Winkler Technik: Terms & Conditions
- Conditions of validity
- The deliveries, services and quotations made by the seller are affected solely on the basis of terms and conditions of trade. There shall also be valid for all future business relations, even if these have not been explicitly agreed upon once again.
- Conclusion of contract
- Offers made in prospectuses, advertisements etc., are subject to change without notice and without obligation – also with respect to prices given. For quotations which have been drawn up individually, the seller is under obligation for 30 calendar days.
- The purchaser is bound by his order for six weeks. Orders are only legally effective if they have been confirmed in writing by the seller. If the seller has not rejected acceptance within 4 weeks of having received the incoming order, this shall serve as a valid confirmation.
- Subsidiary agreements, changes and additions are only valid if the seller confirms them in writing. The same applies to the assurance of properties.
- The designations and specifications set forth at the time of concluding the contract represent the technical standard at this point in time. The seller explicitly reserves the right to making alterations in the constructions for deliveries included within the scope of this contract, in so far as these alterations are not of a fundamental nature and the purpose intended by the contract is not substantially limited.
- Contracts of purchase
- The contracts made between the seller and purchaser are contracts of purchase. The obligations on the part of both parties result solely from the following provisions which are not affected by the purchaser’s financing agreements made with a third party; above all, the purchaser’s obligation to fulfil payment continues to apply to the full amount. This is also valid if the seller has acted as an intermediary for financing agreements.
Prices, Price alterations
- All prices are net prices not including the purchase tax, which the purchaser has additionally to pay to the respective amount stipulated by law.
- If no special agreements have been made, we supply, to the best of our judgement, to the given delivery address, by order and at the cost of the purchaser, i.e., the delivery is effected at the cost of the buyer, unfree, duty unpaid, non-insured and non-unloaded.
- In so far as the time between concluding the contract and the agreed and/or actual date of delivery exceeds six months, then the seller’s prices valid at the time of delivery or availability are valid.
- The seller endeavours to adhere to the delivery times stipulated. However, the stipulated delivery time is not guaranteed.
- The period for a final deadline to be fixed legally by the purchaser is six weeks, commencing with the seller’s receiving information of this final deadline being set.
- Compensatory damages for no fulfilment can only be claimed by the purchaser if the seller, or those assisting him, have caused the damages with intent or through gross negligence.
- Should the purchaser make no avail of the above right, he is not entitled to make any claims for compensatory damages due to the no fulfilment of any delivery dates.
- The extended liability pursuant to 287 BGB (German Civil Code) is excluded.
- Partial deliveries are permitted.
Dispatch and passes of the risk
- The risk passes over to the purchaser as soon as the consignment has been passed over to the person carrying out the transportation. If the dispatch is delayed at the purchaser’s, request, the risk passes over to him upon his being informed of the readiness of shipment. The seller is not obligated to insure deliveries in the name of and for the customer’s account.
Warranty and liability
- If the object of delivery is defective or if guaranteed qualities are lacking, or if it becomes defective within the guarantee period due to shortcomings in manufacture or materials, the seller delivers a replacement of his option, excluding any other guarantee claims on the part of the purchaser – excluding, in particular, any consequential damages.
- The period of guarantee is two years and commences upon the date of delivery, taking however, 6 sect.1 into consideration.
- The purchaser must inspect the consignment immediately upon arrival for any damage caused by transport and inform the seller at once of any damages or losses by way of statement of the facts by the forwarding agent, or a declaration in lieu of an oath which must be signed by two witnesses and the customer. In addition, the seller must be informed of any evident defects in writing immediately, at the latest however, within two weeks of the delivery. The faulty goods delivered are to be kept in the condition they were in at the time when the defects were discovered for the seller to inspect. Contravention against the above obligations rules out any warranty claims made to the seller.
- If the replacement delivery falls within a reasonable period of time, the purchaser can demand either a reduction in payment or cancellation of the contract, at his option.
- The seller places himself available to the purchaser for offering him information and advice on the use of his products to the best of his knowledge. He is, however, only liable for his pursuant to the following paragraph if a particular fee has been agreed upon for this.
- Claim for damages due to impossibility of performance, non fulfilment, breach of an obligation other than by delay or impossibility, due to culpa in contrahendo and due to unauthorized handling is ruled out both against the seller and against his persons employed in performing the obligation or vicarious agents, respectively, unless the damage has been caused with intent and gross negligence.
Reservation of proprietary rights
- Until the fulfilment of all debts (also balance claims) due, to which the seller is now or shall be entitled for any cause in law versus the purchaser, the seller reserves the right of ownership of the good delivered (conditional merchandise). The purchaser may not avail himself of the conditional merchandise.
- In the case of the conditional merchandise being seized by a third party – in particular by a bailiff – the purchaser shall make reference to the seller’s ownership of the property and inform the latter immediately. Costs and damages are borne by the purchaser.
- In case of a breach of contract on the part of the purchaser – in particular a default in payment – the seller is entitled to take back the conditional merchandise at his cost. The withdrawal and also levy of execution on this conditional merchandise on the part of the seller does not mean cancellation of the agreement, unless the law on gradual payment is applicable.
- The goods remain the property of the seller. Processing or transformation are always effected for the seller as manufacturer, however, without obligation on his part. If the (co-) ownership is discharged by way of adjunction, agreement is thus already made, that the purchaser’s (co-)ownership of the unit object passes over to the seller on a pro rata basis of the value (invoice value).
- The purchaser holds the seller’s joint property in safe-keeping, without payment. Goods for which the seller is entitled to having (co-) ownership are referred to in the following as conditional merchandise. The purchaser is entitled to process and dispose of the conditional merchandise in the due course of business, as long as he is not in default. Pledging and transfer of ownership by way of security are not permitted. Claims arising from the resale or due to another cause in law (insurance, an illegal action) with regard to the conditional merchandise (including all balance claims from the current account) are already assigned to the seller now by the purchaser in their entirety for the sake of security. The purchaser is authorized to collect claims for payment in his own name which have been assigned to the seller. The authorization to collect can only be revoked if the purchaser does not duly meet his obligations to pay.
Covenant against assignment and contractual exclusion of set-off
- The purchaser is not entitled with his own non-legally asserted claims to discharge those of the seller by way of counterclaim. Neither is the purchaser entitled to assign such claims to a third party.
- Sales personnel and technical personnel are not authorized to collect bills in cash. Payments having the effect of a full discharge can only be effected directly to the seller or transferred to a bank account named by him.
- Invoices of the seller are payable as per special agreement.
- The seller explicitly reserves the right to refuse to accept cheques or bills of exchange. The acceptance is only ever affected as payment. Discount charges and the cost of bills of exchange go to the account of the purchaser and are immediately due.
- Under the elimination by agreement of 366, 367 BGB and notwithstanding other differing provisions of sale, the seller determines which claims are fulfilled by the purchaser’s payment.
- If the purchaser is in default, the seller is authorised to charge interest to the amount of the interest rate on overdraft charged by commercial banks – at least, however, 4% above the discount rate of the Federal Bank – plus purchase tax. The interest is due immediately.
- If the customer does not meet his obligations of payment, especially if he does not honour a cheque or bill of exchange or discontinues his payments, or if the seller becomes aware of other circumstances which question the purchaser’s credit worthiness, the seller is entitled to make the entire, residual debt due and payable, even if he has discounted bills of exchange or cheques. In case the seller is additionally entitled to demand advance payments and security deposit with regard to all other agreements, and also, after adequate additional time, to withdraw from these agreements or demand compensation for damage due to non-fulfilment.
- The purchaser is only entitled to set off if the counterclaim is uncontested or is found by court to be final and absolute.
Place of performance, place of jurisdiction and partial invalidity
- The place of performance is Ueberlingen. In so far as the purchaser is a fully qualified merchant, legal patch of public law, or a special public/legal fund, the “Amtsgericht” (regional court) In Ueberlingen, or the “Landgericht” (district court) of Constance are agreed upon for both parties at the seller’s option in the case of any disputes arising from the contracts and Ins legal relationship thus existing in this connection. The same is valid if at the time of instituting an action, the place of residence or habitual abode of the purchaser is unknown. In all other cases, the jurisdiction of the Amtsgericht in Ueberlingen is agreed upon far the legal summary proceedings for recovering a debt or liquidated demand (688 ff. ZPO /code of civil procedure).
- Should one or more of the afore-mentioned provisions be or become inoperative, the validity of the others is not affected thereby. The inoperative provision is to be replaced by one that is valid, and which realizes the economic purpose intended as far as is possible.
- The headings serve only for a better outline and have no material significance, especially not that of a conclusive regulation.
- The laws of the Federal Republic of German shall apply far the terms and conditions of business as well as all legal relations between the seller and the ordering party. Place of jurisdiction and place of performance shall be Ueberlingen, exclusively and irrespective of the amount of the Substance of the action.