Terms and Conditions of Delivery
Welte Fahrzeugbau GmbH, Umkirch
General Terms and Conditions
§ 1 General provisions
- Only our General Terms and Conditions (“GTC”) below apply. The general terms and conditions of the customer are not recognised unless we expressly agree to them in writing.
- Insofar as the written form is required for declarations in the GTC, the electronic form (Section 126a of the German Civil Code - BGB) and the text form (Section 126b of the German Civil Code) shall be equal to the written form.
- These GTC shall not apply if the customer is a consumer (Section 13 of the German Civil Code).
§ 2 Offer; design changes; drawings
- The acceptance deadline for a customer's offer for goods that are not in stock is three weeks after receipt by us. The acceptance deadline for a customer's offer for goods that are in stock is one week. In the case of amendments and change requests, which may also concern financing, the commitment to the new offer is extended by a further three weeks from receipt of the change declaration.
- Information on the delivery time, dimensions, weight and performance, as well as illustrations in catalogues and advertising details, are only approximate; only the details in the contract are binding.
- We reserve the right to make alterations to the design or changes to illustrations, descriptions, drawings, weights and measurements from our brochures, price lists, catalogues, insofar as the customer's intended uses are not impaired and the value of the service is not diminished.
- Ownership and copyrights of cost estimates, drawings, models and other documents remain with us; they may only be made accessible to third parties with our prior consent. The customer is required to immediately return to us at our request any drawings and other documents which are part of our offers. The foregoing provisions shall apply accordingly to the customer's documents; however, these may be made accessible to third parties who we have engaged in the production of the delivery item or to whom we have transferred the delivery.
§ 3 Offsetting, rights of retention
- The customer may only offset such claims or assert a right of retention with respect to counterclaims to which he/she is entitled which are undisputed, have been established by a final judgement by a court or are ready for a decision. Section 7 (10) remains unaffected.
§ 4 Compliance with delivery periods
- Delivery dates and delivery periods, which can be agreed to be binding or non-binding, shall be stated in writing. Delivery periods commence upon conclusion of the contract. The customer may demand delivery within a reasonable period from us in writing two weeks after the expiry of a non-binding delivery period or a non-binding delivery date.
- The delivery time is deemed to have been complied with if, in the case of an obligation to ship, the delivery object has been dispatched, or in the case of an obligation to collect, the delivery object has been manufactured and the customer has been notified of this.
- We will inform the customer without delay in the event that we cannot comply with a delivery date for reasons for which we are not responsible (in particular a strike, lock-out, war and force majeure events affecting us or our suppliers, energy supply difficulties, delays in the delivery of important raw or source materials for which we are not responsible, etc.); in this case, the parties shall agree a new delivery date. However, if in such a case it is not foreseeable that we will be able to provide our services within a reasonable period, and at the latest within four months, we and the customer may withdraw from the contract. The same applies if the reasons for the impediment continue to exist at the end of four months from the date of our notification. We are not entitled to withdraw from the contract if the reasons for the impediment were foreseeable at the time the contract was concluded.
- If the delivery is delayed at the request of the customer or the customer is in default of acceptance, we shall charge the customer, at the end of one month following notification of readiness for dispatch according to Section 4 (2), for the resultant storage costs, at least EUR 500.00 per day unless the customer proves that we have not suffered any damage, or have suffered significantly less than the flat rate, as a result of the delayed acceptance. The right to claim further damages is reserved.
If we are in default, the customer can withdraw from the contract in writing after the expiry of a reasonable extension period which he/she has set. If the customer does not declare the withdrawal after the grace period set by him/her, we may request a declaration within a period of two weeks.
If the customer does not withdraw from the contract within the aforementioned period, we shall have the right to withdraw from the contract or to deliver the goods upon prior notification of a delivery date. In the event that the customer does not accept the goods despite the announcement, he/she is in default of acceptance.
The customer may only withdraw from the contract after setting a new deadline for performance.
If the customer is entitled to demand damages, the amount of damages paid shall be limited to 20% of the invoice value (excluding VAT) of the non-rendered delivery or service, unless we are liable for intent or gross negligence. Damages caused by delay are limited to a maximum amount equal to 0.5% for each full week of delay, but not more than 5% of the value of the part of the supply or service which is due that cannot be put into the contractually foreseen use as a consequence of the delay, unless we are liable for intent or gross negligence. All other claims for compensation on the part of the customer in cases of late delivery or service are excluded, unless we are liable for intent or gross negligence. The compensation must be set higher or lower than that set out in this Section 4 (5) if we can prove lower damage or the customer can prove higher damage.
§ 4a Obligations of the customer in the case of financing or leasing; withdrawal and flat-rate damages in the case of customer default
- If the customer is financing the purchase price, he/she must send us, upon request, a financing confirmation from a credit institution or a leasing company within a period of one month after conclusion of the purchase contract; if this does not occur, we are entitled to provide the customer with an additional period of at least 2 weeks, to withdraw from the contract following the expiry of this period without result and to demand compensation for damages; this does not apply if the customer proves that he/she was not responsible for the failure to comply with the deadline. In such cases, we may demand 15% of the contract value (excluding VAT) as flat-rate damages, without specific evidence, unless the customer is able to prove that we incurred no loss or damage or that any such loss or damage is significantly less than the flat-rate amount. The right to claim further damages is reserved.
- The aforementioned provisions in paragraph 1 concerning withdrawal and flat-rate damages shall apply accordingly if the customer is in default with the purchase price payment in full or in part and a period of grace set by us of at least 2 weeks has expired in whole or in part without result.
- Payments of invoices are due immediately upon delivery of the goods. Default interest of 9 percentage points above the base rate is agreed.
- The customer has a payment period of one week from the date of the handover protocol. After the payment period has expired, the customer is in default of payment with no further reminder. Upon default, the customer shall owe default interest of 9 percentage points above the respective base rate.
§ 5 Passing of risk
- Insofar as a passing of risk has not occurred earlier because of legal regulations, the risk of destruction, loss or damage etc, shall pass to the customer upon the transfer of goods to the customer or, in cases where goods are shipped, upon transfer to the carrier, unless the destruction, damage etc, is due to circumstances caused by us or our agents either by deliberate action or gross negligence. Should the delivery be effected through us, the risk passes to the customer upon delivery of the goods to the destination indicated by the customer, even if the goods are not directly accepted there by the customer.
§ 6 Retention of title
- We reserve the right to ownership of the delivered goods until complete fulfilment of all claims asserted by us against the customer arising from the entire business relationship.
- In the case of a breach of contract by the customer, in particular in the event of default of payment, we are entitled to take back the goods subject to the retention of title at the expense of the customer, without withdrawing from the contract.
- If the securities to which we are entitled under the above-mentioned provisions exceed our claims by more than 20%, we shall release securities at our discretion, upon request from the customer, with regard to the excess value.
§ 7 Warranty for material and legal defects; guarantees
We are liable for material defects as follows:
- Liability for any material defect (Section 434 of the German Civil Code) is excluded for a used contractual object. This does not apply in the case where a defect is fraudulently concealed by us or our agents or in the event that a feature that was not present is fraudulently represented. The following provisions apply accordingly insofar as we are nonetheless liable in individual cases for a material defect or from a guarantee or a warranted feature.
- For newly manufactured objects, in the event of a material defect we shall, at our discretion and by way of supplementary performance, either rectify the defect or replace the object affected by the defect with a new object. We may refuse the type of supplementary performance chosen by the customer in cases within the scope of Section 275 (2) and (3) BGB if such supplementary performance may only be performed at a disproportionate cost. The buyer’s right to demand delivery of an object free of material defects is excluded.
- In the case of a guarantee, warranted features or when we have exchanged or repaired parts of the object of the contract, the provisions of para. 2 shall apply accordingly.
- Supplementary performance is always carried out without recognition of a legal obligation.
- The customer is required to grant us a reasonable period of time for the supplementary performance.
- If the supplementary performance fails to achieve its aim, is refused by us or is unreasonable for the customer, the customer may withdraw from the contract or reduce the remuneration.
- The customer is required to provide notice of a material defect immediately and in writing. The customer’s warranty rights are excluded with regard to the material defect concerned in the event of a breach of this obligation unless it is a defect that was not recognizable during the inspection. If such a defect is discovered later, this must also be reported immediately and in writing.
7a. The foregoing provisions set out in para. 2 to 6 do not apply if we or a vicarious agent have fraudulently concealed a defect or have fraudulently represented the presence of a feature that is not present; in such cases, the statutory provisions shall apply.
- If the expenses for the purpose of the supplementary performance increase, in particular work, material, transport or travel costs, because the object of our delivery has been subsequently moved to a location other than that at which our delivery took place, the customer must recompense us for these increased costs; this does not apply if the shipment to another location corresponds to the intended use of our delivery. The costs which would have arisen without the transfer to a different location shall be borne by us.
- Claims for defects do not exist in the case of a negligible derogation from the condition for which we are responsible, a negligible impairment of usability, natural wear and tear or damage resulting after the passing of the risk from faulty or negligent handling, maintenance not performed or improperly performed, excessive stress, unsuitable operating equipment or due to external influences which are not presupposed under the contract, as well as for non-reproducible software errors. If the customer or a third party carries out improper modifications, repairs or other work on the goods delivered by us, no right exists for the customer to assert a claim in respect of these and the resulting consequences.
- In derogation of Section 438 (1) (3) of the German Civil Code, the limitation period for claims due to material defects is eighteen months for the parts manufactured by us (Welte parts) and six months for parts manufactured by third parties (third-party parts), , however, up to a maximum of 2,000 operating hours for Welte parts and 1,000 operating hours for third-party parts, with the exception of claims for damages. The statutory limitation period remains applicable in cases of fraudulent intent. Section 9 applies to claims for damages.
- In the event that the customer justifiably declares reduction of the purchase price or withdrawal from the contract, the claim for reimbursement of the purchase price expires after twelve months.
- The customer can only assert a right of retention due to material defects if his/her claim is found to be undisputed, legally binding or ripe for adjudication. A right of retention may also only be asserted to the extent that is proportionate to the material defects that have occurred. If a notice of defects is unjustly submitted by the customer, the customer shall compensate us for the expenses incurred in connection with the unjustified complaint if the unjust complaint was made intentionally or through gross negligence.
- Section 9 also applies to claims for damages by the customer. Any further claims of the customer against us or claims other than those regulated in this Section 7 and Sections 8 and 9 against us or our agents due to a material defect are excluded.
- Statements on the quality of our service are not guarantees within the meaning of Section 443 of the German Civil Code, unless we expressly declare in writing that we assume a guarantee in accordance with Section 443 of the German Civil Code. In the case of a guarantee, our liability remains governed by the statutory provision. In the event that a guarantee period has not been agreed, the period of guarantee is deemed to be 1,000 hours of operational hours, limited however to a maximum of one year from the passing of risk.
- The foregoing provisions shall apply accordingly in the event of a legal defect.
§ 8 Impossibility; contract adjustment
- If it is impossible for us to make the delivery, the customer is entitled to claim damages, unless we cannot be held responsible for the impossibility. However, the claim for damages on the part of the customer is limited to 10% of the value of the part of the delivery which cannot be put to the intended use due to the impossibility of performance. This restriction is not applicable in cases of intent, gross negligence, a guarantee within the meaning of Section 443 of the German Civil Code or injury to life, body or health, where liability is mandatory; this is not associated with a change in the burden of proof to the detriment of the customer. Statutory rights of withdrawal of the customer remain unaffected.
§ 9 Other claims for damages
- Claims for damages and reimbursement on the part of the customer (hereinafter referred to as "claims for damages"), irrespective of the legal basis, in particular for breach of obligations arising from the contractual relationship and tort are excluded.
- This shall not apply to the extent to which the contract or these terms and conditions are otherwise agreed, as well as in the case of liability under the Product Liability Act, in the event of a guarantee (Section 443 of the German Civil Code), intentional gross negligence, injury to life, body or health arising out of a deliberate or negligent breach of duty by us or any of our legal representatives or agents, or in the case of the violation of cardinal obligations or other essential contractual obligations, in particular those whose fulfilment is necessary for the proper performance of the contract, on whose observance the customer can normally rely, whereby claims for damages in cases of slight negligence, due to defects or consequential damages are excluded, insofar as our liability for material defects in accordance with Section 7 is excluded. A claim for damages for infringement of cardinal or essential contractual obligations is limited to damage which is typically foreseeable for this type of contract; insofar as the damage is covered by an insurance policy concluded by the customer for the case of damage in question, we shall be liable only for any associated disadvantages incurred by the customer, for example higher insurance premiums and interest rate disadvantages pending damage regulation by the insurer; these liability limitations do not apply if intent, gross negligence, warranty or injury to life, body or health are present. A change to the burden of proof to the detriment of the customer is not associated with the above provisions.
- Insofar as the customer is entitled to claims for damages, irrespective of the legal grounds, due to material or legal defects, including claims for compensation for consequential damage caused by a defect, the statute of limitations of Section 7 (9) of the German Civil Code shall apply. For other claims for damages, the standard limitation period of one year shall apply in derogation of Section 195 of the German Civil Code, the maximum limitation period of two years notwithstanding the knowledge or grossly negligent lack of knowledge of Section 199 (3)(1) of the German Civil Code, and the maximum period of five years, notwithstanding its origin and the knowledge or grossly negligent lack of knowledge, in derogation of Section 199 (3)(2) of the German Civil Code; this does not apply in cases of intent or liability under the Product Liability Act. In the event of an injury to life, body or health, the standard limitation period (Section 195 of the German Civil Code) is three years and the maximum period ten years, notwithstanding the manner in which they arose, the knowledge or grossly negligent lack of knowledge (Section 199 (2) of the German Civil Code). The guarantee period is applicable in the case of a guarantee within the meaning of Section 443 BGB.
§ 10 Withdrawal
- In the event of withdrawal, the customer shall also be liable for compensation for value lost through deterioration resulting from the intended use. The obligation to provide compensation for loss of value in derogation of Section 346(3)(1) and (3) of the German Civil Code also applies if the defect which entitles withdrawal has only become apparent during processing or redesign of the object or the deterioration or the loss occurred on the customer’s premises. The objection of the customer, that he/she exercised the care he/she would customarily exercise in his/her own affairs, Section 346 (3) (3) is excluded as soon as the customer gains knowledge of his/her right to withdraw.
- We are entitled to withdraw from the contract upon the occurrence of the following circumstances:
(a) Technical difficulties which cannot be foreseen at the time of conclusion of the contract, which are due to the nature of the order and make its execution impossible or unreasonable for us or the supplier;
(b) Strike, lockout, war and all cases of force majeure with us or our suppliers, insofar as the fulfilment of the contract becomes impossible or unreasonable for us;
(c) The lack of or loss of creditworthiness or the inability to pay on the part of the customer if the customer is not able to provide adequate collateral for our receivables or meet the outstanding claims within a reasonable period which is set by us.
(d) The existence of any of the circumstances referred to above relieves us of any liability for damages due to delayed services or services which are not performed. Any of our claims for damages against the customer remain unaffected.
§ 11 Place of fulfilment; jurisdiction; applicable law
- If the customer is a merchant, a legal person under public law or a public special fund, the place of fulfilment is 79224 Umkirch and the court of jurisdiction Freiburg/Breisgau.
- The law of the Federal Republic of Germany shall apply to all legal relations with the customer in connection with this contract, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
- If the customer does not have a general court of jurisdiction within the Federal Republic of Germany, the court of jurisdiction is Freiburg/Breisgau
Version dated: 01 July 2020
Welte Fahrzeugbau GmbH, 79224 Umkirch, Am Gansacker 8
General terms of business
§ 1 General provisions
- The following terms apply to all current and future contracts (GTB) between ourselves as the buyer and you as the supplier for the purchase of goods and services. We will not be bound by your general terms of business unless we expressly agree to them in writing.Our terms of purchase apply even if we unconditionally accept goods that you supply under different terms to ours. These GTB shall also apply if we accept the supplier's delivery without reservation in the knowledge that the supplier's terms and conditions contradict or deviate from these GTB.
- These terms apply only to companies covered by §14 of the German civil code
§ 2 Offer/acceptance deadline; offer documents
- If you accept an offer from us, you will do so within one week of receiving it. If you or we wish to make any changes to an offer, the new one will be valid for a further week.
- We will retain ownership and copyright to all drawings, models and documents that we produce, and you will not make them available to third parties without our prior written consent. You will, immediately on request, return any drawings and other documents forming part of an offer.
The supplier undertakes to maintain confidentiality of company information. This confidentiality requirement will remain in force after the contract has ended, unless the production information contained in the images, drawings, calculations and other documents we provide to you is in the public domain.
§ 3 Prices, terms of payment, and packaging
- The agreed prices are fixed, and any increases must be expressly agreed by us in writing.
- All prices exclude VAT.
- Unless otherwise agreed in writing, all carriage-paid deliveries include customs duties, packaging, insurance, and transport. On request, you will take back packaging free of charge even if we have agreed a price for it in the contract. However, we may also retain packaging, in which case we will pay for it only if the price is shown separately in the contract.
- Payments will be based on the weights and numbers of items notified to us.
- Unless otherwise agreed in writing, we will pay invoices net within 30 days of receipt. If we pay them within 14 days, we will take a 3% discount.
- We may offset and retain amounts due to us where this is permitted by law.
§ 4 Dispatch, transfer of risk
- You will send items at your risk and, unless otherwise agreed in writing, carriage paid.
- All delivery documents must quote our order number.
- You will deliver each order to the location in Umkirch or elsewhere specified by us. The risk associated with the goods will transfer to us when they are delivered to this location. In the event that no delivery date has been determined or the supplier wishes to deliver before the agreed delivery date and we are temporarily unable to accept delivery due to operational disruptions, by internal or external labour or as a result of force majeure, the transfer of risk shall not occur until the obstacles have been removed and the goods are available to us at the place of delivery. We will notify you as soon as any such problems occur or we expect them to occur. The supplier shall bear any additional expenses and costs arising from this.
§ 5 Delivery time, withdrawal, damages
- Delivery dates will be agreed on a case-by-case basis, and are binding. Unless otherwise agreed in writing, if we specify a period within which items must be delivered, this will begin on the order date, and the goods must arrive at the specified location within the delivery period. You will immediately notify us if you are, or believe you may be, unable to meet an agreed delivery date. Before the agreed delivery date, we are only obliged to accept the goods after consultation. Any storage costs incurred are to be borne by the supplier.
- If you are more than two weeks late in delivering items, we will issue a written reminder granting you a further two weeks and stating that we may withdraw from the contract if you still have not delivered them after this period. We may withdraw even if the late delivery is due to circumstances beyond your control. The same applies in the event that no delivery date has been agreed.
- As well as or instead of withdrawing from the contract, we may claim statutory damages for late deliveries, unless you provide evidence that the delay is not your fault. The supplier is always liable for slight and gross negligence as well as for intent. The same applies to vicarious agents and assistants employed by him.
§ 6 Inspections, guarantee
- We will inspect the goods within an appropriate period as specified in §§ 377 and 378 of the German commercial code, and notify you immediately if we find any defects or shortages. We will do this within 15 working days of receiving the goods or, if the defects are not immediately apparent, within 15 working days of discovering them. If we fail to do this, our claim will not be valid.
- You guarantee that the items are free of defects and suitably packaged and labelled, meet the required specifications, represent the state of the art, and comply with laws, standards and guidelines applying in Germany.
- If a product does not meet the guaranteed specifications, or is otherwise defective, our statutory rights will remain unaffected. In particular, we are entitled to demand that the supplier remedy the defect or deliver a new item at our discretion; we expressly reserve the right to claim damages, in particular damages in lieu of performance or delay or reduction in price.
- If the supplier sets us a deadline for the declaration of the exercise of warranty rights, this deadline may not be shorter than two weeks.
- You will pay the full cost of any repair or replacement, and we will return the defective item at your expense and risk.
- The guarantee applies for 36 months from the date on which the risk is transferred to us.
§ 7 Product liability, insurance, indemnification
- If you are liable for damage to a product you will, immediately on request, indemnify us against any third-party claims in which you are at fault.
- If you are liable for damages under paragraph (1), you will reimburse any expenses we incur if we are required to carry out a product recall under §§ 683, 670, 830, 840 or 426 of the German civil code. Where possible and reasonable, we will inform you of the nature and scope of the recall and give you an opportunity to express your opinion. This does not affect our other statutory rights.
- You will obtain product liability insurance with coverage of €10 million for personal injury and €10 million for material damage. This does not affect any other liability for damages.
§ 8 Third-party rights
- In connection with his delivery, the supplier must ensure that no rights of third parties within the Federal Republic of Germany are violated.
- If claims are made against us by a third party due to an infringement of rights, the supplier is obliged to indemnify us from these claims on first written request; We will not reach any settlements or other agreements with the third party without your consent.
- You will indemnify us for all necessary expenditure we incur as a result of or in connection with such claims.
- The statutory limitation regulations shall apply.
§ 9 Personal obligations of the supplier
You will fulfil all of your contractual obligations yourself.
§ 10 Retention of ownership
You may retain ownership of goods you supply until we have paid for them. However, we may process, sell or otherwise make use of them in the normal course of business.
§ 11 Jurisdiction, place of performance
- If you are a sole trader, the courts of Freiburg im Breisgau will have jurisdiction. However, we may also bring court action against you in your place of domicile.
- Unless otherwise agreed, the place of performance is our registered office.
- These terms are subject to German law. The United Nations convention on contracts for the international sale of goods does not apply.
- If any of these terms is or becomes invalid, this will not affect the validity of the contract as a whole. The invalid term will be replaced by one that comes as close as possible to its original intentions.
As of: 2020-09-01
Welte Fahrzeugbau GmbH, 79224 Umkirch, Am Gansacker 8