deendede

terms and conditions

I. Scope of application

 

1. The terms of sale set out below apply to all delivery and execution contracts which are concluded between Purchasers and the Seller, i.e. Kurt Willig GmbH & Co.KG, if these are contracts with entrepreneurs in terms of Section 14 BGB[1] (B2B transactions) or corporate bodies under public law or public law special funds. They shall apply to all offers and sales of brand new and used machines/trucks/toppers or other products. The Purchasers to whom goods are sold are end consumers. Goods shall not be resold by Purchasers within the framework of executing commercial activities or activities as self-employed persons. If nothing else is agreed, Purchasers shall have the right to resale goods to entrepreneurs in terms of Section 14 BGB upon the condition that it is guaranteed that, in the framework of resale chains, goods will not be resold to consumers in terms of Section 13 BGB as end consumers.

 

2. Deviating and contradictory general terms and conditions from Purchasers are only binding for the Seller if this was expressly confirmed by the Seller in writing.

 

3. These General Terms and Conditions also apply to all future transactions with costumers, if this concerns legal transactions of similar nature.

 

4. Place of fulfilment and exclusive venue for both parties to the contract in relation to all current and future claims resulting from the business relationship – also for special procedures deciding claims arising out of a bill of exchange and summary procedures where plaintiffs rely entirely on documentary evidence – shall be the court of Straubing (registered office of Kurt Willig GmbH & Co. KG).

 

5. The law of the Federal Republic of Germany applies. The United Nations Convention on Contracts for the international Sale of Goods as at 11 April 1980 does not apply. In addition, the European Principles of Contract Law (EPCL), as well as the United Principles of International Commercial Contracts (UP) shall be excluded.

 

 

 

II. Offer and contract conclusion

 

1.  All offers submitted by Kurt Willig GmbH & Co. KG are non-binding and do not represent engagements. The clients' orders in our on-line shop represent a binding offer to us for the conclusion of a sales contract. If clients submit orders to us, we, in return, will send an e-mail to clients confirming the receipt of the orders and stating their details (order confirmation). Order confirmations do not represent an acceptance of the clients' offers. They are only intended to inform clients that their orders were received by us. A sales contract comes about only if we deliver ordered products to the clients or if we confirm the delivery to the clients in a second e-mail (shipping confirmation). Up to this moment, Kurt Willig GmbH & Co. KG has in particular the right to refrain from delivering offered goods, especially if these goods are not available. A claim to delivery of the goods arises only at the moment when the offer is accepted by Kurt Willig GmbH & Co. KG.

Kurt Willig GmbH & Co. KG has the right to accept other orders within a reasonable period of time (however, up to a maximum of 14 days) after the order was received.

 

2. Legal relationships between the Seller and Purchaser shall be exclusively governed by the contract concluded in writing, including the General Terms and Conditions at hand. Supplements and addenda to the concluded contract, including the General Terms and Conditions at hand and in particular related to the written form requirement itself, shall be made in writing in order to become effective.

 

3. The Seller reserves the rights in relation to all offers submitted by them, as well as to all samples, drawings, images, calculations, leaflets, catalogues, models, as well as other documents and media provided to Purchasers. Without the Seller's express approval, Purchasers shall have no right to grant third parties access to these goods, neither to the products nor to their content, to make them known to third parties or to make use of or copy them themselves or by third parties. Upon the Seller's request, Purchasers have to give back all these goods to the Seller and to destroy all copies which might have been produced if these are no longer required for the ordinary day-to-day business, or if negotiations do not result in a contract conclusion.

 

4. Orders from clients from abroad via our on-line shop also represent a binding offer to us for the conclusion of a sales contract. If clients from abroad submit orders to us, we will calculate applicable delivery costs for each individual order and communicate these to the clients. A sales contract is concluded at the earliest when we deliver ordered products to the clients or when we confirm the conclusion of a sales contract in any other way, e.g. by sending an invoice.

Up to this moment, we have in particular the right to refrain from delivering the offered goods, especially if these goods are not available. A claim to delivery of goods arises only at the moment when we accept the offer.

 

 

III. Prices and payment, conditions of payment

 

1. Our prices are calculated ex works in Euros – excluding discounts or any other reductions – plus VAT applicable at the time of delivery and, as may be the case, plus packaging, delivery and customs, as well as charges and other public dues. Special advantages will not be granted.

 

2. All costs relating to transport insurance, loading, transferring, as well as custom duties and stamp taxes shall be borne by the Purchaser.

 

3. In general, orders are governed by the prices applicable at the delivering date.

 

4. If nothing else is agreed on, all invoices issued by the Seller are due immediately and without any reductions. The purchase price and prices for ancillary services are due at the latest upon handing over the object of purchase and upon issuing or sending invoices for payment. Regarding payment in advance, it is considered that the purchase price including delivery costs is due immediately. On the basis of Section 286 Sub-section 34 BGB, arrears occur 30 days at the latest after the invoice or an equivalent payment schedule was due and received, if Purchasers do not fulfil. The payment date is subjected to the receipt by the Seller.

 

5. 30 days at the latest after payment is due, Purchasers have to pay interest on arrears to the amount of 8 percentage points above the base lending rate (Section 247 BGB). The Seller reserves the right to give evidence of higher damages caused by default.

 

6. Payment instructions, cheques and promissory notes require special agreement and shall be accepted only on account of payment, not in lieu of fulfilment in terms of Section 364 BGB. Purchasers have to bear all collection and discount expenses. Renegotiations and prolongations shall not be considered as fulfilment in terms of Section 362 BGB.

 

7. If a considerable risk for the claim for payment occurs, the Seller shall have the right to demand advance payments or a sufficient security. If Purchasers deny such advance payment or security, the Seller shall have the right to withdraw from the contract and to assert a claim for damages.

 

8. Incoming payments pay off costs first, followed by interests and finally the principal claim. In case of several claims, the claim which has been in existence for a longer period is paid off first.

 

 

 

IV. Shipping and delivery time

 

1. If in individual cases nothing else is agreed on, deliveries occur ex domestic works (registered office of Kurt Willig GmbH & Co. KG). If Purchasers request that the delivery occurs ex foreign works or that goods are collected abroad, a lump-sum delivery charge may be invoiced. Goods are generally delivered uncovered.

 

2. The Seller reserves the right, in particular at the beginning of business relationships, to make agreements with customers for each relevant order, stating that delivery and fulfilment by the Seller will be carried out only on advance payment or on a security deposit.

 

3. Terms and deadlines which the Seller indicates for the delivery and fulfilment always have to be considered as approximate, unless a fixed term or a fixed deadline have expressly been promised or agreed on. Businesses to be performed at a fixed point in time are not conducted. If a delivery was agreed on, delivery times and delivery dates refer to the time of handing over goods to haulage contractors, carriers or any other third party in charge of the transport.

 

4. If, at any time prior to delivery, Purchasers require an amended fulfilment of the object of purchase, a new delivery time has to be agreed on.

 

5. Without prejudice to rights resulting from the Seller's arrears, the Seller shall have the right to request an extension of delivery and fulfilment terms or a postponement of delivery and fulfilment terms from Purchasers, by the period by which customers do not meet their contractual obligations to the Seller.

 

6. Without any special contractual agreement, the Seller has the right to make deliveries by instalments on the condition that these instalments can be used by Purchasers in the framework of the intended use which was contractually agreed, that delivery of the other ordered goods is guaranteed and that, as a result, Purchasers do not incur considerable additional expenses or costs (unless the Seller agrees to bear these costs).

 

7. Delayed delivery, liability in case of delayed delivery

 

a) If basic sales contracts concern businesses to be performed at a fixed point in time in terms of Section 286 Sub-section 2 Sentence 1 BGB or in terms of Section 376 HGB[2], the Seller shall be liable on the basis of legal requirements. The same applies if Purchasers, as a consequence of a delayed delivery due to reasons within the Seller's control, have the right to claim a discontinuation of interest in a further execution of the contract. In this case, the Seller's liability shall be limited to foreseeable damages which may typically result, if delayed deliveries are not based on intentional infringement of the contract due to reasons within the Seller's control, whereby a fault by the Seller's representative or vicarious agent has to be ascribed to the Seller.

 

b)  The Seller shall be also liable to Purchasers in case of delayed deliveries on the basis of legal requirements if these are based on intentional or grossly negligent infringement of the contract by the Seller due to reasons within the Seller's control, whereby a fault by the Seller's representative or vicarious agent has to be ascribed to the Seller. The Seller's liability shall be limited to foreseeable damages which may typically result, if delayed deliveries are not based on intentional infringement of the contract due to reasons within the Seller's control.

 

c)  If delayed deliveries due to reasons within the Seller's control are based on culpable infringement of essential contract obligations, whereby a fault by the Seller's representative of vicarious agent has to be ascribed to the Seller, the Seller shall be liable on the basis of legal requirements on the proviso that in this case liability for damages is limited to foreseeable damages which may typically result. Essential contract obligations are such obligations where fulfilment is necessary for the ordinary execution of the contract, whose infringement puts the achievement of the contract purpose at risk and where Purchasers reasonably trust or may trust that these obligations are met. Therefore, essential contract obligations consist in particular of the obligation to deliver the delivery item on time and free of considerable damages, as well as consultancy, protection and custody obligations, intended to enable Purchasers to use the delivery item according to the contract or to protect life and limb of the customers' staff or the customers' property from considerable damages.

 

d)  Any further liability for delayed deliveries due to reasons within the Seller's control is excluded. however, the Purchasers' legal claims and rights which they are entitled to in addition to the claim for damages on the grounds of delayed deliveries due to reasons within the Seller's control remain unaffected, see in particular regulations regarding liability under Paragraph X "Liability for damages on the grounds of fault", contained in the General Terms and Conditions at hand. However, the restrictions mentioned above do not apply to the Seller's liability on the grounds of intentional or grossly negligent behaviour, or on the grounds of guaranteed characteristics of state, damages to life, body or health or to liability according to the product liability law.

  

8. If Purchaser defaults, the Seller shall have the right to request damage compensation and possible additional expenses. The same applies if Purchasers culpably infringe the obligation to collaborate. Upon fulfilment of the default of acceptance, the risk of accidental deterioration and of accidental loss is transferred to the Purchasers.

 

9. The Seller reserves the right to construction and design changes to the prototypes within the delivery period, on the condition that objects of purchase and their design do not undergo substantial changes.

 

10. Details contained in the description of performances, weights, operating costs, speeds and so on are to be considered as approximate values. No rights shall be derived from symbols or numbers the Seller uses to denominate orders and ordered objects of purchase.

 

 

 

V. Interruption of delivery

 

1. In case of force majeure, industrial dispute measures or other business interruptions for reasons beyond the Seller's control, which lasted or will presumably last for more than a week (for example difficulties in the field of material or energy procurement, transport delays, lack of energy of raw materials, difficulties with the application for required authority approvals, authority measures or failed, incorrect or untimely deliveries by suppliers, all of which is out of the Seller's control), the delivery period, as well as the term of acceptance is prolonged by the period of the problems, however, only to a maximum of five weeks plus the period for subsequent performance. A prolongation only applies if the other party is immediately informed about the reason for the problems, at the time when it is foreseeable that the agreed terms cannot be met.

 

2. If the delivery or acceptance is delayed, the other party to the contract shall be entitled to withdraw from the contract after a reasonable term for subsequent performance is set. However, the withdrawing party shall inform the other party about the execution of the right to withdrawal at least two weeks in advance.

 

3. If the other party, upon its request, was not immediately informed about the fact that goods were not delivered and correspondingly accepted on time, and if the obstruction lasted for more than five weeks, the other party to the contract shall be entitled to immediate withdrawal.

 

4. Damage compensation is excluded in the cases under Paragraph V. Section 1. If the relevant party to the contract meets its obligations according to Sections 1.  to 3.

 

 

 

VI. Place of fulfilment, delivery, packaging, transfer of risks, insurance

 

1. If nothing else is agreed on, the place of fulfilment for all obligations on this contractual relationship shall be the place of the trading branch office of Kurt Willig GmbH & Co. KG.

 

2. Delivery and packaging types are subjected to Kurt Willig GmbH & Co. KG's dutiful discretion, unless the customer issues any special instructions as to the delivery.

 

3. Without prejudice to deviating agreements, the risk is passed on to Purchasers at the latest upon handing over the delivery item (the beginning of the loading shall be decisive) to haulage contractors, carriers or any other third party in charge of the delivery. This also applies in case of deliveries by instalments or if Kurt Willig GmbH & Co. KG assumed additional performances (such as shipments). If delivery or handing over is delayed due to a reason within the Purchaser's control, risk is passed on to customers on the day when Kurt Willig GmbH & Co. KG is ready for delivery and communicates this to the Purchasers.

 

4. Deliveries are generally performed without insurance cover and shipments are only insured by Kurt Willig GmbH & Co. KG against theft, breakage, transport, fire and water damages or any other insurable risk if customers expressly request this and on the customers' own expenses.

 

 

 

VII. Offsets, right to retention and to refuse performance, restraint of assignment

 

1. Customers shall have the right to offsets with the Seller's claims or to an assertion of the right to retention or to refuse performance only on the grounds of their own claims which are indisputable or which were established as final and absolute or which are ready for judgement.

 

2. Purchasers shall be entitled to a right to retention only if their counterclaims are based on the same contractual relationship.

 

3. The Seller shall be entitled to execute or perform pending deliveries or performances requesting advance payments or security deposits if they, after the contract was concluded, become acquainted with circumstances which could substantially deteriorate the customers' creditworthiness and by which payment of debts receivable by the customers, payable to WILLIG GmbH & Co. KG under the same contractual relationship (including other individual orders to which the same framework agreement applies), is put at risk.

 

4. The Purchasers' claims under the contract may not be ceded.

 

 

 

VIII. Reservation of ownership, duty to insure retained goods, sale etc.

 

1. Until all debts receivable resulting from deliveries of goods under the entire business relationship are paid (including claims for payment resulting from current account balances and accessory claims, claims for damages and from honouring cheques and promissory notes), goods remain the property of Kurt Willig GmbH & Co. KG. Reservation of ownership also continues to exist if single claims are added to a current invoice by Kurt Willig GmbH & Co. KG and if the balance is struck and confirmed.

 

2. Customers shall keep retained goods for Kurt Willig GmbH & Co. KG free of charge. They are obligated to insure them against usual risks (such as fire, theft, water etc.) to the common extent. Customers hereby cede their claims for damages to Kurt Willig GmbH & Co. KG. They do so to the amount of the invoice value to which they are entitled to against insurance companies or any other party liable in case of damages of the type mentioned above.  Kurt Willig GmbH & Co. KG shall accept this cession.

 

3. Purchasers are obligated to keep the object of purchase in an proper state during the reservation of ownership period and to have all repairs, which become necessary, immediately executed in the Seller's repair workshops or in an authorised repair workshop of the supplier. Purchasers shall not be entitled to agree on a contractual lien with repair workshops on the objects of purchase.

 

4. During reservation of ownership periods, a comprehensive insurance coverage shall be contracted for retained goods upon the Seller's request, on the condition that the Seller is entitled to the rights under comprehensive coverage. Purchasers may select an insurance company of their choice; they may avail themselves of an agent of their choice when contracting the insurance. The Seller shall have the right to receive the common insurance certificate and the right to declare towards the Seller to intend to pay the insurance premiums during the reservation of ownership period in advance and to invoice them at the time when instalments for the repayment are collected. Insurance premiums which the Purchasers pay in arrears may be, without further ado, paid in advance and collected. If Purchasers do not provide evidence for the existence of insurance cover by providing an insurance certificate upon handing over the objects of purchase at the latest, the Seller shall have the right, on their own account, to contract insurance cover at the Purchasers' expense and to apply for the insurance certificate. Allowances, insurance premiums and so on shall be considered to be part of the purchase price. The insurance benefits shall be used in their entirety to repair the acquired vehicle. In case of total losses, insurance benefits have to be used to pay off the remaining purchase price. Purchasers are entitled to surplus amounts.

 

5. Until enforcement events occur, Purchasers shall have the right to sell and / or use retained goods within ordinary business transactions, on the condition that they are not in arrears and that their financial circumstances do not sustainably deteriorate. Pledges and assignments as securities shall not be admissible.

 

6. By way of security, Purchasers immediately and in their entirety assign all debts receivable resulting from resale or any other legal foundation (insurance, tortious acts) regarding retained goods (including all claims for payment of current account balances) to Kurt Willig GmbH & Co. KG; the Seller hereby accepts the assignment. Until revoked, the Seller authorises Purchasers to collect debts receivable which were assigned to the Seller on the Purchasers' expense and in their own name. If customers are in arrears or if the customers' financial circumstances considerably deteriorate, the direct debit authorisation expires. In this case, Purchasers hereby authorise Kurt Willig GmbH & Co. KG to inform customers about the assignment and to collect debts receivable themselves. Purchasers have to give required information and to approve a check of this information in order to claim the assigned debts receivable. In particular; Purchasers shall have to, on Kurt Willig GmbH & Co. KG's request, hand over an exact list stating the debts receivable that they are entitled to, including the customers' names and addresses, the amount of each debt receivable, the invoice date and other information.

Purchasers shall not be entitled either to assign these debts receivable for the purpose of collecting such debts receivable by way of factoring. However, they may do so if, at the same time, the factor's obligation to effect a consideration to the Seller is created, to the amount of the debts receivable and for as long as the Seller's debts receivable from Purchasers are still pending.

 

7. If third parties have access to retained goods, especially by way of pledges, Purchasers shall inform them immediately about them being property of Kurt Willig GmbH & Co. KG and shall inform Kurt Willig GmbH & Co. KG about it in order to make the enforcement of property rights possible. If third parties are unable to reimburse relevant judicial or extrajudicial costs to Kurt Willig GmbH & Co. KG, Purchasers shall be liable to Kurt Willig GmbH & Co. KG instead.

 

8.  Upon request, Kurt Willig GmbH & Co. KG shall replevy retained goods, as well as debts in lieu of goods of their own choice, on the condition that this amount does not exceed the total amount of all collateralised debts by more than 10 per cent.

 

9.  If Kurt Willig GmbH & Co. KG, enforcing the right to retain goods, takes back the delivery item, withdrawal from the contract shall only apply in such cases where Kurt Willig GmbH & Co. KG expressly declares to do so. Kurt Willig GmbH & Co. KG shall have the right to satisfaction by sale through private treaties if goods are taken back. After a reasonable amount for exploitation costs is deducted, the exploitation revenue has to be set off against the amounts Purchasers owe to the Seller.

 

10.  Processing, manufacture or alteration of objects of purchase by the customer shall always occur in the name and on account of Kurt Willig GmbH & Co. KG. In this case, the customers' contingent interest in objects of purchase and in altered objects continues to exist. If objects of purchase are processed in combination with other objects which do not belong to Kurt Willig GmbH & Co. KG, Kurt Willig GmbH & Co. KG shall acquire a joint ownership of the new object. This joint ownership shall be based on the ratio of the resource value to the object of purchase sold by Kurt Willig GmbH & Co. KG and the other processed objects at the time of manufacturing. The same shall apply to blending. If blending occurs in a way that the customers' objects have to be considered as main objects, it is considered to be agreed that Purchasers proportionately assign the property to Kurt Willig GmbH & Co. KG in the ratio of the value of the object of purchase to the main object, whereby the invoice amount of the object of purchase shall be decisive, and so that Purchasers store the relevant sole or joint ownership for Kurt Willig GmbH & Co. KG.

 

11.  Kurt Willig GmbH & Co. KG is obligated to replevy securities which they are entitled to on the Purchasers' request, on the condition that this amount exceeds the amount of debts to be collateralised by more than 10 per cent. Kurt Willig GmbH & Co. KG shall have the right to choose the securities to be replevied.

 

 

 

IX. Warranty, examination obligation, liability due to material defects, restraint of assignment of material defects

 

1. The liability period for defects on new objects is one year, beginning upon the delivery of goods or any other transfer of risks. A warranty for used objects shall be excluded.

A reduction of limitation periods does not apply to warranty claims for the purpose of damages payments and those which are based on an intentional or grossly negligent breach of duty by the Seller or on infringement of essential contract obligations (cf. Paragraph IV Section 7), as well as in case of fraudulent concealment of defects or in case of warranty assurance. Legal provisions relating to suspensions of expiries and new beginnings of time limits remain unaffected. A reduction limitation period does not apply either to the Seller's liabilities due to damages to life, body or health or to liability on the basis of product liability law, please also refer to Paragraph X "Liability for damages on the grounds of fault", contained in these General Terms and Conditions. The same applies to infringements by legal representatives or vicarious agents of Kurt Willig GmbH & Co. KG. If material contractual obligations are infringed, liability for simple negligence shall be limited to foreseeable damages which are typically related to the contract.

 

2. Once objects are delivered to customers or third parties nominated by customers, they have to be carefully checked. Delivered objects are considered to be approved by Purchasers, if the Seller does not receive a written notice of apparent defects or other defects which were not detected during an immediate and careful examination, a written notice which was sent immediately after the delivery item was received, or any other notice immediately after the defect was detected or at the time when the defect was recognisable for Purchasers without any further examinations during the normal use of the delivered item.

If customers are businesspersons in terms of Section 1 HBG, the commercial duty to examine and notify a non-conformity on the basis of Section 377 HGB applies to those businesspersons. If the customer fails to perform the duty of notification set out therein, the object of performance shall be considered to be approved.

In case of a legitimate notification of defects / request of subsequent performance, customers have to agree on further steps to be taken with the company Willig, in order to keep costs for subsequent performance as low as possible.

Without prejudice to a timely notification of request, Kurt Willig Gmbh & Co. KG shall have the choice of subsequent performance by rectification or by replacement delivery within a reasonable time limit.

Only if a relevant notification of defect exists and only if Kurt Willig Gmbh & Co. KG so requests, rejected delivery items shall be sent back carriage free to Kurt Willig Gmbh & Co. KG. In all other matters Kurt Willig Gmbh & Co. KG reimburses the costs for the cheapest dispatch route, provided that a notification of defects is legitimate; this does not apply if the costs arise due to the fact that delivery items are in another place than the place of use according to its purpose. If a notification of defect is not legitimate, Purchasers shall bear all delivery costs as well as additional expenses.

 

3. Once processing delivered goods is started, claims regarding unsettled defects shall be excluded.

 

4. Slight and technically unavoidable deviations as to quality, colours, dimensions, weights, equipment or other technical or optical features cannot be rejected if these do not interfere with the intended use and if these are otherwise reasonable to customers.

 

5. If delivered goods show material defects, the Seller shall have the right to rectification or replacement deliveries, cf. also Section 7. If subsequent performance fails, Purchasers shall have the right to reduce the price or to withdraw from the contract. If a defect is based on a Seller's fault, Purchasers shall have the right to request damage compensation only if additional requirements determined under Paragraph X are fulfilled.

 

6. Liability due to material defects does not apply if Purchasers, without the approval of Kurt Willig GmbH & Co.KG, alter or have the delivery item altered by third parties, making a rectification of the defects impossible or unreasonably difficult. In any case, customers shall bear all resulting additional costs for rectifying the defects following an alteration of delivery items.

 

7. If a notification of defects is legitimate, the Seller has the obligation of subsequent performance, unless the Seller has the right to deny subsequent performance on the grounds of legal regulations. For the purpose of subsequent performance, Purchasers have to grant reasonable time to the Seller. At the Seller's own discretion, subsequent performance may occur through the rectification of the defect or the delivery of new goods. The Seller shall bear all necessary costs for rectifying the defects on the condition that these costs do not arise due to the fact that delivery items are in another place than the place of use according to its purpose. The Seller shall have the right to request a lowering of the purchase price (reduction), to declare withdrawal from the contract or to assert claims for damages due to a defect according to the conditions set out below if subsequent performance fails. The Purchasers' right to assert further claims for damages according to the conditions set out below remains unaffected.

 

8. Independent of limitations to liability on the grounds of legal regulations, the Seller is liable for damages to life, body or health, which are based on a negligent or intentional infringement by the Seller, the Seller's legal representatives or vicarious agents, as well as for damages falling under liability according to product liability law. The Seller is liable on the basis of legal regulations for damages which are not encompassed by Sentence 1 and which are based on an intentional or grossly negligent contract infringement, as well as malice on the part of the Seller, the Seller's legal representatives or the vicarious agents.

However, in this case liability for damages compensation is limited to foreseeable damages which may typically may result, unless the Seller, the Seller's legal representatives or vicarious agents acted intentionally. If the Seller declares a guarantee as to the quality / shell life of goods or parts of the goods, the Seller shall be liable under this guarantee to the extent of such guarantee. The Seller shall only be liable for damages based on the lack of quality or shell life guaranteed where such damages are not immediately shown on the goods, if the risk of such damages is apparently encompassed by the quality and shell life guarantee.

 

9. The Seller shall also be liable for damages which the Seller causes by simple negligent infringement of such contractual obligations which are essential and required for the performance of an ordinary fulfilment of the contract and where Purchasers trust and may trust that these obligations are fulfilled. However, the Seller shall only be liable to the extent that damages are typically related to the contract and that they are foreseeable.

In cases where the Seller's liability is excluded or limited, this limitation shall also apply to personal liability of the Seller's personnel, employees, staff, representatives and vicarious agents.

 

10.  The assignment of the customers' defect claims shall be excluded.

 

 

 

X. Liability for damages compensation due to fault

 

1. Liability of Kurt Willig GmbH & Co. KG for damages compensation shall be limited according to the present Paragraph X. if in each case a fault matters and independent of the legal basis, in particular in cases of impossibility of performance, arrears, insufficient or wrong delivery, contractual infringements, infringement of obligations during contract negotiations and tortious acts. However, restrictions under Paragraph X. do not apply to liability of Kurt Willig GmbH & Co. KG on the grounds of an intentional or grossly negligent behaviour, to guaranteed characteristics of state, on the grounds of damages to life, body or health or to liability according to product liability law.

 

2. Kurt Willig GmbH & Co. KG shall not be liable in cases of simple negligence on the condition that this is not an infringement of substantial obligations. Essential contract obligations are such obligations where fulfilment is necessary for the ordinary execution of the contract, where an infringement puts the achievement of the contract purpose at risk and where customers regularly trust that such obligations are fulfilled. In particular the obligation to deliver on time and free of defects, as well as the protection of end consumers, the customer's employees and other third parties from damages to their health caused by delivered goods shall be considered as substantial.

 

3. If Kurt Willig GmbH & Co. KG is liable due to damages compensation on the grounds of an infringement of substantial obligation, this liability shall be limited to such damages which Kurt Willig GmbH & Co. KG at the time of concluding the contract foresaw as possible consequences from an infringement or which, considering the circumstances, Kurt Willig GmbH & Co. KG was or should have been aware of, Kurt Willig GmbH & Co. KG should have foreseen using due diligence. In addition, indirect or subsequent damages resulting from defects shown on delivery goods may only be replaced if such damages are typically to be expected when the delivered goods are used according to their purpose.

 

4. If Kurt Willig GmbH & Co. KG covers the risks which are typical for the contract by personal liability insurance, liability for Kurt Willig GmbH & Co. KG to pay damages shall be limited to the amount of personal liability insurance benefits in cases of liability due to simple negligence; this also applies in cases of infringements of substantial obligations. However, if the insurance company is not liable to pay, Kurt Willig GmbH & Co. KG shall be liable to pay compensations to the amount of the insurance limit if the relevant conditions are fulfilled.

 

5. All exclusions and limitations of liability also apply, to the same extent, in favour of authorities, legal representatives, employees and other vicarious agents of Kurt Willig GmbH & Co. KG.

 

 

 

XI. Amendment of the General Terms and Conditions

 

Kurt Willig GmbH & Co. KG reserves the right to amend its website, as well as these sales conditions at any time. The relevant terms of sale, contractual terms and the General and Conditions which are in effect at the time of the Purchasers' orders apply to the orders, unless an amendment of these conditions is required by law or by authorities.

 

 

 

XII. Written form

 

All declarations affecting the validity of the contractual relationships or the amendment of the contract have to be in writing, excluding post-contractual oral agreements with the Seller's management board. The written form requirement may be rescinded only by a written agreement beween the parties to the contract.

 

 

 

XIII. Final conclusions – Continuation of the contract in case of invalid regulations

 

1. If one of the provisions of this Agreement above is or becomes invalid or unenforceable, that shall not affect the validity of any other provision of this Agreement. The same applies in case that the contract at hand contains omissions.

 

2. If the contract or the General Terms and Conditions at hand contain omissions, such legally valid regulations are considered as agreed for the execution of the contract which the parties to the contract would have agreed on, based on the economic purpose of the contract and the purpose of the General Terms and Conditions, had they been aware of the omission.

 


[1] BGB (Bürgerliches Gesetzbuch) = German Civil Code

[2] HGB (Handelsgesetzbuch) = German Commercial Code

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