General Terms and Conditions
- These ‘General Terms and Conditions’ – GTC – apply to all offers and contracts concluded by Weserland GmbH (hereinafter referred to as “Weserland”) in current and future business relationships, even if no express reference is made to them when the transaction is concluded. The version of the GTC valid at the time of the conclusion of the contract is authoritative.
- Any terms and conditions or restrictions of the Customer that deviate from these GTC shall not apply unless expressly confirmed in writing by Weserland.
II. Sales/Service Documents and Prices
- Offers and price lists of Weserland are subject to change and non-binding subject to written order confirmation. Only individually drafted offers are binding.
- The technical data, illustrations, drawings, weights and dimensions belonging to the offer are non-binding unless they are expressly designated as binding or are essential.
- Weserland reserves the right to change dimensions and weight units or the design, insofar as this is necessary from a production engineering point of view or for reasons of raw material supply and can be reasonably expected of the Customer.
- Unless otherwise agreed, Weserland’s prices are quoted in Euros FCA ex 30419 Hannover, Germany, (Incoterms® 2020) plus the value-added tax applicable at the time of delivery or performance, freight and packaging and only for the respective individual order. Special services will be charged separately.
- Orders for which fixed prices have not been expressly agreed upon shall be invoiced at the prices applicable on the day of delivery or performance in accordance with the price list.
III. Nature And Usability of the Goods
- The quality of the goods shall only be deemed to be the quality described in Weserland’s technical data sheets, product descriptions, specifications and other markings. These documents are enclosed with the respective delivery or will be sent on request.
- Public statements, recommendations or advertising do not constitute an indication of quality.
- The information on the quality according to clause 1 is purely descriptive. No guarantee or warranty is assumed.
- The Customer is responsible for checking the usability of the goods for his own purposes. The application, use and processing of the goods are the sole responsibility of the Customer.
- Weserland’s technical advice to the Customer is given to the best of its knowledge, but, unless otherwise agreed in individual cases, is only non-binding and does not exempt the Customer from inspecting the goods in accordance with clause 4.
- Any agreement on the quality, properties or intended use of the goods that deviates from the technical data sheets, product descriptions, specifications and other markings of Weserland requires written confirmation by Weserland.
- The delivered goods are to be stored in a cool and frost-free place. Unless otherwise agreed, Weserland’s products have a storage stability of six months if stored properly. In the event of improper storage or after the expiry of those six months, the products are no longer suitable for further processing without restrictions.
IV. Delivery / Performance
- The time of delivery or performance shall only be deemed to be approximately agreed upon and shall commence on the date of the order confirmation, but not before clarification of all details of the execution of the order and receipt of the documents and approvals to be provided by the Customer as well as any agreed down payment.
- Subsequent requests for changes or additions by the Customer extend the delivery/service period reasonably until Weserland has checked their feasibility and by the period of time required to implement the new specifications in production.
- The period for the provision of services shall be extended appropriately if and as long as the Customer does not properly fulfil its obligation to cooperate in accordance with Section VIII.
- Delivery in partial sections/performance of partial services is permissible. If the partial fulfilment of the contract is of no interest to the Customer, the latter may only declare a withdrawal from the entire contract or claim damages for non-fulfilment after the fruitless expiry of a subsequent delivery period of four weeks set in writing.
V. Force Majeure / Withdrawal
- Unforeseen, unavoidable events for which we are not responsible (e.g. force majeure, strikes, lockouts, operational disruptions, difficulties in procuring materials and energy, transport delays, measures taken by authorities and obstacles due to national or international regulations as well as difficulties in procuring permits, in particular, import and export licences) extend the delivery or performance period by the duration of the disruption and its effects. This also applies if the impediments occur at Weserland’s upstream suppliers or during an existing delay.
- If the impediment is not only of temporary duration, Weserland is entitled to withdraw from the contract. If the Customer cannot reasonably be expected to accept the delivery/service as a result of a delay that is not merely temporary, it may withdraw from the contract by written declaration to Weserland.
VI. Place of Performance, Dispatch and Transfer of Risk
- The place of performance for all deliveries and services as well as for payment is 30419 Hannover, Germany.
- Unless otherwise agreed, deliveries shall be made FCA to 30419 Hannover, Germany, (Incoterms® 2020) for the account of the Customer. The risk shall pass to the Customer as soon as the goods have been handed over to the carrier or another person designated by the Customer at Weserland’s registered office in 30419 Hannover, Germany. The Customer shall be informed by Weserland without delay that the goods are ready for collection/shipment.
- The risk shall also pass to the Customer if Weserland has assumed other services such as shipping costs or shipment (also by its own transport persons) and installation.
- Insofar as it has been agreed that Weserland will provide the transport, Weserland shall choose the safest and most cost-effective solution for the transport at its discretion.
- If dispatch or performance is delayed as a result of circumstances for which Weserland is not responsible,
- in the case of deliveries of goods, the risk shall pass to the Customer on the day of the agreed delivery date, but at the latest when the goods are made available for collection/shipment,
- the Customer shall nevertheless remain obliged to accept and pay for the goods/services,
- Weserland is entitled to issue an invoice,
- Weserland has the right to withdraw from the contract and to claim damages instead of performance after setting a reasonable grace period and its fruitless expiry,
- the Customer shall bear the costs and risks resulting from the failure to give timely instructions and to complete necessary formalities incumbent upon him.
VII. Provision of Services
- When providing services, Weserland undertakes to provide the services with due care customary in the industry and in compliance with the generally recognised rules of technology.
- If the Customer uses objects on which Weserland has performed services, this shall be deemed to be acceptance of the service.
- Unless otherwise agreed upon, Weserland is entitled to provide services through third parties (e.g. subcontractors).
- The Customer has no right to issue instructions to employees of Weserland or third parties.
- If the Customer cancels an agreed appointment, Weserland is entitled to invoice the costs already incurred concerning this appointment (e.g. travel costs for Weserland or third parties).
- If it is agreed that Weserland will store goods for the Customer, the provisions of the German Commercial Code (HGB) shall apply unless otherwise agreed in these GTC.
VIII. Cooperation Obligations for the Customer
- The Customer shall ensure that all prerequisites necessary for the performance of the service are created and that all necessary documents and permits are submitted in good time and that Weserland is informed in good time of all circumstances relevant to the performance.
- The client is solely responsible for obtaining any permits required for the provision of the services.
- Insofar as the Services are performed on the Customer’s premises, the Customer shall provide sufficient workspace free of charge and shall grant Weserland or the commissioned third party access to the necessary equipment, facilities and systems in accordance with the rules.
- The client is obliged to confirm the hours worked in writing.
IX. Obtaining Approvals And Reservations in the Event of Obstacles to Performance
- If Weserland is responsible for obtaining permits, in particular for the export/transfer/import of goods, Weserland’s deliveries and services (contract fulfilment) are subject to the proviso that there are no obstacles to a permit due to national or international regulations, in particular export control regulations as well as embargoes or other sanctions. In this case, the Customer undertakes to provide Weserland with all information and documents required for the export/transfer/import.
- If a required permit applied for by Weserland is not granted, the contract shall be deemed not to have been concluded with regard to the delivery/service affected thereby.
- Payments are to be made within 30 days from the date of invoice without any deduction and free of charge to the paying agent of Weserland.
- With respect to merchants, Weserland is entitled to charge interest on arrears from the due date in the amount of 9% above the respective base interest rate of the Deutsche Bundesbank, but at least 10%. The assertion of further damage caused by default remains unaffected.
- If an order is executed in several partial sections, Weserland is entitled to invoice the individual sections separately. In the event of a default in payment, delivery may be suspended until payment has been made.
- If justified doubts arise as to the solvency of the Customer, e.g. due to sluggish payment or non-payment, Weserland is entitled to declare all outstanding – including deferred – invoices immediately due – and payable and to demand security or payment in advance. If the Customer does not comply with this demand within a reasonable period, Weserland may withdraw from the unfulfilled part of the delivery contract. The deadline is dispensable if the Customer is recognisably unable to provide security, for example, if insolvency proceedings have been filed against the Customer’s assets.
- The Customer may only offset such claims that are undisputed or have been legally established
XII. Retention of Title
- Weserland retains title to the delivered goods until the purchase price has been paid in full.
- With respect to merchants, the retention of title shall apply until full payment of all claims – including future claims – arising from the business relationship.
- Treatment and processing of the goods subject to retention of title by the Customer shall be carried out for Weserland as manufacturer without obligating Weserland. In the event of mixing and combining with other goods, Weserland acquires co-ownership of the new goods in the ratio of the invoice value of the goods subject to retention of title to that of the other materials.
- The Customer shall adequately insure the reserved goods, in particular against loss and damage, at replacement value. Upon Weserland’s request, the Customer shall submit a confirmation of insurance and proof of payment of the premium. The Customer hereby assigns claims against the insurance company to Weserland in the amount of the value of the goods subject to retention of title. The Customer must inform the insurance company of the assignment of claims.
- The resale of the reserved goods in the ordinary course of business is permitted. The Customer hereby assigns to Weserland all claims in the amount of Weserland’s final invoice amount accruing to it against third parties from the resale. Weserland accepts the assignment. In the event of inclusion in a current account, the assignment relates to the closing balance. The Customer is authorised to collect the claims even after the assignment. Weserland’s authority to collect the claims itself remains unaffected; Weserland undertakes not to collect the claims as long as the Customer meets its payment/other obligations and no application is made to open insolvency proceedings; if one of the aforementioned cases occurs, the Customer’s authorisation to resell the reserved goods and to collect the claims expires. Weserland may demand that the Customer disclose the assigned claims and their debtors, provide all information required for the collection or hand over the associated documents and notify the debtors of the assignment.
- As long as the reservation of title exists, the Customer may neither assign nor pledge goods as security without the consent of Weserland. The Customer must notify Weserland immediately of any seizures or other interventions by third parties. The Customer is prohibited from entering into agreements with its Customers which may exclude or impair Weserland’s rights in any way. In particular, the Customer may not enter into any agreements which nullify or impair the advance assignments of claims to Weserland.
- In the event of a breach of contract by the customer, in particular, in the event of default in payment, Weserland is entitled to take back the goods. The taking back as well as the seizure of the item on behalf of Weserland shall only constitute a withdrawal from the contract if this is required by law or Weserland expressly declares this in writing.
- The rights of retention of title according to clauses 1 to 6 expire when all claims listed under clause 1 or 2 have been settled, in the current account relationship with the settlement of the balance. The Customer shall then be entitled to the assigned claims.
- If the value of the existing securities exceeds the claims to be secured by more than 20%, Weserland is obliged to release securities of its own choice at the Customer’s request.
XIII. Confidentiality / Rights to Results
- The Customer undertakes to keep secret all confidential information, in particular details of the offers, such as technical solutions, prices, conditions, etc., as well as samples, drawings and other trade and business secrets which it has received from Weserland, whether deliberately or by chance, not to make them accessible to third parties, and not to use them for its own or third parties’ purposes. Weserland is exclusively entitled to the property rights and copyrights to this confidential information.
- Upon full payment of the agreed remuneration, the Customer acquires a non-exclusive, non-transferable, spatially and temporally unlimited right of use within the scope of the contractually agreed purpose of use to the results achieved within the scope of the services provided by Weserland and handed over to the Customer. In all other respects, all rights shall remain with Weserland.
- The items delivered by Weserland must be inspected for defects immediately after the goods have been made available. The delivery or service is deemed to have been approved if Weserland is not notified in writing of obvious defects or an obvious wrong or delivery shortfall within a preclusive period of seven days after the goods have been made available. In commercial transactions, non-obvious defects must be notified in writing within a preclusive period of seven days after their discovery.
- If Weserland has to deliver according to the Customer’s recipes, specifications, samples, etc., the Customer bears the risk of suitability for the intended use.
- Weserland is only liable for defects as a result of which the item does not correspond to the agreed quality or defects that reduce the suitability for the contractually stipulated use. In commercial transactions, parts subject to wear and tear and damage resulting from improper installation or use as well as rectification work, maintenance activities or modifications not approved by Weserland are excluded from any warranty.
- Goods that have defects for which Weserland is liable at the time of the transfer of risk shall be repaired or replaced at Weserland’s discretion. If rectification or replacement demonstrably fails or if the rectification of the defect would require a disproportionately high effort and is therefore refused, the Customer may demand a reduction of the remuneration or cancellation of the contract at its discretion.
- If there is a defect which significantly reduces the suitability for the contractually stipulated use, the Customer shall also have the right to damages and the right to withdraw from the contract in addition to the rights according to clause 4.
- Costs of supplementary performance arising from the fact that the delivered goods were taken to a place other than the Customer’s commercial establishment after delivery shall not be accepted.
- If the examination of a return shipment made after a notice of defect has been given shows that the notice of defect was unjustified, Weserland may charge a customary fee for the examination of the goods and the costs of shipment.
- Warranty claims against merchants shall become statute-barred within one year.
- With respect to merchants, liability for initial incapacity shall be limited to five times the transfer fee as well as to damages that are typically to be expected within the scope of the respective contract.
- In all other respects, Weserland shall be liable without limitation only for intent and gross negligence and in the event of injury to life, limb and health also by its legal representatives/managing employees and in the event of mandatory statutory provisions. Weserland is liable for the fault of other vicarious agents only to the extent of the liability for initial incapacity (clause 1).
- Weserland shall only be liable for slight negligence in the event of a breach of a cardinal obligation (obligation to the fulfilment of which is a prerequisite for the proper performance of the contract and the observance of which the contractual partner may rely on) and only to the extent of liability for initial incapacity. In all other respects, liability is excluded.
- Due to a breach of duty which does not consist of a defect, the buyer may only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB [German civil code]) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
XVI. Place of Jurisdiction and Law
- If the Customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all present and future claims arising from the business relationship shall be 30419 Hannover. Germany. The same applies if the Customer has no general place of jurisdiction in the Federal Republic of Germany.
- German law shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XVII. Final Provisions
- Should one or more provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions. In place of the invalid provision, a valid provision shall be deemed agreed to which comes as close as possible to the economic intentions of the parties.
- Agreements deviating from these GTC must be made in writing. This shall also apply to any amendment of the written form requirement.