General Terms and Conditions of Weber Waagenbau
Terms of shipping and payment
All of our goods and services are based exclusively on the terms and conditions below. Any deviations from these terms and conditions must be confirmed by us in writing and will apply only to the individual transaction in question. Conflicting terms and conditions of the purchaser shall be deemed replaced and superseded by these General Terms and Conditions.
I. Offer and formation of contract
Our offers, verbal and other communications and agreements made by our employees and representatives shall always be deemed non-binding. The delivery contract only becomes legally binding at such time as the supplier's written order confirmation is received. The documents underlying our offer and delivery confirmation such as illustrations, drawings, weights and measurements are in all cases only approximate. They may likewise only be made binding by a written confirmation of order. The supplier reserves proprietary rights and copyright in respect of cost estimates, drawings and other documents; they may not be disclosed to third parties.
Change requests from the customer following formation of the supply agreement shall be at the customer's expense, and shall be subject to separate charge. Preliminary work required for smooth installation of the preparatory work, concrete work, installation of consoles and electrical installations necessary for seamless installation of the items of goods to be delivered does not form a part of the scope of our deliverables; the same applies in respect of unloading of the goods even if delivery freight prepaid is agreed.
Any necessary protective measures with regard to unloading, installation and commissioning of the items of goods shall be the responsibility of the customer. The supplier shall not be liable for this even if unloading, installation and commissioning are carried out by the supplier's staff.
No ancillary agreements of any kind shall be valid unless made in written form.
II. Prices and payments
Unless otherwise stated, our prices are quoted in Deutsche Bundesbank EURO and are net ex works, excluding packaging, freight, VAT, customs and insurance.
For delivery of electrical components, payment must be made as follows: payment strictly net and due immediately.
Upon delivery of systems, payment must be made as follows:
30 % upon receipt of the order confirmation,
60 % when ready to ship,
10 % after commissioning,
but no later than 4 weeks after delivery, in each case without any deduction.
Where our payment terms are exceeded by more than 15 calendar days, the applicable rate of default interest is 3 % above the applicable discount rate of the Deutsche Bundesbank.
We reserve the right to assert claims for further damages for default. If increases of any kind in the costs of material or wages occur prior to the date of delivery, the seller shall be entitled, independent of any offers or order confirmations, to increase its sales prices to the extent of the price and cost increases incurred, or to compensate for these. Exempted from the foregoing rule are any fixed prices which have been expressly agreed.
Payment retentions of offsets with counterclaims of the customer are not permitted unless the customer's counterclaims are undisputed or have been adjudicated by res judicata judgment. Where the supplier learns of a lack of creditworthiness of the customer, in particular where the customer's insolvency only becomes known to the supplier after formation of the contract, the supplier shall, at its option, be entitled to demand advance payment of the entire purchase price or resile from the contract and demand compensation from the customer for all of its expenses. The customer shall bear all of the costs of any bill of exchange.
III. Delivery periods
The delivery period shall begin to run at such time as the order is confirmed, but not before receipt from the customer of all documents required and, where applicable, receipt of any agreed advance payments and performance of any other obligations on the part of the customer.
Where, at the request of the customer, the scope of goods and services is subsequently changed, then the delivery date originally agreed shall be deemed inapplicable. The supplier does not bear any liability for delivery defaults due to force majeure, including strikes and lock-outs or unpunctual deliveries on the part of any sub-suppliers. The customer may not derive any claim for damages on such basis. Compliance with the delivery period is premised on the prerequisite that the customer has performed its contract obligations.
IV. Passage of risk and acceptance
The risk shall be deemed to pass to the customer at the latest at such time as the delivery items are despatched, even where partial deliveries are made or where the supplier has agreed to furnish other services, e.g. the costs of shipping, delivery or positioning/installation.
Upon request of the customer, the supplier shall insure the shipment for theft, breakage, transport damage, fire risks and water damage as well as any other insurable risks. Where the shipment is delayed as a result of circumstances for which the customer is responsible, the risk shall pass to the customer from the date on which the supplier is ready to ship, however, the supplier is obliged at the customer's request and cost, to take out such insurance as the customer wishes. Delivered items, even if subject to minor defects, shall be deemed accepted by the customer notwithstanding the customer's rights under section VII. Partial deliveries are permitted.
V. Installation and commissioning
Prior to the commencement of installation work, the parts required to carry out the installation work must be in place. The preparatory work necessary for installation must be carried out properly by the customer and completed prior to the start of installation, with foundations dry and set.
The customer must furnish auxiliary personnel in such numbers as the supplier may deem necessary. The customer must also provide the devices and equipment required for positioning, installation and commissioning. The customer must ensure that external working conditions of the supplier's installation personnel are suitable.
The customer must furnish written confirmation to the supplier's technicians of their pure working time at the installation site, to the best of its knowledge. It is furthermore obliged to promptly deliver to the supplier's technicians a written confirmation certifying completion of their work.
Where the customer has arranged for the installation personnel to perform special work, the supplier shall bear no liability for this. The supplier shall be liable only for improper handling and installation of the items of goods delivered.
The customer shall compensate the supplier for the costs of the return journey of the supplier's installation personnel by air, passenger car, rail or ship, second-class (for engineers travelling by rail, first-class) and for transport of their luggage and tools. Travel and waiting times are considered working hours.
VI. Retention of title
The items of goods and equipment delivered remain the property of the supplier until all claims against the customer arising out of this contract have been settled. The supplier's retention of title shall remain valid in respect of all receivables the supplier subsequently acquires vis-à-vis the customer in connection with the subject-matter of their contract, e.g. based on repairs and spare deliveries as well as services. Until such time as full performance hereof has been rendered, the items may not be resold, rented, hired out, given away, or given to unqualified third parties for repair.
Similarly, assignment by way of security or pledge are prohibited. Where the customer is a dealer (retail supplier), the customer is permitted to resell items in the normal course of business, subject to the proviso that its receivable claim for the resale, including any ancillary rights, is hereby assigned to the supplier already now and in advance, up to the value of the invoice.
During the term of this retention of title, the customer is permitted to possess and use the item of goods as long as it complies with its obligations under the retention of title and is not in default of payment.
Where the customer defaults in respect of payment or fails to comply with its obligations under the retention of title, the supplier may demand that the customer relinquish the item of goods to it and, following a warning with a reasonable notice period, may dispose of the item by arm's length sale at the best possible price, crediting the proceeds against the delivery price.
Such redemption shall be deemed to constitute rescission in the case of partial payment transactions of any customer who is not registered as a merchant in the Commercial Register. In such case, the provisions of the Instalment Payments Act [Abzahlungsgesetz, AbzG] shall apply. All of the costs of recovering and disposing of the item of goods shall be borne by the customer. In the event of interference by third parties, in particular in the event of any attachment of the item of goods or in the event that any tradesman exercises a trade lien, the customer shall notify the supplier immediately in writing and shall promptly advise the third party of the supplier's retention of title. The customer shall bear all such costs as must be incurred to set aside the interference with title and recover the item where such costs cannot be recovered from the third party.
The customer shall have a duty to keep the item of goods in proper condition throughout the term of the supplier's retention of title, and to promptly have the supplier perform all planned maintenance works and necessary repairs. The supplier hereby undertakes that it shall release the security interest to which it is entitled to the extent that its value exceeds the value of the secured claims (where not yet settled) by more than 10 %.
VII. Liability for defects
If the customer or a third party has not arranged for modifications and repair work on its own authority, the supplier shall be liable for any defects in the goods, which shall also include the absence of any warranty qualities, as follows:
After commissioning, for a period of six months in single-shift operation, such that the supplier shall repair or replace all parts free of charge that verifiably prove to be flawed due to faulty materials, faulty work or inadequate design.
The supplier shall be liable for remediation works and replacement parts to the same extent as it is for the original goods, but only until expiry of the warranty period specified for the original item of goods.
The supplier is not obliged to remediate defects for so long as the customer has failed to reasonably satisfy its contractual obligations.
In respect of assemblies and devices that are not part of the supplier's own manufacturing range and for which sub-suppliers were engaged, the supplier shall only pass on the manufacturer's warranty in question to the customer.
The supplier hereby disclaims liability for any other claims of the customer for defects or a lack of warranty qualities, including any claims for consequential damages and damages arising from the performance of remediation works or replacements, to the extent permitted by law and provided that there have been no gross negligence or intentional acts or omissions. To the extent that this results in a limitation of lability for slight negligence in cases of fault, in cases of contract formation, affirmative breach of contract or tort in favour of the supplier, this restriction shall apply mutatis mutandis in respect of the customer, as well.
In respect of the purchase of used items, the supplier shall advise the customer to the best of its knowledge and belief regarding the utility value of the item. Where the supplier does not have mandatory legal liability or where the parties have not otherwise agreed, the supplier disclaims all warranties. Travel expenses which become necessary in connection with inspections shall be borne by the customer if it is revealed that no defect is present giving rise to liability.
Where despatch, positioning and commissioning are delayed without the fault of the supplier, the supplier's liability shall cease no later than twelve months from the date on which the supplier furnishes notice of its readiness to ship. The warranty period for replacement parts and for repairs is three months, but shall run at least until the expiry of the original warranty period for the item of goods.
VIII. Liability and ancillary obligations
Suggestions and advice both before and after formation of contract are given to the best of our knowledge, and ancillary contract obligations (in particular instructions for operating and maintaining the item of goods) are performed to the best of our ability, but the supplier shall only be liable for the foregoing or for any failures in respect thereof in line with section VII. hereof.
The supplier may resile from the contract:
if it is unable to deliver the goods due to force majeure, strikes, lock-out or other circumstances for which it is not responsible and which are of material significance in completing the deliverable;
if a customer exceeds a deadline set in writing by more than 14 days and allows a grace period of more than 14 days to elapse;
if the customer has given false statements regarding its identity, its income or obligations, which put its ability to comply with its payment obligations at risk.
The customer may resile from the contract:
If the supplier culpably fails to meet the delivery deadline, which the customer has extended by a reasonable grace period, warning that in the event of failure it may refuse acceptance. No fault is deemed present where delivery is prevented as a result of force majeure, strikes or lock-out. In such cases, delivery periods shall be deemed appropriately extended. Where it is determined that delivery cannot be performed as a result of such circumstances, the customer may resile from the contract. The delivery period is deemed to be met if the items of goods are ready for shipment in line with agreed dates.
In the event of rescission, the supplier and the customer are obliged to return to the other party the consideration they have each received from that other party. In the event of the customer's rescission, the customer shall pay compensation to the supplier for the expenses it has incurred as a result of the agreement and, where delivery has been made, for any damage to the item of goods which may have been caused by a fault of the customer or any other circumstance for which the customer is liable. The customer shall pay compensation to the supplier for having been allowed to use the item equal to the value of the goods, noting, however, that account should be taken of any impairment of the value of the goods which may have occurred in the interim.
X. Place of performance
The place of performance for all obligations of the parties is Philippsburg.
XI. Jurisdiction and venue
Jurisdiction and venue for all present and future claims arising out of the business relations between the parties, including bills of exchange and cheques, in respect of persons with full legal merchant status, legal entities under public law and special fund entities under public law, shall be vested exclusively in the courts located at the suppliers registered office. The same rule on jurisdiction shall apply if the customer is not subject to general court jurisdiction within Germany, or where the customer transfers his residence or habitual abode outside Germany after formation of the contract or where the customer's residence or habitual abode is unknown at the time of filing suit.
XII. Arbitration clause
Where the parties (with full legal merchant status) agree that any disputes shall be resolved by decision of an arbitral tribunal, then within four weeks of any demand by the other party, each party shall have a duty to appoint an arbitrator. The chairman of the arbitral tribunal shall be appointed by the President of the Chamber of Industry and Commerce of Karlsruhe. He shall also appoint the arbitrator for any party who is in default in nominating his own arbitrator.
The entirety of the parties' legal relations shall be governed by the law of the Federal Republic of Germany.
In the event that any term of these Terms and Conditions of Delivery and Payment or any term in any other agreement should be or become invalid, the validity of all of the remaining terms or agreements of the parties shall remain unaffected thereby. The invalid term of these General Terms and Conditions of Delivery and Payment shall be replaced by the corresponding legal rule which would come the closest to the substance of the invalid term.