General Terms and Conditions of Sale, Delivery and Payment of WestWood® Kunststofftechnik (vis-à-vis Entrepreneurs) No. WW 08/2023
§ 1 Validity of the terms and conditions
(1) The following terms and conditions shall apply exclusively to all our sales, deliveries and services. These shall form an integral part of all contracts which we conclude with our contractual partners (hereinafter referred to as "Customer") for the deliveries and services offered by us.
(2) These shall therefore also apply to all future business relations, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted at the latest upon acceptance of the goods or services.
(3) Terms and conditions of the customer or third parties shall not apply, even if we do not separately object to their validity in individual cases. Even if we refer to a letter which contains or refers to the terms and conditions of business of the customer or a third party, this shall not constitute an agreement to the validity of those terms and conditions of business.
(4) In addition to these terms and conditions, our data protection regulations shall apply, which can be found in the information on data processing in the data protection declaration on our website at "https://www.westwood.de/datenschutz".
§ 2 Offers, Conclusion of Contract
(1) Our offers are always subject to change and non-binding with regard to prices, quantities, delivery period and delivery possibility, unless they are expressly marked as binding or contain a specific acceptance period. By placing an order, the customer makes a binding offer to purchase the goods in question. We may accept orders within 14 days of receipt by us.
(2) The contract shall only be deemed to have been concluded with legal effect as soon as we declare acceptance to the customer in writing (order confirmation) or dispatch the goods.
(3) The legal relationship between us and the Customer shall be governed solely by the written contract, including these General Terms and Conditions. This contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises on our part prior to the conclusion of this contract shall not be legally binding and verbal agreements between the contracting parties shall be replaced by the written contract unless it is expressly stated in each case that they shall continue to be binding.
(4) Supplements and amendments to the agreements made, including these General Terms and Conditions, must be in writing to be effective. Transmission by telecommunication, in particular by fax or e-mail, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.
(5) Our sales employees, consultants and field staff are not authorized to make verbal collateral agreements or to give assurances that deviate from the content of the written contract including these terms and conditions.
(6) If the customer only specifies the area or room dimensions in the order, we shall calculate the material requirements without obligation. We shall not assume any responsibility for any excess or shortfall in requirements.
(7) We retain ownership or copyright of all offers and cost estimates submitted by us as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the customer. The customer may not make these items available to third parties, either as such or in terms of content, disclose them, use them himself or through third parties, or reproduce them without our express consent. At our request, he shall return these items to us in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. An exception to this is the storage of data provided electronically for the purpose of normal data backup.
(8) Naturally occurring raw materials (e.g. sand) are used in the manufacture of our products. Such raw materials are subject to natural changes which cannot be influenced. If the customer re-orders further products of a certain product, we cannot guarantee that the re-ordered products will be identical to the previous product in terms of color, quality and workability. Deviations in the properties of the products may occur in different batches of a product and are due to the raw materials used in the production process.
(9) Within the scope of the contract initiation and the ongoing business relationship, we shall be entitled to obtain economic information about the customer. If necessary, the customer must immediately declare his consent to this in writing to us and/or the office providing the information.
§ 3 Prices and Terms of Payment
(1) The prices shall apply to the scope of services and deliveries specified in the order confirmations. Additional or special services shall be charged separately.
(2) The prices include packaging customary for the respective type of shipment ex works (An der Wandlung 20, 32469 Petershagen, EX Works (EXW) in accordance with INCOTERMS®2020) in EUR, plus the statutory value-added tax valid on the day of invoicing, customs duty in the case of export deliveries as well as fees and other public charges.
(3) The prices valid on the date of the order shall be authoritative and shall be in Euro excluding VAT. These are list prices unless expressly agreed otherwise.
(4) If the agreed prices are based on the list prices and the delivery is to be made more than four months after the conclusion of the contract, our list prices valid at the time of delivery shall apply. In the case of continuing obligations such as successive delivery contracts, the list price valid on the day of delivery shall apply. In the event of a price increase pursuant to sentence 1 or 2 of more than 25%, the customer may withdraw from the contract to the exclusion of any further claims. However, this withdrawal shall only affect those deliveries which would be invoiced at an increased price. If no written objection is made within 30 days of the invoice date, the prices shall be deemed to have been accepted.
(5) Invoices are to be settled within 30 days of the invoice date or, if payment is made within 10 days, with a 2% discount. The date of receipt by us shall be decisive for the date of payment.
(6) Payment by check is excluded unless agreed separately in individual cases.
(7) In the event of default in payment, we shall be entitled, without prejudice to any further claims for damages, to charge default interest at a rate of 9 percentage points above the respective base interest rate pursuant to Section 247 of the German Civil Code (BGB).
(8) If the customer defaults on a not insignificant part of the payment or if his checks or bills of exchange are protested or if the conditions for granting credit cease to apply, all our claims against him shall become due for immediate payment. This shall also apply to invoices originally deferred as well as bills of exchange or checks due at a later date. In the case of partial deliveries, we shall be entitled in that case to refuse goods still to be delivered under the order without any liability for damages.
(9) If the financial situation of the customer deteriorates considerably after conclusion of the contract or if the poor financial situation only becomes apparent after conclusion of the contract, we shall be entitled, in the event that the consideration from the respective order or from another individual order which is based on the same framework agreement is at risk, to refuse deliveries which have not yet been made or to demand reasonable advance payments or securities.
(10) If advance payments and securities are not provided within a reasonable period of time, we shall be entitled to withdraw from or terminate the contract without prejudice to any further claims for damages. In this case, we shall be entitled to demand from the customer a lump-sum payment or liquidated damages (cancellation costs) amounting to 15% of the net order total. The cancellation costs shall be set higher if we can prove higher expenses.
(11) Offsetting against counterclaims of the customer or the retention of payments due to such claims shall only be permissible if the counterclaims are undisputed or have been finally determined by a court of law or arise from the same order under which the delivery in question was made.
§ 4 Delivery, Transfer of Risk
(1) Deliveries shall be made ex works (An der Wandlung 20, 32469 Petershagen, EX Works (EXW) according to INCOTERMS®2020).
(2) The customer shall bear the risk of accidental deterioration and accidental loss of the goods as soon as we have made them available to the person designated to carry out the shipment, i.e. at the latest at the start of the loading process or as soon as the goods have left our warehouse for the purpose of shipment. It shall not matter who bears the freight costs.
(3) If we take over the organization of the shipment for the customer and if nothing special has been agreed on the shipment, we shall choose the most expedient method of shipment at our discretion. The customer must notify us in writing and in good time of any special requests he may have with regard to the type of shipment or any insurance; we shall then take these into account as far as possible and reasonable. Any costs incurred as a result shall be borne by the customer.
(4) If the shipment, delivery or acceptance is delayed for reasons for which the Customer is responsible or if the Customer is in default of acceptance for other reasons, the risk shall pass to the Customer upon notification that the goods are ready for shipment, but no later than when they leave the shipping point (An der Wandlung 20, 32469 Petershagen).
§ 5 Delivery Periods
(1) Deadlines and dates for deliveries and services promised by us shall always be approximate unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarder, carrier or other third party entrusted with the transport.
(2) We may - without prejudice to our rights arising from default on the part of the Customer - demand from the Customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Customer fails to meet its contractual obligations towards us. This shall also apply in the event of changes to the goods initiated by the customer.
(3) We shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. (e.g. disruptions of operations of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in procuring the necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which we are not responsible. If such events make it considerably more difficult or impossible for us to deliver or perform and if the hindrance is not only of temporary duration, we shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by giving us immediate written notice.
(4) If we are in default with a delivery or service or if a delivery or service becomes impossible for us, for whatever reason, our liability for damages shall be limited in accordance with § 8 of these Terms and Conditions. If shipment is delayed at the request of the customer or if the customer is in default of acceptance, we shall charge the customer for the costs incurred by storage, beginning one month after our notification of readiness for shipment, in the case of storage in our factory at the rate of 0.5% of the invoice amount of the delivery items to be stored for each month or part thereof, up to a maximum of 5% of the invoice amount. The contracting parties shall be free to prove higher or lower storage costs.
§ 6 Retention of Title
(1) Until all claims - including current account balance claims - to which we are entitled from the customer now or in the future on any legal grounds whatsoever have been satisfied, we shall be granted the following securities which we shall release at our discretion on request insofar as their value exceeds our claims by more than 10% on a sustained basis.
(2) All goods delivered shall remain our property until the claims referred to in Clause 1 have been satisfied. The customer shall keep the goods in safe custody for us free of charge.
(3) If the goods are processed or transformed by the customer, the retention of title shall also extend to the entire new item. The customer shall acquire co-ownership to the fraction corresponding to the ratio of the value of his goods to that of the goods delivered by us.
(4) If the customer combines the delivery item or the new goods with real property, he shall also assign his claim to which he is entitled as remuneration for the combination in the amount corresponding to the price of the delivery item invoiced by us, without any further special declarations being required.
(5) The customer shall not be entitled to pledge goods subject to retention of title or to assign them as security. In the event of access by third parties to the goods subject to retention of title, in particular seizures, the customer shall point out our ownership and notify us immediately so that we can enforce our ownership rights. Insofar as the third party is not in a position to reimburse us for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable for these.
(6) If a justified interest is substantiated, the customer shall provide us with the information required to assert its rights against the purchaser and hand over the necessary documents.
(7) In the event that the customer acts in breach of contract - in particular in the event of default in payment - we shall be entitled to withdraw from the contract (case of realization) and to demand the return of the goods subject to retention of title.
§ 7 Warranty and material defects
(1) The statutory provisions shall apply to the Customer's rights in the event of material defects and defects of title, unless otherwise stipulated below. Unaffected in all cases - even if this is not mentioned separately below - are the statutory provisions under § 445a BGB (recourse of the customer against us in the event that he has to bear expenses in relation to his customer in the context of subsequent performance under § 439 para. 2 and/or para. 3 BGB), § 445b BGB (limitation of recourse claims in the case of newly manufactured goods) and § 478 BGB (special provisions for entrepreneurial recourse in the case of a sale of consumer goods).
(2) Subject to § 445b BGB (limitation of recourse claims for newly manufactured goods) and § 478 BGB (special provisions for the entrepreneur's recourse in the case of a purchase of consumer goods) as well as subject to a usual use of the delivered goods for a building and the causation of a building defect, the limitation period for material defects in the sale of newly manufactured goods shall be 1 year. The shortening of the limitation period pursuant to sentence 1 shall not apply to liability for damage in the event of intent and gross negligence or in the event of injury to life, limb or health, in the event of fraudulent intent or in the event of the assumption of a guarantee by us. In these cases, the statutory limitation period shall apply.
(3) Claims for defects on the part of the commercial customer shall only be considered if he has duly complied with his obligations to examine the goods and to give notice of defects in accordance with § 377 of the German Commercial Code (HGB). Complaints must be received by us in writing within a period of 10 working days (Mon.-Sat.) after receipt of the goods; hidden defects must be notified to us in writing without delay, at the latest within 7 calendar days after their discovery. Otherwise the goods shall be deemed to have been approved.
(4) If there is a defect, the customer may first demand subsequent performance from us in accordance with § 439 BGB. We may then choose between rectification of the defect and delivery of a defect-free item.
(5) Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded insofar as the expenses increase because the goods have subsequently been taken to a place other than the customer's place of business, unless the transfer is in accordance with the intended use.
(6) If a notice of defect is unjustified, we shall be entitled to demand reimbursement of the expenses incurred by us from the Customer.
(7) Only the direct customer shall be entitled to make claims against us on account of defects and such claims shall not be assignable.
(8) If our processing or usage guidelines are not followed, if changes are made to the goods, or if materials not approved by us are mixed or combined with our goods, claims for defects in the goods shall not apply if the customer does not refute a corresponding substantiated assertion that only one of these circumstances caused the defect. The same shall apply if defects are due to faulty installation, faulty or negligent handling or storage, improper repairs not carried out by us, modifications without our written consent, excessive stress, unsuitable conditions of use and chemical, climatic or other natural influences for which we are not responsible.
(9) Finally, claims for defects shall not be considered in the case of an insignificant deviation from the agreed quality, in the case of an insignificant impairment of the usability, in the case of natural wear and tear.
§ 8 Liability for damages due to fault
(1) Our liability for damages and reimbursement of expenses, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and unlawful acts, shall be limited in accordance with the following provisions insofar as fault is involved. Unaffected in all cases - even if this is not mentioned separately below - are the statutory provisions pursuant to § 445a BGB (recourse of the customer against us in the event that he has to bear expenses in relation to his customer within the framework of subsequent performance pursuant to § 439 para. 2 and/or para. 3 BGB), § 478 BGB (special provisions for the entrepreneur's recourse in the case of a purchase of consumer goods) as well as our obligation to bear the expenses required for the purpose of subsequent performance pursuant to § 439 para. 2 and/or para. 3 BGB, provided that the goods sold by us are newly manufactured goods.
(2) We shall not be liable in the event of simple negligence on the part of our organs, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligation to deliver the delivery item on time, to ensure that the delivery item is free from defects of title and material defects that impair its functionality or usability to a more than insignificant extent, as well as advisory, protective and custodial obligations that are intended to enable the customer to use the delivery item in accordance with the contract or to protect the life and limb of the customer's personnel or to protect the customer's property from significant damage.
(3) Insofar as we are liable on the merits for damages in accordance with § 8 para. 2, this liability shall be limited to damages which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item shall also only be eligible for compensation insofar as such damage is typically to be expected when the delivery item is used for its intended purpose.
(4) The above exclusions and limitations of liability shall apply to the same extent in favor of our corporate bodies, legal representatives, employees and other vicarious agents.
(5) Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this shall be done free of charge and to the exclusion of any liability.
(6) The limitations of this § 8 shall not apply to our liability for intentional or grossly negligent conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
§ 9 Right of return
(1) We grant our customers the right to return the ordered goods until the expiry of their best-before date (best-before date or, in the case of goods without best-before date, until the expiry of 12 months after their delivery) in accordance with the following provisions if the goods to be returned are received by us unopened and in a saleable, i.e. undamaged, condition.
(2) The maximum return quantity is limited to 10% of the originally delivered quantity. For returns in standard colors, handling costs in the amount of 10% will be deducted. For special colors, the deduction is 50%.
(3) Material will only be accepted after consultation and approval by the responsible sales representative.
(4) The customer shall arrange for the return transport and bear the resulting costs.
(5) After receipt and inspection of the returned goods, we shall credit the purchase price less the expense allowance pursuant to § 9, para. 2 of these Terms and Conditions to the customer's account for settlement or arrange for a corresponding repayment to the account which was used for payment of the purchase price.
§ 10 Final Provisions
(1) Place of performance is 32469 Petershagen. If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from the contractual relationship, including proceedings relating to checks, bills of exchange and documents, shall be the place of jurisdiction responsible for our registered office.
(2) German law shall apply exclusively to all contracts. The United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (CISG) shall not apply.
(3) Should a provision in these terms and conditions or a condition within the scope of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
(4) Insofar as the contract or these General Terms and Conditions contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had known about the loophole. Status: August 2023