WELA Handelsgesellschaft mbH

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General Terms and Conditions

Terms and Conditions of Sale and Delivery

  1. Scope

    The deliveries, services and offers of WELA shall be based on these Terms and Conditions only. These Terms and Conditions therefore apply to all future business relations, even if they have not been agreed expressly again. Any deviating terms and conditions, whether in the form of counter-confirmations or other standard forms of the contractual partner with reference to his own terms and conditions of business, or terms and conditions of purchase and delivery, shall not become integral parts of the contract, even if WELA does not object to them expressly; likewise, the acceptance of delivered goods and the placement of an order shall not constitute any consent to the terms and conditions of the supplier of the goods or the Customer. All agreements made between WELA and the contractual partner for the purpose of performing this Contract shall be laid down in this Contract in writing. This shall not apply to any agreements made between the Parties after the conclusion of this Contract.

  2. Offers and Conclusion of Contract

    WELA’s offers shall be without obligation and non-binding. WELA’s declarations of acceptance, as well as all orders, must be in writing. All contracts shall be concluded at the time at which our written order confirmation is received, and no later than the time at which the delivery item is handed over. Oral additional agreements or assurances which go beyond the content of the written Contract shall only be effective if they are made by an authorised representative of WELA. Authorised representatives in this sense shall be the Managing Director and the Chief Representatives of WELA. Insofar as oral additional agreements or assurances are made by staff members other than those mentioned in Sentence 1, they shall require written confirmation by an authorised representative.

  3. Prices

    1. The net prices mentioned in WELA’s offer or order confirmation, plus the applicable statutory value-added tax, shall apply.
    2. If the material, wage and/or other costs increase after the conclusion of the Contract, WELA shall be entitled to increase the originally agreed price accordingly.
    3. Unless otherwise agreed, prices are ex warehouse of WELA and exclude packing. In addition to the value added tax, WELA may invoice the costs of packing, transport, assembly, insurance and other additional services separately and additionally. Furthermore, the Buyer shall bear all fees, charges, taxes and customs duties incurred at his place of business, even if they are based on laws to be enacted in the future. If the price is to be paid in foreign currency, only the means of payment shall be defined thereby; the amount of the payment shall be defined by the amount in euro which the Buyer would have had to pay according to the official exchange rate on the date of the conclusion of the Contract.
    4. For deliveries and services performed from the Federal Republic of Germany to countries outside the EU, the Buyer shall provide the proof of export required for tax purposes. If such proof is not provided, the Buyer shall immediately pay the value added tax which is due on the invoice amount for deliveries within the Federal Republic of Germany.
    5. For deliveries and services performed from one member state of the EU to another, the Buyer shall, before the turnover is created, provide his VAT number under which he pays value added tax for proceeds within the EU. Otherwise, the Buyer shall pay the amount of the statutory value added tax due on WELA’s deliveries and services, in addition to the agreed purchase price. For the invoicing of deliveries and services performed from the Federal Republic of Germany to other EU member states, the value added tax regulation of each recipient’s member state shall apply if either the Buyer has a value added tax registration in another EU country or WELA has a value added tax registration in that recipient’s state.
  4. Time of Delivery and Performance

    1. Delivery times or delivery periods shall be agreed in writing. Should such a period have been agreed orally, a written confirmation shall be sent by WELA or requested by the Buyer. Any agreed delivery period shall commence on the date of the order confirmation. The contractually agreed period for performance shall be considered complied with if within the delivery period, WELA handed over the goods to the carrier or announced its readiness for shipment to the Buyer.
    2. A prerequisite for WELA’s compliance with its obligations to deliver and perform shall be the Buyer’s timely and proper fulfilment of his contractual obligations such as co-operation, advance payments etc. Without prejudice to WELA’s rights arising from the Buyer’s default, the delivery periods shall be extended by the period by which the Buyer’s obligations towards WELA under this Contract or other contracts are delayed. This shall apply to delivery dates accordingly.
    3. WELA shall not be responsible for any delays in delivery or performance due to force majeure or due to events by which WELA’s due performance is made considerably more difficult or impossible, including, in particular, strike, lockout, orders of public authorities etc., even if they occur to suppliers or subsuppliers of WELA; this shall apply even if a binding agreement on periods or due dates exists. In such cases, WELA shall be entitled to postpone the delivery or performance time by an adequate period or to withdraw from the Contract fully or partially with regard to its portion that has not been fulfilled yet or is partially unfulfilled.
    4. If the obstruction under Section IV c lasts longer than two months, the Buyer may, after fixing an adequate grace period, withdraw from the Contract with regard to it portion that has not been fulfilled yet.
      If WELA makes use of its rights under Paragraph IV c, the Buyer may not claim and damages if WELA notifies the Buyer immediately and informs him of the decision made. In such case, only any advance payments made shall be refunded. Should WELA be responsible for the non-compliance with periods and due dates which have been assured in a binding manner, the Buyer shall be entitled to a penalty for delay amounting to 0.5% for each full week of the delay, but no more than 5% of the invoice value of the goods and services concerned by the delay. Any exceeding claims shall be excluded, unless the delay is based at least on gross negligence from the part of WELA.
    5. WELA may perform partial deliveries or services at any time, provided that they are performed in the Buyer’s interest and are deemed acceptable for him, or if the Buyer consents to them.
    6. WELA’s obligation to deliver shall be subject to deliveries being made to WELA itself properly and in good time, regardless of the reason for which any delivery to WELA is not made.
    7. If the acceptance by the Buyer is delayed, WELA shall be entitled to require compensation for the resulting loss; upon the commencement of the delay in acceptance, the risk of accidental deterioration and accidental loss shall pass to the Buyer.
  5. Passing of Risk

    1. Unless otherwise agreed, the place of performance for WELA’s performance shall, at WELA’s choice, be only the supplier plant or warehouse of WELA. WELA shall announce the readiness for shipment to the Buyer. Upon receipt of the information, the risk of accidental loss shall pass to the Buyer.
    2. If it has been agreed that WELA will send the goods to the Buyer (duty to send), the supplier plant or warehouse of WELA shall continue to be the place of performance. Subject to the provisions of Section V a., the risk shall pass to the Buyer upon the handover of the goods to the carrier at the latest. Unless otherwise agreed, the shipment shall always be at the Buyer’s expense, with WELA determining the mode of shipment. If the shipment is made carriage free, WELA will only owe the transport to the destination named by the Buyer, of the usual type and scope and at the rights applicable at the time of the conclusion of the Contract. Any additional costs which are incurred due to freight price increases after the conclusion of the Contract, due to special requests related to the shipment or due to shipment complications for which WELA is not responsible shall be borne by the Buyer.
  6. Reservation of Ownership

    Until the satisfaction of all claims, including all claims to which the Buyer is entitled now or will be entitled in the future, regardless of the legal cause, WELA is hereby granted the following securities.

    1. WELA reserves the ownership of the goods supplied. Any processing or alteration shall always be carried out for WELA as manufacturer but without any obligation for it. If WELA’s (joint) ownership ceases to exist as a result of any combination, it is hereby agreed that the Buyer’s (joint) ownership of the resulting object will be transferred to WELA at a pro-rata share of its value (invoice value). The Buyer shall store WELA’s (joint) property free of charge. Goods whose (joint) ownership WELA is entitled to are hereinafter referred to as goods subject to reservation of ownership.
    2. The Buyer shall be entitled to process or sell the goods subject to reservation of ownership as part of his normal business operations as long as he is not in default. Any pawning or assignment as security by the Buyer shall not be permitted. The claims related to the goods subject to reservation of ownership due to their resale or for any other legal cause, including any and all claims related to a current account, are hereby fully assigned to WELA by the Buyer as security. WELA irrevocably authorises the Buyer to collect the claims assigned to WELA for the account of WELA and in its own name. Said authorisation to collect may only be revoked if the Buyer does not fulfil his payment obligations properly. In such cases, the Buyer shall provide information on the debtors related to the assigned claims and, at WELA’s choice, inform the debtors of the assignment.
    3. WELA shall release the securities mentioned in Paragraph b. at his choice upon request if their value exceeds the claims by more than 20% over a considerable period. In the case of any seizure of the goods subject to reservation of ownership by third parties, the Buyer shall inform the third party of WELA’s ownership and notify WELA immediately so that WELA can enforce its property rights immediately . Insofar as the third party is unable to reimburse WELA the related legal and out-of-court expenses incurred, the Buyer shall be liable for this. In the case of the Buyer’s conduct in contravention of the Contract, particularly in the case of any delay in payment, WELA shall be entitled to withdraw from the contract, to take back the goods subject to reservation of ownership or, if appropriate, to require the assignment of the Buyer’s claims for surrender against third parties.
      The taking-back or pawning of the goods subject to reservation of ownership shall not be considered as a withdrawal from the Contract, unless mandatory law is opposed to it or WELA makes a declaration to this effect.
  7. Payment

    Unless otherwise agreed, WELA’s invoices shall be payable without any discount 30 days after the readiness for shipment is announced. Despite any contrary provisions of the Buyer, WELA shall be entitled to set payments of the Buyer against his pre-existing debts. WELA shall inform the Buyer of the form of offset performed. If any interest or costs have already been incurred, WELA shall be entitled to set the payment first against the costs, then against the interest and finally against the main service.
    Money orders, cheques and bills of exchange shall only be accepted after special agreement and only by way of payment, not in lieu of performance. A payment shall be considered made when WELA may freely dispose of the amount in the Federal Republic of Germany. Any collection and discount charges, the costs of any prolongation, renegotiation etc. shall be borne by the Buyer.
    If WELA becomes aware of circumstances due to which the Buyer’s creditworthiness can be questioned, especially if a cheque is not cashed in or the Buyer stops his payments or the Buyer becomes aware of other circumstances due to which the Buyer’s creditworthiness can be questioned and which justify WELA’s assumption that a considerable deterioration of the Buyer’s assets has occurred, WELA shall be entitled to make the entire remaining debt become due. This shall also apply if WELA has accepted cheques. In such case, WELA shall also be entitled to require advance payments or the provision of security.
    Even if complaints or counterclaims are made, the Buyer may offset, withhold or reduce amounts only if the counterclaims have been established as final and absolute or are undisputed. However, the Buyer may also withhold amounts due to counterclaims arising from the same contractual relationship.

  8. Damages

    If WELA or the Buyer withdraws from the Contract due to a circumstance for which the Buyer is responsible, or if the Contract is not performed for reasons for which the Buyer is responsible, WELA may, without any further proof, require liquidated damages amounting to 20% of the order value as compensation for expenses and lost profit.
    WELA may, from the due date, require the Buyer to pay an interest in the amount of a customary bank interest.
    The Buyer shall be free to prove that less or no damage has occurred; likewise, WELA may prove any exceeding damage.

  9. Warranty for Defects

    The Buyer shall observe the obligations to examine and complain within the meaning of Art. 377, 378 of the German Civil Code (BGB). If chemicals are delivered, the Buyer shall be obliged to take samples and carry out an analysis. An immediate complaint in the sense of Art. 377 of the German Commercial Code (HGB) shall be within a period of 10 days.
    Defects which cannot be discovered within said period despite thorough examination shall be reported immediately after their discovery.
    If material defects exist, WELA shall, at its choice, deliver replacements, grant a price reduction or undertake to repair the defect. Should any repair or subsequent delivery have definitely failed, the Buyer may require the rescission of the Contract or the reduction of the price. Should the Buyer require repair work to be carried out at a location determined by him, WELA may fulfil such request; in such case, parts covered by the warranty shall not be invoiced, whereas working hours and travel costs shall be paid for at WELA’s standard rates.
    Any changes to the design and quality of the goods supplied by WELA shall correspond to the state of the art. Changes which WELA or its suppliers perform generally after the conclusion of the Contract and which do not affect the quality or functionality of the delivered product shall not be a cause for complaint.
    The above paragraphs contain only the warranty for the products and exclude any other warranty claims of whatever nature. This shall not apply to any damage claims related to an assurance of properties for the purpose of protecting the Buyer against the risk of damage resulting from defects.

  10. Exclusion of Liability

    Any damage claims resulting from the positive violation of a contractual duty, from a culpable act at the time of the conclusion of the Contract of from tort, whether such claims are made against WELA or against its performing or vicarious agents, shall be excluded, except in the case of intentional or grossly negligent acts. This shall also apply to damage claims due to non-performance, but only insofar as compensation for indirect damage or for damage resulting from defects is required, unless the liability is based on an assurance for the purpose of protecting the Buyer against the risk of such damage. Said limitation of liability shall apply in view of the violation of major contractual duties by WELA and by its performing or vicarious agents.
    In the case of any violation of minor contractual duties, any liability of WELA or its agents shall be excluded.
    WELA’s liability shall be limited to the amount of the value of the goods.

  11. Final Provisions

    The law of the Federal Republic of Germany shall apply to these Terms and Conditions and all legal relationships between WELA and the Buyer.
    The place of jurisdiction for all disputes shall be Hamburg. For legal disputes with a Buyer who is not registered in the commercial register, or only registered as a small trader (Art. 4 of the HGB) in it, the court whose jurisdiction the Buyer has its place of business in shall be competent. However, WELA shall be entitled to sue the Buyer in Hamburg if he has his residence or habitual residence abroad or if his residence or habitual residence is unknown at the time at which the action is filed.
    Any application-related information or data provided by WELA shall not be binding, unless WELA assumes a contractual obligation to consult. The Buyer shall be responsible for observing the regulations of public authorities and the provisions of the law when using the supplied goods.
    Should any provision contained in these Terms and Conditions or a provision contained in any other agreement be or become ineffective, the effectiveness of all other provisions or agreements shall remain unaffected.