General Terms and Conditions Waldhausen GmbH & Co. KG

§1 Scope

(1) These general terms and conditions apply exclusively to all contracts, deliveries, services and offers you conclude with Waldhausen GmbH & Co. KG, Von-Hünefeld-Straße 53, 50829 Cologne (Cologne District Court, HRA 589). These terms and conditions are part of all contracts that we conclude with you for the goods or services we offer. These terms and conditions only apply if you are an entrepreneur as defined in §14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.

(2) Your terms and conditions or those of third parties do not apply, even if we do not separately reject in each instance. Even if we refer to correspondence that contains or refers to your general terms and conditions or those of a third party, this does not constitute consent to the applicability of the same.

§ 2 Offer and conclusion of contract

(1) The presentation of our goods on our website www.waldhausen.com, in our catalogues or in our other advertising media does not constitute any binding offer on our part. When you place an order, you are making a binding purchase offer to us.

(2) A contract between you and us is only concluded when we issue an express, separate declaration of acceptance, which will occur within five working days by fax, email, in writing or by sending the ordered goods.

(3) All information provided by us with respect to the goods or services (e.g. weights, dimensions, tolerances and technical specifications) as well as any representations of the same (e.g. illustrations) should be understood as being solely of an approximate nature, unless their usability for the contractually intended purpose requires precise conformity. They are not guaranteed quality features, but descriptions or identifications of the goods or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements are permissible insofar as they do not impair the usability for the contractually intended purpose.

(4) We reserve the ownership and/or rights of use to all of our offers and cost estimates as well as pictures, calculations, brochures, catalogues, models and other documents we provide to you. You may not make these items accessible to third parties, disclose them, use them yourself or via third parties, allow them to be used or reproduce them without our express consent. At our request, you agree to return these items to us and destroy any copies made if they are no longer required in the ordinary course of business or if negotiations do not result in the conclusion of a contract.

§ 3 Prices and payment

(1) The prices apply to the scope of goods and services stated in the order confirmations. The prices are in Euros, ex works plus packaging and the applicable value added tax; for exports, customs duty, fees and other official charges may apply.

(2) Invoice amounts are to be paid within 10 days of receipt of the invoice, unless otherwise expressly agreed.

(3) In the case of delayed payment, the customer must pay interest at the rate of 9 (nine) points p.a. above the base rate. We may also charge the customer a fee of €40. We reserve the right to assert higher interest rates and/or further damages. The fee according to clause 2 shall be added to any damages payable due to legal action. Our right to claim the commercial default interest (§353 HGB) against businesspeople shall remain unaffected.

(4) We are entitled to delivery any future goods or services only against advance payment or security or to provide them if circumstances become known after conclusion of the contract that reduce your creditworthiness considerably or which put your payment of our outstanding claims from your contractual relationship with us at risk.

§ 4 Delivery and delivery times

(1) We deliver ex works. At your request and at your expense, we will send the goods to a different destination. Unless otherwise agreed, we are entitled to determine the type of shipment (particularly transport companies, shipping route, packaging) ourselves.

(2) The delivery deadline will be individually agreed or stipulated by us when we accept the order. If shipping has been agreed, delivery dates and deadlines refer to the time the goods are handed over to the forwarder, haulier, or other third party assigned to transport the goods.

(3) Compliance with our delivery obligation requires the timely and proper fulfilment of your obligations. We reserve the right to claim the defence of non-performance of contract.

(4) If the ordered product is not available because we were not supplied with this product by our suppliers through no fault of our own, we can withdraw from the contract. In this case we will inform you immediately about this and refund any payments already made.

(5) Any claims for damages or compensation of wasted expenditure in the case of delivery delays or impossibility are subject to §7 below.

§ 5 Place of performance, shipping, packaging, transfer of risk, acceptance

(1) Place of performance for all obligations arising from the contractual relationship shall be Cologne, unless otherwise agreed.

(2) The type of dispatch and the packaging are subject to our discretion.

(3) Risk is transferred to you at the latest when the item is handed over to the haulier, freight forwarder, or other third party designated to make the delivery to you. This shall also apply to partial deliveries or if we have agreed to handle additional services (such as shipping).

(4) You will bear storage costs if you are in default of acceptance.

(5) We will only insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks at your express request and expense.

§ 6 Warranty

(1) The provisions of the law apply to your rights in the event of material defects and defects of title (including incorrect and shortfall in delivery), unless otherwise stipulated below. In all cases, the statutory special provisions shall remain unaffected upon final delivery of the goods to a consumer (§§478, 445a, 327u BGB).

(2) The basis for any claim for defects shall first and foremost be our agreement made regarding the condition and quality of the goods. Insofar as the nature of the defect has not been agreed upon, the statutory provisions shall determine whether a defect exists or not.

(3) If it involves a bilateral commercial transaction, your claims for defects and recourse require you to have complied with your statutory inspection and notification obligations in accordance with §377 HGB. If a defect becomes apparent during the examination of the purchased item or later, you must notify us immediately in writing, whereby the timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this obligation to examine and notify, you must report any obvious defects (including incorrect and short deliveries) in writing without delay, with the timely sending of the notification being sufficient to meet the deadline. If you fail to properly examine and/or report defects, our liability for defects not reported is excluded.

(4) If the goods delivered are defective, we may at our discretion remedy said defect by removing the defect (repair) or by delivering a product free of defects (replacement).

(5) We are entitled to make the subsequent performance dependent on your having paid the purchase price in full. However, you may be entitled to retain a reasonable portion of the purchase price relative to the defective part of the delivery.

(6) You must give us the necessary time and opportunity to render the supplementary performance owed and shall, in particular, hand over the defective item in question for the purposes of inspection. In the case of a replacement delivery, you have to return the defective item to us in accordance with the statutory provisions.

(7) Any expenditure required for purposes of examination and subsequent performance, including, without limitation, any costs of transit, travel, work and material, shall be borne by us if there is an actual defect. However, if your request to remedy the defect turns out to be unjustified, we can demand that you reimburse the costs incurred.

(8) Any claims from the buyer for damages or reimbursement of expenses incurred shall only be asserted in accordance with §7 and are otherwise excluded.

§ 7 Other liability

We are liable, regardless of the legal basis, for claims for damages or reimbursement of expenses incurred in accordance with the following provisions in paragraphs 1 to 5.

(1) Insofar as nothing to the contrary is stipulated herein, including the following provisions of this section, we accept liability for any breach of our contractual and non-contractual duties in accordance with the relevant statutory regulations.

(2) We accept liability for any damages resulting from our wilful intent or gross negligence. In case of simple negligence, we are only liable
a) for damages resulting from injury to life, body or health;
b) for damages arising from the breach of an essential contractual duty (an obligation whose fulfilment is essential to the proper execution of the contract and which you can regularly relies upon; in this case, however, our liability is restricted to reimbursement of foreseeable, typical damages.

(3) The limitations of liability provided for in para. 2 do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods, as well as in the event of liability under the Product Liability Act.

(4) The regulations of this § 7 apply accordingly to the reimbursement of wasted expenses.

(5) As far as our liability for damages is excluded or limited, this also applies to the personal liability of our legal representatives and vicarious agents.

§ 8 Limitation period

(1) The limitation period for claims arising from material and/or legal defects is one year from delivery. Insofar as acceptance has been agreed, the period of limitation begins upon acceptance.

(2) Para. 1 notwithstanding, special legal regulations continue to apply to material claims for restitution by third parties (§438 para. 1 No. 1 BGB), in the case of malice on the part of the seller and for claims in supplier recourse in the event of final delivery to a consumer (§§478; 445a, b; 327u BGB), as well as in the event of injury to life, body and health.

(3) The above limitation periods also apply to your contractual and non-contractual claims for damages based on a defect of the goods or service, unless the application of the regular statutory notwithstanding period would result in a shorter statute of limitation in individual cases. The statute of limitations of the Product Liability Act shall remain unaffected in any case. In the case of claims resulting from intent or gross negligence and for injury to life, body and health, the statutory limitation periods always apply.

§ 9 Retention of title

(1) We reserve ownership rights to the purchased goods until receipt of all payments from the delivery contract are confirmed. If you are in breach of contract, in particular in default of payment, we shall be entitled to repossess the goods delivered. Any repossession will also result in our withdrawal from the contract. We are then entitled to dispose of the product after repossessing it; the proceeds of the sale will then be applied to your outstanding balance, less reasonable expenses for its resale/disposal.

(2) In the event of seizures or other third-party interventions affecting goods to which we retain title, you must notify us immediately in writing.

(3) You are entitled to resell the purchased item in the ordinary course of your business; you hereby assign to us all claims that accrue from the resale to your customers or third parties up to our final invoice amount (including VAT) for our claims, regardless of whether you have performed any further processing to the items purchased from us. You are authorised to collect these claims on our behalf even after the assignment. Our right to collect these claim ourselves remains unaffected by this. However, we commit not to collect the claim so long as you comply with your payment obligations arising in connection with the collected proceeds and are not in arrears with payment, and, in particular, so long as no application for initiating insolvency proceedings against you has been made and you have not stopped paying your creditors. If this is the case, however, we can demand that you inform us of the assigned claims and their debtors, provide all information required for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.

§ 10 Final provisions

(1) If you are a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or the holder of a special fund under public law, if you do not have a general place of jurisdiction in Germany or if you relocate your place of business abroad after the conclusion of the contract, the place of jurisdiction for all disputes arising from your business relationship with us is Cologne. Mandatory statutory provisions concerning exclusive places of jurisdiction shall remain unaffected.

(2) Our business relationship with you is exclusively subject to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply

Last updated January 2022

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Waldhausen GmbH & Co. KG
Von-Hünefeld-Straße 53
50829 Köln

Telephone: +49 (0) 221-5880-10
Fax: + 49 (0) 221-5880-993
Web: www.waldhausen.com
E-Mail: info@waldhausen.com