General Terms and Conditions of Wilhelm Westholt GmbH
§ 1 Scope of application
(1) The following General Terms and Conditions apply to the sale of goods by us, Wilhelm Westholt GmbH, Zeißstraße 9, 50171 Kerpen and for all of our other services.
(2) Our services are exclusively aimed at entrepreneurs within the meaning of § 14 BGB (German Civil Code) as well as persons under public law or public-legislative funds (henceforth: Customers). We expressly do not provide services to consumers within the meaning of § 13 BGB.
(3) Entrepreneurs within the meaning of § 14 BGB are natural persons or legal persons or legal partnerships if they are operating in the exercise of their commercial or independent professional activities when a legal transaction is concluded.
(4) Consumers, within the meaning of § 13 BGB (BGB), are natural persons who conclude a legal transaction for purposes which cannot be attributed predominantly to their commercial or self-employed professional activities
(5) These General Terms and Conditions apply to all present and future business relationships.
(6) Deviating, opposing or supplementary General Terms and Conditions of Business shall not become part of the contract, even if we are aware of them, unless their validity is expressly agreed in writing. In the case of foreign transactions, the latest version of the Incoterms is also applicable.
§ 2 Contract formation
(1) The presentation of our goods or other services, e.g. in catalogues or on our website, does not constitute a binding offer for the conclusion of a contract. Rather, they are non-binding solicitations for orders of our goods. Technical changes as well as changes in shape, colour and/or weight remain within the scope of reasonable reservations.
(2) Orders for goods or other services can be placed by the Customer either in writing, by email or by telephone.
(3) By ordering goods, the Customer makes a binding declaration of their intention to purchase the goods. We are entitled to accept the contract offer in the order within 2 weeks of receipt. The acceptance may be declared either in writing or by delivery of the goods to the Customer. For new Customers, prior to accepting the order, we check the corporate credentials as entrepreneurs, of which evidence must be provided to us in a suitable and verifiable format upon request, e.g. by specifying the VAT ID or submission of a valid trade register extract.
(4) Orders by electronic means are only possible through individual communication via email. By accepting the Customer’s contract offer in accordance with section 3, i.e. upon conclusion of the contract, we shall provide the Customer with the possibility of retrieving the contract provisions including these General Terms and Conditions and to store them in a reproducible form.
(5) Contract formation is subject to correct and timely delivery to us by our suppliers. This is only the case if the non-delivery is not attributable to us, particularly if the appropriate hedging transaction has been concluded with our supplier.
(6) Cost estimates, drawings and other documents issued by us after ordering the goods by the Customer remain in our property. We expressly and unrestrictedly reserve property rights and copyrights. The above documents may not be passed on to third parties by the Customer. If a contract is not concluded, the drawings and other documents in relation to the offer must be returned to us immediately upon our request.
§ 3 Property rights
(1) We reserve the property rights to the goods until full settlement of all claims arising from a current business relationship with the Customer has taken place.
(2) The Customer is obligated to handle the goods carefully until the transfer of the property has taken place. If maintenance and inspection work is required, the Customer has to perform this regularly at their own expense.
(3) The Customer is obligated to notify us without delay of third party access to the goods, e.g. in case of a pledge, as well as possible damage or the destruction of the goods. The Customer has to inform us immediately of a change of ownership of the goods as well as of any change of place of business.
(4) We are entitled to rescind the contract if the Customer violates the contract, in particular in the event of a delay in payment or in the event of a breach of an obligation pursuant to sections 2 and 3 of this contract and to demand the goods still in our possession. (5) The Customer is entitled to resell the goods which are still our property in the ordinary course of business. The Customer already assigns to us all claims at the amount invoiced, which are due to the Customer as a result of the resale from a third party. We accept this assignment. Following the assignment, the Customer is authorised to collect the proceeds of the claim. We reserve the right to collect the proceeds of the claim ourselves as soon as the Customer fails to meet their payment obligations properly and is in payment arrears.
(6) The handling and processing of the goods by the Customer always takes place in our name and on our behalf. If processing is carried out with items which are not owned by us, we shall acquire the co-ownership of the new item to the ratio of the value of the goods delivered by us to the other items being processed. The same applies when the goods are combined with other items not in our ownership.
(7) We undertake to release the securities to which we are entitled under the above provisions at our own discretion at the Customer’s request insofar as the realisable value of all collateral exceeds by 10 per cent, the total amount of the receivables to be secured. This ceiling is increased by the current rate of sales tax, provided that we are obligated to transfer the value-added tax from the proceeds of the exploitation. We shall take due care of the legitimate interests of the Customer in selecting the collateral to be released.
(8) The Customer is obligated to insure the delivered goods against theft, breakage, fire and other damages as long as the delivered product remains in our property as a result of the previously stipulated retention of title. The Customer shall immediately notify us of this fact and of any damage. If the insurance described above is not put in place by the Customer, we are entitled to enter into an insurance contract with regard to the delivered goods ourselves at the expense of the Customer.
§ 4 Remuneration
(1) The offered purchase price is binding. The statutory value-added tax is added to the purchase price. Bulk goods are calculated as follows: Orders of up to 30 running metres, of cuttings, fixed sizes or half pieces are charged according to the coupon price. Otherwise the bale price will be charged. The price list valid at the time is used, which is sent to the Customer.
(2) The sales shipment is defined as the purchase price plus shipping costs. The packaging is included in the purchase price. Special packaging is charged. The Customer does not incur any additional costs when using the remote communication equipment. The Customer can pay the purchase price by cash on delivery or invoice. For new Customers, the payment terms are cash on delivery or prepayment.
(3) The Customer undertakes to pay the purchase price within 14 days subject to deduction of 2% discount or net within 30 days from the date of the invoice. Once this deadline has elapsed, the Customer is in payment arrears. During the period of arrears, the Customer must pay interest charges of 8 per cent above the base interest rate. We reserve the right to prove and assert higher damages caused by arrears.
(4) The Customer has a right to set-off only if the Customer’s counterclaims have been legally established or acknowledged by us. The Customer can only exercise a right of retention if their counterclaim is based on the same contractual relationship.
§ 5 Transfer of risk
(1) The risk of accidental loss and accidental deterioration of the goods shall be transferred to the Customer upon transfer, when the goods are shipped to the forwarder, freight carrier or the person or institution who is otherwise designated to carry out the dispatch.
(2) The transfer is still deemed to have taken place if the Customer’s acceptance is delayed.
§ 6 Warranty
(1) Ordinary commercial deviations or minor, technically unavoidable deviations in quality, colour, width, quantity, weight, equipment or design may not be contested. We reserve the right to make customary over- or under-deliveries of up to 10%. It is not possible to make any claims once the product has been customised or when processing of the delivered goods has begun.
(2) We guarantee that we will make good any defective goods by, at our own discretion, making either subsequent improvements or a replacement delivery.
(3) If the subsequent delivery is not adequate, the Customer may then choose to request a reduction in the purchase price (discount) or to rescind the contract (withdrawal). The Customer has no right of withdrawal if the breach in contract is minor in nature, particularly in the case of minor defects.
(4) Within a period of 2 weeks from receipt of the goods, the Customer must notify us in writing of obvious defects and defects which can be identified by a proper inspection; otherwise the assertion of the warranty claim is excluded. The deadline shall be considered to have been adhered to if the goods are dispatched on a timely basis. The full burden of proof is with the Customer for all complaints, in particular for the defect itself, for the time of the discovery of the defect and for the punctuality of the complaint.
(5) If the Customer chooses to withdraw from the contract due to a legal or material defect if the subsequent delivery is not adequate, the Customer is then not entitled to any compensation for damages due to the defect. If the Customer chooses to claim damages after the subsequent delivery is deemed inadequate, the goods will remain with the Customer, if this is reasonable in the Customer’s view. The compensation shall be limited to the difference between the purchase price and the value of the defective item. This is not applicable if the breach of contract has been caused by us as a result of malicious actions.
(6) The warranty period is 1 year from delivery of the goods. In the case of used goods, the period of limitation is 1 year from delivery of the goods. This does not apply if the Customer has not indicated the defect to us on a timely basis pursuant to section 4.
(7) The condition of the goods is only to be determined in line with the manufacturer’s product description. Public statements, slogans or advertisements by the manufacturer do not constitute a contractual specification of the quality of the goods.
(8) If the Customer is provided with faulty assembly instructions, we are only obligated to supply fault-free assembly instructions and this also only if the defect of the assembly instructions obstructs proper installation.
(9) The Customer is not provided with guarantees in the legal sense. Manufacturer guarantees are unaffected by this.
§ 7 Liability limitations
(1) In the case of slightly negligent breaches of duty, our liability is limited to the direct average damage that is foreseeable and also typical for such contracts, according to the nature of the goods. This also applies to slightly negligent breaches of duty by our legal representatives or vicarious agents. We do not accept liability for slightly negligent breaches of non-material contractual duties.
(2) The above limitations to liability do not affect the Customer’s claims arising from product liability. The limitations of liability do not apply to physical injury or damage to the health or death of the Customer.
(3) Claims for damages on the part of the Customer due to a defect are limited to 1 year from delivery of the goods. This does not apply if malicious actions can be attributed to us.
§ 8 Final provisions
(1) The law of the Federal Republic of Germany applies. The provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply.
(2) The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is our place of business.
(3) Should individual provisions of the contract with the Customer including these General Terms and Conditions be or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected thereby. The entire or partially invalid provision shall then be replaced by a provision whose economic purpose comes as close as possible to that of the invalid provision.
Kerpen, May 2016