Terms and Conditions

The following terms and conditions provide the basis for the cooperation between WEFA and its customers and suppliers. These are accepted by the customer upon placing an order and shall apply to all business transactions between buyer and seller as well as for the complete duration of the business relationship.

WEFA General Conditions of Sales

§ 1 General, Scope of Application

(1) The present General Conditions of Sales (AVB) apply to all business relationships with our customers (hereafter referred to as “customer”). The AVBs are only valid if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a separate estate under public law.

(2) These terms apply in particular to contracts for the sale and/or delivery of movable items (hereafter also referred to as „goods“), irrespective of whether we produce the goods ourselves or purchase these from components suppliers (§§ 433, 651 BGB). The AVB terms shall also apply in their respective version as framework for future contracts concerning the sale and/or delivery of movable items with the same buyer without us having to refer to these in each individual case; we will promptly inform the customer in the case of any changes to our AVB.

(3) Our AVB shall apply exclusively. Differing, conflicting or supplementary terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly consented to their application. This consent requirement applies under all circumstances, for example even if we render deliveries to the customer being aware of the customer’s terms and conditions.

(4) Any individual agreement made on a single-case basis with the customer (including side agreements, addenda and alterations) shall take priority over these AVB in every case. The content of such agreements shall be governed by a written contract or our written confirmation.

(5) Any legally relevant declarations and notifications, which are to be submitted to us by the customer after conclusion of the contract (e.g., setting of deadlines, notification of defects, declaration of cancellation or reduction) shall be invalid if not made in writing.

(6) All references to the applicability of statutory references shall solely serve the purpose of clarification. Even without such clarification, the statutory references shall also apply, unless directly amended or expressly excluded in these Conditions.

§ 2 Conclusion of Contract

(1) Our offers are non-binding and subject to change. This shall also apply even if we have supplied the customer with technical documentation (such as drawings, plans, calculations, references to DIN-standards), other product descriptions or documents – including those in electronic form – to which we reserve ownership rights and copyrights.

(2) The ordering of goods by the customers shall be deemed as a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this offer within 3 working days of its receipt by us.

(3) The acceptance can either be expressed in writing (e.g., via contract confirmation) or by delivery of the goods to the customer.

§ 3 Delivery Deadline and Delay in Delivery

(1) The delivery deadline shall be agreed upon in a case-by-case manner or stated by us upon acceptance of the offer.

(2) Insofar as we are unable to meet binding delivery deadlines for any reasons for which we cannot be held accountable (unavailability of the service), we shall undertake to inform the customer immediately and, at the same time, inform them of the new estimated delivery time. If the service is not available in the delivery deadline, we shall be entitled to cancel the contract in full or in part; any payments made by the customer shall be reimbursed without undue delay. In particular, if our suppliers fail to deliver to us punctually, this shall be deemed as unavailability of service, if we have entered into a congruent covering transaction, neither we nor the third party was at fault or in such cases that we are not responsible for procurement.

(3) The occurrence of our delay in delivery is determined by the provisions of law. In each case however, a reminder from the customer is required. If we are in delay in delivery, the customer shall be entitled to demand a lump sum compensation for the delay. This lump sum shall be 0.5% of the net price (delivery value) for each full month, however not exceeding 5% of the value of the goods delivered late. We reserve the right to prove that the customer incurred no damage at all or considerably lower damages than the aforementioned lump sum.

(4) The rights of the customer, according to § 8 of this AVB and our legal rights in particular in the event of an exclusion of the performance obligation (e.g., due to the impossibility or unreasonableness of the performance and / or supplementary performance) shall be unaffected.

§ 4 Delivery, Transfer of Risk, Acceptance, Delay in Acceptance

1) Delivery is made ex works, which is also the place of performance. The goods will be sent to another destination at the request and expense of the customer (so-called “Versendungskauf”). Unless otherwise agreed, we are entitled to determine the manner of shipping (in particular the carrier, routing and packaging) ourselves.

(2) The risk of accidental loss and/or deterioration of the delivered item shall be transferred to the customer at the latest upon delivery. However, in the case of sales shipment, the risk of accidental loss and accidental deterioration of the item, as well as the danger of delay shall be already transferred to the forwarder, freight carrier or any person or organization engaged with performing the shipment. If acceptance has been agreed upon, this shall be authoritative for the passing of risk. The statutory provisions of the law on contracts for services shall apply analogously in other respects to an agreed acceptance. It is deemed equivalent to the handover or acceptance if the customer is in default with the acceptance.

(3) If the customer is in default with the acceptance, fails to act in cooperation or in the case that our delivery is delayed for any other reasons for which the customer is responsible, we shall be entitled to claim compensation for the damage resulting thereof, including any additional expenditures (e.g., storage costs).
The proof of higher damages and our statutory claims (in particular reimbursement for additional expenses, reasonable compensation, damages) remain unaffected; the flat rate however is to be offset against further monetary claims. The customer reserves the right to prove that we did not suffer any damages at all or substantially less than the aforementioned flat rate.

§ 5 Prices and Payment Terms

(1) Unless otherwise agreed upon in an individual case, our prices valid at the time of the contract conclusion shall apply ex warehouse plus the additional legal VAT.

(2) In the case of sales shipment (§ 4-1), the customer shall be responsible for transport costs ex works and the costs of any requested shipping insurance. The customer shall also be responsible for any customs duties, fees, taxes or other public duties. Transportation and other packaging shall not be returned to us according to the German Packaging Ordinance; they shall become property of the customer. The only exception is pallets.

(3) The purchase price is, unless otherwise agreed upon, normally due and to be paid within 30 days from invoicing and delivery or acceptance of the goods.

(4) Upon the expiry of the aforementioned term of payment, the customer will be in default. Interest is to be paid on the purchase price at the respective, applicable interest rate for default during the default period. We reserve the right to claim any further damages from default. Our claim for the commercial maturity interest (§ 353 HGB German Commercial Code) against merchants remains unaffected.

(5) The customer is only entitled to set-off or to exercise any right of lien or retention to the extent that its claim is legally valid or undisputed. In case of defects in the delivery, the reciprocal rights of the customer, in particular in accordance with § 7 (6) sentence 2, remain unaffected.

(6) If, after the contract has been completed, it becomes apparent that our claim to the purchase price is at risk due to a lack of solvency on the part of the customer (e.g., as the result of an application to open insolvency proceedings) – if applicable after setting a deadline – we shall then be entitled to withdraw from the contract (§ 321 BGB). For contracts regarding the production of non-substitutable items (custom-made products), we may withdraw from the contract immediately; the legal provisions concerning the dispensability of setting a deadline remain unaffected.

§ 6 Retention of Title

(1) We reserve the right to the property of all sold goods until the full payment of all our current and future claims from the purchase contract and a current business relationship (secured claims) has been received.

(2) The goods subject to retention of title may not be pledged to third parties nor assigned as a collateral security until full payment has been made. The customer is required to notify us immediately and in writing if and when third parties exercise rights over these goods.

(3) If the customer acts in breach of the contract, particularly in the event of default in payment, we shall be entitled in accordance with statutory provisions to withdraw from the contract and/or demand that the goods are returned on the basis of retention of title. The claim for return shall not simultaneously contain a declaration of withdrawal from contract; we shall rather be entitled to claim return of the goods and reserve the right of withdrawal. If the customer does not pay the purchase price, we may only assert these rights after having set a reasonable grace period for the customer to pay or where the setting of such grace periods is not required by law.

(4) The customer is entitled to sell or process the goods under retention of title within accepted business practices. In this case, the following provisions shall apply additionally.

(a) The customer hereby assigns to us by way of security all claims against third parties resulting from the resale of the goods or products in total or in the amount of in the amount of our possible co-ownership according to the aforementioned paragraph. We accept the assignment. The obligation of the customer stated in par. 2 shall also apply to the claims assigned.

(b) The customer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the customer fulfills its payment commitments, no application has been filed to start insolvency proceedings and there is no other deficiency in the customer’s performance capacity and solvency. However, if this is in fact the case, we can request that the customer informs us of the assigned claims and their debtors, provides us with all necessary information and documents for collection and informs the debtors (third parties) of the assignment.

(c) If the realized value of the collaterals exceeds our claims by more than 10%, we shall, upon request of the customer, release collateral items of our choice.

§ 7 Warranty Claims for Customers

(1) The statutory rights shall apply to the rights of the customer in case of defects of quality and title (including incorrect and short deliveries as well as improper installation or inadequate installation instructions) insofar as not otherwise determined below. The special legal provisions in the case of the final delivery of the goods to the customer (right of recourse against supplier pursuant to sections 478, 479 BGB) shall remain unaffected.

(2) The primary basis for our liability for defects shall be the agreement made concerning the quality of the goods. All product descriptions above serve as an agreement concerning the quality of the goods, which are the subject of the individual contracts; it makes no difference whether the product description originates from the customer, manufacturer or from us.

(3) If no agreement has been made concerning the quality specifications of the goods, the presence or absence of defect shall be made according to statutory regulations (§ 434 – 1 S 2 and 3 BGB). However we assume no liability for claims or assertions made in public by the manufacturer or third parties (e.g., advertising)

(4) The customer’s warranty claims require that it has observed its statutory obligations to inspect the goods and to give notice of defects (§§ 377, 381 HGB). Should any defect be found during the inspection or later, we must be notified of this immediately. The notification is considered immediate if it is made within two weeks, whereby the time shall be considered observed if the notification is sent on time. If the customer fails to carry out the proper inspection and/or report of defects, our liability for the unreported defect is excluded.

(5) If the delivered good is found to be faulty, we can initially choose whether to make performance by remedying the defect (rectification of defects) or by delivering a defect-free item (replacement delivery). Our rights to refuse the subsequent performance under the statutory preconditions remains unaffected.

(6) The customer shall allow us the necessary time and opportunity for due subsequent performance and in particular shall hand over the goods concerned for inspection. In case of a replacement delivery, the customer shall, according to statutory regulations, return the faulty goods to us. The subsequent performance does not include either the disassembly of the faulty good or the new assembly, if we were not originally obliged to assemble the good in question.

(7) The expenses necessary for the purpose of inspection and subsequent performance, including transportation, travel, labor and material costs (excluding disassembly and assembly) shall be borne by us, if there actually is a defect. However, if it is determined that a customer’s request for repair is unjustified, we can demand that the incurred costs be reimbursed by the customer.

(8) Only in urgent cases, e.g., if operational safety is at risk or to prevent disproportionate damage, the customer has the right to remedy the defect themselves and to claim reimbursement from us for the objectively necessary expenses incurred. The customer shall advise us without delay, if possible beforehand, of any self-remedying of defects. The customer’s right to take action shall not apply if, according to legal stipulations, we were entitled to refuse supplementary performance.

(9) If supplementary performance has failed or a reasonable deadline set by the customer for the supplementary performance has expired or according to legal stipulations is superfluous, the customer shall be entitled to withdraw from the purchase agreement or reduce the purchase price. There shall however be no right to withdraw from the purchase agreement for any insignificant defects.

(10) The customer’s claims for compensation or reimbursement for wasted expenses shall only exist according to § 8 and are otherwise excluded.

§ 8 Other Liability

(1) Insofar as not otherwise derived from this AVB including the following provisions, we shall be liable according to the relevant legal statutes in case of a breach of contractual and non-contractual obligations.

(2) We shall be liable – regardless of legal reasons – in case of intent and gross negligence. In terms of minor negligence, we shall only be liable
for damages to life, body or health
for damages from the breach of an essential contractual duty (an obligation, the fulfillment of which enables the proper execution of the contract and on which abidance the contract partner regularly relies upon); in this case, our liability is however limited to the reimbursement of foreseeable, typically occurring damages.

(3) The limited liability in par. 2 shall not apply insofar as we have fraudulently concealed a defect or have given a quality guarantee for the goods delivered. The same shall apply for the customer’s claims according to the product liability law.

(4) The customer may only withdraw or terminate due to a violation of obligation which is not a defect if we are responsible for the violation of the obligation. A free right of termination (in particular according to §§ 651, 649 BGB) is excluded. In all other cases the legal preconditions and legal consequences shall apply.

§ 9 Statute of Limitations

(1) Notwithstanding § 438 par. 1 – 3 BGB (German Civil Code), the general limitation period for claim for defects is 1 year from delivery. Insofar as an acceptance has been agreed upon, the limitation begins with the acceptance.

(2) In the case of a building or an object used for a building in accordance with its normal use and which caused the defect (building materials), the limitation shall be according to legal regulations 5 years from delivery (§ 438 par. 1 – 2 BGB). Statutory special regulations for third parties’ claims based on property rights (§ 438 par. 1 – 1 BGB), in case of the fraudulent deceit on the part of the seller (§ 438 par. 3 BGB) and for claims of recourse against the seller in case of final delivery to a customer (§ 479 BGB).

(3) The abovementioned limitation period shall also apply for the customer’s contractual or non-contractual damage claims, which are based on a defect of the good, unless the use of the standard legal limitation period (§§ 195, 199 BGB) would result in a shorter limitation period in an individual case. The limitation period under the German Product Liability Act shall remain unaffected. In other cases the legal limitation periods shall apply exclusively for the customer’s damage claims according to § 8.

§ 10 Applicable Law and Jurisdiction

(1) For this AVB and all legal relationships between us and the customer, the law of the Federal Republic of Germany excluding uniform international law, in particular UN purchasing law, shall apply. Prerequisites and results of the reservation of title shall be according to § 6 subject to the law of the respective location, insofar as this states that German law would be inadmissible or invalid.

(2) If the customer is a merchant in the sense of the German Commercial Code, legal entity under public law, or a public estate, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in 78224 Singen, Germany. We shall however also be entitled to take legal action at the general registered office of the customer.

WEFA
Rudolf-Diesel-Str. 11, D-78224 Singen, Germany

17.07.2015