General Terms and Conditions of Walpol GmbH
Version of 05/2022. The current General Terms and Conditions can be viewed at www.walpol.com; Please note this is a translation. In general, and particularly in case of unclarity or ambiguity in the English translation the German version of the General Terms and Conditions applies.
Section 1 General, Scope
(1) These General Terms and Conditions (GTC) apply to all our business relationships with our customers (hereinafter: “Buyer”). The General Terms and Conditions only apply if the buyer is an entrepreneur (Section 14, German Civil Code).
(2) The General Terms and Conditions apply in their current version, without us having to refer to them again in each individual case, as a framework agreement for future contracts with the same buyer; we shall inform the buyer immediately in case of changes to our General Terms and Conditions.
(3) Our General Terms and Conditions apply exclusively. Deviating, conflicting, or supplementary General Terms and Conditions of the buyer only become part of the contract if and to the extent that we have agreed to their validity in writing.
(4) Legally relevant declarations and notifications that are to be submitted to us by the buyer after the conclusion of the contract (e.g., setting deadlines, notifications of defects, declaration of withdrawal or reduction) must be in writing in order to be effective.
Section 2 Conclusion of the contract
(1) Our offers are subject to change and non-binding. This also applies if we provided the buyer with catalogues, technical documentation (e.g., drawings, plans, calculations, references to DIN standards), other product descriptions or documents— also in electronic form—to which we reserve the property rights and copyrights. These documents shall not be made accessible to third parties, in particular competing companies. Insofar as we bind ourselves to the offer through an express declaration in individual cases, the binding does not apply beyond a period of 4 weeks. We reserve the right to make minor changes in the design of the devices offered in the course of constant further development.
(2) The ordering of the goods by the buyer is considered a binding contract offer. Unless otherwise stated in the purchase order, we are entitled to accept this contract offer within 4 weeks of receipt.
(3) Acceptance can be declared either in writing (e.g., by order confirmation) or by delivery of the goods to the buyer.
Section 3 Delivery period and delay in delivery
(1) The delivery period is agreed individually or specified by us when accepting the order. If this is not the case, the delivery period is approx. 6 weeks from the conclusion of the contract.
(2) If we are unable to meet binding delivery periods for reasons for which we are not responsible (non-availability of the service), we shall inform the buyer of this immediately and at the same time communicate the expected new delivery period. The reasons are, in particular, unforeseen events and disruptions to operations, both in our company and at our suppliers, caused, for example, by a lack of materials, power cuts, strikes, a shortage of workers, war, and other events of force majeure. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we shall immediately refund any amount already paid by the buyer. Claims for damages by the buyer only exist in accordance with Section 8.
(3) The occurrence of our delay in delivery is determined by the statutory provisions. In any case, however, a reminder by the buyer is required. If we are in default of delivery, the buyer can demand lump-sum compensation for the damage he suffered caused by the delay.
(4) Unless otherwise agreed in writing, call-off orders must be called off within 90 days, calculated from the day of the order.
(5) The rights of the buyer according to Section 8 of these General Terms and Conditions and our statutory rights, in particular in the case of an exclusion of the obligation to perform (e.g., due to the impossibility or unreasonableness of the service and/or supplementary performance) remain unaffected.
Section 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery is ex warehouse, which is also the place of performance. At the request and expense of the buyer, the goods shall be sent to another destination (sales by mail). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) If the buyer is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons for which the buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g., storage costs). For these costs, we charge a lump-sum compensation of 10 € per day and pallet space, starting with the delivery period or—in the absence of a delivery period—with the notification that the goods are ready for dispatch. Evidence of higher damage and our legal claims remain unaffected; however, the lump sum is to be offset against further monetary claims. The buyer is entitled to prove that we have suffered no damage at all or only a significantly lower damage than the above lump sum.
(3) The buyer is also in default of acceptance if, in the event of a call-off order, he does not carry out the call-off on time despite the offer and request.
(4) In the event of default of acceptance, we also have the right to store the delivery item at a location to be specified by the customer against reimbursement of the storage and handling costs as well as the transport costs, to dispose otherwise of the delivery item after setting a reasonable grace period, and to supply the customer later or to withdraw from the contract.
Section 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time the contract is concluded apply, ex warehouse plus statutory sales tax.
(2) In the case of mail-order sales (Section 4(1)), the buyer bears the transport costs from the warehouse. Shipping is at the risk of the buyer. Packaging shall be charged at cost and shall not be taken back. Installation, connection, and assembly is the responsibility of the buyer. Helpers must be provided for unloading and transporting the items into the building.
(3) The purchase price is due and payable within 14 days of invoicing and delivery, unless otherwise agreed in writing. In the case of contracts with a delivery value of more than EUR 5,000, however, we are entitled to demand a down payment of 30% of the purchase price. The down payment is due and payable within 14 days of invoicing. We reserve the right to initially offset payments against the buyer’s older debts. If costs and interest have already been incurred, we are entitled to offset the payment first against the costs, then against the interest and finally against the main service.
(4) With the expiry of the above payment period, the buyer is in default. Payment is only deemed to have been made when we can dispose of the amount. Interest is to be paid on the purchase price during the delay at the applicable statutory default interest rate. We reserve the right to assert further damage caused by delay.
(5) The buyer is only entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the counterclaims of the buyer remain unaffected, in particular in accordance with Section 7(6)(2) of these General Terms and Conditions.
(6) If, after the conclusion of the contract, it becomes apparent that our claim to the purchase price is at risk due to the buyer’s inability to pay (e.g., due to an application for the opening of insolvency proceedings), we are entitled to refuse performance in accordance with the statutory provisions and—if necessary after setting a deadline—to withdraw from the contract and entitled to demand advance payments or securities (Section 321 German Civil Code).
Section 6 Retention of title
(1) We reserve ownership of the goods sold until all our current and future claims from the purchase contract and the ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to retention of title shall not be pledged to third parties or assigned as securities before the secured claims have been paid in full. The buyer must inform us immediately in writing if and insofar as third parties access the goods belonging to us. The buyer undertakes to fully insure the goods handed over to him at his own expense against theft, fire, and water damage. The insurance certificates must be presented to the seller. The customer hereby assigns to the seller all current and future claims against the insurance company arising from the insurance of the goods. All claims for damages that the customer obtains from third parties due to loss of or damage to the goods are transferred to the seller as soon as they arise.
(3) In case of breach of contract by the buyer, in particular if the purchase price due is not paid, we are entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of retention of title and withdrawal. If the buyer does not pay the purchase price due, we shall only assert these rights if we have previously unsuccessfully set the buyer a reasonable deadline for payment or setting such a deadline is unnecessary under statutory provisions. Under no circumstances can the buyer object that the object of purchase must be used to maintain the business. If the retention of title is asserted, the buyer is obliged to send the goods back to us at his own expense and to compensate us for the damage incurred. For the damage calculation, the seller acknowledges the relevance of our calculation basis. Any down payments are to be refunded by us—if necessary, offsetting the costs to be borne by the
buyer according to the previous paragraph—at the latest upon receipt of the goods. Section 8 of these General Terms and Conditions applies to claims for damages by the buyer.
(4) The buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply.
(a) The retention of title extends to the products created by processing, mixing, or combining our goods at their full value, whereby we are considered the manufacturer. If our goods are processed, mixed, or combined with third-party goods, we acquire co-ownership in proportion to the invoice value of the processed, mixed, or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
(b) The buyer hereby assigns to us as security the claims against third parties arising from the resale of the goods or product in total or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 also apply with regard to the assigned claims.
(c) The buyer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the buyer meets his payment obligations to us, does not default on payment, has not filed an application for the opening of insolvency proceedings, and no other deficiency in his ability to pay exists.
(d) If the realizable value of the securities exceeds our claims by more than 20%, we shall release securities of our choice at the request of the buyer.
Section 7 Warranty
(1) Claims by the buyer due to material defects expire one year after the object of purchase has been handed over to the buyer. Excluded from this are claims for damages due to injuries to life, limb, or health and/or claims for damages due to damage caused by the seller through gross negligence or intentionally. In this respect, the statutory limitation periods apply.
(2) Our liability for defects is primarily based on the agreement made on the quality of the goods. All product descriptions that are the subject of the individual contract apply as an agreement on the quality of the goods; it makes no difference whether the product description comes from the buyer, from the manufacturer, or from us. In particular, the respective operating instructions in the current version on our website apply.
(3) If the quality has not been agreed, it is to be assessed according to the statutory regulation whether there is a defect or not (Section 434(1), Sentences 2 and 3 German Civil Code). For public statements by the manufacturer or other third parties
(e.g. advertising statements), we assume no liability. Liability for defects does not extend to natural wear and tear, transport damage, intentional or negligent damage, connection to the wrong mains voltage and contamination of the devices, as well as damage caused by non-observance of the operating instructions. The warranty does not apply if repair work is carried out by third parties without our written consent or if parts from third-party sources are installed.
(4) The buyer’s claims for defects presuppose that he has complied with his statutory inspection and notification obligations (Sections 377, 381 German Commercial Code). If a defect is found during the inspection or later, we must be notified immediately in writing. The notification is deemed to be immediate if it is made within two weeks, whereby the timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this obligation to examine and give notice of defects, the buyer must report obvious defects (including incorrect and short deliveries) in writing within two weeks of delivery, whereby timely dispatch of the notification is sufficient to meet the deadline. Our representatives are not entitled to accept notifications of defects or other declarations from the customer within the meaning of Section 91(2) German Commercial Code. If the buyer fails to carry out the proper inspection and/or notification of defects, our liability for the nonnotified defect is excluded.
(5) If the delivered item is defective, we can initially choose whether to provide supplementary performance by eliminating the defect (repair) or by delivering a defect-free item (replacement delivery). Our right to refuse supplementary performance under the statutory requirements remains unaffected.
(6) We are entitled to make the supplementary performance owed dependent on the buyer paying the purchase price due.
(7) The buyer must give us the time and opportunity required for the supplementary performance owed, in particular to hand over the goods complained about for inspection purposes. The item shall only be sent back after we have been informed. In the event of a replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions. Supplementary performance includes neither the removal of the defective item nor the reinstallation if we were not originally obliged to install it.
(8) We shall bear the expenses required for the purpose of testing and supplementary performance, in particular transport, travel, labor, and material costs (not: removal and installation costs), if there is actually a defect. However, if the buyer’s request for rectification of defects turns out to be unjustified, we can be reimbursed for the costs incurred by the buyer.
(9) If the supplementary performance has failed or a reasonable period of time to be set by the buyer for the supplementary performance has expired without success or is unnecessary according to the statutory provisions, the buyer can withdraw from the purchase contract or reduce the purchase price. In a minor defect, however, there is no right of withdrawal.
(10) Claims of the buyer for damages or reimbursement of wasted expenses exist only in accordance with Section 8 and are otherwise excluded.
Section 8 Other Liability
(1) We are liable for damages—for whatever legal reason—in the event of intent and gross negligence. In the case of simple negligence, we are only liable a) for damage resulting from injuries to life, limb, or health, b) for damage resulting from the breach of a material contractual obligation (obligation, the fulfillment of which allows the proper execution of the contract in the first place and on the compliance on which the contracting party regularly relies and can rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(2) The limitations of liability resulting from paragraph 1 do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims by the buyer under the Product Liability Act.
Section 9 Choice of Law and Place of Jurisdiction
(1) The law of the Federal Republic of Germany applies to these General Terms and Conditions and all legal relationships between us and the buyer, excluding the UN Sales Convention.
(2) In relation to merchants, the exclusive—including international—place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Gelsenkirchen. However, we are also entitled to file an action at the buyer’s general place of jurisdiction.
Version of 05/2022