General terms and conditions

General Terms and Conditions of Sale (GTC) of WEIDINGER GmbH

 

§ 1 Scope and Form

(1) These General Terms and Conditions of Sale (GTCS) apply to all business relationships between us (WEIDINGER GmbH) and our customers (“Buyers”). These GTCS apply only if the Buyer is an entrepreneur (§ 14 of the German Civil Code, BGB), a legal entity under public law, or a special fund under public law.

(2) These GTCS particularly apply to contracts for the sale and/or delivery of movable goods (“Goods”), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, these GTCS in the version valid at the time of the Buyer’s order or, in any case, in the version most recently provided to the Buyer in text form shall apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case.

(3) Our GTCS apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the Buyer shall only become part of the contract if we have expressly agreed to their applicability. This requirement for consent applies in any case, for example, even if the Buyer refers to its general terms and conditions as part of an order and we do not expressly object to them.

(4) Individual agreements (e.g., framework delivery agreements, quality assurance agreements) and the provisions in our order confirmation take precedence over these GTCS.

(5) Legally significant declarations and notifications by the Buyer with respect to the contract (e.g., setting deadlines, notification of defects, withdrawal, or reduction) must be made in writing. For the purposes of these GTCS, writing includes written and text form (e.g., letter, email, fax). Statutory formal requirements and additional proof requirements, particularly in cases of doubt regarding the legitimacy of the person making the declaration, remain unaffected.

(6) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions apply unless directly modified or expressly excluded in these GTCS.

§ 2 Conclusion of the Contract and Reservation of Performance

(1) Our offers are subject to change and non-binding. This also applies if we have provided the Buyer with catalogs, technical documentation (e.g., drawings, plans, calculations, calculations, references to DIN standards), other product descriptions, or documents—including in electronic form—over which we reserve ownership and copyright. These documents may only be made available to third parties with our prior consent and must be returned to us immediately upon request if the order has not yet been placed.

(2) The Buyer’s order of Goods constitutes a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within three (3) business days of its receipt by us.

(3) Acceptance may be declared either in writing (e.g., by order confirmation) or by delivery of the Goods to the Buyer.

(4) Fulfillment of the contract is subject to the condition that there are no impediments due to German, US, or other applicable national, EU, or international foreign trade regulations, as well as no embargoes or other sanctions.

(5) The Buyer is obligated to provide all information and documents required for export, transport, or import.

 

§ 3 Delivery Period and Delay in Delivery

(1) The delivery period shall be individually agreed upon or specified by us when accepting the order. If this is not the case, the delivery period is four weeks from the conclusion of the contract.

(2) If we are unable to meet binding delivery periods for reasons beyond our control (non-availability of performance), we will promptly inform the Buyer and at the same time notify them of the anticipated new delivery period. If performance is still unavailable within the new delivery period, we are entitled to withdraw from the contract in whole or in part; any consideration already provided by the Buyer will be refunded immediately. Non-availability of performance includes, for example:

- delayed self-supply by our suppliers, provided we have concluded a congruent hedging transaction;

- other disruptions in the supply chain, such as due to force majeure;

- viruses and other attacks by third parties on our IT system, provided these occurred despite customary precautions for protective measures;

- obstacles arising from German, US, or other applicable national, EU, or international foreign trade regulations;

- other circumstances not attributable to us;

- or where we are not obligated to procure in specific cases.

(3) Our delay in delivery is governed by statutory provisions. In any case, a reminder by the Buyer is required. If we are in delay of delivery and the Buyer credibly demonstrates that they have suffered damages as a result, they may claim compensation for delay. The compensation is fixed at 0.5% of the net price (delivery value) per completed calendar week of delay, but no more than 5% of the delivery value of the delayed Goods in total. We reserve the right to prove that the Buyer incurred no damage or only significantly less damage than the above-mentioned fixed amount.

(4) The Buyer’s rights under § 8 of these GTCS and our statutory rights, particularly in the event of an exclusion of the obligation to perform (e.g., due to impossibility or unreasonableness of performance and/or supplementary performance), remain unaffected.

§ 4 Delivery, Acceptance, Returns, Transfer of Risk, and Default in Acceptance

(1) Delivery is made ex works, which is also the place of performance for delivery and any subsequent performance. At the Buyer’s request and expense, the Goods will be shipped to another destination (shipment contract). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular, transport company, shipping route, packaging).

(2) The Buyer may not refuse acceptance of deliveries due to minor defects.

(3) Returns due to defects or incorrect deliveries for which we are responsible will be organized by us. A prerequisite for returns is the prior submission of the fully completed return request form (PDF) provided by us via email. Returns without prior registration using the return request form cannot be processed and must be collected by the Buyer within three (3) business days. After this period, we will return the Goods to the Buyer at their expense.

(4) The risk of accidental loss and accidental deterioration of the Goods passes to the Buyer at the latest upon handover. In the case of a shipment contract, however, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay passes to the Buyer upon delivery of the Goods to the carrier, freight forwarder, or other person or institution designated to execute the shipment. If acceptance has been agreed upon, it is decisive for the transfer of risk. Otherwise, the statutory provisions of the law on contracts for work and services apply to an agreed acceptance. Handover or acceptance is deemed equivalent if the Buyer is in default of acceptance.

(5) If the Buyer is in default of acceptance, fails to perform a cooperation obligation, or if our delivery is delayed for other reasons attributable to the Buyer, we are entitled to claim compensation for the resulting damage, including additional expenses (e.g., storage costs). For this, we charge a fixed compensation of 0.5% of the net price of the delivery items per commenced month, starting with the delivery period or—if no delivery period is specified—notification of the readiness for dispatch of the Goods.
Proof of higher damages and our statutory claims (in particular, reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the fixed compensation is, however, offset against further monetary claims. The Buyer retains the right to prove that we incurred no damage or only significantly less damage than the above-mentioned fixed amount.

 

§ 5 Prices and Payment Terms

(1) Unless otherwise agreed in individual cases, our current prices at the time of contract conclusion apply, ex-warehouse, plus statutory VAT.
(2) In the case of a sale by dispatch (§ 4 (1)), the buyer bears the transport costs from the warehouse and the costs of any transport insurance requested by the buyer. Any customs duties, fees, taxes, and other public charges are to be borne by the buyer.
(3) The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods. However, we reserve the right, even in the context of an ongoing business relationship, to execute a delivery entirely or partially only against advance payment. We will declare such a reservation no later than in the order confirmation.
(4) Upon expiration of the above payment period, the buyer is in default. The purchase price shall bear interest at the applicable statutory default interest rate during the period of default. We reserve the right to assert further damages caused by default. Our claim to commercial maturity interest (§ 353 HGB) for merchants remains unaffected.
(5) The buyer may only offset or withhold payments if their claim is legally established or undisputed. In the event of defects in the delivery, the buyer’s counterclaims, particularly under § 7 (6) sentence 2 of these General Terms and Conditions (GTC), remain unaffected.
(6) If it becomes apparent after the contract conclusion (e.g., through an application for insolvency proceedings) that our claim to the purchase price is endangered due to the buyer’s lack of financial capacity, we are entitled under statutory provisions to refuse performance and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made items), we may immediately declare withdrawal; statutory provisions on the dispensability of setting a deadline remain unaffected.

 

§ 6 Retention of Title

(1) We retain ownership of the goods sold until full payment of all current and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) Until full payment of the secured claims, the goods subject to retention of title may not be pledged to third parties or assigned as collateral. The buyer must immediately notify us in writing if an application for insolvency proceedings is filed or if third parties (e.g., attachments) access goods belonging to us.
(3) In the event of the buyer's breach of contract, particularly non-payment of the due purchase price, we are entitled, under statutory provisions, to withdraw from the contract and/or demand the return of the goods based on the retention of title. The demand for the return of goods does not simultaneously constitute a declaration of withdrawal; we are instead entitled to demand only the return of the goods while reserving the right to withdraw. If the buyer does not pay the due purchase price, we may assert these rights only after unsuccessfully setting the buyer a reasonable deadline for payment or where the setting of such a deadline is not required under statutory provisions.
(4) Until revocation in accordance with subsection (c) below, the buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In such cases, the following provisions also apply:
(a) The retention of title extends to products resulting from the processing, mixing, or combining of our goods at their full value, with us considered the manufacturer. If third-party property rights persist in cases of processing, mixing, or combining with goods of third parties, we acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
(b) Claims against third parties arising from the resale of the goods or the product are hereby assigned by the buyer to us as security in the amount of our invoice value of the goods, including any co-ownership shares in accordance with subsection (a). We accept the assignment. The buyer's obligations specified in subsection (2) also apply to the assigned claims.
(c) The buyer remains authorized to collect the claims alongside us. We undertake not to collect the claims as long as the buyer fulfills their payment obligations to us, does not default, and there is no indication of their lack of financial capacity, and we do not exercise our right of retention of title through enforcement under subsection (3). However, if this is the case, we may require the buyer to disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents, and notify the debtors (third parties) of the assignment. Additionally, in such cases, we are entitled to revoke the buyer’s authorization to further sell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the buyer’s request.

 

§ 7 Buyer’s Claims for Defects

(1) The buyer's rights in the event of material and legal defects (including incorrect or short delivery as well as improper assembly/installation or defective instructions) are governed by statutory provisions unless otherwise specified below. The statutory provisions for consumer goods purchases (§§ 474 ff. BGB) and the buyer's rights under any separate guarantees, particularly those provided by the manufacturer, remain unaffected in all cases.

(2) The basis of our liability for defects is primarily the agreement made regarding the quality and intended use of the goods (including accessories and instructions). All product descriptions and manufacturer statements that are the subject of the individual contract or publicly disclosed by us (particularly in catalogs or on our website) at the time of the conclusion of the contract are considered as agreements on the quality. If no quality is agreed upon, the statutory regulation applies to determine whether a defect exists (§ 434 para. 3 BGB). Public statements by the manufacturer or those made on their behalf, especially in advertisements or on the product label, take precedence over statements by other third parties.

(3) For goods with digital elements or other digital content, we are obliged to provide and, if necessary, update the digital content only to the extent explicitly stated in a quality agreement per para. 2. We do not assume liability for public statements made by the manufacturer or other third parties regarding digital content.

(4) We are not liable for defects that the buyer knew of at the time of contract conclusion or negligently failed to notice (§ 442 BGB). Furthermore, the buyer's claims for defects require that they have complied with their statutory duties to inspect and report defects (§§ 377, 381 HGB). For building materials and other goods intended for installation or further processing, the inspection must always take place immediately before processing. If the buyer fails to perform proper inspection and/or notification of defects, our liability for the unreported, untimely, or improperly reported defect is excluded according to statutory provisions. For goods intended for installation or attachment, this applies even if the defect becomes apparent only after processing; in such cases, claims for reimbursement of associated costs ("removal and reinstallation costs") are particularly excluded.

(5) If the delivered item is defective, we may initially choose whether to remedy the defect (rectification) or supply a non-defective item (replacement). The buyer may reject our choice if it is unreasonable in the specific case. Our right to refuse subsequent performance under statutory conditions remains unaffected.

(6) We may make subsequent performance conditional on the buyer paying the due purchase price. However, the buyer is entitled to retain a portion of the purchase price that is proportionate to the defect.

(7) The buyer must provide us with the time and opportunity necessary for the required subsequent performance, particularly by handing over the defective goods for inspection purposes. In the case of replacement delivery, the buyer must return the defective item to us according to statutory provisions upon our request; the buyer has no right to return otherwise. Subsequent performance does not include the removal, dismantling, or uninstallation of the defective item or the installation, attachment, or installation of a non-defective item unless we were originally obligated to perform such services; the buyer's claims for reimbursement of corresponding costs ("removal and reinstallation costs") remain unaffected.

(8) We bear or reimburse the expenses required for inspection and subsequent performance, particularly transport, travel, labor, and material costs, as well as any removal and installation costs, as per statutory regulations and these GTC if a defect is present. Otherwise, we may demand compensation from the buyer for the costs incurred due to an unjustified demand for defect rectification if the buyer knew or could have known that no defect existed.

(9) In urgent cases, such as a threat to operational safety or to prevent disproportionate damage, the buyer has the right to remedy the defect themselves and demand reimbursement of the objectively necessary expenses from us. We must be notified immediately, if possible in advance, of such actions. The right to self-remedy does not exist if we are entitled to refuse corresponding subsequent performance under statutory provisions.

(10) If a reasonable deadline for subsequent performance to be set by the buyer has expired unsuccessfully or is unnecessary under statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price as per statutory regulations. However, there is no right of withdrawal in the case of a minor defect.

(11) The buyer's claims for reimbursement of expenses under § 445a para. 1 BGB are excluded unless the final contract in the supply chain is a consumer goods purchase (§§ 478, 474 BGB) or a consumer contract for the provision of digital products (§§ 445c sentence 2, 327 para. 5, 327u BGB). The buyer's claims for damages or reimbursement of futile expenses (§ 284 BGB) for defects in the goods are subject to the provisions of §§ 8 and 9 of these GTC.

 

§ 8 Other Liability

(1) Unless otherwise stated in these GTC, including the provisions below, we are liable for breaches of contractual and non-contractual obligations in accordance with statutory provisions.

(2) We are liable for damages – regardless of the legal basis – under fault-based liability in cases of intent and gross negligence. In cases of simple negligence, and subject to statutory limitations of liability (e.g., duty of care in one’s own affairs, insignificant breaches of duty), we are only liable
a) for damages resulting from injury to life, body, or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation whose fulfillment is necessary for the proper performance of the contract and on which the contractual partner regularly relies and may rely); in this case, our liability is limited to compensation for foreseeable and typically occurring damages.

(3) The liability limitations outlined in para. 2 also apply to third parties as well as to breaches of duty by persons (including for their benefit) whose fault we are legally responsible for. These limitations do not apply if a defect was fraudulently concealed, a guarantee for the quality of the goods was provided, or in claims made under the Product Liability Act.

(4) The buyer may only withdraw from or terminate the contract due to a breach of duty not related to a defect if we are responsible for the breach of duty. The buyer's unrestricted right of termination (particularly under §§ 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.

 

§ 9 Limitation Periods

(1) Deviating from § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance.

(2) If the goods are a building or an item typically used for a building and which caused its defectiveness (construction material), the limitation period is 5 years from delivery in accordance with statutory provisions (§ 438 para. 1 no. 2 BGB). Further statutory special provisions on limitation periods (in particular, § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) remain unaffected.

(3) The aforementioned limitation periods under sales law also apply to contractual and non-contractual damage claims by the buyer based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the specific case. Damage claims by the buyer under § 8 para. 2 sentences 1 and 2 (a), as well as under the Product Liability Act, are subject exclusively to the statutory limitation periods.

 

§ 10 Installation, Assembly, and Acceptance

Unless otherwise agreed in writing, the following provisions apply to installation and assembly:
(1) The buyer shall bear the costs and provide the following in a timely manner:
a) all earthwork, construction work, and other ancillary tasks outside our industry, including the necessary skilled and auxiliary personnel, construction materials, and tools;
b) the necessary equipment and materials for assembly and commissioning, such as scaffolding, lifting equipment, and other devices, as well as fuels and lubricants;
c) energy and water at the site of use, including connections, heating, and lighting;
d) sufficiently large, suitable, dry, and lockable storage spaces for machine parts, apparatus, materials, tools, etc., at the assembly site, as well as appropriate work and break rooms for the assembly personnel, including adequate sanitary facilities as circumstances require. Additionally, the buyer shall take measures to protect our property and that of the assembly personnel on the site to the same extent they would protect their own property;
e) protective clothing and protective devices required due to specific circumstances at the assembly site.

(2) Before assembly work begins, the buyer shall, without being requested, provide information on the location of concealed electricity, gas, and water lines or similar installations as well as the necessary structural data.

(3) Before installation or assembly begins, the required supplies and objects must be available at the installation or assembly site, and all preparatory work must have progressed to the extent that the installation or assembly can commence as agreed and be carried out without interruption. Transport routes and the installation or assembly site must be leveled and cleared.

(4) If installation, assembly, or commissioning is delayed due to circumstances for which we are not responsible, the buyer shall bear the reasonable costs for waiting time and any additional travel required by us or our assembly personnel.

(5) The buyer shall confirm the duration of the assembly personnel's working hours and the completion of installation, assembly, or commissioning to us on a weekly basis without delay.

(6) If we request acceptance of the delivery after completion, the buyer shall carry out the acceptance within two weeks. Acceptance is deemed to have taken place if the buyer allows the two-week period to expire or if the delivery is put into use – where applicable, after completion of an agreed test phase.

 

§ 11 Industrial Property Rights, Copyright, and Defects of Title

(1) Unless otherwise agreed, we are obligated to deliver the goods free of industrial property rights and copyrights of third parties (hereinafter referred to as "property rights") only in the country of the delivery location. If a third party asserts justified claims against the buyer based on the infringement of property rights by goods supplied by us and used in accordance with the contract, we shall be liable to the buyer within the limitation periods specified in § 9 as follows:
a) At our discretion and expense, we shall either obtain the right to use the goods concerned, modify them so that the property rights are not infringed, or replace them. If this is not possible on reasonable terms, the buyer shall have the statutory rights of withdrawal or reduction;
b) Our obligation to pay damages is governed by § 8;
c) Our obligations outlined above only apply if the buyer promptly notifies us in writing of the claims asserted by the third party, does not acknowledge any infringement, and reserves for us all defensive measures and settlement negotiations. If the buyer discontinues the use of the goods for reasons of damage mitigation or other significant reasons, they must inform the third party that the discontinuation does not imply acknowledgment of a property rights infringement.

(2) Claims by the buyer are excluded to the extent that they are responsible for the infringement of property rights.

(3) Claims by the buyer are also excluded if the property rights infringement arises from specific specifications of the buyer, an unforeseeable application by us, or modifications to the goods by the buyer or their use in combination with products not supplied by us.

(4) In the event of property rights infringements, the buyer's claims specified in clause 1(a) are otherwise subject to the provisions of § 7.

(5) In the case of other defects of title, the provisions of § 7 apply accordingly.

(6) Further or other claims by the buyer against us and our agents based on a defect of title are excluded except as provided for in this § 11.

 

§ 12 Choice of Law, Jurisdiction, and Binding Nature of the Contract

(1) These GTC and the contractual relationship between us and the buyer are governed by the laws of the Federal Republic of Germany, excluding international uniform law, particularly the UN Sales Convention.

(2) If the buyer is a merchant as defined by the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our place of business in Gernlinden. The same applies if the buyer is an entrepreneur as defined by § 14 BGB. However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation under these GTC or a prevailing individual agreement, or at the general place of jurisdiction of the buyer. Priority statutory provisions, particularly on exclusive jurisdiction, remain unaffected.

(3) The buyer may not transfer their rights arising from the contractual relationship to third parties without our prior written consent.