General Terms and Conditions (GTC) of Wegener Stahlservice KG in Ahaus
Our GTC shall apply exclusively. We do not recognise any conflicting or deviating terms and conditions of our contractual partner unless we have expressly agreed to their validity.
All our offers are subject to change and are non-binding. Contracts are only concluded when they have been confirmed by us in writing. These General Terms and Conditions are always binding for the customer, never his own.
2. Scope and delivery
We shall not be liable for damages resulting from exceeding a delivery period, irrespective of the reason for which the delivery period was exceeded. Drawings, cost estimates and other documents handed over to the customer remain our property. Our copyright remains in force in all cases and does not pass to the customer even upon delivery of the goods. Circumstances which make the production, delivery and assembly of sold goods impossible, cases of force majeure and operational disruptions release us from the obligation to deliver and assemble, without this giving rise to any claims of the customer. The customer guarantees that the production documents provided by him do not violate the industrial property rights of third parties. If claims are asserted against us by third parties due to infringement of these industrial property rights, the customer undertakes to indemnify us against these claims, including legal costs and other expenses. Significant deterioration in the financial situation of the customer after conclusion of the contract shall entitle us to withdraw from the contract at any time, as shall any arrears of the customer from previous transactions. In this case, claims not yet due from previous transactions shall also become due immediately. If the customer does not accept the goods sent or offered to him, we may withdraw from the contract without setting a grace period. The customer shall then be obliged to pay us damages, at least in the amount of 15% of the agreed price, whereby we are not required to provide proof of damage up to this amount. However, the claim for damages shall be set higher if we can prove a higher damage or lower if our contractual partner can prove a lower damage.
3. Dispatch and notification of defects
Unless expressly agreed otherwise in writing, dispatch shall always be effected by the most favourable means of transport, in all cases at the risk of the customer, even in the case of carriage paid delivery. Transport insurance shall only be taken out if expressly agreed in writing, the costs of which shall also be borne by the customer. The risk shall pass to the customer at the latest when the goods are dispatched, in the event of a delay in dispatch due to the conduct of the customer, upon readiness for dispatch. All information on suitability, DIN standards, processing and application of our products, technical advice and other information are given to the best of our knowledge, but do not release the customer from the obligation to carry out his own tests and trials, in particular mechanical and chemical analyses. The customer must inspect the delivered goods without delay upon receipt – if reasonable also by sample processing – for defects with regard to condition and purpose of use, otherwise the goods shall be deemed to have been approved. Defects must be notified in writing, namely so-called "obvious defects" within two weeks of receipt of the goods by the customer or, in the case of assembly work, after notification of completion, so-called "hidden defects" within one week of discovery of the defect. Notices of defects not received in due time and form shall not be taken into account. Liability for so-called "hidden defects" shall be excluded upon expiry of a period corresponding to the duration of the relevant limitation period of the statutory warranty claims; the period shall commence without regard to the customer's knowledge or grossly negligent lack of knowledge of his claim upon receipt of the goods by the customer or, in the case of assembly work, upon receipt of the notification of completion. In the event of justified notices of defects, we will either repair the goods or deliver a replacement, at our discretion. If the subsequent performance fails, the customer shall be entitled, at his discretion, to reduce the purchase price or to withdraw from the contract. Further claims of the customer, in particular liability for consequential damages, are excluded. If the service provided by us is a construction service, the right of the customer to withdraw from the contract shall also be excluded if the subsequent performance fails. Notices of defects not acknowledged by us shall not entitle the customer to withhold performance owed to us by the customer under a different legal relationship than the one in which the customer lodges the notice of defects, e.g. from an earlier or other transaction of an ongoing business relationship. This shall not apply insofar as we are liable according to mandatory statutory provisions due to intent or gross negligence. Claims of users and / or consumers from the product liability law remain unaffected by this.
4. Retention of title
The goods delivered by us shall remain our property until all our claims against the customer have been settled, irrespective of the legal basis. In the case of a current account the retained title shall be regarded as security for our balance claim. Processing and treatment by the customer or third parties shall take place for us to the exclusion of acquisition of ownership in accordance with § 950 of the German Civil Code (BGB), without any obligation arising for us as a result. In the event that any goods supplied by us are mixed with other goods not belonging to us by the customer or third parties, we shall acquire co-ownership of the mixed product in the ratio of the value of the goods delivered by us to the value of the other mixed goods at the time of mixing. Any costs or other liabilities arising from the mixing or in connection therewith shall not be borne by us. They also do not reduce our co-ownership share. The reserved goods may only be sold in the ordinary course of business of the customer. This is no longer the case if the customer is insolvent, even if insolvency proceedings have not yet been applied for or opened. The customer's claims arising from the resale of the goods delivered by us, regardless of their condition, are hereby assigned to us in the amount of the value of the sold reserved goods or the value of our co-ownership share in a mixed product at the time of the resale, but at least in the amount of the invoice value as security for our claims against the customer, in case of current account of our balance claim. At our request, the customer must notify his customer of this assignment for the purpose of direct payment to us. The customer shall not be entitled to make any other assignments, in particular blanket and global assignments, by which the claims assigned to us in advance are wholly or partially covered. Should the value of the securities due to us exceed our overall claims by more than 20%, we undertake to release securities of our choice at the customer's request. The customer is obliged to notify us immediately of any seizure or other impairment of the reserved goods or of our claims arising from advance assignment by third parties. He shall carry out at his own expense all urgent measures necessary to safeguard our rights. The customer is entitled and obliged to collect claims from a resale of reserved goods on our behalf, unless we issue instructions to the contrary in individual cases. The customer must keep incoming funds separate from other own or third-party funds for us and immediately transfer them to us. In the event of insolvency proceedings against his assets, the customer hereby acknowledges our claims for segregation or replacement segregation.
5. Acceptance and test certificates
Material shall only be accepted and / or inspected if the corresponding material standards provide for acceptance or inspection and if this has been expressly agreed. If the customer orders material of a quality grade for which acceptance tests are mandatory, the tests shall be carried out on the delivery itself by the manufacturer's works unless otherwise agreed and we shall deliver a works acceptance certificate. Acceptances and inspections shall in all cases take place at the warehouse, immediately after notification of readiness for acceptance. The personal costs of the experts shall be borne by the customer. In the event of him forbearing the acceptance or inspection, delaying them aversely or waiving them, we shall be entitled to dispatch the material without acceptance or to store it at the expense and risk of the customer.
6. Terms of payment
Our invoices are payable immediately net cash. Discounts cannot be deducted in view of our sharp calculation. Insofar as we accept bills of exchange and cheques, these shall only be regarded as provisional cover until they have been cashed in full. All costs arising from their acceptance shall be borne by the customer. In the event of default of payment on the part of the customer as well as in the event of bill of exchange or cheque protests, all our claims against the customer not yet due shall also become due for immediate payment. In the event of default in payment, interest shall be charged in the amount of eight percentage points above the base rate. The customer is not entitled to exercise a right of retention if it is based on a different legal relationship than the one in which our claim to remuneration exists, e.g. to an earlier or other transaction of an ongoing business relationship.
7. Injury to commercial reputation
The remuneration is due in full immediately if:
- doubts about the creditworthiness of the customer appear justified (e.g. unfavourable credit information, insolvency, suspension of payments, moratorium request, petition for composition or bankruptcy),
- the customer pledges or transfers by way of security essential assets, in particular receivables or goods, to third parties,
- enforcement measures are taken against the customer by third parties.
8. Delivery conditions of our suppliers
Further delivery conditions of our suppliers are also binding for the customer.
9. Place of performance and jurisdiction
The place of performance and jurisdiction, including for actions in documentary proceedings, shall be Ahaus. However, we are entitled to sue the customer at his general place of jurisdiction. This agreement shall also apply to and against third parties who are liable to us for the obligations of the customer for whatever legal reason.
10. Special provisions for work and service contracts or work and materials contracts
The General Terms and Conditions set out here shall apply mutatis mutandis to contracts for work and services or contracts for work and materials. In addition, it is agreed that the customer guarantees that the materials handed over by him for processing correspond to his specifications with regard to quality. If, during the processing of the material handed over by the customer, the latter suffers damage during the processing by the company due to incorrect information, the customer shall be obliged to pay the contractor full compensation.
11. Severability clause
Should individual provisions of these GTC of Wegener Stahlservice KG be void or ineffective, this shall not affect the effectiveness of the remaining provisions. The void or ineffective provision shall be replaced by one which corresponds to the economic intention. The same shall apply in the case of a lacuna which must be supplemented.
Version: January 2012