Terms and Conditions of Sale, Delivery and Payment (T&C)
1. Application
a) The following conditions of contract apply to all agreements of sale, delivery and assembly concluded by the German private limited company WEM GmbH, referred to as the "Supplier" in the following text. Any other stipulations are only valid if they have been laid down in writing and if the Supplier has approved them in writing.
b) If a contract partner refers to his/her own Terms and Conditions of Business in an order or an order confirmation, these terms and conditions will not apply, even if the Supplier has not explicitly excluded their application.
2. Quotations
a) Our quotations are always subject to confirmation and, therefore, not binding. They are intended as a basis for our customers’ orders. For this reason, any annexes to our quotations such as illustrations, drawings, specifications of sizes and weights or calculations are also not binding. Quotations do not include any undertaking in the sense of statutory rights of warranty.
b) The contract is not concluded until we have confirmed the order in writing.
c) All agreements and secondary agreements made with our salesmen are subject to the approval of the Supplier's legal representative.
3. Scope of delivery
When supplying bulk products, a deviation of 10 % maximum from the specified quantity is permissible.
4. Delays of delivery
Specifications of delays of delivery or deadlines are only binding if we have explicitly confirmed their binding character. If the Supplier's ability to deliver is affected by circumstances which were not predictable at the conclusion of the contract, such as operational disturbances of all kinds, difficulties in obtaining material or delayed deliveries by subcontractors, the Supplier may at his option either protract the delay of delivery as required or resign from the contract. If the Supplier fails to meet an a delivery deadline confirmed by him/her, the Ordering Party is entitled to fix a period of grace of at least six weeks and to announce his/her withdrawal from the contract if this period should expire fruitlessly. Should the Ordering Party not receive the delayed goods within the period of grace, his/her withdrawal from the contract is deemed to be effective. Any claims of warranty put forward by the Ordering Party because of a delayed delivery, especially claims for damages due to the delayed performance or claims for compensation due to the failure to perform are excluded in any case.
5. Packaging and dispatch
a) Unless otherwise agreed, packaging material is invoiced at the lowest possible price and will not be taken back.
b) Unless otherwise agreed, the Supplier selects at his/her discretion the most favourable route of transport and dispatches the goods on account of and at the risk of the Ordering Party. Any claims of liability for loss or damage during the transport of the goods put forward against the Supplier are excluded. If free shipment was agreed, the goods are shipped at the risk of the Ordering Party and, also in this case, any claims of liability for damages during shipment are excluded.
6. Prices and payments
a) Prices apply "ex works" and exclude packaging. Payment is to be made without any deductions within fourteen days from the date of the invoice. If payment is made within seven days after the date of the invoice, the Ordering Party may deduct a cash discount of 2 % from the invoiced amount. We reserve the right to ask advance payments for initial orders. If the Supplier explicitly agrees to accept bills of exchange or cheques as a means of payment, all costs and fees incurred by the handling of these documents are at the Ordering Party's charge.
b) If payment is delayed beyond the term of fourteen days from the date of the invoice, the Supplier is entitled do demand interests on overdue accounts in the amount of 4 % above the discount rate of the German Federal Bank (Deutsche Bundesbank) as well as the compensation of costs incurred in making request for payment. Claims for further damages are not excluded by the previous provision.
c) Returned goods will only be accepted if the return of goods was coordinated in advance and the goods are dispatched free of charge to us. We reserve the right to charge a return fee of 25 % of the purchasing price for the taking back of the goods.
d) The settlement of claims of the Supplier based on the contract with counter-claims is excluded as far as these counter claims are not undisputed or not established as final and absolute. The Supplier has the right to disclose the assignment as soon as the Ordering Party fails to pay in due time. The Ordering Party is authorised to collect the assigned receivables in his/her orderly course of business until revocation. The Ordering Party is not entitled to any other disposition of the receivables (assignment, mortgaging, offsetting).
e) All specified amounts are exclusive the statutory VAT.
7. Reservation of title
a) The Supplier reserves the right of ownership in the delivered goods until these goods and all other receivables resulting from the business transaction have been paid in full. The Ordering Party is obliged to store the goods delivered under reservation of title properly and take out adequate insurance against risks (fire, water and other risks). The Ordering Party is not entitled to grant security interests in the goods delivered under reservation of title to third parties.
b) In the orderly course of business, the Ordering Party has the right to sell or process the goods delivered under the reservation of title. To the extent that the ownership of the Supplier in the goods is extinguished, the Ordering Party assigns already by now all accounts receivable due to the sale or processing of the goods to the Supplier, who accepts this assignment. The assignment is limited to a priority share in the amount of the delivery price of the goods. The Ordering Party undertakes to make all information available to the Supplier on his/her request that is necessary for the collection of the assigned receivables.
c) If other creditors of the Ordering Party execute against the goods delivered
under reservation of title or against accounts receivable assigned to the Supplier, the
Ordering Party undertakes to immediately inform the Supplier accordingly and notify
his/her creditor of the rights of the Supplier in the title and/or in the receivables.
8. Right of retention
The assertion of a right of retention by the Ordering Party against claims of the Supplier based on the contract is excluded.
9. Warranty and compensation of damages
a) The Supplier warrants for the agreed quality and nature of the delivered goods. In the event of a justified complaint, the Supplier may meet his warranty obligations at his/her discretion either by repairing the goods or by replacing them with flawless goods. Any further liability of the Supplier is excluded, especially for consequential damages, for whatever cause in law, unless proof of the Supplier's intend can be established.
b) All natural building materials and products made from such materials can be affected by size and weight variations differing by up to 20 % from the values specified in the technical documentation.
c) The Buyer must check whether the delivered goods have the agreed nature and quality and whether they are suitable for the intended purpose. The Ordering Party shall notify the Supplier in writing of obvious defects within fourteen days and of concealed defects immediately after their detection, but at least within six months after the reception of the goods.
d) If a defect is due to an insufficient quality of parts, the Supplier has received from another manufacturer, the Supplier's obligation to warrant for the goods will be restricted to the warranty claims against his/her subcontractor.
e) The warranty periods comply with statutory regulations.
f) Claims based on warranty are also excluded for parts, which have been modified or improved arbitrarily by the Ordering Party and for parts, which have been improperly assembled or processed. A reduction of the agreed remuneration is excluded in any case.
10. Place of performance and jurisdiction, applicable law
a) Urmitz in Germany is the place of performance.
b) Koblenz in Germany is the place of jurisdiction for all claims based on this contract.
c) German law shall apply exclusively.
d) If individual provision of the present Terms and Conditions of Sale, Delivery and Payment should be legally invalid, in parts or as a whole, the validity of the other provisions and of the total legal transaction shall not be affected.
Koblenz, 01.01.2003