Standard Terms and Conditions

Standard Terms and Conditions

 

1. Scope of terms and conditions

  1. Our terms of sale only apply to "entrepreneurs" (Section 14 German Civil Code (BGB). They likewise apply for all future business transactions with the customer.
  2. Our terms of sale apply exclusively. We do not recognise the customer’s contrary terms of sale or terms and conditions that deviate from our Terms and Conditions, even if we execute the contract without reservation.
  3. All agreements made between us and the customer in relation to the performance of this contract must be set down in writing in this contract or in an amendment agreement.
  4. 4Unless otherwise provided for in these terms of sale, the terminology and definitions of INCOTERMS 2000 shall apply.

2. Conclusion of contract

  1. Our quotations are subject to change. Technical descriptions and other information contained in quotations, prospectuses and other supplied information are likewise non-binding at the outset.
  2. We retain the ownership rights and copyright to all images, drawings, calculations and other documentation that we may provide. These may not be made accessible to third parties.
  3. If the purchase order is to be classified as an offer pursuant to Section 145 German Civil Code (BGB), we may accept it within a period of 12 working days.
  4. Information within the definition of (1) and contained in our public announcements, by manufacturers and their vicarious agents (Section 434 I 3 German Civil Code (BGB)) will only form part of the performance specifications if directly referred to in this contract.

3. Prices and conditions of payment

  1. Unless otherwise stated, our prices apply “ex works”. The packaging required in each case will be separately billed according to cost. Additional outlays, such as for the conclusion of insurance policies, shall be borne by the customer.
  2. Our prices do not include statutory VAT; this will be separately indicated in the invoice at the statutory rate applicable on the day of billing.
  3. The following payment conditions apply:
- 14 days net
- 8 days net
These time periods commence from the time that the goods are received. Payments are due in cash or by bank transfer. They are deemed made from the date that the amount is freely disposable to us.
  4. Other modes of payment shall require a separate written agreement. The costs thereby incurred on both sides shall be borne by the customer.
  5. The deduction of cash discounts requires a special written agreement.
  6. The customer only has a right of offset or a right of retention in respect of undisputed and legally enforceable receivables or claims.

4. Delivery and duties of cooperation

  1. The scope of our duty to deliver is exclusively based on this contract. Design, form and colour modifications reserved, where these concern an improvement of the technology or which result from statutory stipulations provided the modifications are minor in nature or are not otherwise unreasonable to expect of the customer.
  2. If part deliveries are reasonable to expect of the customer, these made be performed and billed.
  3. The definition of delivery periods as a rule is made under the proviso that the customer fulfils its contractual duties of cooperation. The fulfilment of our delivery duties is conditional upon the customer fulfilling its own duties in a timely and orderly manner.
  4. If we do not receive deliveries from our own sub-suppliers, even though we have placed congruent purchase orders with reliable suppliers, we will be released from our duty of performance and we may rescind the contract.
  5. If, following the conclusion of the contract, it transpires that the customer does not adequately guarantee its solvency and our payment claim is jeopardised, we shall be entitled to refuse delivery until the customer makes payment or furnishes adequate collateral for it. If the payment or provision of collateral security is not performed within 12 working days of a corresponding demand, we shall be entitled to rescind the contract.
  6. If the customer is in default of a service call-down, acceptance or collection or is responsible for a delay to the shipment or delivery, our other claims notwithstanding we shall be entitled to demand lump sum costs for the amount of the local storage costs irrespective of whether the goods are stored by us or by a third party. The customer remains entitled to prove that no damages or a lesser amount of damages were sustained.

5. Delays to the delivery

  1. If the agreed time period cannot be fulfilled for reasons outside of our control and which affect us or our sub-suppliers, the said time period shall be extended by a reasonable period of time. This likewise applies if unforeseeable difficulties arise in relation to special designs. We will promptly notify the customer in such a case. If the impeding circumstances persist for a month following the expiry of the agreed delivery period, each party shall be entitled to rescind the contract. Additional claims are excluded in relation to the overrunning of the delivery period, insofar as we are not responsible for this.
  2. In the case of a delay in delivery, the customer is entitled to demand flat-rate compensation for the delay, amounting to 3% of the delivery value for each week completed, up to a maximum of 10% of the delivery value. The customer, moreover, may stipulate a reason grace period to us in writing; this must be at least 15 working days. It this expires without result, the customer shall be entitled to rescind the contract or demand compensation in lieu of performance. The liability to pay compensation is limited to 50% of the actual damage sustained.
  3. (2) does not apply in the event that the delay is due to a deliberate act or gross negligence or is the result of a material breach of duty. Likewise it does not apply if a commercial fixed date of delivery arrangement has been agreed.

6. Place of performance and transfer of risk

  1.  The place of performance is our registered business address. Unless otherwise provided for in the order confirmation, delivery ex works is agreed.

7. Material defects

  1. With regard to material defects, the customer is initially subject to the statutory duties of inspection and fault notification pursuant to Section 377 German Commercial Code (HGB).
  2. The Customer cannot derive any other rights from material defects that do not affect or which only insignificantly affect the value and the fitness of the goods for the purpose evident to us.
  3. If the goods exhibit a material defect at the time of the transfer of risk, we shall be obliged and entitled to render subsequent performance. Subsequent performance is rendered by way of subsequent improvement or substitute delivery, the choice resting with us. The costs of subsequent performance - particularly the costs of transport, travel, labour and materials - shall be borne by us. If these costs comprise more than 50% of the delivery value, we shall be entitled to refuse subsequent performance.
  4. In the event that the subsequent performance fails, is not rendered within a reasonable period of time granted by the customer or is refused, the customer is entitled to rescind the contract, to claim a reduction in the purchase price corresponding to the defect-related decrease in value (diminution) or to demand compensation in lieu of performance within the limits of the following paragraphs.
  5. If a material defect results in damage, we shall be liable in accordance with the statutory provisions insofar as it concerns death or personal injury, comprises damage within the ambit of the Product Liability Act (ProdHaftG) or is the result of a deliberate act or gross negligence.
  6. In the event that the damage is the result of a culpable breach of a material contractual obligation or a "cardinal obligation", we shall otherwise only be liable for damages typical for this type of contract.
  7. The customer has no other further-reaching contractual and tortious claims. We are therefore not liable for damage not directly sustained by the delivered article itself, or for lost profits or other financial losses sustained by the customer.
  8. The foregoing provisions do not apply to used goods. With respect to material defects in this case, we shall only be liable in the event we have given an express guarantee or if we have acted deliberately or with gross negligence.
  9. Section 478 German Civil Code (BGB) remains unaffected by Paras. 2 – 8.

8. Other liability to pay compensation

  1. The provisions contained in No. 7 Paras. 5 – 7 likewise apply for compensation claims for other such breaches of duty.
  2. In the case of an infringement of a pre-contractual obligation or in the event of an obstacle to performance existing upon the conclusion of contract (Sections 311 II, 311a German Civil Code (BGB)), our duty to compensate shall be limited to the "negative interest".
  3. Our tortious liability is correspondingly subject to the provisions contained in No. 7 Para. 5 – 7.
  4. To the extent that our liability is excluded or limited, this also applies in respect of the personal liability of our salaried and wage-earning staff, employees, representatives and vicarious agents.

9. Limitation period

  1. Subject to Sections 438 No. 2, 479 German Civil Code (BGB), the customer’s subsequent performance claim will become statute-barred: two years following delivery of the goods; one year from delivery in the case of used goods. The right of rescission and diminution is correspondingly excluded in accordance with the statutory provisions.
  2. Subject to Sections 438 No. 2, 479 German Civil Code (BGB), compensation claims shall become statute-barred after one year.
  3. Claims under the Product Liability Act (ProdHaftG) and in relation to deliberate acts and gross negligence are likewise subject to the statutory limitation period.

10. Retention of title

  1. The ownership in the delivered goods will be retained until such time that all our claims against the customer under the business relationship with it are settled. These claims include future receivables arising from contracts concluded simultaneously or subsequently. This remains the case if receivables are settled via a current account and the balance has been drawn and recognised.
  2. The customer is entitled to sell or reprocess the goods as part of its regular business activities. Any reprocessing will be performed on our behalf, without establishing any obligations on our part. In the event that the goods subject to retention of title are reprocessed, combined or mixed with other goods, we shall, as a rule, be entitled to a co-ownership share in the new article. Our co-ownership shall be based on the ratio of the value of the goods subject to retention of title (= gross invoice total, including additional costs and taxes) to the value of the new article. These respective values are the values current at the time the goods subject to retention of title are combined or mixed with the other goods and the new article produced.
  3. The customer hereby assigns to us all its claims against its own customer or other third parties as arise from the disposal. It remains entitled to collect these receivables even after the assignment of such claims. This does not affect our right to personally collect the receivables. We will however refrain from exercising this right provided the customer duly fulfils its duties of payment and other such obligations. The customer shall be required, upon demand, to disclose to us the receivables assigned and the relevant debtors; to provide us with all information required to perform the collection and to notify the debtors of the assignment.
  4. In the event of a breach of contract on the part of the customer, particularly in the event of a default of payment, we will be entitled to rescission of the contract and to retake possession of the goods. For the purpose of taking back the goods, the customer hereby irrevocably permits us unimpeded entry to its business and storage premises and to remove the goods.
  5. For as long as and to the extent that the retention of title is applicable, the customer shall not use the goods or the articles produced from them as collateral or otherwise pledge them. The conclusion of financing contracts (leasing arrangements, for example) entailing the transfer of our retention of ownership rights shall require our

Metalldesign H. von Weyhe GmbH & Co. KG  |  Am Donneresch 19  |  27751 Delmenhorst  |  T.: +49 (0) 4221 9471 0  |  F.: +49 (0) 4221 9471 10  |  info@metalldesign-vonweyhe.de