General terms and conditions

Hans Weitzel GmbH & Co. KG

I. General

These General Terms and Conditions apply to all deliveries, services, offers and other business relationships of Hans Weitzel GmbH & Co. KG (hereinafter also referred to as “Contractor”) with our customers (hereinafter referred to as “Customer”). All deliveries, services and offers are made exclusively on the basis of these General Terms and Conditions. These are an integral part of all contracts for the deliveries or services offered by us which we conclude with our customers. They shall also apply to all future deliveries, services or offers to the customer in the version current at the time of the order, even if they are not separately agreed again.
The GTC only apply if the customer is a merchant, entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
Terms and conditions of the customer or third parties shall not apply, even if we do not separately object to their validity in individual cases. These General Terms and Conditions shall apply exclusively, even if we refer to a letter which contains or refers to the terms and conditions of the customer or of a third party, this shall not constitute agreement with the validity of those terms and conditions. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing.
Legally relevant declarations and notifications of the customer with regard to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further evidence, in particular in the event of doubt as to the legitimacy of the declarations, shall remain unaffected.
Individual agreements made in individual cases with the customer (including collateral agreements, supplements and amendments) shall in any case take precedence over these General Terms and Conditions. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or our written confirmation.
References to the validity of legal regulations have only clarifying meaning. Even without such clarification, the statutory provisions shall apply insofar as they are not directly amended or expressly excluded in these GTC.

II. Conclusion of contract

Offers made by us are subject to confirmation and non-binding. This shall also apply if we have provided the customer with catalogues, technical documentation or other product descriptions. Conflicting individual agreements remain unaffected by this.
The order of the goods by the customer is regarded as a binding contractual offer. Orders are to be addressed to us in writing and are only bindingly accepted if a corresponding order confirmation in text form (letter, fax, EDI or E-Mail) is available. Agreements other than those resulting from the written order confirmation do not exist.
If the conditions in the order confirmation do not correspond to those in the order, the contract shall be deemed concluded unless the customer declares within one week of receipt of the order confirmation that he refuses to execute the contract.

III. Quotations of prices

Our prices are based on the current price list in Euro at the time the contract is concluded, ex warehouse. Value added tax is not included in our prices. It will be shown separately in the invoice at the statutory rate on the day of invoicing.
The buyer bears the transport costs ex warehouse as well as the packaging costs and the resulting costs of any transport insurance requested by the buyer. Any customs duties, fees, taxes and other public charges are not included in the purchase price and shall be borne by the customer.
For our product group “skirting boards” we charge an additional service fee for orders outside the full packaging unit, which depends on the product dimensions; the amount of the service fee is shown in the currently valid price list.
If it becomes apparent after conclusion of the contract (e.g. by filing for the opening of insolvency proceedings) that our claim to the purchase price is at risk due to the buyer’s lack of ability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made items), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
In cases where the assumption of freight costs, charges and fees has been agreed, we shall be entitled to change the price accordingly if freight costs, charges and fees are increased or newly introduced after conclusion of the contract. This applies in particular to changes in import, customs and foreign exchange regulations.

IV. Terms of payment

The purchase price is due immediately and must be paid to us within 30 days without deduction upon invoicing and delivery or acceptance of the goods.
We reserve the right to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.
Upon expiry of the payment period agreed under no. 1, the customer shall be in default. In the event of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. The assertion of further default damages remains unaffected. We reserve the right to claim commercial interest on arrears from merchants in accordance with § 353 HGB (German Commercial Code).
The buyer shall only be entitled to set-off or retention rights against legally established or undisputed claims. In the event of defects in the delivery, the purchaser’s counter rights shall remain unaffected.

V. Delivery, dispatch and delay in delivery

Deliveries are ex works (EXW according to INCOTERMS 2010)
Agreed delivery dates and delivery periods are generally non-binding, unless otherwise stipulated in the underlying written agreements.
The agreed delivery dates are always subject to the proper and timely cooperation of the customer. If the customer does not comply with his obligations to cooperate, the delivery date shall be postponed by a reasonable period of time.
In the event of delay in delivery, the client/customer shall be entitled to withdraw from the contract after a grace period has expired without result. Liability for damages caused by delay shall be governed by Point VII of these General Terms and Conditions.
Call orders must be called at the latest 12 months after placing the order, unless other dates have been agreed. The due date of our claim shall also be at the latest upon expiry of the aforementioned period.
We shall not be liable for the impossibility of delivery or for delays in delivery if these have been caused by force majeure or other extraordinary and unavoidable events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of energy or raw materials, difficulties in procuring necessary official permits, official measures etc.) and we are not responsible for these. Insofar as such events make delivery or performance substantially more difficult or impossible and the hindrance is not only of a temporary nature, we shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or service periods shall be extended or the delivery or service dates postponed by the period of the hindrance plus a reasonable start-up period. If, as a result of the delay, acceptance of the delivery or service cannot reasonably be expected of the customer, he may withdraw from the contract by immediate written declaration to the contractor.
A non-availability of the service is present in particular in the case of untimely self-delivery if we have concluded a congruent hedging transaction, if neither we nor our supplier are at fault or if we are not obliged to procure in individual cases.
The occurrence of a delay in delivery shall be determined in accordance with the statutory provisions. However, a prior reminder by the customer is required.
If we are in default with a delivery or service or if a delivery or service becomes impossible, our liability shall be limited to damages in accordance with the provisions of these General Terms and Conditions.

VI. Redemptions

In the case of returns and returns, our prior written consent is required. If we agree to the return of our goods, we will charge a return fee based on the order volume, order date and condition of the goods. Only resaleable goods in full packaging units will be taken back. Custom-made products are excluded from returns. In the event that we do not confirm the return of the ordered goods, we reserve the right to refuse acceptance.

VII. Warranty, statute of limitations and warranty claims

The customer’s warranty claims for material defects and defects of title are based on the statutory provisions unless otherwise specified below.
Liability for defects shall be based on the contractual agreements made with regard to the quality of the goods. This includes product descriptions and manufacturer information which are the subject of the individual contract or which are made public by us at the time the contract is concluded.
In deviation from the statutory provisions, claims for material defects and defects of title shall become statute-barred within one year of delivery or, if acceptance is required, of acceptance of the goods.
The delivered goods shall be carefully inspected immediately after delivery to the customer or to the third party designated by the customer. With regard to obvious defects or other defects which would have been recognisable in an immediate, careful inspection, they shall be deemed to have been approved by the purchaser if we do not receive a written notice of defect within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Buyer if we do not receive the notice of defects within seven working days of the time at which the defect became apparent; if the defect was already apparent at an earlier point in time with normal use, the earlier point in time shall be decisive for the commencement of the notice period. At the Contractor’s request, a delivery item complained about shall be returned to the Contractor carriage paid. This shall not apply if the costs increase because the delivery item is located at a location other than the location of the intended use.
In the event of material defects of the delivered items, the Contractor shall initially be obliged and entitled, at his discretion, to remedy the defect or deliver a replacement within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement, the Customer may withdraw from the contract or reduce the purchase price accordingly.
If a defect is based on the fault of the contractor, the client can claim damages under the conditions specified in these terms and conditions.

VII. Liability

Insofar as nothing to the contrary arises from the following provisions, we shall be liable in accordance with the statutory provisions.
Claims of the client for damages are excluded. Excluded from this are claims for damages by the Customer arising from injury to life, limb or health or from the breach of essential contractual obligations as well as liability for other damages based on an intentional or grossly negligent breach of duty by the Provider, its legal representatives or vicarious agents. Essential contractual obligations are those whose fulfilment is necessary to achieve the objective of the contract.
In the event of a breach of material contractual obligations, we shall only be liable for the foreseeable damage typical of the contract if this was caused by simple negligence.
The above limitations of liability shall also not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for claims of the customer under the Product Liability Act.

IX. Retention of title

We retain title to the delivered goods until all present and future claims arising from the purchase contract and/or an ongoing business relationship with the customer have been satisfied in full.
The goods, samples, other objects, etc. subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full. The customer must inform us immediately in writing if an application is filed for the opening of insolvency proceedings or if the goods belonging to us are seized by third parties (e.g. seizures).
The customer is entitled to sell or process these goods in the ordinary course of business as long as he fulfils his obligations arising from the business relationship with us in good time.
If the customer is in breach of contract, in particular due to failure to meet his payment obligations, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or demand the return of the goods subject to retention of title after setting a reasonable grace period. The assertion of the surrender does not at the same time include the declaration of withdrawal; we are rather entitled to only demand the return of the goods and to reserve the right to withdraw from the contract. The customer already now entitles us to enter his premises and collect the delivered goods.
In the event of the sale or processing of the goods subject to retention of title, the following provisions shall apply:

a. The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed the manufacturer. If the ownership rights of third parties remain in force in the event of processing, mixing or combination with goods of third parties, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.

b. The customer hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product as a whole or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the buyer stated in para. 2 shall also apply with regard to the assigned claims.

c. The customer remains authorised to collect the claim alongside us. We undertake not to collect the claim as long as the buyer meets his payment obligations towards us, there is no defect in his ability to pay and we do not assert the retention of title by exercising a right in accordance with paragraph 4. If this is the case, however, we may demand that the purchaser informs us of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment. In this case we shall also be entitled to revoke the purchaser’s authority to further sell and process the goods subject to retention of title.

d. If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the buyer’s request.

e. The client must inform us immediately of any enforcement measures taken by third parties or measures taken by an insolvency administrator or provisional insolvency administrator.

X. Final provisions

The place of performance for all obligations arising from the contractual relationship shall be Ingelheim am Rhein, unless otherwise specified.
If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship between the parties shall be Mainz am Rhein. The same applies if the customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code).
These General Terms and Conditions and all disputes in connection with the contractual relationship between us and the customer shall be governed exclusively by the substantive law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Should any provision of this agreement be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The regulation of § 139 BGB is expressly waived. The invalid provision shall be replaced by a valid provision which most closely corresponds to the intended purpose.