| 1 | General provisions |
| 1.1 | These terms and conditions of “WELOTEC GmbH (hereinafter referred to as “seller“) shall apply to all purchases, deliveries and services of the seller to en-trepreneurs, legal entities under public law or special funds under public law in terms of § 310 together with § 14 Civil Code (BGB) (hereinafter referred to as “customer“). Hereby inclusion of own conditions of the customer are denied unless their applicability was explicitly agreed. These conditions of sale and delivery shall exclusively apply as well if the seller carries out delivery without any special reservation, being aware of contradictory conditions or conditions deviating from these provisions.FONT> |
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| 2 | Contract conclusion |
| 2.1 | All offers and pricelists also in the seller’s online shop are without any obligation (so-called “invitatio ad offerendum“) as long as they do not become part of a contractual agreement. The product representation in the online shop serves for making an offer to buy. By clicking the “Buy Now” button the customer makes a binding offer to buy. A sales contract shall come into force upon the seller’s order confirmation. |
| 2.2 | Should the seller have agreed special conditions they principally shall not automatically apply to current and future contractual relationships with the cus-tomer. |
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| 3 | Prices and terms of payment |
| 3.1 | The stated prices of the seller are net prices in euros, exclusive of the legal German value-added tax. Packing and forwarding expenses, loading, insurance (particularly transport insurance), customs duties and taxes, transport costs shall be charged separately. |
| 3.2 | The purchasing price is payable without deduction within fourteen calendar days from date of invoice. |
| 3.3 | Payment is considered received as soon as the equivalent value is credited to one of the seller’s accounts. In the event of delayed payment, the seller shall be entitled to ten per cent default interest above the respective base rate. This shall not affect the remaining legal rights of the seller in the event of delayed payment by the customer. In case of overdue invoices, incoming payments shall be first of all reckoned up to probable costs and interest, thereafter to the oldest debt. |
| 3.4 | Bills of exchange shall be exclusively accepted with the explicit prior agreement, and exclusively on condition they are discountable and only on account of payment. Any expenditures arising to the seller hereunder shall be reimbursed by the customer. |
| 3.5 | In the event of unforeseeable cost increases (e.g. currency fluctuations, unexpected price increases of suppliers etc.) the seller shall be entitled to pass on the price increase to the customer. |
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| 4 | Foreign business |
| 4.1.1 | For deliveries abroad, the conventional clauses (e.g. “cif“, “ex works“, “fob“ etc.), having become a subject matter of contract according to the before-mentioned principles, shall be exclusively construed following the respectively latest version of the “International Commercial Terms” (“Incoterms”) as published by the International Chamber of Industry and Commerce. In this respect the content of the respective Incoterms becomes a component part of the contract. |
| 4.2 | As a matter of principle, the stated prices of the seller do not include any consular charges, import tariffs or other taxes/charges imposed due to regulations of the country of destination (in this connection we kindly ask you to refer to par. 3.2 applying at the same time). In the event of something else having been contractually agreed by way of exception, the tax included in the price shall be adapted to the respective price development of the amounts of fiscal charges from the agreement on. |
| 4.3 | The seller shall be exclusively obliged to observe foreign regulations of packaging, weighing and customs if the customer has given full particulars thereof in advance. |
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| 5 | Conditions of delivery and dispatch as well as passing of risk |
| 5.1 | In the event of several products being ordered via different product offers the seller shall be entitled for organisational reasons not the carry out an entire delivery. Moreover, the seller shall be entitled to partial delivery – even in the event of fixed dates – as far as this is reasonable to the customer. In case of admissible partial deliveries the seller shall be entitled to issue invoices for partial deliveries as well. |
| 5.2 | Delivery of objects of services is regularly made by shipping, whereas the choice of the way and the means of transport is left to the seller. Basically, stated times/dates of delivery are without commitment, unless the obligingness of the stated time/date is expressly confirmed by the seller. |
| 5.3 | In the event of a contract providing for delivery by carrier the risk of accidental perishing and accidental derioration of the objects of services passes onto a suitable transport person with delivery of the objects of services at the seller’s place of business. This shall apply as well if the seller bears the transport costs. Should the seller owe the installation and assembly, the risk is passed on with completion of the installation and assembly work and the handing over to the customer. |
| 5.4 | As far as delivery to the customer is impossible, e.g. because the objects of services should fail to fit through the entrance door, front door or the stairway of the customer or because the customer is not located at the delivery address stated by him although the time of delivery has been announced to the customer with an appropriate period of time, the customer shall bear the costs for the unsuccesful delivery. |
| 5.5 | Should shipment of the consignment to the customer be delayed for reasons caused by the customer, transfer of risk takes place already with announcement of readiness for dispatch to the customer. With the transfer of risk, probably arising storage costs shall be at the customer’s expense. |
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| 6 | Customer’s duty to cooperate |
| 6.1 | Provision of assembly and installation services by the seller in due time requires the customer’s cooperation. This includes the gratuitous provision of employees required and constructural equipment and working rooms. The customer shall be particularly obliged to provide the following services at his own expense: |
| 6.2 | all exvacation, construction and other sideline works uncommon in this type of industry inclusive of the required specialised personnel and assistants, building materials and tools, |
| 6.2.1 | utensils and materials required for assembly and installation, such as scaffolds, lifting gears and other appliances, fuels and lubricants, |
| 6.2.2 | energy and water at the application site inclusive of connections, heater and lighting, |
| 6.2.3 | sufficiently large, suitable, dry and lockable rooms at the installation site for the safekeeping of machinery parts, equipment, materials, tools etc. and appropriate working and recreation rooms for the assembly personnel inclusive of sanitary facilities appropriate to the circumstances; as for the rest, the customer is required to take all the measures for the protection of the seller’s property and the assembly personnel at the building site he would take for the protection of his own property, |
| 6.2.4 | protective clothing and protective devices required as a result of special circumstances at the application site. |
| 6.3 | Before taking up the assembly work, the customer shall be obliged without having been asked to provide the necessary information about the position of hidden-led electric, gas and water connections or similar plants as well as the required static information. |
| 6.4 | Before installation or assembly, non-proprietary components and devices required for the start of work shall be provided at the place of installation or assembly and all preparatory works shall be processed prior to beginning of installation to such an extent that installation or assembly may be started according to agreement and without any interruption. Access routes and the place of installation or assembly shall be evened out and cleared up. |
| 6.5 | Every day, the customer shall certify the seller the working hours of the assembly personnel as well completion of the installation, assembly or setting-up operation by return. |
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| 7 | Terms of delivery |
| 7.1 | Compliance with the terms of delivery for consignments requires the punctual receipt of all documents, necessary approvals and releases to be provided by the customer, particularly of schedules, as well as adherence to the conditions of payment agreed upon and other obligations by the customer. Should these prerequisites not be complied with in due time, the periods of time shall be ex-tended in an appropriate manner; this shall not apply if the delay is caused by the seller. |
| 7.2 | In case of force majeure the seller shall be obliged to delay delivery by the duration of the obstruction or to withdraw completely or partly without any claims against the seller arising thereof. Force majeure in terms of this contract comprises all events unforeseeable for the seller or such events, which – even if foreseeable – are beyond the seller’s influence and whose impact on the fulfilment of contract would not have been able to be avoided by reasonable efforts of the seller. Among others, this includes war (declared or not), war-like events, riot, blockade, embargo, sabotage, instructions by the executive, power supply failures, epidemics, fire, explosion or a general lack of material unknown up to that stage. |
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| 8 | Delay |
| 8.1 | Should the seller be in default the customer shall be obliged on the seller’s demand to explain within an appropriate period of time whether due to the delay he withdraws from the contract or if he insists on the service. Should the seller be in default, the customer – provided he credibly shows this has caused him a damage – may claim for compensation of 0.5 per cent per complete week in default, but all in all not more than eight per cent of the price for that part of the delivery which could not be put in serviceable operation due to the delay. |
| 8.2 | In the event of a delay of the service the customer within the scope of the legal provisions shall be exclusively entitled to withdrawal if the delay is justified by the supplier. Should the default cause the customer to justifiably claim for com-pensation or reimbursement of expenses in lieu of performance, he shall be en-titled to demand per week in default one per cent of the price for that part of the performance which due to the delay cannot the used, but all in all not more than eight per cent of this price. |
| 8.3 | In the event of any economic incapacity of the customer to fulfill his obligation against the provider, the seller shall be entitled to withdraw from the contract after an unsuccessful expiry of an appropriate period with regard to the performance. The same applies in the event of the customer filing for insolvency. § 312 Civil Code (BGB) and § 112 Insolvency Act (InsO) remain unaffected. The customer shall inform the seller about an imminent illiquidity in good time in writing. |
| 8.4 | Should the installation, assembly or setting-up operation be delayed due to any circumstances beyond the seller’s responsibility, the customer, to an appropriate extent, shall bear the costs arising for waiting time and additionally required travels of the supplier or the assembly personnel. |
| 8.5 | Should the customer request shipment or delivery being delayed by more than a month upon announcement of readiness for shipment, the customer may be charged storage charges per started month to the amount of 0.5 per cent of the price of the objects of the consignments, but all in all not more than five per cent. It is left to the conctract parties to proof evidence of higher or lower storage costs. |
| 8.6 | It is left to the contract parties to proof evidence of a higher or lower damage. |
| 8.7 | Before mentioned liability limitations shall not apply as far as a delay is based on the seller’s gross negligence or intention. |
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| 9 | Reservation of title |
| 9.1 | The seller reserves the right to ownership to the contractual services until the complete payment of the due compensation. Moreover, the seller reserves the right to ownership until the fulfillment of all his demands resulting from the business relationship with the customer. |
| 9.2 | The customer shall not pawn or assign by way of collateral any objects subject to reservation of title or legal reservation. Exclusively as a reseller the customer shall be allowed to resell in compliance with the usual course of business on the condition the customer has effectively assigned the seller his claims against his purchasers in the connection with the resale and that the customer assigns his purchaser the ownership under reservation of payment. By means of the contract conclusion, the customer by way of security assigns his claims in the connection with such disposals against his purchasers to the customer, who at the same time accepts this assignment. |
| 9.3 | Should the value of seller’s lien exceed the amount of the secured claims by more than ten per cent, the seller, on the customer’s demand, shall release a corresponding proportion of the lien. |
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| 10 | Liability for defects |
| The seller’s liability with regard to defects of quality and defects of title is as fol-lows: |
| 10.1 | An unimportant defect does not justify any warranty claims and does not entitle the customer to refuse acceptance of the contractual objects. Should part of the contractual objects not show any unimportant defect, this shall not entitle to the objection of the overall consignment. Something else shall exclusively apply if the partial delivery is without interest for the customer. Furthermore, payments of the customers may only be retained to an extent in due proportion to the defect of quality. Should the seller provide freeware he shall be liable for defects only if imputed due to intent or gross negligence. |
| 10.2 | Warranty claims due to natural wear and tear or damages arising after passing of risk as a consequence of inaccurate or negligent treatment, excessive exposure, inappropriate machinery materials, inadequate construction work, inappropriate construction purpose or due to particular outside influences not provided according to contract as well as software errors beyond reproducibility shall be excluded. In the event of any inappropriate amendments or repair works carried out by the custumer or a third party, any warranty claims with regard to these and subsequent consequences shall be excluded, unless the customer may prove the criticized defect has not been caused by these amendments or repair works. In the event of any used objects of services, rights and claims due to defects shall be excluded. |
| 10.3 | Claims of the customer due to defects to rectification or replacement shall be excluded should the claims result from the object of delivery having been carried out at another place than the place of delivery as agreed by contract, unless another place of delivery has been expressly agreed upon. |
| 10.4 | It is left to the seller to choose between rectification of a defect or replacement delivery. |
| 10.5 | The limitation period for warranty claims for new objects of services is one year from the passing of risk. The legal limitation periods for recourse action following § 478 Civil Code (BGB) remain unaffected, the same applies in the event of an intentional or gross negligent breach of duty of the seller, in the event of malicious concealment of a defect, liability due to a promise of guarantee as well as in the event of injury of life, body or health. This does not affect the legal regulations about suspension of statute of limitations and restart of deadlines. |
| 10.6 | If the customer is a merchant/businessperson in terms of § 1 Commercial Code (HGB), he shall be subject to the commercial duty of inspection and notification according to § 377 Commercial Code (HGB). Should the customer fail to his duty to notification regulated there, the object of services is considered approved. |
| 10.7 | Should the subsequent performance be carried out in the form of a replacement delivery, the customer shall be obliged to return the previously delivered object of services to the seller within 30 days. Return consignment of the malicious objects of services shall be announced to the seller, who will after that instruct a parcel service of his choice with picking up the objects of services. The parcel is to include a delivery note, the reason of return consignment and the order number, since otherweise it will be impossible to assign the objects of services. Otherwise, the seller shall not be obliged to the acceptance of returned objects of services and reimbursement of the purchasing price. |
| 10.8 | Should the seller provide an object free from defects for the purpose of a subsequent performance, the seller may assert a compensation for use against the customer in compliance with § 346 section 1 Civil Code (BGB). Other legal claims remain unaffected. |
| 10.9 | Assignment of warranty claims of the customer shall be excluded. |
| 10.10 | Product and other property descriptions of the seller do not represent any warrented properties or guarantee of durability in the sense of §443 Civil Code (BGB). The parties agree that guarantee bond in the sense of §443 Civil Code (BGB) is only given if confirmed by the seller in writing using the term “warranty“ or in compliance with the formal regulations stated in § 477. |
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| 11 | Liability |
| 11.1 | The seller shall always be liable towards the customer |
| 11.1.1 | for damages caused by him or his legal representatives or auxiliary persons with intent or due to gross negligence, |
| 11.1.2 | according to the Product Liability Act and |
| 11.1.3 | for damages in consequence of injury of life, body or health caused by the seller, his legal representatives or auxiliary persons. |
| 11.2 | In the event of slight negligence, the seller shall only be liable in the event of a substantial breach of contract. With regard to material damage and pecuniary loss, this liability shall be limited to the contract-coherent and foreseeable damages. This applies to loss of profit and missing savings as well. Liability for other more vague consequential damages shall be excluded. Liability following 10.1.2 remains unaffected by this clause. |
| 11.3 | With regard to a guarantee bond, the seller only awards damages if expressly stated in the written guarantee. In the event of slight negligence this liability shall be subject to the restrictions following par. 10.2. |
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| 12 | Statute of limitation |
| 12.1 | Claims with the exception of claims following par. 9 become time-barred three years after having become aware of, but not later than eight years after the latest date of service provision agreed upon. This shall not apply to intent and as far as the Product Liability Act is applicable. |
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| 13 | Set-off right and right of retention |
| 13.1 | The customer shall be exclusively authorized to declare a set-off or to execute the right of retention if the counter claim is uncontested, established as final and absolute or approved by the seller. |
| 13.2 | In the event of a defect, the customer shall only be entitled to retent payments at a proportionate part of the defect and exclusively on the condition the defect is free of doubt. Par. 9.1 sentence 1 shall apply accordingly. |
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| 14 | Applicable law |
| 14.1 | Any legal actions between seller and buyer shall be exclusively governed by the law of the Federal Republic of Germany with the exclusion of the law concerning international sales of movable objects. |
| 14.2 | If the customer is a merchant/businessperson, a legal entity under public law or a special fund under public law, the jurisdictional venue for all disputes arising directly or indirectly out of the contract relationship shall be the seller’s place of business. The same applies should the customer not have any general venue in Germany or should his place of residence or his habitual abode be unknown at the time of filing the action. This shall not exclude Welotec to be entitled to filing a suit with a court at another place of jurisdiction as well. |
