International terms of sale and delivery
a) These General Terms and Conditions of Business (“GTC”) govern the cooperation between Warendorf Werke GmbH and Purchaser and are designed to allow us to handle all orders to our customers’ fullest satisfaction.
b) These GTC apply to all of our deliveries and services rendered to businesses within the meaning of Sec. 310 (1) BGB [German Civil Code]. They apply exclusively. Any Purchaser terms and conditions of purchase shall not apply unless we have agreed to them in writing in a particular case. In the case of continuous business relations these GTC will also apply to all future transactions, even if not expressly agreed again. 1 BGB. They apply exclusively. The Buyer’s terms and conditions of purchase shall not apply unless we have agreed to them in writing in an individual case. Within the framework of ongoing business relations, the GTC shall also apply to all future transactions, even if they are not expressly agreed again.
c) All orders, confirmations of acceptance and subsidiary agreements, amendments or other arrangements made before or upon the receipt of an order must be set out in writing to be legally effective.
Conclusion of contract, order changes, withdrawal
a) Unless otherwise agreed or indicated, our offers are subject to change and non-binding. a) Unless agreed or indicated otherwise, our offers remain subject to change and nonbinding. A contract becomes effective only upon the written confirmation of an order received by us, but at the latest upon Purchaser’s acceptance of the delivery. Offers including several kitchens are valid for the quantities offered. Offers with several kitchens are valid for the number of pieces offered.
b) Orders will be modified at Purchaser’s request, provided that Purchaser bears all costs incurred in connection with the order modification.
c) We reserve the right to change the design, measurements and weight of the object to be delivered, provided such changes appear acceptable for Purchaser in an objective assessment of all circumstances.
Delivery, delay in delivery, force majeure
a) Any delivery periods or delivery deadlines indicated by us are without any commitment unless expressly specified or agreed with Purchaser as binding. We shall use our best efforts to meet any agreed delivery deadlines. We will meet agreed delivery dates to the best of our ability.
b) We are entitled to make partial deliveries and partial services to a reasonable extent, which can be invoiced separately.
c) The installation of gas, water, electrical and other connections as well as water drains are not part of the delivery program. Necessary connections must be set up by the buyer in compliance with the applicable regulations.
d) In addition to delivery, the purchaser may demand compensation for damages caused by delay if we are guilty of intent or gross negligence. In the event of slight negligence, liability shall be limited to damages foreseeable at the time of conclusion of the contract and typical for the contract. In the event of non-successful or untimely self-delivery, we shall not be in default vis-à-vis the purchaser unless we are responsible for the non-successful or untimely self-delivery. Force majeure, official requirements as well as operational disruptions occurring at our company, e.g. traffic and operational disruptions, labor disputes, lack of means of transport, fire damage, which temporarily prevent us from meeting agreed deadlines through no fault of our own or attributable to us, shall extend these deadlines by the duration of the disruption in performance caused by these circumstances. Both contracting parties shall be entitled to withdraw from the contract if performance is delayed by more than four months for the above reasons. Other rights of withdrawal of the buyer remain unaffected.
e) In the case of purchase on call, the Buyer shall accept the object of purchase no later than 3 months from the date of the order confirmation. The above conditions apply to the delivery periods.
f) In accordance with the applicable packaging ordinance in Germany, we assume responsibility for the return and recycling of stock packaging; all system-related costs (e.g. rental containers) shall be borne by the Buyer.
Prices, payment, default of payment, right of retention, set-off, assignment of claims
a) Unless expressly agreed otherwise, prices shall be EXW Warendorf, Incoterms 2000, plus any applicable value added tax at the statutory rate.
b) The Buyer shall provide security for the agreed purchase price and all other costs, the form of which we shall agree with the Buyer. After receiving the full security, we will start manufacturing. The delivery time is calculated from the day of receipt of the security by us.
c) If the parties have not reached an agreement regarding the price at the time of conclusion of the contract, the list price applicable on the day of conclusion of the contract shall be deemed agreed.
d) If the purchaser defaults on payment, we shall be entitled to demand statutory default interest. This shall not affect the Buyer’s right to claim lower damages for delay and our right to claim higher damages for delay.
e) The purchaser may only assert a right of retention against our claims insofar as it is based on claims from the same contractual relationship that are undisputed, ready for decision or legally established. Offsetting on the part of the purchaser is only permissible with counterclaims that are undisputed, ready for decision or legally established.
f) All prices are calculated and invoiced in Euro, unless otherwise agreed.
g) Warendorf Werke GmbH has the right to assign its claims against the customer to a third party.
Place of performance, transfer of risk
a) The place of performance for all delivery and payment obligations arising from the contractual relationship shall be Warendorf, unless otherwise agreed.
b) Shipment shall always be made from our place of business or from our distribution warehouse at the risk of the Buyer. The risk shall pass to the buyer as soon as the consignment has been handed over to the person carrying out the transport or has left our warehouse for the purpose of shipment. If the contracting party does not accept the goods in due time although they were offered to him, the risk shall pass to the buyer upon notification of readiness for shipment.
Retention of title
a) The delivered goods shall remain our property as reserved goods until all claims arising from the contractual relationship and other claims which we subsequently acquire against the purchaser in direct connection with the delivered goods have been satisfied, irrespective of the legal grounds. This shall also apply if the payments are made on specifically designated receivables. Furthermore, the delivered goods shall remain our property as goods subject to retention of title until all other claims that we acquire against the purchaser now or in the future for whatever legal reason (including all balance claims from current account) have been settled.
b) The Buyer shall be entitled to resell the goods in the ordinary course of business. In order to secure all our outstanding claims against the purchaser, the latter shall assign his claims arising from the
The customer hereby assigns to us the claim arising from the resale to his customer. We hereby accept this assignment. As long as we are the owner of the goods subject to retention of title, we are entitled to revoke the authorization for resale if there is an objectively justified reason.
c) The purchaser is revocably authorized to collect the assigned claims. Our authority to collect the claims ourselves shall remain unaffected, however, we undertake not to collect the claims
as long as the purchaser duly fulfills his payment obligations. If the purchaser does not properly fulfill his payment obligations and we are therefore authorized to
claims himself, the buyer is obligated to disclose the assigned claims and their debtors to us upon request, to provide all information necessary for collection, to
documents and to inform the debtors of the assignment.
d) In the event of processing, combination and mixing of the reserved goods with other goods, we shall be entitled to ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods. Any processing or combination or mixing in the ordinary course of business shall be deemed to have been carried out on our behalf. If the reserved goods are sold together with other goods after processing or combination or mixing, the assignment of the claim from the resale shall only apply up to the amount of the proportion of our invoice value to the invoice value of the goods sold together. In the event of the sale of goods in which we have a co-ownership share, the claim shall be assigned to us in the amount of the co-ownership share. We offer the buyer already now the granting of an expectant right to the co-ownership shares coming into existence. The buyer accepts this offer. Upon settlement of all claims to which we are entitled, co-ownership shall pass to the purchaser.
e) If the goods subject to retention of title are combined with the real property of a third party, the Buyer hereby assigns to us the claim to remuneration accruing to it, including all ancillary rights, in the amount of the share corresponding to the value of the goods subject to retention of title. If the reserved goods are co-owned by us, the assignment shall extend to the amount corresponding to our co-ownership share. If the purchaser has a claim against its customer for the creation of a security mortgage pursuant to sec. § 648 BGB, he shall assign this claim to us in the aforementioned amount. We hereby accept the above assignments.
f) The Buyer is obliged to carefully store the goods owned or co-owned by us, to insure them sufficiently and to keep them under insurance cover. The buyer assigns already now
the claims to which he is entitled against his insurance company in the event of a claim, insofar as they relate to our property or co-property, to us; we accept this assignment.
g) As long as the reservation of title exists, pledging, transfer of ownership by way of security, leasing or any other form of transfer of ownership that would impair our security shall only be permitted with our prior written consent.
impairing transfer or modification of the object of purchase is permissible. This shall not affect the Buyer’s right to purchase the goods in the ordinary course of business under the aforementioned
conditions to be sold on.
h) In the event of access by third parties, in particular in the event of seizure of the object of purchase, the purchaser shall immediately notify us in writing and immediately inform the third party of our reservation of title.
i) If the Purchaser ceases its payments not only temporarily, files for the opening of insolvency proceedings against its assets or if insolvency proceedings are opened against its assets, the following shall apply
he shall be obliged to surrender the object of purchase still owned by us upon our request. Furthermore, in the event of conduct contrary to the terms of the contract, in particular in the event of default in payment, the purchaser shall be liable in accordance with
reminder to surrender the object of purchase to us. The taking back of the object of purchase shall only constitute a withdrawal from the contract if we expressly declare this. Finally, in these cases the buyer is obliged to immediately provide us with a list of the remaining goods subject to retention of title, even if they have been processed, together with a list of the claims against the buyer.
Third party debtor to send.
j) We shall be entitled to set the Buyer a reasonable deadline for the fulfillment of its obligations and, after expiry of the deadline, to dispose of the secured object of purchase on the open market at the Buyer’s expense, setting off the payment received against the purchase price.
k) At the Buyer’s request, we shall be obligated, at our discretion, to waive the reservation of title or to release securities from assignments by way of security and assignments in advance if the Buyer has fulfilled all claims in connection with the object of purchase or if the realizable value from the total securities granted to us from reservation of title, assignment by way of security and assignment in advance exceeds the total amount of our claims against the Buyer by more than 10%, not only temporarily.
Liability for defects, limitation period
a) The Buyer’s rights in respect of defects shall be conditional upon the Buyer having duly complied with its obligations to inspect the goods and give notice of defects pursuant to Section 377 of the German Commercial Code (HGB).
b) Defects which are the result of improper handling or repairs or interventions carried out without our consent shall not give rise to any warranty claims.
c) For defects notified in due time, we shall be liable in accordance with the statutory provisions subject to the following proviso: In the event of defective delivery, the Buyer shall be entitled, at our discretion, to free of charge
Subsequent performance shall be deemed to have failed if a defect has been remedied after at least two attempts to remedy the defect or to deliver a replacement, in technically
complicated cases cannot be remedied after at least three attempts to remedy the defect or if a further attempt to remedy the defect or a further replacement delivery is unreasonable or impossible for the Buyer, is unreasonably delayed or is seriously and finally refused. The parts replaced on the occasion of a rectification of defects become our property.
d) The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance (e.g. costs of travel, transport, labor, and material) to the extent that expenses are increased,
because the purchased item has been transported after delivery to a place other than the registered office or the commercial establishment of the buyer, unless the transfer is in accordance with the
intended use of the item. If the notice of defect is unjustified for reasons for which the purchaser is responsible, the purchaser shall reimburse us for any expenses incurred by us in this respect. The Buyer shall only be entitled to claims for damages or reimbursement of expenses due to defects insofar as our liability is not excluded or limited in accordance with the following clause of these Terms and Conditions of Sale and Delivery. Further or other than in this Ziff. 7 due to a material defect are excluded.
e) Claims for liability for defects shall become statute-barred one year after delivery of the object of purchase. The limitation period in the case of a delivery recourse according to §§ 478, 379BGB remains unaffected; it amounts to
maximum of five years, calculated from the delivery of the defective item.
a) In all cases in which the purchaser is obliged to pay damages instead of performance, we may demand 20% of the purchase price as damages, subject to proof of higher damages. The purchaser is free to prove that no damage has been incurred or that the damage is significantly lower.
b) We shall be liable for damage caused by us or our vicarious agents if such damage was caused intentionally or by gross negligence. In the event of a slightly negligent violation of a material
contractual obligation (cardinal obligation), liability shall be limited to damages foreseeable at the time of conclusion of the contract and typical for the contract. In the event of a slightly negligent breach of ancillary obligations which do not constitute a material breach of duty, we shall be entitled to claim damages.
contractual obligations, we shall not be liable. Liability in the event of fraudulent concealment of defects or in the event of the assumption of a guarantee of quality and liability for claims based on the
Product Liability Act and for culpable injury to life, limb or health shall remain unaffected. This does not imply a change in the burden of proof to the detriment of the purchaser.
c) The above claims for damages, with the exception of claims arising from tort and product liability, shall become statute-barred after one year, calculated from the date of receipt of the goods by the Buyer. The limitation of claims for defects shall be governed by the provisions in Section 7 e.
Compensation for damages and expenses due to withdrawal
In the event of withdrawal from the purchase contract due to culpable breach of contract by the buyer, we may assert the following claims:
a) special expenses incurred on the occasion of the contract, such as commissions, shipping costs, etc.,
b) compensation for any damage incurred by us due to the fault of the buyer,
c) compensation for the transfer of use and the resulting reduction in value. As a rule, the remuneration is calculated as follows, depending on the stability of value: in the case of withdrawal and handover after
Delivery within the first three months 30% of the selling price and for each additional month 3% of the selling price. However, the purchaser shall be given the opportunity to prove that a lower or no reduction in value has occurred and us that a higher reduction in value has occurred.
Jurisdiction, choice of law clause
a) The place of jurisdiction for all disputes arising between us and the purchaser, irrespective of the legal grounds, shall be Warendorf, provided that the purchaser is a merchant or a legal entity of the Federal Republic of Germany.
public law or does not have its place of business in Germany. However, we are entitled to sue the buyer at any other legal place of jurisdiction.
b) German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Warendorf Werke GmbH