Terms and Conditions
General Terms and Conditions
F. Willich GmbH + Co. KG (following: F. Willich)
§ 1 Scope of Application
- The following General Terms and Conditions apply – as respectively currently amended at the time of conclusion of the contract – exclusively to the business relationship between F. Willich and its customers. Any deviating terms and conditions by customers shall not be accepted by F. Willich unless F. Willich has agreed expressly and in writing that those deviating terms and conditions should apply.
- The currently valid General Terms and Conditions can be downloaded from www.f-willich.de for inspection.
§ 2 Conclusion of the contract
- Quotations on the part of F. Willich shall always be without engagement and non-binding, as far as no other agreement has expressly been made. They represent only a request for the customer to submit a binding contract offer.
- If F. Willich does not wish to accept the offer of a contract from the customer, F. Willich will inform the customer immediately.
§ 3 Force majeure, right of withdrawal
In cases of force majeure (e.g. war, natural disasters, strike, lockout) which delay or make impossible the on-schedule performance of orders placed, F. Willich shall be entitled to postpone delivery by the duration of such a force majeure prevention, maximally, however, by 2 months. In such cases F. Willich shall also be entitled to withdraw from the contract.
§ 4 Delivery
- Delivery dates shall be binding only if they are confirmed as such in text form expressly and in writing by F. Willich (for example by the addition of “fixed date” or “binding date”).
- In the case of delivery dates that are not designated in text form expressly as “fixed date”, “binding” or with a similar addition in general common use, the customer may set an appropriate grace period for delivery/performance once the scheduled date has been exceeded. F. Willich shall only be deemed to be in default on expiry of such grace period.
- Partial deliveries are permissible to a reasonable extent.
§ 5 Reservation and ownership
- F. Willich reserves the ownership of the items delivered until all payments from the business relationship with the customer have been received.
- In the event of any seizure or other intervention by third parties for subject of delivery under proprietary rights, F. Willich must be informed immediately and in text form by the customer, so that a lawsuit according to Section 771 ZPO (German Code of Civil Procedure) can be filed.
- The customer is entitled to sell on the items delivered in the proper course of business; however, the customer already now assigns to F. Willich any and all accounts payable up to the amount of the final invoice amount (including value-added tax) accruing to him from such resale against his own customers or third parties, irrespective of whether the goods have been resold without or after processing. F. Willich hereby accepts this assignment. Even after any such assignment the customer remains entitled to collect this account payable. F. Willich undertakes not to collect this account payable for as long as the customer complies with its payment obligations arising from the proceeds received, is not in default and, in particular, no application for the opening of insolvency proceedings or a cessation of payments has been made. If the obligation not to collect ceases to exist, F. Willich may demand that the customer makes known the accounts payable assigned and the respective debtors, provides all details required for their collection, hands over the associated documents and informs the debtors of the assignment.
- F. Willich undertakes to release securities due to itself, if so requested by the customer, to the extent that the value of the securities exceeds the accounts payable to be secured by more than 10%; the selection of the securities to be released shall be made by F. Willich.
- In the event of any behaviour of the customer in violation of the contract, in particular in the case of a delay/default in payment, F. Willich is entitled to demand the return of the items delivered within a reasonable period if previously has been declared effectively the rescission of the contract. A withdrawal from the contract shall be declared expressly and in text form by F. Willich.
- In case of F. Willich claims back the object of delivery in acc. to no. 2, the customer is not entitled to any rights of retention.
§ 6 Terms of payment
- The invoices by F. Willich will be issued and dated on the delivery date of the goods and shall be payable on receipt of the invoice and within the term of payment stated on the invoice.
- Bills of exchange, cheques or other promises of payment shall only be deemed to be a payment within the meaning of these terms and conditions after they have been encashed. F. Willich is not obliged to accept bills of exchange.
§ 7 Installation, processing
- The installation of the goods sold by F. Willich must always be performed professionally, and preferably by a specialist workshop.
- Inasmuch as the goods delivered by F. Willich to the customer are further processed by the customer (connection, mixing, assembly etc.), F. Willich shall only be liable for any later defects if the processing effected by the customer had first been declared in writing by F. Willich to be harmless and a defect is found to be due to the goods sold by F. Willich.
§ 8 Complaints and defects
- In case of a commercial purchase, the customer must duly and properly meet his investigation and notification duties in accordance with Section 377 HGB (German Commercial Code). Accordingly, any defects must be notified and complained about in writing within 8 working days following receipt of the goods at the destination or, if these were not recognisable during a properly conducted investigation, within 8 working days after their recognition.
- If the goods supplied by F. Willich show a defect the cause of which was already present at the time of the transfer of risk, the customer – at F. Willich’s option – is entitled to supplementary performance by rectification or a new delivery.
- Any goods replaced become the property of F. Willich and must be returned immediately to F. Willich; there shall be no right of retention.
- Any defects found in part of the goods delivered do not entitle the customer to object to the entire delivery unless the partial delivery is without any interest for the customer.
- In the case of any notice of defects, payments by the customer may only be withheld to an extent that is proportionate to the defects that have occurred. If the notice of defects is not justified, F. Willich will be entitled to demand from the customer the reimbursement of any costs incurred. Any further claims for compensation remain unaffected.
§ 9 Liability for defectes
- If the goods are defective, the statutory regulations apply subject to the following clauses.
- F. Willich is liable without limitation inasmuch as the cause of the damage is based on intent or gross negligence.
- F. Willich is liable also for the slightly negligent violation of essential duties, the violation of which endangers the achievement of the objective of the contract, or for the violation of duties the performance of which only makes possible the due and proper implementation of the contract and where the customer regularly relies on compliance with the same. However, in this case liability is limited to the foreseeable damage typical for such a contract.
- F. Willich is not liable for the slightly negligent violation of any duties other than those mentioned in the above sentences.
- The above limitations of liability do not apply in cases of injury to life, body and health, in case of any defect following acceptance of a guarantee for the properties of the goods, and if defects have been maliciously concealed.
- Liability pursuant to the product liability law remains unaffected.
- Inasmuch as the customer further processes goods sold by F. Willich, Section 7 Clause 2 applies.
§ 10 Offset, right of retention
The customer shall only have an offset right, if his counter-claims which he intends to offset against have been legally established or are uncontested by F. Willich. The customer may only assert a right of retention if his counter-claims are based on the same contractual relationship.
§ 11 Place of jurisdiction, Other, Effectiveness
- If the customer is a merchant within the meaning of Section 1 HGB (German Commercial Code), the place of jurisdiction is the registered office of F. Willich. Furthermore, F. Willich may choose any other legally permissible place of jurisdiction.
- The contract is subject to the law of the Federal Republic of Germany under the exclusion of the UN law on the international sale of goods (CISG).
- Inasmuch as it is necessary for the rendering of the performance to store customer data, F. Willich undertakes to do the same in compliance with the respectively applicable data protection conditions (for this see also privacy statement).
- If individual provisions of the above general terms and conditions are or become ineffective, then this will not affect the validity of the remaining clauses. The parties commit, the invalid provision shall be replaced by a provision which comes closest to the purpose of the invalid provision.