance, Legal Venue
(1) German Law shall be valid exclusively, including the United Nations Convention on Contracts for the International Sale of Goods.
(2) The place of performance shall always be the location of our commercial branch office.
(3) If the contractual partner has no general legal venue in Germany or is a registered merchant, the following shall apply: The exclusive legal venue for all disputes arising from this contract shall be our registered office.