General terms and conditions

1. Validity of the general standard terms and conditions
2. Offer
3. Terms of Payment
4. Delay of payment
5. Deliveries
6. Retention of title
7. Warranty
8. Property rights
9. Liability
10. Assignment of rights
11. Other provisions
12. General contractual provision

1. Validity of the General Terms and Conditions

These General Terms and Conditions (hereinafter: GTC) shall apply to all business relations of our company (hereinafter: WESERALU) with customers. They shall only apply if the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (hereinafter: BGB), a legal entity under public law or a special fund under public law.

Our General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary terms and conditions of the customer shall only become part of the contract if we have consented to their application expressly. This requirement of consent shall apply in any case, for instance even if we are aware of the customer’s terms and conditions and provide the service to the customer without reservation.

Individual agreements, including ancillary agreements, supplements and amendments shall take precedence over these General Terms and Conditions, but only to the extent that they relate to an identical subject matter of regulation. The content of such agreements shall be determined by declarations in written form (letter) or text form (email, telefax) in the form of offers, order confirmations and other documents, subject to counter proof by the customer.

Legally relevant declarations and notifications of the customer in relation to the contract (setting of deadlines, notification of defects, withdrawal, reduction, etc.) shall be submitted in written form or text form. Statutory formal requirements and further proof, in particular in case of doubts about the legitimacy of the declaring person, shall remain unaffected.

References to the validity of statutory provisions shall only have a clarifying significance. Even without such clarification, statutory provisions shall apply unless they are directly amended or expressly excluded in these General Terms and Conditions.

2. Offer

WESERALU’s offers without a binding period are non-binding and subject to change.

WESERALU reserves the right to technical and design deviations from descriptions and information in catalogs, brochures and written documents as well as changes in construction, model and material due to technical progress or in case of changes in the market. The customer shall not derive any rights against WESERALU from changes or deviations.

WESERALU reserves its property rights and copyrights to cost estimates, drawings and other documents (hereinafter: documents) without restriction, regardless of the type and designation. These shall only be made accessible to third parties with the prior consent of WESERALU and shall be returned to WESERALU immediately upon request if a contract is not concluded or performed.

3. Terms of payment

All prices are valid ex WESERALU’s place of business, unless otherwise agreed. All prices quoted are subject to value added tax (VAT) at the statutory rate.

Deliveries above or below the agreed quantity within the meaning of Section 5.3 of these General Terms and Conditions have no influence on the offered and/or agreed prices.

Contrary to other provisions of the customer, WESERALU shall be entitled to credit the costumer’s payments against his oldest debt first. If costs or interest have already been incurred, WESERALU shall be entitled to credit the payments against the costs first, then against the interest and lastly against the principal claim in accordance with Section 367 paragraph 1 BGB.

The customer shall only be entitled to offset undisputed or legally established claims against a claim of WESERALU. In the present contractual relationship the customer shall not assert any rights of retention from other contractual relations with WESERALU.

Checks or bills of exchange are only accepted on account of payment. Discount or bill of exchange charges shall be borne by the customer and are due immediately.

Unless otherwise stated in the contractual agreements and particularly in the order confirmation, the claim shall be paid net within 14 days of the invoice date without any deductions.

If the customer is in default of payment, WESERALU shall be entitled to charge default interest in the amount of eight (8) percentage points above the respective base interest rate. If WESERALU is able to prove a higher damage caused by default, it shall be entitled to claim that damage as well.

As far as WESERALU is obliged to take back the packaging used for transport according to the packaging regulation, the customer shall bear the costs for the return transport of the used packaging and the stated recycling costs or, as far as this is possible and expedient, the costs additionally incurred for a reuse of the packaging. WESERALU reserves the right to adjust prices accordingly.

If WESERALU has made tests and/or technical acceptance according to special conditions at its place of business, the customer shall bear all necessary additional costs in addition to remuneration. If the customer does not accept the performance immediately after notification of readiness for acceptance, WESERALU shall be entitled to dispatch the goods or to store them at the customer’s expense and risk after setting a reasonable grace period. Then the goods are deemed as accepted.

If WESERALU has manufactured or procured tools according to the customer’s contractual specifications and if nothing else has been agreed, the customer shall bear the development costs including material and labor costs related to the tools. Unless otherwise agreed, the tools shall remain WESERALU’s property. If three years have passed since the last contractual delivery to the customer, WESERALU shall not be obliged to further storage.

4. Default of payment

If the customer is in default of payment, WESERALU shall be entitled to take back delivered goods and provided services and to dispose of them otherwise without prejudice to other rights.

If the customer is in default of payment or if there are concrete indications of an imminent insolvency of the customer, WESERALU shall be entitled to stop further work on all orders pp. of the customer. WESERALU shall be entitled to demand immediate advance payment of all claims including bills of exchange and deferred amounts or demand corresponding securities.

5. Deliveries

Delivery and passing of risk shall be deemed to be occurred upon handover of the goods including the accompanying materials to the customer or upon service delivery. In case of shipment, the goods are transferred to the customer when the consignment is handed over to the carrier. If shipment is delayed through no fault of WESERALU or if it becomes impossible, the risk shall pass to the customer upon dispatch of the notification of readiness for shipment to the customer. Only upon express request and at the expense of the customer, WESERLAU takes out insurance of the consignment of goods against theft, breakage, transport, fire and water damage as well as other insurable risks.

Dates and deadlines stated by WESERALU are non-binding unless expressly agreed otherwise. The delivery dates are only valid if WESERALU itself is supplied correctly and on time. Within the scope of the contractual relationship, partial deliveries are permissible if the acceptance does not involve disproportionate expenses for the customer.

In principle, WESERALU shall be entitled to make (quantitative) deliveries below or above the respective order quantity. Such deliveries have reasons related to the production and are considered by the customer to be in accordance with the contract and to be fulfilled properly. The possibility of deliveries below or above the agreed quantity also refers to order quantities which are specified in meters or pieces. In such cases, WESERALU shall be entitled to round up or down to full values. Individual agreements with the customer state detailed information on the rates of deliveries below or above the agreed quantities.

Dates and delivery periods begin in accordance with the contractual agreements, but not before all order details have been completely clarified and all documents, approvals and releases to be procured by the customer have been provided, as well as before an agreed deposit has been received or a letter of credit has been opened. Dates and delivery periods shall be extended by the time in which the customer is in default of payment, subject to all rights of WESERALU.

Even in case of bindingly agreed deadlines and dates, WESERALU shall not be liable for delays in delivery and performance due to force majeure or due to events that make delivery substantially more difficult or impossible for WESERALU. That includes, in particular, labor disputes, internal operational disruptions, official orders, material procurement difficulties, even if they occur at suppliers or sub-suppliers of WESERALU, as well as delays at external service providers for processing materials (e.g. anodizing) for which WESERALU is not responsible. In such cases, WESERALU shall be entitled to postpone the service for the duration of the impediment plus a reasonable start-up period. In addition, WESERALU shall be entitled to withdraw from the contract in whole or in part due to the unfulfilled part of the service. In cases of deliveries with installation or assembly, the passing of risk takes place on the day of acceptance/approval.

If the loading or transport of the goods is delayed for a reason for which WESERALU is not responsible, WESERALU or its agents shall be entitled, but not obliged, to store the goods at the customer’s expense and risk and to the exclusion of liability and at their reasonable discretion. If necessary, WESERALU or its agents shall be entitled to store the goods outdoor. WESERALU or its agents shall be entitled to take all measures considered suitable for the preservation of the goods and to charge the goods as delivered. In case of default of acceptance, WESERALU shall be entitled to charge the usual storage fees.

Due to subsequent change or supplement requests of the customer, delivery time is extended accordingly and appropriately.

6. Retention of title

Services and goods remain WESERALU’s property until all, including future claims arising from contractual relationships and the entire business relationship with the customer have been fulfilled.

Within proper commercial practices, the customer shall be entitled to modify, process or adapt the goods subject to retention of title. This right is only valid if the customer is not in default and the license conditions of WESERALU do not contradict. The goods subject to retention of title shall not be pledged or transferred by way of security. The customer shall already now assign the claims arising from the resale or any other legal reason (insurance, tort, etc.) to the goods subject to retention of title to WESERALU in full as security. On demand of WESERALU, the customer shall be obliged to disclose the assignment to third parties for the purpose of payment and to provide the information and hand over the documents necessary for the assertion of WESERALU’s rights.

In case of processing, combining and mixing of the reserved goods with other goods by the customer, WESERALU shall be entitled to co-ownership of the new object in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used, without establishing any obligations of WESERALU in this respect. If WESERALU’s ownership expires by combination or mixture, the customer shall already now transfer to WESERALU the right of ownership of the new existence or the item to the extent of the invoice value of the reserved goods and shall store them free of charge for WESERALU. The resulting co-ownership rights shall be deemed as reserved goods within the meaning of Section 6.1 of these General Terms and Conditions.

The customer shall indicate WESERALU’s ownership, if third parties access the goods subject retention of title, in particular by distraint. WESERALU will then be notified immediately. The customer shall bear judicial costs, extrajudicial costs and/or other costs arising from such access. The customer shall be fully liable for possible damages.

If the customer acts contrary to contract or if he is in default of payment, WESERALU shall be entitled to take back goods subject to retention of title at the customer’s expense or, if necessary, demand the assignment of the customer’s surrender claim against the third party. The repossession as well as the distraint of the goods subject to retention of title by WESERALU does not indicate a withdrawal from the contract, subject to the validity of other statutory provisions.

If the value of the securities for WESERALU exceeds the claims not only temporarily by more than 20 percent, WESERALU shall return securities in the corresponding amount at its own discretion upon request.

If the goods subject to retention of title are installed in a property or building, the customer shall already now assign to WESERALU the right to remuneration against the third party in the amount of the invoice value of the goods including the right to grant a security mortgage. In addition, the customer shall transfer a security mortgage already created to WESERALU. Furthermore, the customer shall already now assign his payment claim in the amount of the invoice value of the goods delivered by WESERALU. WESERALU accepts the assignment already now.

If the retention of title or the assignment is not valid in accordance with the laws of the country in which the goods are located, the security closest to the retention of title or the assignment in that country shall be deemed to be agreed. If the customer’s cooperation/participation is required, the customer shall take all legal acts necessary to establish and secure such rights.

7. Warranty

The time of departure from WESERALU’s place of business is decisive for the contractual condition of the goods. The customer shall inspect the item immediately after receipt, in particular for obvious defects and substantial, easily visible damages. Notices of defects shall be made immediately and have to be received by WESERALU in written form within two weeks after receipt at the latest. In particular, this applies to defects in the shape of external quality and completeness of the delivery. In addition, the recipient shall complain to the carrier immediately about transport damages upon receipt of the goods. While claiming damages simultaneously, damages shall be certified on the consignment note. If the certificate is not obtained, claims for compensation shall not be recognized. Section 377 of the German Commercial Code (HGB) applies in addition.

Claims for material deficiencies shall become statute-barred twelve months from the date of passing of risk. This does not apply if longer periods are mandatory by law or in cases of violation of life, body or health, in case of intentional or grossly negligent breach of duty by WESERALU or in case of fraudulent concealment of a defect.

At WESERALU’s discretion, all defective parts or services shall first be repaired free of charge, then replaced or provided again if the cause of defect already existed at the time of passing of risk within the limitation period.

The customer’s claims for defects shall be excluded in cases of deliveries due to the quantity deviations mentioned in Section 5.3, in cases of insignificant deviations from the agreed quality, in case of insignificant functional impairment, in case of natural wear or in case of damage caused after passing of risk by incorrect or negligent handling, use of unsuitable operating materials, defective construction work, overvoltage, lightning strike, external influences or improperly made modifications, repairs or maintenance in accordance with the operating instructions.

Information about the delivery item and on the purpose of use, e.g. dimensions, weights, hardness, utility values, temperatures, etc., provides only description or parameters. Information does not establish guaranteed characteristics and merely provides non-binding benchmarks. Benchmarks shall only be deemed as guaranteed to the extent that those were tested for the customer with a special purpose and correspond to samples approved for this purpose.

In case of a present defect, WESERALU shall bear or reimburse expenses necessary for inspection and supplementary performance, in particular transport, travel, labor and material costs and, if necessary, removal and installation costs in accordance with the statutory provisions. Otherwise, WESERALU shall be entitled to demand reimbursement of costs resulted from the unjustified request for remedy of defects (in particular inspection and transport costs) from the customer, unless the customer was not able to detect the lack of deficiency.

In addition, warranty requires that the customer specifies the defect sufficiently concretely in written form or text form and that he sets WESERALU an reasonable period for repair or replacement. The customer shall grant WESERALU opportunity to detect the defect itself or by a representative. After joint coordination, he customer shall grant WESERALU necessary time and opportunity for all repairs and replacements reasonably required and provide workforce on request.

In urgent cases of danger to operational safety only, of which WESERALU shall be notified immediately, or if WESERALU is in default of remedy of defect, the customer shall be entitled to remedy the defect himself or by third parties and to claim for appropriate compensation for his costs.

Unless otherwise provided above, claims are excluded, in particular in case of product defect caused by WESERALU due to tort, affirmative breach of contract or culpa in contrahendo and in case of impossibility or inability, unless WESERALU acted intentionally or grossly negligently. Claims of the entitled claimants remain unaffected in accordance to the German Product Liability Act (ProdHaftG).

In case of third-party products, claims are excluded, in particular due to a product defect for which the manufacturer is responsible. In this respect, WESERALU shall assign all claims the customer is entitled to against the manufacturer and/or presupplier to the customer.

8. Property rights

In accordance with this section, WESERALU guarantees that the delivery item is free of industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in written form if claims are asserted against a party due to infringement of such rights.

In case that the delivery item infringes an industrial property right or copyright of a third party, WESERALU shall, at its option and expense, modify or replace the delivery item in the way that no third-party rights are infringed any more, but the delivery item continues to perform the contractually agreed functions. Alternatively, WESERALU shall grant the customer the right of use by concluding a license agreement. If WESERALU fails to do so within an reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any customer’s claims for damages are subject to the restrictions of the Sections 7 and 9 of these General Terms and Conditions.

In case of infringement caused by products of other manufacturers delivered by WESERALU, WESERALU shall, at its option, assert its claims against the manufacturers and presuppliers for the customer’s account or assign its claims to the customer. Claims against WESERALU only exist if judicial enforcement against the manufacturers and presuppliers was unsuccessful or has no reasonable chance, for instance due to insolvency.

9. Liability

Unless otherwise stated in these General Terms and Conditions including the following sections, WESERALU shall be liable for breach of contractual and accessory obligations in accordance with statutory provisions.

In case of intent and gross negligence, WESERALU shall be liable for damages within fault liability, irrespective of the legal cause. In case of slight negligence, WESERALU shall only be liable for damages resulted from violation of life, body or health and for damages resulted from breach of a substantial contractual obligation. Such a substantial contractual obligation is an obligation its fulfillment makes it possible to perform the contract properly in the first place and on which the contracting partner regularly relies and is allowed to rely, subject to mandatory statutory provisions. In the last-mentioned case, WESERALU’s liability shall be limited to compensation for the predictable, typically occurring damage.

The limitations of liability resulting from Section 9.2 shall also apply to third parties and in cases of breaches of obligations by persons even for their benefit for whose fault WESERALU is responsible in accordance with statutory provisions. The limitations shall not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been provided. The limitations shall not apply for customer’s claims in accordance with the German Product Liability Act (ProdHaftG).

The customer shall only be entitled to withdraw from the contract or terminate the contract due to a breach of obligation which is not based on a defect if WESERALU is responsible for the breach of obligation. Otherwise, the customer shall not be entitled to terminate the contract. The right to terminate the contract according to Sections 650 and 648 BGB is excluded. In other respects, statutory requirements and legal consequences shall apply.

10. Assignment of rights

Exclusively with WESERALU’s prior consent, the customer shall be entitled to assign contractual  rights to third parties.

WESERALU shall be entitled to assign its rights resulting from contractual obligations to third parties. WESERALU shall be entitled to have all obligations fulfilled by third parties. Then the customer shall accept the service provided as a service of WESERALU.

A change of contractual partner on the part of WESERALU is admissible. In the event that a third party assumed contractual obligations, the customer shall be entitled to terminate the contract extraordinarily. This extraordinary right of termination shall be exercised within four weeks after the change of the contractual partner became known. After expiry of this period, the contractual relationship with the third party shall continue.

11. Other provisionss

The place of jurisdiction shall be Minden, North Rhine-Westphalia, Germany, for business relations of WESERALU with merchants, legal entities under public law or special funds under public law and for all disputes arising from or related to the contractual relationship. WESERALU shall also be entitled to take legal action at the customer’s place of business.

The relations between WESERALU and the customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.

In the event that any individual provision of these General Terms and Conditions become invalid, all other provisions of the contractual relationship shall remain binding, unless adherence to the contract would constitute an unreasonable hardship for one party.

The customer shall acknowledge that WESERALU stores data from the contractual relationship for the purpose of data processing in accordance with Section 28 of the German Federal Data Protection Act (BDSG). WESERALU shall be entitled to transmit data to third parties if necessary for fulfillment of the contract.

12. General contractual provisions

Verbal collateral agreements have not been made. Additions or changes to all agreements shall be made in written form. The same shall apply to the cancellation of the requirement of written form.