General Terms And Conditions
§ 1 Scope of application
(1) These General Terms and Conditions of Business apply to all business relations between Weinmann GmbH - Trend Pool Division, Frankenstrasse. 6, 63776 Mömbris, Germany (hereinafter referred to as the User) and its customers (hereinafter referred to as the Customer), in the respective version current at the time of conclusion of the contract. The User shall only recognise terms and conditions of the Customer that conflict with or deviate from these provisions if the User expressly agrees to their validity in writing.
(2) These General Terms and Conditions apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (hereinafter referred to as BGB). Accordingly, the offer of the user is only directed to this group of persons.
§ 2 Formation of the contract
(1) The offers of the User are subject to change and non-binding. This also applies if catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - are provided to the Customer, for which the User reserves the property rights and copyrights.
(2) An order placed in writing or by telephone shall be regarded by the User as an offer pursuant to § 145 BGB, which the User may accept within two weeks. Acceptance by the User may be declared either in writing (e.g. by order confirmation), by fax or by delivering the goods to the Customer. Should the User's declaration of acceptance differ from the offer in terms of content, this shall not constitute a contract, but shall constitute a new offer in accordance with § 150, para. 2 BGB.
(3) The legal relationship between the User and the Customer shall be governed solely by the sales contract concluded at least in writing and including the General Terms and Conditions. This contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises made by the User prior to the conclusion of this contract are not legally binding and verbal agreements between the contracting parties are replaced by the contract unless it is expressly stated in each case that they continue to be binding.
(4) Information provided by the User on the purchased item (e.g. weights, dimensions, utility values, tolerances and technical data), as well as representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires an exact match. They are not guaranteed quality features, but descriptions or markings of the purchased item. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components with equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
§ 3 Delivery, shipping costs, online invoice
(1) The User is entitled to make partial deliveries and render partial services at any time, provided that these are reasonable for the Customer. If partial deliveries are made by the User, the User shall bear the additional postage costs.
(2) Information on the expected delivery period is non-binding unless the User has given the Customer a binding commitment in writing in an individual case.
(3) The User may - without prejudice to its rights arising from default on the part of the Customer - demand from the Customer an extension of the delivery and performance deadlines or a postponement of the delivery and performance deadlines by the period of time during which the Customer does not properly fulfil its contractual obligations towards the User.
(4) If the User is unable to deliver the ordered goods through no fault of its own because the User's supplier does not fulfil its contractual obligations, the User shall be entitled to withdraw from the contract with the Customer. However, this right of withdrawal shall only exist if the User has concluded a congruent covering transaction (binding, timely and sufficient order of the goods) with the supplier concerned and is not otherwise responsible for the non-delivery of the goods. In such a case, the User shall immediately inform the Customer that the ordered goods are not available. Any consideration already paid by the Customer will be refunded immediately.
(5) If the User is prevented from fulfilling its delivery obligations due to the occurrence of unforeseen events, e.g. war, natural disasters, strikes, and force majeure affecting the User or its suppliers, and the User was unable to avert these even with reasonable care under the circumstances, the delivery period shall be extended accordingly. The User shall also inform the Customer of this without delay. The Customer’s legal claims remain unaffected by this.
(6) The shipping costs shall be borne by the Customer. The costs are determined according to the respective shipping method selected and are stated separately in the contract.
(7) The Customer shall receive an invoice as a PDF document via the e-mail inbox specified by the Customer in the context of the order. If the Customer wishes to receive an invoice in paper form, he must indicate this separately when placing the order. For sending an invoice in paper form, the User shall charge a processing fee of 1.45 euros plus the currently applicable statutory value-added tax of 19 percent (applies to orders invoiced under a German address).
§ 4 Transfer of risk in the case of sale by delivery to a place other than the place of performance
(1) If the goods are shipped to the Customer at the Customer's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer when the goods are handed over to the forwarding agent or carrier. This applies irrespective of whether the goods are shipped from the place of performance or who bears the freight costs, or whether the User has assumed other services.
(2) If the dispatch or handover is delayed as a result of a circumstance, the cause of which lies with the Customer, the risk shall pass to the Customer from the day on which the goods are ready for dispatch and the User has notified the customer of this.
(3) If the Customer is in default of acceptance, fails to cooperate or if the delivery is delayed for other reasons for which the Customer is responsible, the User is entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, the User shall charge a lump-sum compensation in the amount of 0.5% of the net price (delivery value) per calendar day, beginning with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for dispatch. The proof of higher damages and statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; the lump sum shall be offset against further monetary claims of the User. The Customer shall be entitled to prove that no damage at all or only significantly less damage than the aforementioned lump sum has been incurred.
§ 5 Reservation of ownership
(1) The User retains ownership of the goods until receipt of all payments from the purchase contract (goods subject to retention of title). The Customer must inform the proprietor immediately in writing of all access by third parties, in particular of compulsory execution measures and other impairments to its property. The Customer shall compensate the User for all damages and costs arising from a breach of this obligation and from necessary intervention measures against access by third parties. If the Customer behaves in breach of contract, in particular if the Customer does not meet its payment obligation despite a reminder from the User, the User may, after setting a reasonable deadline in advance, withdraw from the contract and demand the return of the goods still in its ownership. The taking back of the goods or seizure by the User shall constitute a withdrawal from the contract. The shipping costs incurred shall be borne by the Customer. The User shall be entitled to realise the goods after they have been returned. The proceeds of the realisation shall be credited against the Customer's liabilities, less reasonable realisation costs.
(2) The Customer is entitled to resell the reserved goods in the normal course of business. The Customer already now assigns the claims of the Customer from the resale of the reserved goods to the user in the amount of the invoice amount agreed with him (including value added tax). This assignment is already now accepted by the User. This assignment shall apply irrespective of whether the item has been resold without or after processing. The Customer remains authorised to collect the claim even after the assignment. The authority of the User to collect the claims himself remains unaffected. However, he undertakes not to collect the claims as long as the Customer meets his payment obligations from the collected proceeds, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
(3) The User undertakes to release the securities to which he is entitled at the request of the Customer insofar as their value exceeds the claims to be secured by more than 20%.
(4) The processing of the object of sale by the Customer shall always be in the name and on behalf of the User. In this case, the Customer's expectant right to the object of sale shall continue in the transformed object. If the object of sale is processed with other objects not belonging to the User, the Customer shall acquire co-ownership of the new object in the ratio of the objective value of the object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the Customer's item is to be regarded as the main item, it shall be deemed to be agreed that the Customer transfers proportional co-ownership to the User and keeps the sole ownership or co-ownership thus created for the User. The Customer shall assign to the proprietor such claims as accrue to the proprietor through the connection of the reserved goods with a third party's property. The User accepts this assignment upon conclusion of the contract.
§ 6 Prices, payment, set-off
(1) Unless otherwise agreed in individual cases, the prices valid at the time of the conclusion of the contract shall apply, ex warehouse, plus statutory value added tax. Any customs duties, fees, taxes and other public charges shall be borne by the Customer.
(2) Payment of the purchase price shall be made exclusively to the account specified in the order confirmation or by the User. The deduction of a discount is only permissible with a special written agreement. Otherwise, payments are to be made in the full amount of the invoice without deduction.
(3) The purchase price is due upon conclusion of the contract.
(4) The User's claims can only be offset against a claim of the Customer that is undisputed by the user or has been legally established.
(5) The User shall be entitled to make or provide outstanding deliveries only against advance payment or the provision of security if, after the conclusion of the contract, it becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the Customer and as a result of which the payment of the User's outstanding claims by the Customer arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies) is jeopardised.
§ 7 Liability for defects
(1) Warranty rights of the Customer require that he has fulfilled his obligation to inspect and give notice of defects in accordance with § 377 of the HGB (German Commercial Code) in writing and without delay.
(2) The User shall be liable for defects existing at the time of the transfer of risk for a warranty period of twelve months. The User has the right to choose the type of supplementary performance (removal of the defect or new delivery of the purchased item). The supplementary performance does not include the removal of the defective item or the re-installation if the user was not originally obliged to install it. The expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs (not: removal and installation costs), shall be borne by the User if there is actually a defect for which the User is responsible. However, if a request by the Customer to remedy a defect turns out to be unjustified, the User may demand reimbursement of the costs incurred from the Customer.
(3) The User shall not be liable for defects caused by natural wear and tear, normal wear and tear, improper use, maintenance errors, unsuitable operating materials, excessive stress and negligent behaviour on the part of the Customer, as well as fire, lightning or explosion.
(4) Liability for defects is excluded in the event of only insignificant deviation from the agreed quality or only insignificant impairment of usability.
(5) Damage to the purchased item caused by its improper use does not constitute a material defect. In this regard, it is mandatory to refer to the product description of the respective product. If the User has declared a guarantee for this product in his own name, this guarantee shall not apply in the aforementioned case.
(6) Any delivery of used items agreed with the Customer in individual cases shall be made to the exclusion of any warranty for material defects.
§ 8 Liability
(1) The User shall be liable without limitation for damage caused intentionally or by gross negligence, in the event of fraudulent concealment of defects, in the event of the assumption of a guarantee of quality and for bodily injury.
(2) The User shall only be liable for other damage caused by simple negligence if an obligation is breached, compliance with which is of particular importance for achieving the purpose of the contract (cardinal obligation) and if the damage is typical and foreseeable due to the contractual use of the goods. Insofar as the liability of the User is excluded or limited, this shall also apply to the personal liability of the employees, representatives and vicarious agents of the User.
(3) Liability under the Product Liability Act remains unaffected.
(4) Insofar as the User provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by the User, this shall be done free of charge and to the exclusion of any liability.
§ 9 Statute of limitation
(1) Notwithstanding Section 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as an acceptance has been agreed, the limitation period shall commence with the acceptance.
(2) If, however, the goods are a building or an object which has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory regulation (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1,71 para. 3, § 444, 445b72 BGB) shall also remain unaffected.
(3) The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the Customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, damage claims by the Customer pursuant to § 8 para. 1 and pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
§ 10 Final provisions
(1) The legal relationship between the parties shall be governed by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) If the Customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from this contract shall be the registered office of the user.
(3) Should individual provisions of these terms and conditions be/become ineffective or contain a loophole, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a legally permissible provision that comes as close as possible to the economic purpose of the invalid provision or fills this gap.