General Terms and Conditions of Sale, Delivery and Payment of Westeria® Fördertechnik GmbH for Entrepreneurs
§ 1 General Provisions
- These General Terms and Conditions of Sale, Delivery and Payment (hereinafter referred to as: Conditions of Sale) only apply in relation to persons who, when concluding the contract, are exercising their commercial or independent professional activity (entrepreneurs) as well as in relation to legal persons under public law and special assets of the Federal Government.
- These Conditions of Sale are legally binding on and apply exclusively to all transactions between Westeria® Fördertechnik GmbH (hereinafter referred to as: Westeria®) and its contracting partners. These Conditions of Sale are deemed to be accepted at the latest upon the acceptance of the goods/services of Westeria® by the contracting partner.
- They shall also apply to all future business relationships, including if their inclusion has not again been agreed upon explicitly and/or if no reference is made again to their applicability.
- Any conflicting or deviating regulations of the contracting partner are not recognised by Westeria®. Westeria® expressly objects to the inclusion of such general terms and conditions. These shall also not apply if Westeria® has fulfilled its obligations under the relevant contracts without reservations and/or accepted the contracting partner's performance without objections, although Westeria® was aware of the contracting partner's conflicting or deviating general terms and conditions. Any conflicting or deviating terms and conditions of the contracting partner only apply if Westeria® has consented to their applicability explicitly and in writing.
§ 2 Conclusion of the Contract
- The offers of Westeria® are non-binding and subject to confirmation. This shall apply insofar as nothing different results from the quotation and/or was agreed upon explicitly in writing.
- If a purchase order sent to Westeria® can be regarded as an offer as defined by Section 145 German Civil Code (BGB), Westeria® is entitled to accept this offer within a period of four weeks. However, a contract is only concluded if Westeria® has confirmed the conclusion of the contract in writing or already commenced executing the ordered work.
- All agreements made between Westeria® and the contracting partners are to be recorded in writing. Supplements and changes to existing contracts must also be made in writing to become effective. The requirement of the written form can only be waived through a written agreement between the contracting parties.
- Illustrations, drawings, dimensions, weights, calculations and other documents/data are only binding when the parties have agreed upon this explicitly and in writing. Westeria® retains the title/copyright to these documents. The contracting partner is strictly prohibited from transferring or making accessible these documents to third parties, in particular if they were qualified as "confidential". Any disclosure requires the prior written consent of Westeria®.
- Unless otherwise indicated in Westeria®'s order confirmation or quotation, the indicated prices are “ex works” Westeria® in Ostbevern, plus applicable value added tax. The indicated prices do not include the costs for freight, loading and unloading, transportation, insurance, assembly and commissioning. These services are charged additionally.
- All prices are in euro.
- Unless agreed upon otherwise between the parties, Westeria® is bound by its offer/the offer prices for a period of 30 days from the date of the offer.
- If there are any cost reductions or cost increases following conclusion of the contract, Westeria® is entitled to adjust the prices agreed. This applies in particular to changes in material prices, to technical modifications and to changes in specifications and work requirements. At the request of the contracting partner, Westeria® has to give proof of changes in the costs.
§ 3 Payment
- Unless explicitly agreed upon otherwise by the parties, all invoices of Westeria® shall be due and payable after provision of the performance owed without any deductions, i.e. within 14 days from invoicing.
- Westeria® shall be entitled to offset any payments from the contracting partner initially against the contracting partner's older debts. Westeria® will notify the contracting partner promptly of the type of offsetting made.
- A payment is deemed to be made when Westeria® can dispose freely of this amount. In the event of payment by cheque, payment is deemed to be effected when the cheque has been honoured.
- If the contracting partner is in arrears with payment, Westeria® is entitled to charge interest of 8 percentage points above the base interest rate from the applicable date. Where the contracting partner can demonstrate that lower damage has occurred, a lower interest rate shall be used. Westeria® is entitled to prove higher losses due to default.
- If Westeria® becomes aware of any circumstances that give rise to justified doubts in the contracting partner's creditworthiness, Westeria® is entitled to demand immediate payment of the entire residual debt. In addition, Westeria® may request advance payments and/or collateral.
- You agree that you will be receiving Westeria® - invoices electronically. The invoices will be sent via Email as PDF-file.
§ 4 Delivery
- Any delivery periods stated by Westeria® are always non-binding. Any regulation to the contrary shall only apply if the parties have agreed a binding period of performance explicitly and in writing.
- As a rule, delivery is effected at the risk of the contracting partner, regardless of the type and place of shipment. The risk shall pass from Westeria® to the contracting partner upon handing over the goods to the transportation company/the person performing transportation. Any regulation to the contrary shall only apply if the parties have agreed something different explicitly and in writing beforehand.
- The costs of transportation insurance are to be borne by the contracting partner if the latter requests that such an insurance be taken out. The same applies if the shipment is to be insured by Westeria® against theft, fire, breakage or water damage or any other insurable damage at the request of the contracting partner.
- Should there be any delays in performance due to force majeure or due to unforeseeable circumstances beyond the responsibility of Westeria® (e.g., public disorder, strikes, operational disorders that are not Westeria®'s fault, lock-outs, etc.), an agreed delivery period shall be extended by the duration of the disorder plus a reasonable start-up time. The same shall apply if Westeria® does not receive punctual delivery from a supplier.
- In addition, any technical changes as well as changes in specifications and work requirements after order placement will result in a reasonable extension of the agreed delivery period.
- In the event of a delay in performance beyond the responsibility of Westeria®, the contracting partner, after the unsuccessful expiry of a reasonable additional period granted by the contracting partner, may cancel the contract in respect of the portion not yet fulfilled. The additional period must be specified in writing. The additional period commences upon receipt of the relevant notice of extension granted.
- In the event of any other delays in performance, the contracting partner is entitled to cancel the contract if the partner has previously granted Westeria® a reasonable period for delivery and if this period has passed to no avail. The contracting partner is only entitled to damage compensation claims if the delay is attributable to intention or gross negligence on the part of Westeria®.
- Westeria® is entitled to provide partial deliveries or partial services, unless the contracting partner is not interested in the partial deliveries/partial services. Westeria® may invoice each partial delivery separately.
- Compliance with the obligations of delivery and performance is subject to the punctual and proper fulfilment of the contracting partner's obligations.
- If the contracting partner is in default with acceptance, Westeria® is entitled to demand reimbursement of any losses incurred. Upon entry of the default in acceptance, the risk of accidental loss/of accidental deterioration shall pass to the contracting partner.
§ 5 Warranty
- Any warranty claims for defects will only accrue subject to the condition that the commercial contracting partner inspects the goods delivered by Westeria® for any defects immediately after receipt and notifies Westeria® thereof immediately in the event of apparent defects and, in the event of hidden defects, immediately after their discovery. If the contracting partner fails to give the required notice of defects, the goods are regarded as approved. Any warranty claims for defects are excluded in this case.
- The contracting partner's warranty claims are statute-barred after 12 months. The period of limitation begins to run upon the delivery of the goods. However, in deviation therefrom, the statutory periods of limitation shall apply where the laws specify a longer period of limitation for buildings or for delivery items that are used for a building on the basis of their customary mode of use. The statutory periods of limitation shall also apply in relation to the contracting partner's damage compensation claims that are based on a culpable violation of life, limb or health or for any other losses that are due to Westeria®'s grossly negligent or intentional breach of duty. Otherwise, the regulation set forth in § 8 of these Conditions of Sale shall apply.
- No warranty claims are granted if the defectiveness is due to the fact that the contracting partner has failed to comply with Westeria®'s operating and maintenance instructions and if non-compliance was causal for the resulting defect. The same applies where the defectiveness is due to incorrect assembly or start of operation by the contracting partner or by third parties. Furthermore this applies if modifications to the products are made, parts exchanged or consumables used that are not in line with the specifications provided by Westeria®, unless the defect is not causally linked to the changes made or the consumables used by the contracting partner.
- Normal wear and tear as well as damage due to improper treatment are excluded from the warranty. In particular, Westeria® is not liable for any changes in the goods' conditions due to improper storage at the contracting partner.
§ 6 Reservation of Title
- Westeria® reserves the title and the right of disposal to the delivered goods, until all its claims resulting from the business relationship with the contracting partner have been paid in full. This also applies to future claims not yet accrued.
- Processing or transformation of goods is always effected for Westeria® as the manufacturer, but without Westeria® incurring any obligations as a result. If the ownership of Westeria® lapses due to combination/mixing/processing, the parties herewith now agree that the contracting partner's ownership in the combined item shall pass to Westeria® in proportion to the relevant value (invoice amount). The (co-)ownership of Westeria® shall be safeguarded by the contracting partner at no cost.
- The contracting partner shall be entitled to sell the goods delivered by Westeria® in the normal course of business. The claims arising from the resale are herewith assigned to Westeria®, including any ancillary rights and security interests. Claims based on any other legal cause in relation to the reserved goods are also assigned to Westeria®. Westeria® accepts the assignment. The claims assigned serve to secure all claims of Westeria® against the contracting partner in the amount of the reserved goods sold. Prior to the full payment of any claims, the contracting partner is not entitled to resell the goods if a prohibition of assignment was or is agreed upon with the third party in respect of the claims assigned to Westeria®.
- Westeria® authorises the contracting partner to collect the claims assigned to Westeria® in the partner's own name and on own account in the normal course of business. This power of collection can be revoked if the contracting partner does not fulfil its payment obligations properly. If court or out-of-court insolvency proceedings are applied for or in the event of a cheque or bill protest, the authorisation to collect the assigned claims shall lapse.
- The contracting partner is not entitled to pledge the reserved goods or transfer them by way of security to a third party. In the event of any third-party interventions on the reserved goods, in particular attachment of reserved goods, the contracting partner shall refer to the title of Westeria® and notify Westeria® thereof immediately. The contracting partner is liable to Westeria® for extra-judicial and judicial costs, in particular the costs of a necessary court action pursuant to Section 771 of the Code of Civil Procedure (ZPO).
- The contracting partner is obliged to treat the reserved goods with due diligence and care. Westeria® is entitled to insure the reserved goods at the cost of the contracting partner, i.e. against fire, water, theft and any other damage. This does not apply if the contracting partner has effected corresponding insurance. At the request of Westeria®, the contracting partner has to give proof of the conclusion of such an insurance contract.
- In the event of late payment, Westeria® is entitled to take the delivered goods back if Westeria® has sent a payment reminder to no avail. In this case, the contracting partner is obliged to return the reserved goods. Invoking the reservation of title or making the claim for surrender as well as attachment of the reserved goods by Westeria® does not constitute a declaration of rescission.
- Westeria® may rescind the contract if the contracting partner has filed for insolvency proceedings. In this case, Westeria® may demand the immediate return of the reserved goods.
§ 7 Confidentiality
Unless otherwise expressly agreed upon in writing between the parties, any information provided to Westeria® in connection with purchase orders are not regarded as confidential.
§ 8 Liability
Unless specified otherwise in these terms and conditions, Westeria® is liable for damages and compensation of fruitless expenses as defined by Section 284 BGB due to breach of contractual or non-contractual duties only in the event of intent or gross negligence of its legal representatives or vicarious agents, in the event of a violation of life, limb or health, due to the assumption of a guarantee or risk of procurement, the violation of material contractual duties, due to mandatory liability under the Product Liability Act or any other mandatory liability. However, compensation for damages due to breach of material contractual duties is limited to the foreseeable damage typical for such contracts, except in the event of intent or gross negligence of Westeria®'s legal representatives or vicarious agents or due to the violation of life, limb or health or assumption of a guarantee or a risk of procurement. This regulation does not lead to a change in the burden of proof to the disadvantage of the contracting partner.
§ 9 Place of Performance/Place of Jurisdiction
- The place of performance for delivery and payment is Westeria®'s registered office in Ostbevern.
- If the contracting partner is a merchant as defined in the Commercial Code (HGB), a legal person under public law or special assets of the Federal Government, the exclusive place of jurisdiction for all disputes arising from the contractual relationship is the registered office of Westeria® in Ostbevern. However, Westeria® may also sue the contracting partner at the latter's general place of jurisdiction or at the place of jurisdiction of the contracting partner's branch office.
§ 10 Applicable Law
The legal relations between the parties shall only be regulated pursuant to the laws of the Federal Republic of Germany, excluding the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).
§ 11 Salvatory Clause
If individual provisions of the underlying contract are or become invalid or unenforceable, the validity of the rest of the contract shall not be affected. The parties undertake to replace the invalid or unenforceable provision by a valid provision that comes closest to the parties' commercial intent. The same shall apply if the Conditions of Sale are invalid in whole or in part. Here as well, the remaining sales conditions continue to be valid.
Westeria® Fördertechnik GmbH