General Terms and Conditions
of Wagner Life Design GmbH
(1) All offers, deliveries and performances shall be governed by these general terms and conditions. The general terms and conditions set out below shall form part of any agreement between the vendor and his contracting party (in the following named “buyer”) on any deliveries and performances offered by the vendor. These general terms and conditions shall apply to all subsequent offers, deliveries or performances without any need of express reference thereto or agreement thereon at the conclusion of such an offer, delivery or performance.
(2) Standard business terms of the buyer or a third party do not apply, regardless of whether or not the vendor expressly objects to them in a particular case. Even if the vendor refers to a document which includes or refers to standard business terms of the vendor or a third party, this does not mean any approval of these standard business terms.
Offer and Conclusion of Contract
(1) All offers of the vendor are not binding, except when an offer is expressly marked as binding or includes a binding acceptance period.
(2) The vendor may accept an order up to 14 days after receipt.
(3) Oral promises of the vendor which are given before the conclusion of the contract are not binding, unless an agreement has been reached to the contrary expressly.
(4) As far as this agreement or this general terms and conditions contain a loophole, those rules for closing the loophole shall apply which would have been agreed on with regard to the economic purpose of the agreement and the purpose of this general terms and conditions by both parties if they knew of the loophole.
Prices and Payments
(1) All prices shall apply for the amount of deliveries and performances named within the confirmation of order. Any increased delivery or performance will be charged additionally. All prices are in Euro, ex works and plus in particular any statutory VAT, in the case of export deliveries customs duties and fees or any other public charges or tax.
(2) As far as the parties agreed on list prices of the vendor and deliveries shall be done later than three months after the conclusion of the contract, those list prices shall apply which are valid at the moment of delivery (each reduced by a percentage or fixed discount).
(3) Invoice amounts are due within 14 days after the date of invoice, unless otherwise agreed or confirmed by the vendor in writing. Payment date is the date on which the vendor receives the payment amount.
(4) Payment through check or promissory note needs the consent of the vendor and shall apply only on account of performance. The buyer shall bear all additional costs resulting from such a payment.
(5) Set-off with counterclaims of the buyer or the execution of a right of retention because of a counterclaim shall only be admissible if both claims result from the same agreement or the counterclaim is undisputed or found legally valid by court.
Vendor statements as to the subject of delivery or performance
(1) Vendor statements as to the subject of delivery or performance (e.g. weight, measure, value in use, load-bearing capacity, tolerances and technical data) and corresponding depictions are only approximately significant, except an exact accordance is necessary for reaching the contractual purpose. Vendor statements and depictions are no guaranteed quality features but a description and characterization of deliveries or performances. Differences in accordance with standard commercial practice, based on statutory provision or on technical improvement, as well as substitution of components with equal quality are admissible, unless the use for the contractual purpose is affected.
(2) The vendor shall keep property and copyright of all of his offers and estimates as well as of all samples, drawings, illustrations, calculations, prospects, catalogs, models and any other documents or aids which he provides for the buyer. The buyer shall be not allowed to make available in real or in terms of content, to announce, to use or to copy for its own or a third party those objects without express approval of the vendor. The buyer obliges to return those objects and to destroy all copies on demand of the vendor, if he does not need them in accordance with his business or negotiations do not lead to a conclusion of an agreement.
Deliveries, Passing of Risk, Dispatching and Delivery time
(1) Deliveries shall occur ex works. At the latest, the risk shall pass from the vendor to the buyer in the moment of handing over the goods to the shipping contractor, carrier or any third person who is responsible for dispatching. This shall be valid even in the case of partial deliveries or additional performances done by the vendor. Any delay of dispatching or handing over which has its cause within the sphere of the buyer shall be lead to passing of risk from this day on, if the goods are ready for dispatching and the vendor reported this to the buyer.
(2) In the case of dispatching, dispatching mode and packaging shall fall within dutiful discretion of the vendor.
(3) Any transport insurance shall be provided only upon express demand of the buyer. Any costs arising therefrom shall be at the expense of the buyer only.
(4) All indicated time periods and deadlines for deliveries and performances shall apply only roughly, unless otherwise an explicit fixed period or deadline is agreed with or confirmed by the vendor. In the case of dispatching, all time periods and deadlines regard the time of handing over the goods to the shipping contractor, carrier or any third person who is responsible the dispatching.
(5) Vendor’s delivery obligation shall at all times be subject to timely and orderly receipt of the goods from vendor’s suppliers.
(6) Industrial actions or any unforeseen unusual incidents outside the responsibility of the vendor, like, without limitation, acts of public authorities or traffic disruptions shall, for their duration and in accordance with their impact, relieve the vendor from the obligation to comply with any agreed time for delivery and, in the case of impossibility, his duty to perform.
(7) In case the buyer does not fulfill its contractual obligation the vendor may demand an extension of delivery periods or an adjusted date of delivery from buyer – beside vendors claims to default.
(8) The vendor shall have the right to delivery in instalments if
- Deliveries in instalments are usable for the buyer within in the contractual intended use,
- the delivery of the remaining goods is safeguarded and
- the buyer has no significant additional expenditure or costs because of that (unless the vendor accepts to pay these costs).
(9) If the vendor falls behind with his duty to deliver or perform or in the case of impossibility, the vendor’s liability is limited in accordance with § 7 of this general terms and conditions.
Retention of Title
(1) The following retention of title shall be applicable for all existing and arising claims from the business relationship between the vendor and the buyer.
(2) The vendor shall retain full title of delivered goods until the buyer has discharged all secured claims. All delivered goods and all goods which substitute them according to this provision shall be referred to as “goods subject to retention of title”.
(3) The buyer shall keep all goods subject to retention of title for the vendor free of charge.
(4) The buyer shall have the right to process and to sell the goods subject to retention of title within the ordinary course of business until the occurrence of the event specified in paragraph 9. Pawning and collateral assignment shall be inadmissible.
(5) Any processing of goods subject to retention of title shall occur in the name of and for account of the vendor. After processing, the vendor shall receive full legal title of any new goods which then are subject to retention of title or if the goods in which the vendor has retained title shall be inseparably assembled with goods that are third party property or the value of the used good is higher than the goods delivered by the buyer, then the vendor (i.e. the user of these terms) shall acquire co-title in the new. The proportion of title shall follow from the proportion of the value of the goods delivered by the vendor under retention of title and the value of the final good. If such a title transfer fails, the buyer transfers his future title or – in the case of co-title – his part of the future title, according to the proportion described above, of any new goods to the vendor. If goods subject to retention of title are inseparable mixed or combined with other goods to an integrated good, and if one of the other goods must be considered as principal thing, the buyer, if he is owner of the principal thing, transfers co-ownership to the vendor in accordance with the proportion described above.
(6) The buyer hereby assigns as a precaution to the vender all claims arising from the resale of the goods delivered under retention of title. In case of co-title / co-owner the vendor’s (i.e. the user of these terms) proportion of title shall follow from the proportion of the invoice value of the goods delivered by us under retention of title and the invoice value of the other goods. Such claims shall also include all other claims that the buyer (i.e. the term-user’s contract party) acquires in exchange for the goods delivered under retention (e.g. insurance claims, claims in tort due to destruction or loss). The buyer shall revocable be authorized to collect any receivables arising from the resale of goods acting in his own behalf. The vendor shall have the right to withdraw buyer’s authorization to collect only in the event specified in paragraph 9.
(7) In the event of any third party action against vendor’s goods delivered under retention of title or any receivable assigned to the vendor (in particular seizure), the buyer has to notify such party of vendor’s property respectively the vendor’s rights and immediately inform the vendor about such action, to secure vendor’s rights. The buyer shall bear all the vendor’s costs of any intervention unless the third-party cannot compensate vendor’s expenditures.
(8) Where the vendor’s claims shall be undoubtedly be secured through assignment and retention by more than 50% any surplus of receivables respectively good delivered under retention of title, the vendor will release the in accordance to vendor’s choice.
(9) If the vendor rescinds contract due to the buyer’s breach of contract, in particular in payment default, then it shall, upon the vendor’s demand, immediately return to the vendor all goods delivered under retention of title and assign to the vendor any repossession claims against any third party in conjunction with such goods.
Limitations of liability
(1) The liability for damages of the vendor (on whatever legal grounds) is limited, if fault is required, according to the following paragraphs.
(2) The vendor shall not be liable for negligence, other than gross negligence or the breach of a substantial contractual duty, of his legal bodies, legal representatives, employees or other vicarious. Substantial are duties to delivery on time as well as legal duties to give advice, to protect and duties of care which shall enable the buyer to use the goods in accordance with the contract or to protect the body or life to the buyer or his property against significant damages.
(3) The liability of the vendor, based on a breach of substantial contractual duty, shall be limited, for property damages and any pecuniary damage arising from it in the case of negligence, other than gross negligence, to the amount of a damage which might occur based on a normal use of the goods.
(4) The foregoing limitations of liability shall apply to the same extent for the benefit of the legal bodies, legal representatives, employees or other vicarious of the vendor.
(5) The limitations of this § 7 shall not apply to any liability based on willful misconduct or gross negligence, for guaranteed product specifications (within the meaning of Sec. 444 of the German Civil Code), personal injury or under the German Product Liability Act.
Restraint of assignment for Buyer
The buyer may not assign any claims arising from transactions with the vendor without the written approval of the vendor.
Applicable law, Place of Performance, Place of Jurisdiction
(1) Any contract entered into between the vendor and the buyer shall be governed by the laws of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Goods (CISG).
(2) Place of performance for all duties arising from this agreement shall be Hamburg.
(3) Place of jurisdiction for all disputes between the vendor and the buyer shall be Hamburg. For lawsuits against the vendor Hamburg shall have exclusive jurisdiction in respect of all disputes arising out or in connection with the relevant contract, unless otherwise is mandatory by law.
Version: April 2013