1. Validity of the general standard terms and conditions
3. Terms of payment
4. Delay of payment
5. Delivery time
6. Reservation of ownership
10. Ceding of rights
11. Other terms and conditions
12. General contractual provision
These general standard terms and conditions (GTC) apply to all present and future deliveries and payments to our customers, even if they are not agreed on every time newly.
WESERALU does not accept purchase conditions or other conditions of the customer standing contrarily. If there are counter-confirmations of the customer under reference to his business and purchase conditions, these terms and conditions reject them.
Offers of WESERALU without a commitment period are not legally binding and subject to change.
WESERALU reserves technical and formal deviations of descriptions and details in catalogues, leaflets and written documents as well as construction, model and material changes for itself in the course of the technological progress or at change of the market situation. The customer cannot derive any rights from changes or deviations against WESERALU.
WESERALU reserves his exploitation rights to copyright and property absolutely to cost estimates, drawings and other documents (in the following: documents). The documents may be made accessible to third parties only after a previous consent by WESERALU and have to be given back immediately on desire, if the order is not placed.
All prices are valid as of place of business of WESERALU if not agreed differently. The applicable value-added tax has to be added to all indicated prices.
Underdeliveries and deliveries over the ordered quantity according to § 7 number 2 clause 5 of these terms and conditions do not have influence on the offered and/or agreed prices.
WESERALU can deduct payments of the costumer to the oldest fault of the customer at first, even against other conditions of the customer. If costs or interest has already arisen, WESERALU can credit the payments to the expense first, then on the interest and last on the main demand according to § 367 paragraph 1 BGB (“Bürgerliches Gesetzbuch” / German civil code).
Against a demand of WESERALU the customer can only offset with uncontested or legally valid counterclaims. The customer cannot assert any rights of retention in this contractual relationship from other contract relationships with WESERALU.
The acceptance of checks or changes are only made on account of payment. Discount or change charges have to be borne by the customer and are immediately payable.
Unless otherwise resulting from the order confirmation, the demand has to be paid within 14 days from invoice date as a net price without every discount or within 8 days from invoice date less 2 percent cash discount.
If the customer comes in delay of payment, WESERALU is entitled to demand default interest at the rate of eight percentage points above the respective base interest rate. If WESERALU is able to prove a higher delay damage, WESERALU is entitled to assert also that.
As far as WESERALU is obliged to take back the packaging used for transportation according to the packaging regulation, the customer bears the costs for the return transport of the used packaging and the costs indicated of its usage or - as far as it is possible and suitable - the costs which incur in addition for a renewed usage of the packaging. WESERALU reserves appropriate price adjustments for itself.
If WESERALU has taken over checks and/or the technical approval at the own place of business according to special conditions, then the customer bears all required additional costs besides the payment. If the acceptance is not immediately carried out by the customer after indication of readiness for acceptance, WESERALU is entitled after granting an adequate additional respite to send the product or to store it at the expense and risk of the customer. The product is then regarded as accepted.
If WESERALU has produced or obtained tools on behalf of the costumer and as far as nothing else is agreed, the customer bears the costs of production and/or purchase. The tools remain in the property of WESERALU unless otherwise agreed. If three years have passed since the last delivery to the customer, WESERALU is not obliged to further storage.
If the customer comes in delay of payment, WESERALU is entitled - notwithstanding other rights - to take back delivered products and rendered services and to make it use of it another way.
If the customer comes in delay of payment or if there are concrete indications for a forthcoming insolvency of the customer, WESERALU is entitled to stop work on all orders of the customer. WESERALU can demand the immediate advance payment of all claims including changes and amounts owed or appropriate safeties.
The mentioned delivery times and delivery dates are not binding for WESERALU, unless WESERALU has given a written promise assurance; then this is valid, subject to right and punctual self-supply. WESERSLU does not give a guarantee for punctual transportation.
Delivery periods start with sending of the order confirmation, however not before complete clarification of all details of the order and not before presentation of documents, approvals and releases being obtained by the customer and not before receipt of an agreed deposit or opening of a letter of credit.
Performances and products due to this contract remain in the property of WESERALU until fulfilment of every, also further demand from this contract and from the complete business relations with the customer.
The customer shall be entitled to change, process or adapt the product to his requirements in another way which is under reservation of title within the ordinary course of business. This right is only valid, if the customer is not in delay and the license conditions of WESERALU does not stand contrary to this right. The product being under reservation of title cannot be pawned or pledged as a security. The customer hands over already now the demands which arise from the resale or another legal justification (insurance, tortious act, etc.) to the products contained by the reservation of title. On desire of WESERALU the customer is committed to announce the assignment of third parties for the purpose of payment and to give information and hand over documents which are necessary for assertion of the rights of WESERALU.
If products delivered under retention of title (reserved goods) are processed, connected or mixed with other goods by the customer, WESERALU shall be proportionally entitled to co-ownership of the new object in relation to the invoice value of the reserved goods to the invoice value of the other used goods. If the property of WESERALU expires by connection or intermixing, the costumer already now transfers the rights of ownership which are entitled to the customer to WESERALU at the new stock or the good on the scale of the invoice value of the reserved goods and the costumer keeps the goods free of charge for WESERALU. The co-ownership rights arising after this are regarded as reserved goods according to § 6 number 1 of these terms and conditions.
The customer points out the property of WESERALU if third parties access the product being under reservation of title, particularly by distraint. In such a case, the customer has to inform WESERALU immediately. Legal fees, out-of-court costs and other costs which arise from such an access are borne by the customer. The customer is completely liable for possible damages.
If the customer behaves in breach of contract or if he gets in delay of payment, WESERALU can take back goods being under reservation of title at the expense of the customer or if necessary, WESERALU can require the claim for restitution of the customer to third parties. The withdrawal and the distraint of the product being under reservation of title by WESERALU means no rescission of the contract, subject to the validity of other mandatory legal provisions.
If the delivered product is processed or reorganized by the customer, this is carried out for WESERALU as producer. However, no obligation arises for WESERALU from such processes, if the property or co-ownership of the uniform product (invoice value) of the customer devolves on WESERALU proportionately. The customer keeps safe the property or co-ownership of WESERALU free of charge for WESERALU.
If the reserved product is installed to a property or building, the customer already now transfers his right to compensation against third parties to WESERALU in height of the invoice value of the product including the right to grant of a debt-securing mortgage. In addition, the customer commit himself to transfer a debt-securing mortgage already ordered to WESERALU. Furthermore, the customer already now transfers his wage claim to WESERALU in height of the invoice value of the product delivered by WESERALU. WESERALU hereby accepts the transfer of those rights already now.
If the value of securities existing for WESERALU not only temporarily exceeds the demands by more than 20 percent, WESERALU gives back securities in corresponding height on desire and to her own choice.
The deliveries and the passing of risks have been taken place at the time of handing over the product including the accompanying materials to the customer or at the time of provision of the performance. With consignment, the product goes over to the customer if the shipment was submitted to the haulage contractor. If the dispatch is delayed through no fault of WESERALU or if it gets impossible, the danger goes over on the customer with sending of the notification of readiness to dispatch to the costumer. An insurance of shipment against theft and damages because of break, transportation, fire and water as well as other insurable risks is only taken out by WESERALU on an expressed request and at expense of the customer.
Appointments and periods of time indicated by WESERALU are not binding, provided that nothing else was agreed particularly. The delivery dates apply only in so far as WESERALU is supplied correctly and on time. Appointments and periods of time begin at the day of order confirmation by WESERALU and extend by the time in that the customer is in delay of payment, subject to all rights of WESERALU. In the context of the contractual relationship, partial deliveries are permissible if the receipt is not accompanied by unreasonably expenditures for the customer. WESERALU is entitled to carry out underdeliveries and deliveries over the ordered quantity at the rate of 10 percent of the respective ordered quantity. Such deliveries have production reasons and are accepted on the part of the customer as per contract.
Even if binding periods of time and appointments are agreed, WESERALU is not liable for delays in deliveries and performance because of force majeure or incidents that make deliveries significantly more difficult or impossible. The same applies to industrial disputes, strikes, interruption of operation, orders of the authorities, difficulties of procurement of materials, even if those occur at suppliers or subcontractors of WESERALU. WESERALU is then entitled to postpone the performance or rather the delivery to the duration of the hindrance plus an appropriate preparation time. In addition, WESERALU can withdraw completely or partly from the contract in regard to the part of the performance not yet fulfilled. On deliveries with installation or assembly passing of risks is carried out at the day of assumption/acceptance.
If loading or transport of the products is delayed for reasons WESERALU is not responsible for, WESERALU or representatives are entitled, but not obliged, to store the products on the expense and the risk of the customer and under exclusion of the liability as appears just - if necessary outside -, to take all measures considered to be suitable for the preservation of the products and to charge the products as delivered. In a case of a delay in taking deliveries, WESERALU is entitled to charge usual storage fees.
If the customer requests additional/later changes or supplements, the delivery time is extended appropriately.
Decisive for the condition of the product as stipulated in the contract is the time of leaving the place of business of WESERALU. The delivering object has to be checked immediately after reception. Complaints are lodged immediately and have to be delivered to WESERALU in writing within two weeks at the latest after the reception. This applies particularly for defects of the exterior condition and in regard to the completeness of the delivery. In case of a damage in transit, the receiver also has to complain it the carrier immediately at the reception of the product and to let the carrier certify the damage on the consignment note, concomitant with claiming compensation claims. If no certificate was obtained, claims for damages are not accepted.
Material deficiency claims come under the statute of limitations within twelve months from the day of passing of risks. This is not valid as far as the law stipulates longer periods obligatory, as well as in cases of an injury of life, body or health, in cases of a deliberate or grossly negligent breach of duty by WESERALU and in case of a fraudulent concealment of a defect.
For all components or performances which show a material deficiency within the period of limitation, WESERALU have the choice of repairing those free of charge, replacing those or of providing again and newly, provided that the cause of the defect was already there at the time of passing of risks.
Warranty claims of the customer do not exist for deliveries with deviations of quantity mentioned in § 7 number 2 clause 5 of these terms and conditions, in addition not in cases of only insignificant deviation of the agreed composition, not in cases of an insignificant impairment of usefulness, not in cases of a natural wear and tear or in cases of damages which have arisen after passing of risks from incorrect or careless treatment, use of unsuitable operating resources, faulty construction work, power surge, lightning strike, external influences and from changes or repairs carried out improperly and maintenance not carried out properly in accordance with the operating instructions.
The details of the delivery items and purpose e.g. about measures, weight, hardness, utility value, temperatures, etc. are only descriptions or indicators and no guaranteed attributes. These are non-binding guidelines and are just guaranteed as far as these are tested by the costumer for the special application and are correspond to samplings released for this.
Any further claims are excluded. In particular, WESERALU is not liable for damages occurring to the delivery item, for lost profits or economic damages of the contracting partner. In the case of the improvement WESERALU pays the employment costs. The customer pays all other costs of the improvement as well as the additional delivery costs and transport costs for any spare parts, as far as these additional/other costs are not unreasonably high in relation to the value. If the check of a notice of defects reveals that a case of warranty does not exist, WESERALU is entitled to demand all expenses reimbursed. Costs of the check and repair are charged to the customer.
The guarantee granted further requires that the customer names any defect occurred adequately concrete in writing and set WESERALU an adequate period for improvement or replacement. The customer has to give WESERALU the opportunity to check the reproached defect on the spot by WESERALU or a representative. For all repairs and replacements seeming necessary as appears just, the customer has to give WESERALU the necessary time and opportunity after communication and to provide helpers on request.
Only in urgent cases of the endangering of the operational safety, that have to be reported to WESERALU, or if WESERALU is in delay of remedy of defects, the customer has the right to remedy the defect by himself or third parties and a claim for appropriate recover of his costs.
As far as nothing else is intended, claims are excluded, particularly in cases of a product defect caused by WESERALU due to tort, special breach of contract and defaults in contracting, and in cases of impossibility and inabilities, as far as WESERALU is not guilty of intent or gross negligence. Claims of rightful claimants according to the German Product Liability Act remain unaffected by this.
Claims are excluded at foreign make, particularly because of a product defect the manufacturer is responsible for. In this respect WESERALU transfers all claims to the customer which WESERALU have against the respective manufacturer and/or pre-suppliers.
The customer has the obligation to check the delivered product of obvious defects. Obvious defects and significant, easily visible damages have to be reported in writing within one week from delivery and notified as a defect. The business duties of complaint and inspection of the customer are not restricted by this.
If WESERALU is obliged to make compensatory damages due to the legal provisions according to these conditions, in case that the damage was caused slightly negligently, the liability is limited as follows. A liability of WESERALU is only given in case of injury of essential contractual obligations and is limited to typical damage that were foreseeable at the time of completion of the contract. Forgoing limitation does not apply to damages to life, body or health. If the damage is covered by an insurance taken out by a contracting party, WESERALU is only liable to disadvantages of the contracting partner like a higher insurance premium or disadvantageous interest rates that ensued from claim adjustment. Liability is excluded for damage caused slightly negligently by a defect of the subject matter of the contract. Liability is not affected, irrespective of a fault, in case of a fraudulent concealment of a defect, acceptance of a guarantee or according to the German Product Liability Act.
The customer can only transfer rights from the contract to third parties with a previous consent of WESERALU.
WESERALU is justifiable to transfer her attributable rights resulting of contractual obligations to third parties. WESERALU can have all duties fulfilled by third parties within the context of the order contract. The customer then accepts the raised performance as a performance of WESERALU.
A change of the contracting party on the part of WESERALU is admissible. If the duties were taken on by a third party, the customer has an extraordinary right of cancellation. This right of cancellation has to be exercised within four weeks after obtaining knowledge of the change of the contracting party. After expiration of this period of time the contractual relationship with the third party continues.
The place of jurisdiction is Minden/Westphalia, Germany for all disputes from or in connection with the contractual relationship at business relations of WESERALU with merchants, legal entities of public law or special fund under public law. WESERALU is also entitled to take legal action at the place of business of the customer.
In case of an invalidity of individual provisions, the contract also stays legally binding in his other parts as long as the adherence to the contract represents no unreasonable hardness for a party.
WESERALU saves the data of the customers in the context of the mutual business relations according to the German Federal Data Protection Act.
There are no verbal ancillary agreements. Transaction endorsements or modifications of all agreements require the writing form; this also applies to the annulment of the statutory written form.