General Terms and Conditions of Business of walther design GmbH & Co. KG
1. Scope of Application
1. 1 The following General Terms and Conditions of Business in the version valid at the time of order shall exclusively apply for the business relationship between the Purchaser and walther design GmbH & Co. KG (hereinafter: “walther design”). walther design shall strictly not recognise terms and conditions of the Purchaser that deviat herefrom, unless they are expressly recognised in written form.
1. 2 The following General Terms and Conditions of Business shall only apply for the business relationship between the Purchaser and walther design when the Purchaser is a commercially trading natural or legal entity and the order is made within the framework of this commercial activity. walther design shall sell their Goods exclusively to such commercially trading Purchasers. The Purchaser shall ensure that this is applicable to him. Inasmuch as a Purchaser makes an order under the pretence of an alleged – actually non-existent – commercial activity, walther design shall have the right to cancel the order. The Purchaser’s commercial activity is a required condition of wather design for effectively concluding a Contract.
2. Concluding a Contract
2. 1 The order of Goods made by telephone or in writing by the Purchaser shall represent the offer to walther design upon conclusion of a corresponding Purchase Contract.
2. 2 walther design shall accept the Purchaser’s offer of contract by dispatching the ordered Goods to the Purchaser. The Contract between walther design and the Purchaser shall only be concluded with the dispatching of the Goods. walther design shall send the Purchaser a written order confirmation in advance. Should individual products of the order not be listed in the order confirmation and are also not dispatched, no Purchase Contract concerning these shall be concluded between the Parties. The requirement of an order confirmation from walther design may be disregarded in individual cases with the permission of the Purchaser.
2. 3 walther design shall send a written invoice with the Goods to the Purchaser, from which the amount to be paid by the Purchaser, if necessary the value added tax and any further required payments result.
2. 4 The Purchaser may not deduce any claims against walther design from the event that walther design possible does not have the specified products in stock at the specified times and are therefore unable to send them.
3. 1 Unless otherwise expressly agreed between the Parties, the Goods shall be delivered from the walther design warehouse to the address stated by the Purchaser. If the order price amounts to more than €250.00 for customers from Germany walther design shall assume the costs for the packaging and dispatch. walther design shall choose the dispatch method and, if necessary, the carrier. If applicable, walther design shall inform the Purchaser of the packing and dispatch costs to be borne by the Purchaser (orders under € 250.00) in the individual case. In order values of € 2,500.00 and above for customers from outsideof Germany, walther design shall deliver these against advance payment from the walther design warehouse to the address provided by thePurchaser unless otherwise expressly agreed between the Parties.
3. 2 walther design shall be authorised to divide the orders into part deliveries.
3. 3 All information on the walther design homepage or in the walther design catalogues regarding the availability, dispatch or delivery of products are approximate guides and represent no binding delivery promises or dates on the part of walther design. Should walther design establish after receiving an order that the order product is not or is not immediately available, walther design shall inform the Purchaser of this within the framework of the order confirmation. walther design shall not be obligated to carry out the delivery if by way of exception the delivery of a product has been firmly promised and the product is nevertheless unavailable without this being the walther design’s fault (e.g. Supplier’s fault). walther design shall immediately inform the Purchaser in this case.
3. 4 If a delivery to the Purchaser is not possible and this is his own fault (not found at the stated address despite prior delivery advice note) the Purchaser shall bear the costs of the unsuccessful delivery attempt.
3. 5 There is a minimum order value of € 175.00 after tax. For the case that walther design voluntarily accepts an order that is less than the minimum order value or under the respectively state d minimum order amounts,the Purchaser must also pay the processing costs along with the packaging and dispatch costs. For this purpose the Purchaser shall be charged for the expenses in the amount of € 9.50 per order.
4. Transport, Transfer of Risk
4. 1 The danger of the destruction of or damage to the ordered Goods shall be transferred to the Purchaser at the moment when walther design gives the Goods over to the carrier. From this moment on the Purchaser shall remain obligated to pay for the Goods even if they are destroyed or damaged. This shall also apply if the Goods are accidentally destroyed or damaged. This shall not apply if walther design has caused the destruction of or damage to the ordered Goods through gross negligence or intentionally.
4. 2 In order to secure possible damage claims against the carrier the Purchaser must immediately inspect the Goods for external transport damage or shortages upon receipt. He must note damage events on the consignment note and immediately notify walther design via fax/email. If the Purchaser negligently fails to carry out the required actions to secure damage claims against the carrier, any possible claims that he possibly could have raised against walther design in connection with this shall be cancelled.
5. Payment, Default
5. 1 The Purchaser must settle amounts invoiced by walther design within a payment target of 30 days.
5. 2 walther design shall grant a discount in the amount of 2% if the invoice amount is paid in cash within the first 14 days from the invoice date. walther design shall grant a discount of 3% if the invoice amount is paid by direct debit within the first 10 days after the invoice date.
5. 3 walther design shall only accept change within the framework of a separate agreement. The Purchaser shall have no claim to this.
5. 4 If the invoice amount is not paid within the payment target the Purchaser shall be in default. The Purchaser must pay interest of walther design’s claims in accordance with legal regulations.
6. Rights arising from product defects
6. 1 The Purchaser must carefully and immediately inspect each delivery of Goods for possible defects. The Purchaser must contest visible defects or shortages to walther design within a period of 8 days from arrival of the Goods in text format and providing the delivery note and the invoice. If the Purchaser breaches their obligation to contest, the delivery shall be considered approved and the Purchaser may make no claims because of visible defects or shortages. The Purchaser must provide evidence for the existence and punctual receipt of the notice of defects.
6. 2 The Purchaser must contest concealed defects to walther design immediately after their discovery in accordance with Clause 6.1. Otherwise his defect claims shall be cancelled in accordance with Clause 6.1.
6. 3 Clauses 6.1 and 6.2 shall not apply in the event that walther design has fraudulently concealed the defect from the Purchaser.
6. 4 Only the Purchaser himself may make defect claims against walther design. This may not be transferred to third parties.
6. 5 If Goods must be returned to walther design the Purchaser must first consult with walther design and observe the instructions for return.
7. Reservation of Ownership
7. 1 walther design reserves the right to the ownership of the delivered Goods until all claims resulting from the business relationship, including any change by the Purchaser, have been fully paid
7. 2 The Purchaser may still sell goods that fall under this reservation of ownership to third parties. Claims that arise from this resale shall be transferred to walther design who shall accept this transfer. In the case that the value of claims resulting from such actions exceeds the value of walther design’s claim against the Purchaser resulting from the delivery by more than 20% (over-collateralisation), the Purchaser must announce this to walther design. This then releases the over-collateralised portion of the claim. The Purchaser shall be required to make a statement and provide evidence for the presence and amount of the over-collateralisation.
7. 3 The Purchaser shall be obligated to make each third party that could have a claim of any kind in this context aware of the existing reservation of ownership.
8. Offsetting, Right of Retention
8. 1 The Purchaser shall only have the right of offsetting if his counterclaims are determined without further legal recourse or if they are not contested by walther design.
8. 2 The Purchaser shall only then be entitled to exercise his right of retention if his counterclaims are based on the same legal relationship.
9. 1 German substantive law shall apply exclusively for the Contract between walther design and the Purchaser. The application of CISG shall be excluded. INCOTERMS shall be separately agreed between the Parties in writing in order to effectively become components of the Contract.
9. 2 The place of fulfilment for goods deliveries and goods returns shall be the walther design shipping office. The place of fulfilment for the Purchaser’s payments shall be the head office of walther design GmbH & Co. KG in Nettetal. The place of jurisdiction is agreed to be Nettetal for all legal proceedings relating to this Contract between walther design and the Purchaser insofar as legally possible.
9. 3 If walther design delivers abroad at the request of the Purchaser, the Purchaser must learn and observe existing export provisions and restrictions. If the Goods are dispatched duty unpaid at the request of the Purchaser, the Purchaser shall be liable for any claims from the customs authorities and shall release walther design, if necessary, from these claims with regard to their internal relationship.
Valid from October 2014 (version 1.1)