General catalog WGB tools 2019 Page 381
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ted product as for the goods delivered subject to reservation of title. (b) As a security, the Buyer hereby assigns us all claims against third parties arising from the resale of the goods or the product in their entirety or in the amount of our co-ownership share according to the previous paragraph. We accept the assignment. The Buyer's obligations outlined in Paragraph 2 also apply with respect to the assigned claims. (c) We and the Buyer are entitled to collect the claim. We agree to not collect the claim as long as the Buyer fulfils his payment obligations to us, does not enter into default of payment, no applications are filed to initiate insolvency proceedings and there are no other defects in the Buyer's ability to perform. However, if this is the case, we may request that the Buyer give us notice of the assigned claims and their debtors and for the Buyer to make all statements necessary for collection, hand over the accompanying documents and inform the debtors (third parties) of this assignment. (d) If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the Buyer's request. Section 7 Defect claims of the Buyer 1. The statutory provisions apply concerning the Buyer's rights in case of material and legal defects (including wrong delivery and short delivery, improper assembly or inadequate assembly instructions), unless otherwise stipulated in the following. In any case, the special statutory regulations concerning end delivery of the goods to a consumer (supplier recourse pursuant to Sections 478, 479 BGB) remain unaffected. 2. The basis of our liability for defects is primarily the agreement concerning the quality of the goods. All product descriptions that are the subject of the individual contracts shall be deemed agreements concerning the quality of the goods, irrespective of whether the product description originates from the Buyer, from the manufacturer or from us. 3. If there are no agreements concerning quality, the statutory regulations must be used to assess whether or not a defect is present (Section 434 (1) Sentence 2 and 3 BGB). However, we accept no liability for public statements of the manufacturer or other third parties (for instance, advertising messages). 4. The Buyer's defect claims will not be accepted unless he has fulfilled his statutory obligations to examine and notify of defects (Sections 377, 381 HGB). If a defect is detected during the examination or later, we must be informed in writing in a timely fashion. Notification is considered timely if it occurs within two weeks, whereby sending the notification on time is sufficient for meeting the deadline. Independently of this obligation to examine and notify of defects, the buyer must report evident defects (including wrong and short delivery) within a period of two weeks after delivery, whereby sending the notification on time is sufficient for meeting the deadline here as well. If the Buyer fails to perform proper examination and/or notification of defects, we are not liable for defects that were not reported. 5. If the delivered goods are defective, we may first choose whether to provide subsequent performance by eliminating the defect (repair) or by delivering non-defective goods (replacement). Our right to reject the chosen method of subsequent performance under the statutory provisions remains unaffected. 6. We are entitled to make our subsequent performance conditional on the Buyer's payment of the purchase price owed. However, the Buyer is entitled to withhold an appropriate part of the purchase price in proportion to the defect. 7. The Buyer must allow us the necessary time and opportunity for the subsequent performance owed, and in particular must hand over the defective goods for inspection purposes. In case of replacement, the Buyer must return the defective goods to us according to the statutory provisions 8. We will bear the expenses required for inspection and subsequent performance, in particular transport, route, labour and material costs if a defect actually exists. However, if the Buyer's request to eliminate defects proves to be unjustified, we can demand that the Buyer reimburse us for the costs incurred as a result. 9. In urgent cases, for instance endangerment to operational safety or to prevent disproportionate damages, the Buyer has the right to eliminate the defect himself and to request reimbursement from us for the expenses that are objectively required. We must be informed of this type of self-performance promptly, in advance where possible. The right to self-performance does not apply if we would be entitled to refuse the subsequent performance in question according to the statutory provisions. 10. If subsequent performance is not successful or the appropriate deadline set by the Buyer for subsequent performance has elapsed unsuccessfully or if this deadline is not required according to the statutory provisions, the Buyer may withdraw from the purchase agreement or reduce the purchase price. In case of insignificant defects, however, there is no right of withdrawal. 11. The Buyer's claims to damages or reimbursement of futile expenses only apply in line with Section 8 and are otherwise excluded. Section 8 Other liability 1. Unless otherwise stipulated by these Terms including the following provisions, we shall be liable in case of infringement of contractual and noncontractual obligations according to the relevant statutory regulations. 2. We shall be liable for damages, regardless of the legal reason, in cases of willful intent and gross negligence. We shall only be liable for simple negligence a) for damages resulting from injury to life, body or health, b) for damages resulting from infringement of a cardinal contractual duty (obligations which must be fulfilled to allow proper performance of the contract and for which the contractual partner regularly can and does rely on compliance); in this case, our liability is restricted to compensation for foreseeable, typically occurring damages. 3. The limitations of liability resulting from Paragraph 2 shall not apply insofar as we maliciously conceal a defect or if we have issued a guarantee concerning the quality of the goods. The same applies for the Buyer's claims according to the Product Liability Act [Produkthaftungsgesetz]. 4. The Buyer may only withdraw or terminate the contract due to a breach of duty that does not involve a defect if we are responsible for the breach of duty. A free right of termination for the Buyer (in particular in accordance with Sections 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply. Section 9 Limitation 1. By way of abrogation from Section 438 (1) No. 3 BGB, the general period of limitation for claims owing to material and legal defects is one year after delivery. Where acceptance has been agreed upon, the period of limitation starts upon acceptance. 2. The above limitation period under commercial law also applies for the Buyer's contractual and non-contractual damage claims based on a defect in the goods, unless the application of regular statutory limitation periods (Sections 195, 199 BGB) would lead to a shorter limitation period in the individual case. The limitation periods under the Product Liability Act remain unaffected in any case. Otherwise, the statutory limitation periods apply exclusively for the Buyer's damage claims in accordance with Section 8. Section 10 Choice of law and place of jurisdiction 1. For these terms and all legal relations between us and the Buyer, the laws of the Federal Republic of Germany apply to the exclusion of all international and supra-national (contractual) legal systems, in particular the UN Contract on the International Sale of Goods. In contrast, the prerequisites and effects of the reservation of title according to Section 6 are subject to the laws of the respective storage location for the goods insofar as the choice of law made in favour of German law is inadmissible or invalid. 2. If the Buyer is an entrepreneur within the meaning of the Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction – even internationally – for all disputes arising directly or indirectly from this contractual relationship is our registered office in Breckerfeld. However, we are also entitled to file suite at the Buyer's general place of jurisdiction. Breckerfeld, 01 May 2020
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