General Terms and Conditions, Terms and Conditions of Sale and Delivery of WEBER FIBERTECH GmbH
1.1 Our General Terms and Conditions shall apply exclusively. We shall not recognise any terms and conditions of purchase of the customer that contradict our terms and conditions of delivery or contain provisions that go beyond them, unless we expressly agree to their validity in writing. Our terms of delivery shall also apply if we carry out the delivery without any reservation in the knowledge of contradictory or deviating conditions of the customer.
1.2 Our General Terms and Conditions shall also apply to all future transactions with the Purchaser, even if no reference is made to our Terms and Conditions in an individual case.
1.3 Our General Terms and Conditions shall only apply to merchants according to §24 AGBG.
1.4 All prices stated in our price lists and offers are subject to change. Conclusions of contracts and other agreements, in particular verbal subsidiary agreements and assurances by employees and representatives, shall only become binding upon our written confirmation. Our written order confirmation shall be decisive for the delivery. The documents belonging to the offer such as illustrations, drawings, technical data, dimensional data are only binding for the execution if they have been expressly confirmed by us in writing.
1.5 We reserve the property rights and copyrights to drawings, to other documents (designs, dimensional and weight specifications, models, etc.) and to technical developments documented by Weber Fibertech. The reconstruction according to such documents or the manufacturing of items on the basis of such documents by the customer or third parties is not permitted. The Customer may not make these documents or items accessible to third parties or disclose, use or reproduce them without the express consent of the Seller. Upon request, he shall return the same to the Seller in full and without retaining any copies. Any infringement shall entitle us to demand injunctive relief and full compensation. Likewise, the customer shall be liable to us for all disadvantages resulting from any infringement of third party rights through the use of the documents provided to us by the customer.
2. Prices, packaging
2.1 Unless otherwise agreed, our prices are ex works, net and excluding packaging and shipping.
2.2 Costs incurred for freight, packaging, insurance, customs duties or taxes, which directly or indirectly affect the delivery, shall be borne by the Purchaser.
2.3 If we are obliged to take back transport packaging in accordance with the packaging regulations, the transport packaging must be returned to us free of charge.
2.4 Invoicing shall be based on the value added tax applicable at the time of delivery. The invoicing of sales tax shall only be omitted in cases where the prerequisites for a tax exemption of export deliveries are given.
3. Payment, Default of Payment
3.1 Payment of the purchase price and for services rendered shall be made within the agreed period, but not later than 30 days after delivery, by transfer to our account, irrespective of receipt of the goods.
3.2 Payment instructions, checks, bills of exchange shall only be accepted by special agreement and only on account of payment, with all collection and discount charges being charged. We expressly reserve the right to refuse such payment.
3.3 The customer shall only be entitled to withhold payments or to set off payments if his counterclaims have been legally established, are undisputed or have been acknowledged by us.
3.4 If the payment deadline is exceeded, we shall be entitled to charge interest in the amount of the respective bank rates for overdraft facilities, but at least in the amount of 4% above the respective discount rate of the Deutsche Bundesbank. We reserve the right to assert further damage caused by default.
3.5 Non-compliance with the terms of payment or circumstances that become known to us after conclusion of the contract that give rise to doubts about the purchaser's willingness to pay - e.g. unfavourable information, deterioration of financial circumstances, opening of judicial or extrajudicial composition proceedings or bankruptcy proceedings against the purchaser's assets, bill protests, non-conditional payment from other contracts and deliveries, etc. - shall entitle us to demand immediate payment of all our claims. We are then also entitled to carry out outstanding deliveries only against advance payment. If this payment is not made, we are entitled to withdraw from the contract due to non-performance after a reasonable period of grace. We may also demand the resale and processing of the delivered goods at the customer's expense. In the aforementioned cases, we shall be entitled, after prior notice and setting of a deadline, to enter the customer's premises, to take possession of the delivered goods and to dispose of them in the best possible way by means of private sale to offset the outstanding purchase price claim less any costs incurred.
4.1 Delivery periods and dates are only approximate unless we have expressly designated them as binding in writing. The delivery period shall commence on the date of the order confirmation, but not before clarification of all technical and commercial details as well as submission of releases etc. and/or receipt of an agreed down payment. Changes in the design of the delivery item shall interrupt and extend the delivery period accordingly.
4.2 The delivery period shall be deemed to have been complied with if the delivery item has left the factory or notification of readiness for dispatch has been given by the time the delivery period expires.
4.3 Our delivery period shall be suspended as long as the customer is in arrears with a liability.
4.4 Partial deliveries are permissible.
4.5 Delays in performance for which we are not responsible, e.g. due to force majeure, labour disputes or similar events that temporarily make performance significantly more difficult or impossible for us, shall extend the performance period by the duration of the disruption plus a reasonable start-up period. This shall also apply if the circumstances occur at sub-suppliers. We shall not be responsible for the aforementioned circumstances even if they arise during an already existing delay. In important cases, we shall inform the customer of the beginning and end of such obstacles as soon as possible. In such cases, we shall also be entitled to withdraw from the contract without granting compensation.
4.6 If we are in default, the customer must grant us a reasonable grace period in writing. If the delivery item is not dispatched by us within this period of grace, the customer shall be entitled to withdraw from the contract after expiry of the period of grace for those parts which had not been dispatched by the expiry of the period of grace. Only if the partial deliveries already made are of no interest to the customer, the customer shall be entitled to withdraw from the entire contract. Further claims due to delay, in particular claims for damages, are excluded, unless the delay was caused intentionally or by gross negligence. In the event of gross negligence, our liability for damages shall be limited to compensation for the damage foreseeable at the time the contract was concluded.
4.7 Compliance with the delivery period requires the fulfilment of the contractual obligations of the Purchaser.
5. Shipment and Transfer of Risk
5.1 All shipments travel at the risk of the purchaser. The mode and route of shipment shall be chosen by us. We shall endeavour to take into account the wishes of the customer. We are not obliged to insure the goods against damage in transit.
5.2 The risk shall pass to the customer at the latest upon dispatch of the goods; this shall also apply if partial deliveries are made, if we bear the shipping costs, or if we assume responsibility for transporting the goods.
5.3 Goods notified as ready for dispatch must be called off immediately. Otherwise, we shall be entitled, at our discretion, to dispatch them or to store them at the expense and risk of the customer and to invoice them immediately.
5.4 If shipment is delayed as a result of circumstances for which we are not responsible, the risk shall pass to the customer on the day on which the goods are ready for shipment.
6. Retention of Title
6.1 Deliveries shall remain our property until payment of all claims, irrespective of the legal basis, even if the purchase price for specially designated deliveries has been paid. In the case of a current account, the reserved property shall be deemed to be security for the balance claim. Treatment and processing of goods subject to retention of title shall be carried out for us as manufacturer to the exclusion of the acquisition of ownership in accordance with §950 BGB (German Civil Code), without any obligation on our part. The processed goods shall serve the supplier as security for the goods subject to retention of title in the amount of the invoice value.
6.2 In the event of processing of our goods with other goods not belonging to us by the customer, we shall be entitled to co-ownership of the new item in the ratio of the value of the goods subject to reservation of title to the other processed goods at the time of processing. Otherwise, the same shall apply to the new item resulting from the processing as to the goods subject to retention of title. It shall be deemed to be reserved goods within the meaning of these terms and conditions.
6.3 The customer may not dispose of the goods still owned by Weber Fibertech by sale, pledge, transfer by way of security or in any other way. Resellers shall be entitled to sell the goods in the proper course of business if they, for their part, reserve title to the goods.
6.4 The rights of the reseller arising from its retention of title, as well as its claims arising from the resale, are already now assigned to us as security for all our claims arising from the business relationship, irrespective of whether the goods subject to retention of title are resold without or after processing and whether they are resold to one or more purchasers.
6.5 In the event that the reserved goods are sold by the Purchaser together with other goods not belonging to us without or after processing, the assignment of claims shall only apply to the amount of the value of the reserved goods. The same shall apply if the reserved goods alone or together with other goods are the subject or partial subject of a contract for work and labour, a contract for work and materials or a similar contract. At our request, the customer shall be obliged to notify the assignment to the third party purchaser for payment to us.
6.6 The customer may not dispose of the goods subject to retention of title in a way that does not comply with the conditions of paragraphs 6.4 and 6.5.
6.7 We are entitled to set off payments made against the claims for which the entire security exists.
6.8 The customer must inform us immediately of any distraint or other impairment by third parties.
6.9 If the value of the existing securities exceeds our claims by more than 20% in total, we shall be obliged to release securities of our choice at the request of the customer.
7. Warranty, notice of defects and limit of liability
7.1 On delivery of products
A functional guarantee on products delivered in individual parts can only be granted if they are assembled by Weber Fibertech employees or at least under our supervision. We shall be liable for defects in the delivery, which also include the absence of expressly warranted characteristics, to the exclusion of further claims as follows:
- All parts that become demonstrably unusable or significantly impaired in their usability within 12 months (in the case of multi-shift operation within 6 months) of the invoice date as a result of a circumstance that occurred prior to the transfer of risk, in particular due to faulty design, poor construction materials or defective execution, shall be repaired or replaced free of charge at our discretion. We must be notified immediately in writing of the discovery of such defects. Replaced parts shall become our property. If dispatch, installation or commissioning is delayed through no fault of our own, liability shall expire no later than 12 months after the transfer of risk. For third-party products that are installed in our equipment, motors, electrical systems, electronics, etc., our liability is limited to the assignment of the liability claims to which we are entitled against the supplier of the third-party product. Assurances regarding performance, speed, etc. shall be deemed to have been fulfilled if they do not deviate by more than 5% when proven.
- The purchaser's right to assert claims arising from defects shall become time-barred in all cases from the time of the timely complaint, in 6 months, but at the earliest with the expiry of the warranty period.
- No warranty is assumed for damage caused by the following reasons: Unsuitable or improper use, faulty assembly or commissioning by the purchaser or third parties, natural wear and tear, faulty or negligent handling, in particular excessive stress, vandalism, unsuitable operating materials, replacement materials, faulty construction work, unsuitable building ground, chemical, electro-chemical or electrical connections, insofar as they are not attributable to our fault.
- In the event of a justified, immediate notification of defects, the purchaser's right to rectification of defective parts shall apply. Instead, we shall also be entitled, taking reasonable account of the interests of the ordering party, at our discretion to make replacement deliveries or to replace the reduced value. The customer shall grant us a reasonable period of time to carry out the rectification and allow us at least two attempts at rectification, otherwise we shall be released from the warranty obligation. Only in urgent cases of danger to operational safety, of which we must be informed immediately, or if we are in default with the rectification of the defect, shall the customer have the right to rectify the defect himself or have it rectified by third parties and to demand reasonable reimbursement of his costs from us.
- If we do not fulfil our obligation to rectify defects or do not do so in accordance with the contract or if rectification of defects fails or if we do not otherwise provide a warranty in accordance with para. III), the customer shall be entitled to a reduction in price or remuneration or, at its option, to rescission of the contract.
- Of the direct costs arising from the repair or replacement delivery, the costs of the replacement part including dispatch and the reasonable costs of removal and installation shall be borne by us, insofar as the complaint proves to be justified, furthermore, if this can be reasonably demanded according to the situation of the individual case, the costs of any necessary appointment of our service technicians and assistants. In all other cases, the customer shall bear the costs.
- The replacement part and the repair shall be guaranteed in the same way as the delivery item. The period of liability for defects in the delivery item shall be extended by the duration of the interruption of operations caused by the repair.
- Any improper modification or repair work carried out by the purchaser or third parties without our prior approval shall void any liability for the resulting consequences.
7.2 On Delivery of third-party products
In the case of delivery and assembly of third-party products, our liability for the delivery and assembly shall be limited solely to the assignment of the liability claims to which we are entitled against the supplier of the third-party products. The terms and conditions of the third-party company are available on request.
7.3 Supplementary Performance
Weber Fibertech shall be obliged to provide supplementary performance exclusively at the registered office of its own company. The delivery to the registered office shall be arranged by the Client. The transport costs required for this shall be paid by the Client. Should the complaint prove to be justified, the necessary transport costs shall be reimbursed by Weber Fibertech. The
return of the defective delivery for inspection/repair must be made to us by the ordering party within a period of 2 weeks within Europe and 4 weeks outside Europe.
Warranty claims shall only be considered if they are submitted to us in writing. Other or further warranty claims are excluded. This also applies to claims for compensation for damage that has not occurred to the delivery item itself (consequential damage). Warranty claims for wearing parts are excluded.
8.1 Unless otherwise stipulated in these terms and conditions, we shall only be liable for damages due to breach of contractual or non-contractual obligations in the event of intent or gross negligence. However, we shall only be liable for intent and gross negligence of non-executive vicarious agents if they breach a material contractual obligation.
8.2 All claims against us, irrespective of the legal grounds, shall become statute-barred after one year at the latest, unless shorter limitation periods are provided for by law or agreed by the terms and conditions of delivery and sale.
8.3 Claims for personal injury or damage to privately used property under the Product Liability Act shall remain unaffected by the above provisions.
9 Place of Performance, Place of Jurisdiction
9.1 The place of performance for our deliveries and services, but in particular also for the performance of a subsequent fulfilment, is the registered office of our company.
9.2 The place of jurisdiction, also for matters relating to bills of exchange and cheques, as well as for all disputes arising directly or indirectly from the contractual relationship and for the judicial dunning procedure, is also agreed to be the registered office of our company. We are entitled to sue the customer at his general place of jurisdiction.
10. Final Provisions
10.1 These terms and conditions and the entire legal relationship between us and the customer shall be governed exclusively by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). Should any provision of these terms and conditions be invalid, this shall not affect the validity of the remaining provisions.
10.2 Rights of the customer arising from the legal transaction concluded with us are not transferable.
10.3 Obvious errors made by us in the offer, order confirmation or invoicing entitle us to contest or withdraw from the contract.