GENERAL TERMS AND CONDITIONS
of WEBER Verpackungen GmbH & Co. KG, Westerhaar 38, 58739 Wickede/Ruhr, registered in the Commercial Register of the Local Court of Arnsberg under HRB 4567, represented by WVW Verwaltungs GmbH, VAT Identification No.: DE 124900837
I. Scope of Application
1. These General Terms and Conditions of Business, Delivery, Payment and Sale (hereinafter referred to as "Terms and Conditions of Sale") shall apply to all offers, sales and deliveries made by WEBER Verpackungen GmbH & Co. KG (hereinafter referred to as "WEBER") to the purchaser, even if they are not expressly mentioned in subsequent contracts. They shall apply exclusively in national and international business transactions with companies, legal entities under public law and special funds under public law.
2. Any conflicting, additional or deviating terms and conditions of the purchaser shall not become part of the contract unless WEBER has expressly agreed to their validity in writing. These terms and conditions of sale shall also apply if WEBER carries out a delivery to the purchaser without reservation in the knowledge of the purchaser's conflicting or deviating terms and conditions.
3. individual agreements with the purchaser shall in any case have priority over these terms and conditions of sale. Rights to which WEBER is entitled according to the statutory provisions beyond these Terms and Conditions of Sale shall remain unaffected.
II Conclusion of contract
1. Offers and cost estimates of WEBER shall be subject to confirmation and non-binding, unless they are expressly designated as a binding offer.
2. An order shall only become binding if it has been confirmed by WEBER in writing or by fax or in text form by means of an order confirmation, unless delivery or invoicing takes place immediately. An order confirmation made with the help of automatic equipment, in which signature and name reproduction are missing, shall be deemed to be in writing. Insofar as the order confirmation contains obvious errors, spelling mistakes or miscalculations, it shall not be binding on WEBER.
3. The purchaser shall be bound to his order / offer for 10 working days. This period shall commence from the time of receipt of the order / offer by WEBER.
4. The information contained in WEBER's specifications shall be decisive for the quality of the delivery item owed by WEBER. The information contained in catalogs, brochures, circulars, advertisements, illustrations and price lists shall not determine the quality of the delivery item, unless they have been expressly included in this specification with reference to the specification.
5. If the Purchaser subsequently wishes to make changes to the order, such changes shall only be effective if the contracting parties agree thereto.
6. Illustrations, drawings, weight and dimension specifications as well as other descriptions of the delivery or service from the documents of WEBER shall only be approximately authoritative unless they are expressly designated as binding by written or electronic promise. They shall not constitute an agreement or guarantee of a corresponding quality of the delivery or service. In the event that the target quality of the delivery or service has been bindingly agreed with the purchaser, changes by WEBER shall remain permissible insofar as they are made on the basis of mandatory legal provisions and are reasonable for the purchaser. WEBER reserves the right to make changes to the design and form of the goods, insofar as the changes are not substantial and are reasonable for the purchaser. In the event of unreasonableness, the Purchaser shall be entitled to withdraw from the contract. Further claims are excluded.
7. the assumption of guarantees and the procurement risk shall require express agreements between the parties in which it is expressly stated that a guarantee and/or the procurement risk is assumed.
III Delivery; Delivery Periods; Delay; Force Majeure
1. Unless expressly agreed otherwise, delivery shall be made from the distribution warehouse of WEBER Verpackungen GmbH & Co. KG, Westerhaar 38, 58739 Wickede/Ruhr, where the place of performance is also located. At the request and expense of the purchaser, the goods shall be shipped to another destination (hereinafter: "sale by delivery to a place other than the place of performance"), in which case WEBER shall be entitled to determine the type of shipment itself and to hand over the goods to the carrier (in particular the carrier, the shipping route and the packaging). At the request of the purchaser - and at the purchaser's expense - the goods shall be insured against the risks to be specified by the purchaser by means of transport insurance.
2. The written order confirmation of WEBER shall be decisive for the scope of delivery. Changes requested by the purchaser to the scope of delivery, as well as to the delivery item itself, shall require WEBER's written confirmation to be effective.
3. WEBER shall be entitled to make partial deliveries, provided that this is reasonable for the purchaser.
4. unless otherwise agreed, the purchaser shall be obliged, in the case of deliveries on call, to determine in advance delivery schedules covering at least 6 months and to call them off in accordance with the determined delivery schedules in due time before the respective delivery date. If the purchaser does not comply with this obligation or does not comply with it as stipulated, WEBER shall be entitled, after setting a reasonable period of time and giving the corresponding notice therein, to carry out the call-off and/or the division itself, to deliver the goods or to withdraw from the contract. The right to claim damages for breach of duty shall not be excluded by the withdrawal.
5. Unless otherwise agreed, the delivery time shall be the delivery date specified in the order confirmation. If the purchaser has not provided all documents, approvals, releases etc. to be obtained by him at least one month before the agreed delivery date, the fixed delivery date shall be extended by one month, starting from the time when the aforementioned documents, approvals, releases etc. have been received in full by WEBER.
6. Aa delivery period shall begin with the dispatch of the order confirmation by WEBER, but not before the complete provision of any documents, approvals and releases to be procured by the purchaser, the receipt of an agreed down payment as well as the timely and proper fulfillment of any other acts of cooperation by the purchaser.
7. Agreed delivery periods shall be deemed to have been complied with if WEBER has made the goods available at the place of delivery by their expiry or - in the case of a sale by delivery to a place other than the place of performance pursuant to paragraph 1 sentence 2 - has handed them over to the person designated to carry out the transport, or if the purchaser has announced his refusal to accept the goods.
8. WEBER shall not be liable for impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events that were not foreseeable at the time of the conclusion of the contract (e.g. Operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials [in particular caused by official measures, such as the allocation by the Federal Network Agency due to the Emergency Plan Gas of the Federal Ministry for Economic Affairs and Energy, as well as other official coordination measures according to the Energy Assurance Act or the Gas Assurance Ordinance], pandemics, epidemics, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver, to deliver correctly or to deliver on time) for which WEBER is not responsible. If such events make the delivery or service considerably more difficult or impossible for WEBER and the hindrance is not only of temporary duration, the purchaser shall be entitled to withdraw from the contract. In case of hindrances of temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period.
9. WEBER's obligation to deliver shall be subject to timely, complete and correct delivery to WEBER.
10. Insofar as the purchaser cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to WEBER. This right of withdrawal shall only exist if WEBER is responsible for the delay.
11. If the goods have been handed over to the purchaser on Euro pallets or lattice boxes (load carriers), the purchaser shall hand over to WEBER load carriers in the same number as well as the same type and quality at the place of the original handover.
12. the purchaser shall be obliged, irrespective of the provision in clause XII. 1, to inspect the goods for externally visible damage upon delivery and to report any damage to the transport company carrying out the delivery and to have a corresponding written confirmation issued. If the purchaser does not comply with this obligation, he shall be obliged to compensate WEBER for the resulting damages.
IV Transfer of risk
1. The risk of accidental loss or accidental deterioration of the goods shall pass to the purchaser as soon as WEBER makes the goods available at the place of performance according to clause III. paragraph 1 sentence 1 or - in case of a sale by delivery to a place other than the place of performance according to clause III. paragraph 1 sentence 2 - as soon as WEBER hands over the goods to the person designated to carry out the transport. This shall also apply if partial deliveries are made or WEBER has assumed the transport costs in deviation from Clause III. paragraph 1 sentence 2 in the individual case.
2. if the purchaser is in default of acceptance, WEBER shall be entitled to claim compensation for the resulting damage as follows: Per day of delay 0.5% of the net price of the delivery, but in total not more than 5% of the net price of the delivery. The assertion of a further damage as well as the proof of a lower damage are reserved to the contractual parties. The risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser at the time the Purchaser defaults in accepting delivery.
3. Delivered goods shall be accepted by the Purchaser without prejudice to its claims based on defects even if they have minor defects. The Purchaser shall also be obliged to accept the goods if the goods made available show deviations in quantity of up to 5% or if the goods made available were delivered insignificantly too early.
V. Prices
1. The agreed price in EURO, which results from the confirmation of order, plus value added tax is valid. The statutory sales tax is not included in the price and will be shown separately in the invoice at the statutory rate applicable on the date of invoicing. The costs for transport, insurance, customs etc. shall be charged separately unless otherwise agreed between the parties.
2. If more than four months lie between the order confirmation and the delivery and if price increases occur during this period, in particular due to wage increases, increases in the costs of raw materials, general price increases due to inflation or comparable circumstances, WEBER shall be entitled to charge a correspondingly higher price. This shall also apply if, after the submission of the offer or the order confirmation by WEBER or after the conclusion of a framework agreement with a fixed price agreement by WEBER, the raw material prices of the respective goods concerned or other essential cost factors such as, in particular, energy, wage, transport or insurance costs change significantly (i.e. by at least 10 %). WEBER shall then be entitled to an appropriate increase of the prices to the extent they are affected by the cost increase. In this context, WEBER shall take into account the justified interests of the purchaser, in particular with regard to any obligations already entered into by the purchaser for the further delivery of the goods at a certain price. WEBER shall prove the price changing factors to the purchaser upon request. This shall apply vice versa in favor of the purchaser in case of a corresponding price reduction. Insofar as one party cannot reasonably be expected to adhere to the contract as a result of the price adjustment, it may withdraw from the contract by immediate declaration to the other party.
3. In the event of deviations in quantity or weight which are within the tolerances stipulated in Clause VIII, the price shall be calculated on the basis of the actual delivery quantity or weight.
4. in the case of wound products, the winding core inside the roll is included in the net weight. In the case of packed products, the net weight is determined by mathematically deducting the weight of the packaging from the total weight. The total weight consists of net weight and packaging and is determined by weighing.
5. claims of WEBER for payment of the purchase price shall become statute-barred after five years, notwithstanding § 195 BGB.
VI Industrial property rights
1. the printing documents provided by WEBER, such as drafts, drawings, printing plates, films, printing cylinders and plates, shall remain the property of WEBER, even if costs are reimbursed by the purchaser on a pro rata basis.
2. If copyrights and/or industrial property rights arise at WEBER through the development and execution of an order, these shall not be transferred by the sale of the delivery item. This shall also apply if the purchaser bears a share of the costs for the development. WEBER shall in particular be entitled to exploit these copyrights and/or industrial property rights also for orders of third parties.
3. Unless otherwise agreed, WEBER shall be entitled to visibly affix its company logo or an identification number on the delivery items manufactured by it.
4. For samples, sketches and drafts etc., which are expressly ordered or commissioned by the customer, a fee shall be paid even if the main order for which the samples, sketches and drafts etc. were produced is not placed. Ownership shall pass to the customer upon payment of the fee.
5. The purchaser shall be responsible for checking whether the documents provided by the purchaser infringe the rights of third parties, in particular copyrights, industrial property rights (registered designs, patents, utility models, trademarks). If claims are asserted against WEBER by third parties due to the use, exploitation or duplication of the documents and/or templates provided by the purchaser due to the infringement of copyrights and/or industrial property rights or due to the infringement of the law against unfair competition, the purchaser shall support WEBER in the defense against this infringement and shall compensate all damages, including the lawyer's fees and costs of litigation, which WEBER incurs as a result.
VII Duties according to the packaging law
1. If WEBER applies signs of an area-wide system in the sense of § 3 para. 16 of the Packaging Act (e.g. "Der Grüne Punkt") to the products on behalf of the purchaser, the purchaser shall be deemed to be the "manufacturer" of the sign in the sense of the Packaging Act and shall therefore pay the fees directly to the area-wide system.
2. If the purchaser violates the regulations of the packaging law and if WEBER is held liable for this reason, the purchaser shall be obliged to reimburse WEBER for all expenses incurred in this connection.
3. If the packaging is service packaging filled with goods within the meaning of § 3 para. 1 sentence 1 no. 1 lit. a) of the Packaging Act, which typically accumulates at the private end consumer and which is put into circulation by the purchaser for the first time, the provisions of the preceding paragraph 1 shall apply accordingly if the purchaser participates in a system within the meaning of § 3 para. 16 of the Packaging Act itself.
4. if the purchaser demands from WEBER according to § 7 paragraph 2 sentence 1 of the packaging law that WEBER participates in one or more systems according to § 3 paragraph 16 of the packaging law with regard to the service packaging delivered by WEBER to the purchaser and according to § 7 paragraph 2 sentence 3 in connection with §§ 9, 10 and 11 of the packaging law. §§ 9, 10 and 11 of the Packaging Act a registration, data reporting and declaration of completeness for the purchaser, the following shall apply:
a) The assumption of the obligations pursuant to § 7 par. 2 sent. 3 in conjunction with. §§ 9, 10 and 11 of the Packaging Act by WEBER shall only take place if the purchaser requests WEBER to do so in writing. In this case, WEBER shall confirm this written request to the purchaser in writing.
b) If WEBER takes over the participation in a system according to § 7 para. 2 p. 1 of the packaging law and the registration, data reporting and submission of the declaration of completeness according to § 7 para. 2 p. 3 in connection with §§ 9, 10 and 11 of the packaging law for the purchaser. §§ 9, 10 and 11 of the Packaging Act, the purchaser shall be obliged to reimburse WEBER in full for the costs incurred thereby, namely the costs including the administrative expenses for the use of the area-wide system in the sense of § 3 para. 16 of the Packaging Act (e.g. Dual System) as well as the costs for the registration, data transmission and submission of the declaration of completeness and - if desired - the costs for the application of the sign of an area-wide system, such as "Der Grüne Punkt".
c) The costs for participation in an area-wide system, for registration, data transmission and submission of the declaration of completeness, the administrative expenses, and - if desired - the costs for the application of the mark of an area-wide system, such as "Der Grüne Punkt", shall be shown separately on the invoice to the Customer with each delivery of the service packaging. The basis is the fee schedule of the area-wide system used.
d) WEBER is free to choose the area-wide system.
5. The above paragraphs 1 to 3 shall not apply to packaging which does not arise in the territory of the Federal Republic of Germany but abroad and which therefore does not have to be disposed of in accordance with the German Packaging Act. Instead, the Purchaser shall be responsible for the disposal of the packaging in accordance with the respective applicable statutory provisions.
6. Unless otherwise agreed, the purchaser shall assume WEBER's take-back obligations pursuant to § 15 of the German Packaging Act and shall ensure the take-back as well as the proper and correct recycling of the packaging. The costs incurred for taking back and recycling shall be borne by the purchaser.
7. If the Customer is the final distributor within the meaning of Section 3 (13) of the German Packaging Act, it shall be obliged pursuant to Section 15 (1) sentence 5 of the German Packaging Act to inform the end consumers by means of appropriate measures to a reasonable extent about the possibility of returning the packaging within the meaning of Section 15 (1) sentence 1 nos. 1 to 5 of the German Packaging Act and its purpose.
VIII Packaging and shipment, tolerances
1. WEBER shall owe packaging that is customary in the industry.
2. unavoidable deviations and variations may occur in the production process. Unless otherwise agreed, the following tolerances shall apply.
a) Paper in relation to the agreed basis weight:
up to 39 g/m2 +/- 8 %
40 - 59 g/m2 +/- 6 %
60 and more g/m2 +/- 5 %
b) Plastic films in relation to the agreed thickness:
less than 11 my +/- 20 %
smaller than 15 my +/- 15 %
from 15 my - 25 my +/- 10 %
greater than 25 my +/- 8
c) Aluminum foil, laminated foil, cellophane and other materials in relation to the agreed thickness or basis weight (depending on the dimension on which the contract is based; applies individually or as part of another product):
+/- 10 %
3. the following dimensional deviations shall be tolerated by the Purchaser:
a) Paper and paper combinations
- bags:
in length +/- 4 mm
in width for bag widths below 80 mm +/- 3 %
in width for bag widths of 80 mm and more +/- 2 %.
- Rolls:
in width and in cut-off length +/- 3 mm
in the run length +/- 3 %
- formats:
in length +/- 5 mm
in width +/- 5 mm
b) plastics and aluminum +/- 5 %.
c) The dimensional deviations for the rolls and formats mentioned under a) and for the materials mentioned under b) also apply to the position of the print as well as the punching and embossing on these materials. For the bags mentioned under a), a dimensional deviation of +/- 4 mm for bag widths over 80 mm and +/- 3 mm for bag widths of 80 mm and less applies to the position of the print as well as the punching out and embossing in the width. For technical reasons, register variations in printed products cannot be avoided, as they depend on the material, the design and the printing process. Only significant deviations entitle to a complaint.
4. WEBER shall be entitled to over- and under-deliveries of up to 20 % of the ordered quantity for all custom-made products. In case of sale by quantity (quantities below 50,000 pieces) and in case of collective editions with print changes within the edition, as well as in case of sale by weight (for weights below 500 kg) up to 30 % of the ordered quantity. In case of unreasonableness for the customer, other arrangements shall be made in individual cases. Delivery shall be made with full invoicing of the actual delivery quantities.
IX. Printing
1 WEBER shall use standard printing inks for printing. If special demands are made on the inks, e.g. high light resistance, alkali fastness, abrasion resistance, suitability for contact with foodstuffs, etc., the purchaser must make special reference to this when placing the order. 2.
2. no guarantee can be given for the light resistance of the material and printing inks, unless it is unreasonable for the orderer, as the raw material and ink suppliers also do not give any guarantee for the light resistance of the inks. Likewise, no guarantee can be given for the abrasion resistance of the printing inks, unless it is unreasonable for the purchaser.
3. WEBER reserves the right to minor deviations in color, insofar as these are customary in the trade, provided that this is not unreasonable for the purchaser. They do not entitle the purchaser to refuse acceptance of the goods or to a price reduction. Proofs shall be submitted prior to printing if the purchaser expressly requests this or if WEBER deems this necessary. Since these proofs (e.g. proof, cromalin, offset printing, etc.) are not produced in the flexographic printing process, sometimes considerable deviations from the subsequent print run cannot be avoided. Press proofs requested by the customer will be charged separately according to the time and effort involved.
4. For plastic products, WEBER cannot assume any liability for migration of plasticizers or similar migration phenomena and for the consequences derived therefrom, unless it is unreasonable for the purchaser. Insofar as WEBER is liable in deviation from Clause IX. paragraph 4 sentence 1, clause XIII. of these terms and conditions shall apply.
5. WEBER shall not be responsible for the consequences of errors in the "film masters" or other similar materials which have been handed over to it by the purchaser for the printing of the uniform commodity code or any other similar code, nor for the difficulties or their consequences which may occur during the use of the printed code. The "film masters" supplied by the Ordering Party shall also be understood as the proofs of printing works approved by the Ordering Party, which contain a uniform commodity code. 6.
6. the printing of the EAN bar code shall be carried out in accordance with the state of the art and taking into account the relevant implementation regulation of Global Standards One Germany (formerly CCG, cf. Co-Organisation publication series, booklet 2, Der EAN-Strichcode).
7. No further promises, in particular those concerning reading results at the cash registers of the retail trade, can be made due to possible influences on the bar codes after delivery by the purchaser and due to the lack of uniform measuring and reading technology.
8. WEBER shall not be liable for defects caused by printing plates and artwork provided by the purchaser and/or his vicarious agents and/or assistants. If WEBER detects text or image errors during production and stops or interrupts production due to these, the purchaser shall bear the additional costs associated with this.
X. Material and execution
1. in the absence of special instructions from the purchaser, the execution of orders shall be carried out using materials customary in the industry and in accordance with known manufacturing processes. If the packaging is used for foodstuffs, the suitability of the material for foodstuffs must be expressly clarified with WEBER. Subsequently, notices of defects with regard to the behavior of the packaging material to the filling material and vice versa cannot be raised if the purchaser has not expressly pointed out special properties of the filling material and/or the use for foodstuffs and has not given WEBER the opportunity to comment thereon. These references and comments shall be made in writing.
2. recycled raw materials shall be carefully selected by WEBER. Regenerated films and recycled papers may nevertheless show variations in surface quality, color, purity, odor and physical values from batch to batch, which shall not entitle the purchaser to give notice of defects. WEBER undertakes, however, to assign to the purchaser any warranty claims and/or claims for damages against the supplier on account of the quality of the regenerated films and the recycled papers.
XI Terms of payment
1. payments shall be due for payment on the agreed payment date. If no specific date has been agreed, payments shall become due upon receipt of the invoice or a corresponding payment schedule. If the receipt of the invoice or the payment schedule is uncertain, payments shall become due upon receipt of WEBER's deliveries and services.
2. payment by check shall be excluded, unless it has been agreed separately in individual cases.
3. Unless otherwise agreed, all payments shall be made net within 8 days of the invoice date.
4. A payment shall be deemed to have been made at the time when WEBER can dispose of the amount.
5. In case of exceeding the term of payment WEBER shall be entitled to claim default interest in the amount of 9 percentage points above the base interest rate (§ 247 BGB). WEBER reserves the right to claim further damages.
6. If the purchaser is in default of payment, WEBER shall be entitled to demand immediate payment of all claims arising from the business relationship, even if these are not yet due. This shall not apply if the purchaser is not responsible for the default. 7.
7. In case of still open invoices of WEBER, payments shall be deemed to cover the oldest due claim, unless this claim is a claim against which the purchaser has asserted a right of retention.
8. Counterclaims of the purchaser shall only entitle him to set-off and to assert a right of retention if they have been legally established or are undisputed. The purchaser may only assert a right of retention if his counterclaim is based on the same contractual relationship.
9. WEBER shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after the conclusion of the contract, circumstances become known which are likely to substantially reduce the creditworthiness of the purchaser and by which the payment of outstanding claims of WEBER by the purchaser from the respective contractual relationship is jeopardized. This shall apply mutatis mutandis if the purchaser refuses to pay open claims of WEBER or does not pay and there are no undisputed or legally established objections against the claims of WEBER.
XII Warranty
1. the purchaser's warranty rights shall require that he has complied with his statutory duties of inspection and notification of defects (§§ 377, 381 HGB), in particular that he immediately inspects the delivered goods upon receipt and immediately notifies WEBER in writing of obvious defects and defects which were recognizable during such inspection. The purchaser shall notify WEBER in writing of hidden defects immediately after their discovery. The notification shall be deemed to be without delay in the sense of sentences 1 and 2 if it is made within 3 working days, whereby the receipt of the notification by WEBER shall be decisive for the observance of the deadline. If the purchaser neglects the proper inspection and/or notification of defects, WEBER's liability for the defect shall be excluded. The purchaser shall describe the defects in writing when notifying them to WEBER.
2. representative samples, i.e. samples carried out in an appropriate number, in sufficient dispersion and with professional care, shall be sufficient for the examination of defects of the goods to be delivered, if it concerns the delivery of a larger quantity of goods of the same kind, where a complete examination of the goods is not feasible in the sense of § 377 para. 1 HGB (German Commercial Code) or is not reasonable for the purchaser due to the circumstances of the specific case.
3. Claims for subsequent performance shall be excluded in the case of minor deviations which are reasonable for the Purchaser. If the total delivery quantity of flexible packaging shows defects of up to 3% of the total quantity, neither the total quantity can be rejected as defective, nor can defects be claimed on account of this maximum 3% of defective flexible packaging. In this respect, it shall be irrelevant whether the defect lies in the processing or in the print.
4. WEBER shall be given the opportunity to examine any defects of the delivery notified at the place where the goods are located.
5. in case of defects of the goods, WEBER shall be entitled, at its own choice, to remedy the defect by removal of the defect or by delivery of goods free of defects. WEBER's right to refuse the subsequent performance under the legal conditions shall remain unaffected.
6. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to the consumer, even if the consumer has processed them further (supplier's recourse pursuant to § 478 BGB). Claims from supplier recourse shall be excluded if the defective goods have been further processed by the purchaser or another entrepreneur, e.g. by incorporation into another product.
7. If the rectification of defects fails after a second unsuccessful attempt, the customer may, at his discretion, withdraw from the contract or reduce the purchase price.
8. if the goods are not at the place of delivery, the purchaser shall bear all additional costs incurred by WEBER in remedying defects, unless the transfer to another place is in accordance with the contractual use.
9. rights for defects do not exist
a) in case of natural wear and tear;
b) in the case of defects which arise after the transfer of risk as a result of improper handling (for example, deviating from the operating instructions), improper storage, or care or excessive stress or use;
c) in the case of defects which arise due to force majeure, special external influences which are not assumed under the contract, or due to the use of the goods outside the use assumed under the contract or normal use.
10. If a notice of defect is unjustified, WEBER shall be entitled to demand reimbursement of the expenses incurred by the purchaser, unless the purchaser proves that he is not at fault with regard to the unjustified notice of defect.
11. WEBER shall not be liable for defects which are based on the fact that the purchaser demands a processing or choice of material deviating from WEBER's specifications.
XIII Liability
1. WEBER shall be liable without limitation - irrespective of the legal grounds - in the event of a breach of warranty or injury to life, body or health. The same shall apply to intent and gross negligence, of organs and executive employees. Liability for simple vicarious agents (§ 278 BGB) is excluded to the extent permitted by law.
2. WEBER shall only be liable for slight negligence, subject to the provision in paragraph 1, if cardinal obligations are violated. Cardinal obligations are those whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may rely.
3. in cases of only negligently caused breach of essential contractual obligations, the amount of damages shall be limited to the damages foreseeable at the time of conclusion of the contract and typical for the contract. Compensation for loss of production, consequential harm caused by a defect and/or loss of profit shall be excluded in cases of simple negligence. This limitation of liability shall apply accordingly to the conduct of WEBER's vicarious agents and assistants.
4. the damage shall be limited in sum - except in cases of intent, gross negligence as well as injury to life, body or health - to the value of 50% of the order value per damaging event.
5. in the event of non-compliance with a delivery deadline, WEBER's liability shall be limited, subject to paragraphs 1 to 3, to a maximum of 5 % of the agreed net price for any damage incurred by the purchaser as a result of the delay. The assertion of a further damage as well as the proof of a lower damage shall remain reserved to the contracting parties. 6.
6. If the delivery items are used items, all claims for material defects shall be excluded. This exclusion shall not apply to claims for damages, in case of gross negligence or intent, in case of an injury to life, body or health caused by WEBER, its executives or vicarious agents.
XIV Limitation
1. the period of limitation for the purchaser's claims for defects shall be 12 months, notwithstanding § 438 para. 1 no. 3 BGB (German Civil Code), and shall commence with the delivery of the goods. The limitation period shall also commence upon default of acceptance by the Purchaser. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. This period shall also apply to claims in tort based on a defect in the goods. The limitation period shall not recommence as a result of subsequent performance. In cases pursuant to Section XIII. 1. the statutory limitation period shall apply instead.
2.If the goods are used for a building in accordance with their customary use and have caused its defectiveness (building material), the limitation period shall be five years from delivery in accordance with the statutory provisions (§ 438 para. 1 no. 2 BGB). This shall be without prejudice to any other special statutory provisions on the limitation period.
3. The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the purchaser which are based on a defect of the goods, unless the application of the regular limitation period (§§ 195, 199 BGB) will lead to a shorter limitation period in individual cases.
4. If WEBER has expressly granted a guarantee of quality, the claims arising from this guarantee of quality shall become time-barred within 2 years. If WEBER has granted a durability guarantee, the claims arising therefrom shall become statute-barred upon expiry of the period for which the durability guarantee was given.
5.Negotiations on claims due to material defects or other claims for damages shall only be deemed to be pending if the parties have declared that they will negotiate on such claims.
XV. Retention of Title
1. The delivered goods shall remain the property of WEBER until they have been paid for in full.
2. Furthermore, WEBER shall remain the owner of the delivered goods until the complete payment of all claims resulting from the business relationship between the purchaser and WEBER.
3. The purchaser shall be obliged to treat the goods subject to retention of title (hereinafter also referred to as "goods subject to retention of title") with care for the duration of the retention of title. In particular, he shall be obliged to sufficiently insure the goods at his own expense against damage by fire, water and theft at replacement value. The purchaser already now assigns to WEBER all claims for compensation from this insurance. WEBER hereby accepts the assignment. If an assignment should not be admissible, the purchaser hereby irrevocably instructs his insurer to make any payments only to WEBER. Further claims of WEBER shall remain unaffected. The purchaser has to prove the conclusion of the insurance to WEBER upon request.
4. The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claim. The purchaser shall immediately notify WEBER in writing if an application for the opening of insolvency proceedings is filed or insofar as third parties (e.g. seizures) have access to the goods belonging to WEBER.
5. If the goods subject to retention of title are combined with other items not belonging to WEBER to form a uniform item, WEBER shall acquire co-ownership of the uniform item in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the other items at the time of combination. If the goods subject to retention of title are combined with other items in such a way that the item of the purchaser is to be regarded as the main item, the purchaser shall already now transfer to WEBER pro rata co-ownership of this item. WEBER accepts this transfer. The provisions of this clause XV.5. shall apply accordingly if the goods subject to retention of title are mixed or processed with other items. 6.
6. The purchaser shall be revocably entitled to sell the goods subject to retention of title in the ordinary course of business. Without WEBER's consent, the purchaser shall not be entitled to pledge the goods subject to retention of title, to assign them by way of security or to make any other dispositions endangering WEBER's ownership. In case of seizure or other interventions by third parties, the purchaser shall immediately notify WEBER in writing and provide all necessary information, inform the third party about WEBER's property rights and cooperate in WEBER's measures to protect the goods subject to retention of title.
7. the purchaser already now assigns to WEBER the claims from the resale of the goods subject to retention of title in the amount of the invoice amount including the value added tax with all ancillary rights. WEBER accepts this assignment already now. If the goods subject to retention of title are sold together with other goods not delivered by WEBER, the claim from the resale shall be assigned in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the other goods sold. If an assignment should not be permissible, the purchaser hereby irrevocably instructs the third-party debtor to make any payments only to WEBER.
8. the purchaser is revocably authorized to collect the claims assigned to WEBER in trust for WEBER in his own name. The right of WEBER to collect these claims itself shall not be affected thereby. However, WEBER shall not assert the claims itself and shall not revoke the direct debit authorization as long as the purchaser duly meets its payment obligations. However, if the purchaser acts contrary to the contract - in particular in case of default of payment - he has to inform the supplier about the assigned claims and the respective debtors, to inform the respective debtors about the assignment and to hand over all documents to WEBER as well as to give all information WEBER needs for the assertion of the claims.
9. WEBER shall be entitled to revoke the purchaser's right to resell as well as the collection authorization if the purchaser does not duly meet his payment obligations towards WEBER, is in default of payment, stops his payments or if the opening of insolvency proceedings against the assets of the purchaser is applied for.
10. WEBER shall be obliged to release existing securities at the request of the purchaser to the extent that the realizable value of the securities exceeds the claims of WEBER from the business relationship with the purchaser by more than 10%, taking into account customary bank valuation discounts. The selection of the securities to be released shall be incumbent upon WEBER.
11.If the purchaser is in default with his payments to WEBER twice within 6 months and/or if the purchaser is insolvent and/or if his insolvency becomes apparent on the basis of objective criteria, WEBER shall be entitled to reclaim the delivery item and, in case of resale, to collect the claims assigned to WEBER directly from the purchaser's customer. The demand for return does not include the declaration of withdrawal at the same time, WEBER shall rather be entitled to demand only the return of the goods and to reserve the right to withdraw from the contract.
12. In case of deliveries of goods to other legal systems, in which the retention of title provision according to this clause XV. is not legally effective, the purchaser herewith grants WEBER a corresponding security right. If further measures are required for this purpose, the purchaser shall do everything to grant WEBER such a security interest without delay. The purchaser shall cooperate in all measures which are necessary and conducive for the effectiveness and enforceability of such security rights.
XVI Secrecy
1. The purchaser shall be obliged to keep secret for an unlimited period of time all information which becomes accessible to him via WEBER and which is designated as confidential or which is recognizable as business or trade secrets according to the other circumstances, and neither to record nor to pass on or to utilize such information.
2. The Customer shall ensure by means of suitable contractual agreements with the employees and agents working for it that they also refrain for an unlimited period from any exploitation, disclosure or unauthorized recording of such business and trade secrets.
XVII Applicable Law; Place of Jurisdiction
1. The legal relations of the purchaser with WEBER shall be governed by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
2. The exclusive place of jurisdiction for all disputes arising from the business relationship shall be the registered office of WEBER. WEBER shall also be entitled to bring an action at the seat of the purchaser as well as at any other admissible place of jurisdiction.
XVIII Miscellaneous
1. The transfer of rights and obligations of the purchaser to third parties shall only be possible with the written consent of WEBER.
2. Place of performance for all services of the purchaser and of WEBER shall be the seat of WEBER, unless otherwise agreed.
3. Changes and additions to these general terms and conditions must be made in writing. This shall also apply to this written form requirement. The validity of post-contractual verbal collateral agreements which do not concern the provisions of these GTCs shall not be affected by this requirement.
4. Should any of the above provisions be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the GTC and the contract as a whole. The parties are obliged to replace the invalid or unenforceable provision from the beginning of the invalidity or unenforceability with a provision that is as economically similar as possible, taking into account the interests of both parties. The same shall apply to loopholes.
Status: 08.08.2022
