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Terms and Conditions

Terms and conditions

 

of WERZALIT GmbH + Co. KG

 

 
§1 General/scope

(1) Our terms and conditions shall be exclusively applicable. We do not recognise contradictory terms or terms deviating from our terms and conditions or supplementary conditions proposed by customers, unless we explicitly agree to such terms and conditions in writing.
(2) Our terms and conditions shall also apply to delivery to the customer without reservation in such cases when we are aware of contradictory terms or terms of the customer that deviate from our specified terms and conditions.
(3) All agreements that have been concluded between the customer and us for the purpose of fulfilling this contract have been written into this contract. Supplementations or modifications to the contract require the written form.

 
§2 Offer

Our offer is without obligation if no other specifications have been made in the acknowledgement of order. A contract will not be concluded unless we confirm the order in writing or fulfil the order received from the customer based on our quotation.

 
§3 Supply

(1) We are entitled to withdraw from the contract if we do not receive the correct supplies nor do not receive them in good time unless we are responsible for this.
(2) If we are entitled to withdraw from the contract in accordance with Section (1), we shall be obliged to inform the customer immediately of this fact and to compensate him at once for any return services or payments he has made.

 
§4 Adherence to operational instructions and installation guidelines

(1) Our operational instructions and installation guidelines must be adhered to.
(2) We shall assume no liability for any damage resulting from non-adherence to operational instructions and installation guidelines.

 
§5 Prices/terms of payment

(1) If no other provisions have been specified in the acknowledgement of order, our prices are understood to be "ex works", excluding packaging, shipping and insurance costs. Processing cost could be charged for small assignments in accordance with prior agreement.
(2) The customer must pay the price which is valid on the delivery day.
(3) The statutory value-added tax is not included in our prices. The statutory VAT will be declared separately in the invoice on the day of invoicing.
(4) If no other provisions have been specified in the acknowledgement of order, the net purchase price must be paid (without deduction) within 30 days from the invoice date.
(5) If the customer should pay within 14 days from the invoice date, he shall be entitled to deduct 2 % discount from the net amount invoiced.
(6) The customer shall only be entitled to offset against a claim that is legally effective, uncontested or accepted by us.
(7) We reserve the right to assign claims against the customer to third parties.

 
§6 Partial delivery and delivery on request

(1) We are entitled to effect partial deliveries.
(2) If the delivery in several consignments or on request has been explicitly agreed upon, we may withdraw from the contract following expiry of a reasonable period of grace of four weeks or demand payment of the agreed price against provision of all the goods ordered, at the most, if the customer should refuse to accept or fail to demand the deliveries in several consignments as agreed upon.
(3) The customer must have completely demanded the goods ordered on request within a period of six months, if no shorter deadline has been agreed upon. The order on request must be received by us within an appropriate period prior to the delivery date.

 
§7 Delivery time

(1) Details relating to the delivery time are non-binding unless other provisions have been explicitly arranged.
(2) The adherence to our obligation to deliver presupposes the punctual and proper fulfilment of all obligations by the customer. The right of objection to non-fulfilment of contract shall be reserved.
(3) If the customer is in default of acceptance or is guilty of the infringement of other obligations to cooperate, we shall be entitled; in as far as damages are incurred, to demand compensation including any additional expenses incurred. We reserve the right to pursue further claims.
(4) In as far as the prerequisites from (3) are met; the risk of loss by accident or accidental deterioration of the purchased goods is transferred to the customer as soon as he is in default of acceptance or in default of payment.
(5) If we are responsible for the exceedance of a delivery date, the customer is entitled to withdraw from the contract after he has granted us an appropriate period of grace, specified in writing, and this period has elapsed without rectification. The appropriate period of grace must amount to four weeks at least.
(6) If we are prevented from delivering due to force majeure, the delivery date shall be extended by the duration of force majeure without further ado. The force majeure is unpredictable and is equivalent to circumstances for which we hold no responsibility but make the delivery unreasonably difficult or impossible, such as labour disputes, measures defined by authorities, poor supply of raw materials, operational breakdowns due to water, fire, machinery breakdown etc., irrespective of whether they occur on our premises or on the premises of our suppliers. If the aforementioned circumstances should last for longer than four months, we shall have the right to withdraw from the contract. On request of the customer we are obliged to declare whether we will withdraw from the contract or whether we will deliver within an appropriate deadline that we shall define.

 
§8 Transport and passing of risk

(1) If no other provisions have been made, we shall determine the method of transport and transport route, without assuming the responsibility that these will be the quickest and cheapest options.
(2) The risk is transferred to the customer as soon as the goods leave the warehouse or the supplying plant and are handed over to the forwarding agent. This also applies to partial deliveries. If the customer refuses to accept the goods unjustifiably, or the delivery is delayed due to reasons for which the customer is responsible or if the customer fails to demand requested deliveries within the specified deadline, the risk is transferred to the customer.
(3) The customer must pay the conventional storage fee if the goods are stored on our premises. If the goods are stored on the premises of third parties, the customer is obliged to pay the storage fee of the third party.
(4) In the case of damage or loss of goods during transport, the customer is obliged to make an assessment of damage or loss immediately.

 
§9 Liability for defects

(1) The warranty rights of the customer presuppose that the latter has duly fulfilled his obligations of inspections and complaints in accordance with § 377 HGB (German Commercial Code).
(2) If defects are detected in the purchased goods, we shall be entitled to choose an option to either rectify the defect or deliver a replacement for the defective item. If we choose to rectify the defect, we shall be obliged to bear the necessary costs, in particular, transport costs, travel expenses, labour and material costs, in as far as these costs are not increased, and the purchased goods are not brought to a location other than the location of application that was defined on conclusion of the contract.
(3) If the remedy should fail, the customer shall be entitled to demand withdrawal from the contract or a reduction in price, according to his choice.
(4) We assume liability in accordance with statutory regulations in as far as the customer has asserted claims for damages that result from intent or gross negligence. If we have not brought about the infringement of the contract through intent, the liability for the compensation of damage is, however, restricted to anticipated, typical occurring damage.
(5) Furthermore, we assume liability in accordance with statutory regulations in as far as we have been culpable of a significant infringement of contract (cardinal obligation). In this case the liability with regard to compensation of damage is restricted to the anticipated, typical occurring damage.
(6) So far the customer is entitled to claim for damages or compensation instead of supplementary performances, our liability is restricted to the compensation of anticipated, typical occurring damage.
(7) The liability for culpable loss of life, bodily injury or impairment of health shall remain unaffected. This shall also apply to the mandatory liability in accordance with the product liability law.
(8) Liability shall be explicitly excluded in absence of provisions to the contrary above.
(9) The statute of limitations in the case of a delivery regress in accordance with §§ 478, 479 BGB (German Civil Code) shall remain unaffected.

 
§10 Period of limitation with regard to claim for defects

(1) The statute of limitations for defects is 12 months.
(2) In the case of purchased goods, which have been used for a construction in accordance with their normal field of application and have caused defectiveness in the latter, the statute of limitations shall elapse after two years unless the person, who has installed the purchased goods in the construction, has a responsibility towards his contractual partner extending for a period of longer than two years with regard to any defects in the purchased goods. In this case this period of limitation shall apply, but not more than the period of limitation defined in § 438 Section Clause 2 lit. b BGB (German Civil Code).

 
§11 Miscellaneous claims for damage

(1) In absence of any provisions to the contrary above, claims for damage and reimbursement of expenses of the customer (in the following: claims for damage), irrespective of the legal ground, in particular due to infringement of obligations from the contractual relationship and from tortious act, shall be excluded.
(2) This shall not apply in cases of intent or gross negligence, for liability due to death, bodily injury or impairment of health or due to infringement of significant contractual obligations. The damage claim for the infringement of essential contractual obligations is, however, restricted to the foreseeable losses typical of the contract, except in cases of intent or gross negligence or in event of death, bodily injury, or impairment of health. A modification of the burden of proof to the detriment of the customer is not associated with the aforementioned provisions.

 
§12 Retention of title

(1) We reserve the right to retention of title to the purchased goods until receipt of payment from a possible existing open current account relation (business relationship) with the customer. The reservation applies to the acknowledged balance. In the case of violation of the contract by the customer, in particular in event of default of payment, we are entitled to take purchased goods back. The taking back of the purchased goods by us shall constitute a withdrawal from the contract. After the retraction of the purchased goods, we are entitled to use of the goods. The utilisation proceeds shall be set off against the accounts payable by the customer - minus reasonable utilisation costs.
(2) The customer is obliged to take good care of the purchased goods. In particular, he is obliged to adequately insure the purchased goods at their replacement value against damage caused by fire, water and theft at his own expense. If maintenance and inspection work is necessary, the customer must carry this work out in good time at his own expense.
(3) In case of seizure or any other intervention by third parties, the customer is obliged to inform our company in writing immediately. Should the third party be unable to refund the court costs and extrajudicial costs for a lawsuit in accordance with § 771 ZPO (German Code of Civil Procedure) third party- (revocation of seizure), the customer shall be obliged to compensate us for this loss.
(4) The customer is entitled to sell the purchased goods in the normal course of business transactions. He hereby assigns us all claims to the value of the invoiced amount (including VAT) that incur due to the resale to his customer or a third party. This applies irrespective of whether the purchased goods are sold without treatment or following treatment. The customer is authorised to collect the amount receivable from the resale despite the assignment. Our authorisation to collect this claim ourselves shall remain unaffected. We agree not to collect the claim as long as the customer has fulfilled his contractual obligations towards us, is not in arrears with payments, and, in particular, no petition is filed for commencing arrangement or bankruptcy proceeding or cessation of payment is given. If this should be the case, we may demand that the customer discloses the claim assignment and the debtor in question. Moreover, we may demand that the customer make known the ceded claims and debtors, hand over the pertinent documents and give notice of cession of claims to the debtor (third party).
(5) The processing or transformation of the purchased goods by the customer is in each case performed for us. If the purchased goods are processed jointly with other items not being our property, we shall then acquire the co-ownership of the new item according to our proportion of the value of the goods at the time of processing or transformation. Moreover, the same regulation applies to the item produced by the processing or transformation as applies to the goods delivered under reservation.
(6) If the purchased goods are inseparably combined with other objects that do not belong to us, we shall acquire co-ownership of the new products in the proportion of the value of the purchased goods at the time of combination. If the combination is performed in such a manner that the item of the customer is to be regarded as the principal item, it shall then be agreed that the customer transfers to us the co-ownership of the new item according to our proportion of the value of the item. The customer shall hold sole ownership or co-ownership for us.
(7) The customer shall also assign to us the receivables for securing our claims against him, which are created against a third party by the combination of the purchased goods with real property.
(8) At the customer's request, we are obligated to release the collateral to which we are entitled if the value of the goods title to which is retained and provided as security exceeds the total amount due to us by more than 10 %. Our company is free to choose which securities it will release.

 
§13 Special costs for special designs

(1) If we purchase or manufacture special pressing tools for the manufacturing of goods for the customer, the customer shall bear the costs for such tools. We commit ourselves not to employ these tools in manufacturing processes for third party customers without the agreement of the customer; this commitment shall end two years after the last application of the press tools for the orders of the customer for whom the tools were procured or made.
(2) A payment of half of the total costs is due on receipt of the order. The remaining half must be paid following the delivery of the first outturn sample from this tool without deduction.
(3) Any application exceeding normal use and maintenance of the tool, e.g. modification, renewal of parts, overhauling, shall be the responsibility of and paid by the customer.

 
§14 Excess delivery in the case of special orders

In the case of special orders, for example, special varnishes, special decoration, special surface structures, we reserve the right to deliver a material surplus of up to 10 %. The material surplus delivered shall be paid by the customer.

 
§15 Own design of the customer

We explicitly exclude the assumption of any warranty or liability for the construction of goods or parts that the customer himself has carried out. In particular, by the acceptance of an order commissioning the manufacturing of such parts, we shall not assume responsibility for the correctness of any construction based on or including the parts.

 
§16 Place of jurisdiction – place of performance

(1) The place of jurisdiction is our business location. However, we are also entitled to sue the customer in his court of jurisdiction.
(2) The law of the Federal Republic of Germany shall be applicable. The application of UN purchase law shall be explicitly excluded.
(3) If no other provisions have been made in the acknowledgement of order, our head office shall be the place of performance.

 
§17 PEFC certification

All part numbers not designated with * on the order confirmation, delivery slip or invoice are 100% PEFC-certified under PEFC certification number 44 702 091354.