General Terms and Conditions of Walter Winter Verbindungstechnik GmbH & Co.KG
All our business transactions with merchants and legal entities having legal capacity are exclusively based on the following terms and conditions. Any deviating agreements shall require the express written confirmation of Walter Winter Verbindungstechnik GmbH & Co.KG (hereinafter referred to as Seller) in order to be valid.
Our offers are subject to change. The seller reserves the right to further development, improvement and model changes. Orders shall be deemed accepted only when confirmed in writing by the Seller, regardless of whether they are accepted directly, by telephone, telex or through the representative. Our offers and proposals are non-binding - it is up to the buyer to check them carefully. We do not guarantee that the ordered design is suitable for the intended purpose. Our specially prepared offers have a validity period of 3 months. The offer documents, drawings, descriptions, samples and cost estimates from the seller may not be passed on, published, reproduced or otherwise made available to third parties without the seller's permission. Upon request, the documents must be returned without withholding copies.
2. Order confirmation
Objections to our order confirmation must be raised immediately, but no later than 10 days after the date of issue. Later objections will not be considered. Withdrawal from the purchase contract on the part of the purchaser is excluded. This shall not affect the right to rescission in accordance with clause 10. paragraph 3. The purchaser may only demand acceptance tests if these have been expressly agreed in the contract. We shall not be bound by the Buyer's terms and conditions of business and purchase, even if we do not expressly object to them. Statements in offers and/or order confirmations from the Seller which are based on an obvious error, namely a clerical or calculation error, shall not bind the Seller. Rather, the obviously intended statement shall apply.
The prices on the day of delivery are decisive. They are understood to be in euros. The prices are ex works or ex warehouse excluding VAT, packaging, customs, postage and insurance. Additional work and services will be charged separately. We cover insurance against transport damage at the buyer's expense and for his account at our best discretion. Deviations from the shipping note or invoice must be reported to us in writing on the day of receipt of the goods. The date of the sender of the complaint is relevant. For the scope and within the contractual relationship, only the information in the written order confirmation is authoritative. Subsidiary agreements and amendments to the contract are only effective if they have been agreed in writing. Also verbal, telex and telegraphic additional agreements require our written confirmation to be effective. Agreed subsequent changes to the order entitle the seller to charge any additional costs incurred or oblige him to reimburse any reduced costs. The offer prices are valid for all orders within the offered period of 3 months. In the case of call-off orders, we shall be bound by the prices on which the order is based for a period of two months. For deliveries called off later, we reserve the right to increase the price in the event of a change in cost price. In case of disagreement about the price, in case of doubt the prices valid on the day of delivery or provision shall be taken as a basis. Additional costs incurred due to special requests of the customer with regard to the time of dispatch or completion on Sundays and public holidays, day and night shifts, may be invoiced separately to the customer. This shall also apply to fixed-price orders if the time of dispatch or completion has not been clearly specified therein but has been communicated subsequently. In the case of fixed-price orders which include assembly, additional costs may be incurred which are caused by additional shifts, by postponement of day and night shifts, from normal working days to public holidays or by other hindrances.
Our invoices are payable net cash within 7 days of the invoice date. If the payment deadline is exceeded, we are entitled to charge interest on arrears of at least 3% above the respective discount rate of the Deutsche Bundesbank. Assembly, freight and packaging charges are payable immediately net, without discount, as cash expenses. The seller expressly reserves the right to refuse checks or bills of exchange. Acceptance shall always be on account of performance only. Discount and bill charges shall be borne by the purchaser and are due immediately. If the Seller becomes aware of circumstances that call into question the creditworthiness of the Buyer, in particular if the Buyer fails to honor a check or suspends payments, the Seller shall be entitled to declare the entire remaining debt due and payable, even if the Seller has accepted checks. In addition, the seller is entitled in this case to demand advance payments or the provision of security. In this case, further deliveries will be made cash on delivery plus freight and packaging. If the Purchaser finally discontinues payments and/or if insolvency proceedings are filed against his assets, the Seller shall also be entitled to withdraw from the part of the contract that has not yet been fulfilled. The Seller shall be entitled, despite any provisions of the Purchaser to the contrary, to set off payments first against the Purchaser's older debts. The Seller shall inform the Purchaser of this type of set-off. If costs and interest have already been incurred, the Seller shall be entitled to set off the payment first against the costs, then against the interest and finally against the main performance. If the Customer is in default of payment, the Seller shall be entitled to charge the respective statutory default interest. The Seller reserves the right to claim further damages caused by default. Offsetting on the part of the Purchaser shall be excluded unless the counterclaim is legally established or not disputed by the Contractor.
The shipping risk shall pass to the buyer in all cases, even in the case of carriage paid shipping, when the shipment leaves our factory or warehouse and is handed over to the person performing the transport. In the case of self-collection, the shipping risk is transferred to the buyer when the goods leave the factory. The buyer has to report possible transport damages immediately, also in writing on the day of the receipt of the knowledge and to assert the claims for damages at the railroad, post office or forwarding agency. For the calculation, the weights and numbers of pieces determined at the time of shipment shall be decisive. In the case of delivery free to the Buyer's place of use, the agreed price shall always be understood free wagon on a passable road at the place of use to be approached. Unloading of the goods is the responsibility of the Buyer and shall be at his expense. The choice of the transport route and the means of transport shall, in the absence of any special instructions, be made at our best discretion without any liability (except in the case of gross negligence or intent) for a cheaper shipment or a shorter route. If shipment is delayed or not carried out at the instigation of the purchaser, the risk shall pass to the purchaser upon notification that the goods are ready for shipment. We are entitled to invoice the entire delivery after the expiry of one week and to pass on the costs for the resulting storage to the purchaser. At the request of the purchaser, deliveries will be insured in his name and for his account.
6. Delivery time
For each individual order or call-off, the agreement of the delivery time is reserved. The date of our final written order confirmation shall always be decisive for the agreed binding and non-binding delivery time. The stated delivery times are always considered approximate and non-binding. The exceeding of the delivery time assured by us by up to 1 month excludes any claims for compensation by the buyer. Thereafter, the Seller shall only be in default if the Buyer has notified us in writing of a grace period of 6 weeks (commencement of this period from receipt of the notice of grace by us) and this grace period is exceeded by us. Penalties for delay are excluded. The Seller shall only be responsible for delays and/or the impossibility of its delivery and performance if it has caused the impediment to performance intentionally or through gross negligence. Events of force majeure, delivery delays on the part of upstream suppliers, strikes, lockouts, traffic disruptions or the absence of official or other permits required for the execution of the delivery and assembly shall release the Seller from the obligation to perform for the duration of the disruption and to the extent of its effect. Any delay shall be suspended for the duration of such disruptions. Accordingly, the correct and timely self-delivery of the entrepreneur remains reserved. The provisions on fixed-date transactions pursuant to § 376 of the German Commercial Code (HGB) and § 361 of the German Civil Code (BGB) shall be excluded in their entirety. If, in the case of sales on call, no specific acceptance period has been agreed, the call must be issued by the purchaser no later than 6 weeks before the delivery date. In the case of custom-made machines, there shall be no obligation to deliver the machine within a deadline set by the purchaser, unless otherwise agreed.
7. Retention of title
Until all claims to which the Seller is entitled against the Purchaser for any legal reason have been satisfied, the Seller shall retain title to the delivered items (reserved items). The Purchaser shall be obliged to notify the Seller immediately of any seizure of the Retained Objects and to inform the pledgees of the retention of title. The Purchaser shall not be entitled to sell, give away, pledge or assign by way of security the items delivered to it under retention of title, except in the following cases. If the delivery is made to a business operation maintained by the Purchaser, the items may be resold in the ordinary course of business, but not below the purchase price. In this case, the Purchaser's claims against the customer arising from the sale shall be assigned to the Seller already now. In the event of resale of the items on credit, the Purchaser shall for its part retain title vis-à-vis its customer. The Purchaser hereby assigns to the Seller the rights and claims arising from this retention of title vis-à-vis its customer. Any processing or treatment of the Retained Goods by the Purchaser shall be carried out by the Purchaser on behalf of the Seller free of charge. In the event of processing of the reserved goods with other goods not belonging to the Company, the Seller shall be entitled to the resulting co-ownership share in the new item in the ratio of the factor value of the reserved goods to the other processed goods at the time of processing and combination. If the Purchaser acquires sole ownership of a new item, the contracting parties agree that the Purchaser shall grant the Seller co-ownership of the new item in the ratio of the factor value of the processed or combined Retained Goods and shall hold it in custody for the Supplier free of charge. If the Reserved Objects are resold together with other goods, irrespective of whether without or after processing or combination, the advance assignment agreed above shall apply only to the amount of the factor value of the Reserved Objects resold together with the other goods. If Retained Goods are incorporated into the real property of a third party by the Purchaser or on the Purchaser's behalf as essential components, the Purchaser hereby assigns to the Seller any claims for payment against the third party or the party to whom it relates, together with all ancillary rights, including the granting of a security mortgage. If Retained Goods are incorporated into the Purchaser's real property as essential components, the Purchaser hereby assigns to the Seller any claims arising from a sale of the real property or of rights to real property, together with all ancillary rights. If the Purchaser does not fulfill its obligations towards the Seller or does not do so punctually and/or if it acts in an inadmissible manner on the items delivered under retention of title, the Seller may, without prejudice to its right to claim performance of the contract, demand the return of the items, provided that a reasonable period of time set for the Purchaser to fulfill its obligations has expired to no avail. If the Purchaser has fulfilled the contract, the Seller shall return the items. The above provision shall not apply to instalment transactions subject to the Consumer Credit Act.
8. Take back
Goods that have been duly ordered will not be taken back as a matter of principle. Storage, transport and other costs as a result of taking back the delivery item shall be borne by the purchaser, but at least 15% of the purchase price.
We provide a guarantee of 12 months (in accordance with VDMA) from the date of dispatch for machines and equipment supplied by us for perfect material quality and expedient workmanship. We shall only be liable for third-party makes and built-in parts to the extent that the upstream suppliers provide cover or defects in goods supplied by upstream suppliers have not been detected by us due to gross negligence or wilful misconduct. A prerequisite for the warranty is that the machines and devices supplied by us are properly operated and maintained as prescribed in the operating instructions and that no unauthorized modifications have been made to the parts subject to complaint or to the device itself, i.e. the use of original parts and consumables that comply with the original specifications is mandatory. The warranty does not apply if the purchaser does not refute a correspondingly substantiated claim that only one of these circumstances caused the defect. Liability for normal wear and tear is excluded. All payment obligations arising from the delivery and assembly of our goods or payment obligations to the bank or leasing company financing the goods must be fulfilled. Defects that occur will be remedied by repair or replacement delivery at our discretion within a reasonable period of time. Only if the repair or the replacement delivery finally fails, the purchaser then has the right to rescission or reduction. There shall be no liability for direct or indirect damage beyond the above warranty unless we or our vicarious agents have acted with gross negligence or intent. We shall only be liable for consequential damages in the event of intent, but not in the event of negligence or gross negligence on our part, since it is more favorable for the purchaser to take out machinery and commercial liability insurance than for us to take out consequential damage liability insurance. A right of retention of the purchaser with regard to his obligation to pay the purchase price shall only exist to the extent and in the amount that costs are necessary for the elimination of the defect complained of. Obvious defects in work performances can no longer be asserted after acceptance. Otherwise, for the purpose of preserving the Purchaser's warranty claims, such defects shall be notified to the Seller in writing without delay, but no later than within two weeks after delivery. The defective items shall be kept ready for inspection by the Buyer in the condition in which they are at the time of the defect. Insignificant, reasonable deviations in the dimensions and designs - in particular in the case of repeat orders - do not entitle to complaints, unless absolute compliance has been expressly agreed. Technical improvements as well as necessary technical modifications shall also be deemed to be in conformity with the contract, provided that they do not constitute a deterioration of the fitness for use. The above provisions of this paragraph do not apply to the sale of already used items, which were seen by us only as a drop shipment. If machines are overhauled, then the warranty only extends to the parts replaced by us.
10. Limitation of liability
Claims for damages arising from positive breach of contract, from culpa in contrahendo and from tort, which are not simultaneously based on the breach of a main contractual obligation by the Seller, shall be excluded both against the Seller and against its vicarious agents, unless the damage was caused intentionally or by gross negligence. This shall not apply to claims for damages arising from warranties of quality which are intended to protect the Purchaser against the risk of consequential harm caused by a defect. Claims for damages according to the law on liability for defective products (PrdHG) remain unaffected as well as liability for damages to life, body and health.
Notification of defects must be made no later than 2 weeks after receipt of the goods and the supplier must be notified in writing. Withholding of payments due to notified warranty claims is not permitted.
Unless otherwise agreed, installation work shall be remunerated separately. The installation costs shall include, in particular, travel expenses, daily allowance and working hours of the installation personnel including surcharges for overtime (25%), night work (50%) and work on Sundays and public holidays (100%). If the installation or commissioning is delayed through no fault of the Seller, the Purchaser shall bear all costs for the waiting time and for further necessary travel. Agreed lump-sum prices for installation work do not include surcharges for overtime, night, Sunday and holiday work that becomes necessary. These can be charged additionally. The assembly work in connection with the installation of the plant shall be deemed to have been completed upon trial commissioning. If the installation is carried out by the purchaser or a third party commissioned by the purchaser, the respective valid operating and installation instructions of the supplier must be observed.
13. Applicable law
All contracts concluded by us shall be governed by the law of the Federal Republic of Germany, irrespective of any international law that may be applicable. Should one or more provisions from the terms and conditions of sale and delivery be or become invalid, this shall not affect the validity of all other provisions and agreements. The parties are obliged to replace the ineffective provisions with new, effective ones that correspond to the meaning and purpose of the provision.
14. Place of performance and jurisdiction
Insofar as the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of performance in Göppingen and the place of jurisdiction shall be the AG Göppingen or the superior LG Ulm/Donau.