Terms and Conditions

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General Terms and Conditions

 

§ 1 Scope of application

The following provisions apply for the sale of movable goods for consumers (purchase of consumer goods).

§ 2 Shipping costs

The customer usually bears the shipping costs. All prices are quoted ex works (branch office).

§ 3 Delivery time/ partial delivery/ reservation of self-supply

(1) The delivery time is approx. 30 days after conclusion of the contract. 10 days after the non-binding delivery time, the customer may ask WARCO in writing to delivery within a reasonable time; upon receipt of this notice WARCO falls into default.

(2) If reasonable for the customer, partial deliveries are permissible.

(3) WARCO is entitled to withdraw from the contract if WARCO fails to deliver the goods despite the prior conclusion of a corresponding purchase contract; according to § 11 of these conditions, however, WARCO´s responsibility for intent or negligence remains unaffected. WARCO will immediately inform the customer about any delayed availability of the deliverable and may instantly exercise its right of withdrawal if WARCO wishes to do so; in the event of withdrawal WARCO will promptly refund the corresponding compensation to the customer.

§ 4 Costs of the return consignment

(1) If the customer has bought one or more goods from WARCO by means of a distance contract (§ 312 c BGB[German Civil Code]) and the customer exercises his legal right of revocation he has to bear all costs of the return consignment.

(2) The obligation to bear the costs does not apply if the delivered goods do not comply with the order.

§ 5 Time of payment and default

The entire purchase price is due for payment upon delivery. If the customer fails to pay within 14 days after delivery, the customer is in arrears without further notice from WARCO.

§ 6 Right of retention in case of defects

In the case of defects the customer has no right of retention to the extent that the deduction is not proportionate to the defects and the estimated costs of supplementary performance (in particular removal of defects). There is no other restriction to the customer´s right of retention.

§ 7 Maximum compensation (storage charge)

If the default of acceptance by the buyer leads to a delay in delivery the seller may invoice a monthly (or other period of time, if applicable) storage charge of 1%, however, only a maximum of 5% in total. The customer may submit evidence that WARCO suffered from no damages or significantly lower damages. WARCO may submit evidence that a higher damage has incurred.

§ 8 Retention of title

The deliverable remains property of the seller until full payment.

§ 9 Obligation of inspection; costs in case of unjustified complaint

(1) The customer is obliged to notify WARCO in writing about evident defects in quality and title within 14 days after receipt of the goods; submission of a notification within the period mentioned above is sufficient for this purpose. The defects must be described as detailed as possible.

(2) In the event that the customer reports a defect which - as a result of a subsequent review by WARCO - turns out to be non-existent and the customer was aware of the fact that there is no defect at the time of the notification or if he was mistaken about this due to negligence he has to indemnify WARCO for all damages arising herefrom. The customer is entitled to submit evidence that the reported defect exists nevertheless. Subject to the foregoing provisions WARCO is especially entitled to demand compensation for all costs which have incurred to WARCO such as costs for the examination of the goods or the repair requested by the customer.

§ 10 Right of withdrawal

(1) If the delivered goods are defective, the statutory provisions on withdrawal apply.

(2) In all other cases, the customer can only withdraw from the contract in accordance with the statutory provisions if WARCO is responsible for the breach of duty.

(3) In all cases of all breaches of duty, upon request of WARCO, the customer has to declare within a reasonable period of time whether he withdraws from the contract or insists on delivery.

§ 11 General disclaimer

(1) Subject to legal provisions, WARCO is only liable for its own action and the action of a representative or agent in case of intent or gross negligence and for injury of life, body or health caused by slight negligence. Otherwise WARCO is only liable under the German Product Liability Act or culpable violation of essential contractual obligations or if the seller fraudulently concealed the defect or has provided a guarantee for the condition of the deliverable. Liability for the violation of material contractual obligations shall, however, be limited to replacement of damages typical for the contract and foreseeable damages unless one of the events described in sentence 1 or 2 occurs at the same time.

(2) The provisions of the preceding paragraph 1 shall apply to all claims for damages (in particular for damages in addition to performance and damages in lieu of performance), and that for whatever legal reason, in particular due to defects, breach of duties under the contract or tort. They also apply for claims for compensation for fruitless expenditures. The liability for delay shall be governed by § 12 of these conditions, the liability for impossibility according to § 13 of these conditions.

(3) No change of burden of proof to the disadvantage of the Buyer is connected with the preceding provisions.

(4) We are not obliged nor willing to participate in a dispute resolution procedure before a consumer arbitration board.

§ 12 Limitation of liability in case of delay

(1) If the non-compliance of delivery times is caused by force majeure such as mobilisation, war, riot or similar and other events beyond the control of WARCO, for example, strike or lockout, delivery times are extended by the time the described event or its effects continue.

(2) Subject to the statutory provisions, WARCO is liable for its own action and the action of a representative or agent in case of intent or gross negligence and for injury of life, body or health caused by slight negligence. In all other cases of default, WARCO´s liability for compensation in addition to performance is limited to a total of 10 % and for compensation in lieu of performance (including compensation for fruitless expenditures) to a total of 25% of the value of the delivery. Other claims of the customer are excluded - even if a grace period for performance granted to WARCO has expired. This restriction does not apply in case of culpable breach of significant contractual duties. Liability for the violation of material contractual obligations shall, however, be limited to replacement of damages typical for the contract and foreseeable damages unless an event described in sentence 1 or 2 occurs at the same time. The right of the customer to withdraw from this contract according to § 10 of these conditions remains unaffected.

(3) No change of burden of proof to the disadvantage of the Buyer is connected with the preceding provisions.

§ 13 Limitation of liability in case of impossibility

To the extent that the delivery is impossible, WARCO is liable for its own action and the action of a representative or agent in case of intent or gross negligence and for injury of life, body or health caused by slight negligence in accordance with the statutory provisions. In other cases of impossibility, the customer´s claim for compensation in addition and/or in lieu of performance, including compensation for fruitless expenditures, is limited to a total of 25% of the value of the delivery. Other claims of the customer because of impossibility are excluded - even if a grace period for performance granted to WARCO has expired. This restriction does not apply in case of culpable breach of significant contractual duties. Liability for the violation of material contractual obligations shall, however, be limited to replacement of damages typical for the contract and foreseeable damages unless an event described in sentence 1 occurs at the same time. The right of the customer to withdraw from the contract according to § 10 of these conditions remains unaffected. No change of burden of proof to the disadvantage of the Buyer is connected with the preceding provisions.

§ 14 Limitation period

(1) If the deliverable is a used product, the limitation period for claims for damages because of defects - for whatever legal reason - is six months; for all other claims and rights due to defects the limitation period is one year. If the deliverable is a new or newly produced product the limitation period for claims for damages - for whatever legal reason - is one year.

(2) The applicable limitation periods to file claims for damages pursuant to section 1 also apply for other claims for damages against WARCO, irrespective of their legal basis. They also apply if the claims are not related to any defect.

(3) The above limitation periods, however, do not apply:

a) in case of intent or fraudulent concealment of any defect or to the extent that WARCO has provided any guarantees in respect to the condition of the deliverable;

b) if the purchase object is a building or a product which is usually used for a building and causes the defectiveness of it or - to the extent that the right in rem of a third party is affected – due to which the surrender of the purchase object can be requested;

c ) for claims for damages in case of grossly negligent breach of duty, in case of any culpable material breach of contract which does not derive from a delivery of a defective product, in cases of a culpably caused injury to life, body or health or claims under the Product Liability Act. The limitation periods also apply for claims for compensation of fruitless expenditures.

(4) The limitation period for all claims for damages begins upon delivery.

(5) Unless otherwise expressly determined, the legal regulations about the beginning of the limitation period, suspension of expiry, suspension and renewal of limitation periods remain unaffected.

(6) No change of burden of proof to the disadvantage of the Buyer is connected with the preceding provisions.

§ 15 General conditions

(1) The customer may only offset against counterclaims that are either uncontested or have been recognised by declaratory judgement.

(2) If the customer has no address or domicile in the Federal Republic of Germany, the registered office of WARCO is not exclusive place of jurisdiction. Exclusive places of jurisdiction, for example, for court collection proceedings, remain unaffected.