General Terms and conditions of Walter Messner GmbH
1. General terms
The following conditions apply exclusively to all commercial translations. By ordering the products, the customer accepts these terms and conditions of business as binding. The terms and conditions of the customer shall only apply if this has been agreed in writing. Our terms and conditions of business shall take precedence in the event of a contradiction with the terms and conditions of the customer, where these have been agreed in writing.
Our conditions of sale only apply towards companies in the sense of §310 para. 1 BGB [German Civil Code].
2. Quotations/contractual conclusion
The presentation of our goods does not constitute a binding offer; our offers are always non-binding. Only once the goods have been ordered by the customer does a binding offer apply in accordance with § 145 BGB. If this offer is accepted then we shall send the customer an order confirmation by email. Only with this action does contractual agreement come into being, and thereby also a contractually binding agreement regarding the individual services. All agreements, understandings and explanations, including those of our representatives, only become effective once we have confirmed these in writing – this does not apply to agreements following contract conclusion.
3. Price and payment
- The list prices at the time of ordering apply, as stipulated on the web pages. In the case of orders below a minimum order value of €30, a processing fee of €10 shall be charged. Our prices apply ex-works, loaded and loose. The statutory VAT is not included in our prices; it is shown separately on the invoice in the statutorily prescribed amount on the day of billing. A charge shall be levied for the packaging. Our quotation prices are based on the production costs for materials and salaries on the date of the quotation. Subject to change.
- Payment must be made in full within 30 days of the invoice date. We grant a 2% early payment discount on payments made within 10 days of the invoice date.
The acceptance of cheques only takes place on condition of fulfilment.
- If we defer payments or the customer makes the payment later than agreed – regardless of the reason for this – then the interim period between the payment falling due and being paid shall be charged at a rate of eight percentage points above the respective valid base rate of interest of the ECB, without notice of default being required. We reserve the right to raise additional claims for damages.
4. Delivery times and replacement deliveries
- Information regarding delivery dates is non-binding, unless the delivery deadline has been agreed as binding in an exceptional case. We endeavour to meet with delivery dates, although we reject all claims that arise due to delayed delivery. Events due to force majeure entitle us to withdraw from the contract, without this providing grounds for claims against us for compensation. Force majeure includes strikes, lockouts and any other circumstances that significantly impede the delivery for us, or make it impossible. This applies regardless of whether the circumstance arises for us or for one of our sub-suppliers.
- We are entitled to deliver goods of equivalent quality and price, if the ordered goods are not available and the customer has declared their consent to this in the order form.
- Part deliveries are fundamentally permissible.
5. Transfer of risk
The risk is transferred to the customer when the goods are handed over to the freight forwarder or courier and no later than upon departure from our factory. This also applies if we agree – in an exceptional case – to freight paid shipping and/or transport by us.
The buyer of our products is the commercial user and undertakes to comply with the stipulations of the “Electrical equipment act” www.stiftung-ear.de and dispose of the products purchased from Walter Messner GmbH at their own costs in accordance with legal regulations.
7. Liability and time limitations
- The customer is obligated to examine all goods supplied by us immediately after receipt. We must be notified of detectable faults, incorrect or short deliveries in writing within 14 days of arrival of the goods at their destination, with a precise description of the suspected fault; otherwise these are deemed to have been accepted.
- No liability shall be accepted for grinding agents that exhibit premature ageing due to their material characteristics and/or the type of use. If we are required to recognised defects, we shall either repair the faulty parts free of charge or supply new ones at our own discretion. Further claims, in particular for compensation due to consequential damages, are excluded. Claims for defects are also excluded if our goods have not been correctly stored and/or treated.
- We shall only be liable for any damages over and above injury to health, life and limb where this is the result of malice or gross negligence, or the culpable infringement of a significant contractual obligation by us or one of our vicarious agents. However, claims for compensation due to the infringement of a significant contractual obligation – unless this arises due to malice or gross negligence, or in the event of injury to health, life and limb – shall be limited to contract-typical and foreseeable damages with a value no more than three times the order value. Any further liability for compensation is excluded. The terms of the product liability law remain unaffected.
- It is not possible to guarantee faultless and/or constantly available data communication via the internet with the current technological status. Therefore, we accept no liability for the constant and uninterrupted availability of our online shop, or for electronic or technical faults during an order process, where we have no influence over this; in particular we accept no liability for the delayed processing or acceptance of orders.
- The time limitation for claims and rights due to defects – regardless of the legal grounds – is one year, starting with the delivery of the goods to the customer. This period also applies to other claims for compensation against us, irrespective of the legal grounds for the claim. It also applies insofar as the claims do not relate to a defect. Para.3 cl. 2 remains unaffected; in cases regulated here and with fraudulently concealment the legal period applies.
8. Retention of title
- Our deliveries take place exclusively with the retention of title. Ownership only passes to the customer once they have settled all of their liabilities to us, regardless of the legal grounds for this – in particular also from the balance of the ongoing account. This also applies if the purchase price for certain goods deliveries has been settled by the customer.
- The customer is only entitled to use the goods supplied by us and still in our ownership insofar as he does not fall into arrears with any liabilities owing to us. It is prohibited to pledge or sell any goods that remain in our ownership. If the customer does sell goods, despite these being in our ownership, he hereby transfers to us all of his rights arising due to the sale.
- Any treatment and/or processing of goods in our ownership by the customer shall take place on behalf of ourselves as the manufacturer (§ 950 BGB), without any obligation arising for us in this regard. If the processing or blending of such goods with other goods results in co-ownership with the customer then he hereby transfer his share of the new objects to us and undertakes to store these for us.
- The customer must inform us with immediate effect of any impairment of our ownership rights by third parties, in particular of pledges and of any damage to goods in our ownership.
We are entitled at any time to demand that any goods in our ownership be returned to us, if the customer falls into arrears with any of their liabilities to us. If we utilise this right then withdrawal from the contract only applies if we expressly state this. Return delivery takes place at the cost and risk of the customer.
- The customer is obligated to sufficiently insure all goods in our ownership against all insurable risks, in particular against fire, piped water damage, theft and break-ins. The costs of intervention – regardless of type – required in order to defend against impairments and access by third parties in relation to goods in our ownership shall be borne by the customer.
- If the value of the securities covering our receivables per the previous clauses should exceed the value of our receivables by more than 50% then we are obligated to release securities, selected at our discretion, on request by the customer.
9. Data protection
We shall store the data required in order to process the transaction. All personal data shall naturally be treated as confidential.
10. Final provisions
- The business relationship between the customer and us shall be subject to German law to the exclusion of the UN Sales Convention and the “unified sale of goods laws”. Place of fulfilment is the location of the head office of Walter Messner GmbH, i.e. Oststeinbek. The place of jurisdiction is agreed as the location of the head office of Walter Messner GmbH, in the event that the customer does not have a domestic place of jurisdiction or is a businessman, legal entity under public law or public-law special fund. The contract language is German.
- If a provision of these general terms and conditions or another contractual condition should be or become ineffective then this shall not affect the remaining provisions. The ineffective provision shall be amicably replaced by the contracting parties with an alternative provision that reflects the economic sense and purpose of the ineffective provision in a legally effective manner insofar as possible. The previous condition also applies to contract loopholes.
- The customer shall be informed in writing of any changes to these terms and conditions of business. These are deemed to have been accepted if the customer does not reject them in writing. We shall expressly point out this circumstance when issuing notification. The customer must send their written rejection to us within four weeks of being informed of the changes.