General Conditions of Sale

§ 1 Scope, Form

(1) The present general conditions of sale (AVB) are applicable to all our
business relationships with our customers (“Buyers”). The AVB apply only if the Buyer is an entrepreneur (§ 14 German Civil Code (BGB)), a legal entity under public law or a special asset under public law.

(2) The AVB especially apply for contracts on the sale and/or the delivery of movable things (“goods”), without considering whether we produce the goods ourselves or purchase them from suppliers (§§ 433, 651 BGB). Unless otherwise agreed, the AVB valid at the time of ordering by the Buyer or in any case, in the version communicated to him most recently in text form as a framework agreement applies even for similar future contracts , without us having to refer to it again in each and every case.

(3) Our AVB apply exclusively. Differing, contradictory or supplementary general terms and conditions of the Buyer are a part of the contract only when, and to the extent that we have expressly consented to their applicability. This requirement of consent applies in any case, for example, even if we unconditionally make the delivery while knowing the AGB (General Terms and Conditions) of the Buyer.

(4) Individual agreements with the Buyer made in isolated cases (including collateral agreements, additions and changes) always have precedence over this AVB. For the content of such agreements, subject to counterevidence, a written contract or our written confirmation is decisive.

(5) Legally relevant declarations and notifications of the Buyer in relation to the contract (e.g. deadline, notice of defects, cancellation or reduction), should be submitted in writing, i.e. in written or text form (e.g. letter, email, fax). Legal formalities and other proofs, especially in the event of doubts about the legitimation of the declaring party remain unchanged.

(6) References to the validity of legal provisions only have clarifying significance. Therefore, the legal provisions apply even without such a clarification, provided they are not directly amended or expressly excluded in this AVB.

§ 2 Conclusion of Contract

(1) Our offers are subject to change and non-binding. This also applies if we have let the Buyer have catalogues, technical documentations (e.g. drawings, plans, computations, calculations, references to DIN standards), other product descriptions or documents – even in electronic format, to which we reserve property rights and copyrights.

(2) The ordering of goods by the Buyer applies as a binding contractual offer. Unless stipulated otherwise in the purchase order, we are authorised to accept this contractual offer within 2 weeks after our receipt of it.

(3) The acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.

§ 3 Deadline of Delivery and Delay in Delivery

(1) The deadline of delivery is individually agreed or given by us at the time of accepting the purchase order. If this is not the case, the delivery deadline is approx. 4 weeks from conclusion of contract.

(2) If we cannot meet the binding delivery deadlines for reasons for which we are not responsible (non-availability of service), we will immediately inform the Buyer in this regard and simultaneously communicate the new expected delivery deadline. If the service is not available even within the new delivery deadline, we are authorised to withdraw fully or partially from the contract; we shall immediately reimburse the Buyer for any consideration already provided. In this sense the non-availability of the service, in particular, the late delivery to us by our supplier, if we have concluded a congruent covering transaction, is a situation that neither we nor our suppliers are to blame for or we are not obligated for purchasing in individual cases.

(3) The onset of our delay in delivery is determined in accordance with the legal provisions. In any case, however, a reminder by the Buyer is required. If we fall into delivery delay, then the Buyer can demand a lump-sum compensation of his loss due to delay. The lump-sum compensations amounts to 0.5% of the net price (delivery value) per completed calendar week of delay, to a maximum total of 5% of the delivery value of the delayed supplied good. We reserve the right to prove that the Buyer suffered no loss at all or only a significantly lower loss than the present lump-sums.

(4) The rights of the Buyer as per § 8 of this AVB and our legal rights, especially in an exclusion of the service obligation (e.g. due to impossibility or unreasonableness of the service and/or retrospective fulfilment), remain unchanged.

§ 4 Delivery, Transfer of Risk, Approval, Default of Acceptance

(1) The delivery is ex stock, which is also the place of fulfilment for the delivery and any retrospective fulfilment. At the request and costs of the Buyer, the goods are also sent to another destination (sales shipment). Unless otherwise agreed, we are authorised to decide the type of shipment (particularly, transportation company, dispatch route, packaging) on our own.

(2) The risk of accidental loss and accidental deterioration of the goods passes over at the latest with the handover to the Buyer. For sales shipment, however, the risk of accidental loss and the accidental deterioration of the goods and the risk of delay already passes over with the dispatch of the goods to the freight forwarder, carrier or the person or institution otherwise decided for the execution of the shipment. As long as an approval procedure is agreed, it is authoritative for the transfer of risk. The legal provisions of the law on work contracts shall also apply analogously in other respects for an agreed approval. If the Buyer is in default of the acceptance, the handover or approval is deemed as given.

(3) If the Buyer is in default of acceptance, he refrains from cooperation or delays our delivery for other reasons for which the Buyer is responsible, then we are entitled to demand compensation for the loss resulting from it, including additional expenditures (e.g. storage costs). We calculate lump sum compensation in the amount of EUR 75.- per calendar day for this, beginning with the delivery deadline or – in the absence of a delivery deadline – with the communication of readiness of the goods for dispatch.

The proof of a greater loss and our legal claims (especially reimbursement of additional expenditures, reasonable compensation, and notice of cancellation) remain unchanged; but the lump sum should be credited against the further monetary claims. The Buyer is allowed to prove that we suffered no loss or only a significantly lower loss than the present lump-sums.

§ 5 Prices and Terms of Payment

(1) Unless otherwise agreed in individual cases, our respective latest prices at the time of
conclusion of contract, and in fact ex stock plus statutory value added tax are applicable.

(2) In case of sales shipment (§ 4 Para 1), the Buyer bears the transport costs ex stock and where applicable, the costs of transport insurance requested by the Buyer. As long as we do not charge the actual transportation costs incurred in the individual case, a lump-sum transport cost is (exclusive of transport insurance), amounting to EUR ... applies as agreed. Any customs duties, fees, taxes and other public charges are borne by the Buyer.

(3) The purchase price is due and must be paid within 14 days from invoicing and delivery or approval of the goods. Nevertheless, we are entitled at any time, even in the scope of an ongoing business relationship to execute a delivery fully or partly only against advanced payment. We will declare a corresponding reservation at the latest with the order confirmation.

(4) If the aforementioned payment period lapses, the Buyer is in default. Interest should be paid on the purchase price during the delay at the applicable statutory default interest rate. We reserve the right to assert claim of further default damage. Our claim to the commercial interest on maturity (§ 353 German Commercial Code (HGB)) with respect to the businessmen remains unaffected.

(5) The Buyer is entitled to the rights to offsetting or retention only inasmuch as his claim is legally established or indisputable. In case of defects in the shipment, the Buyer’s reciprocal rights, especially as per § 7 Para 6 Clause 2 of this AVB remain unaffected.

(6) If it is perceived after the conclusion of the contract (e.g. by an application for opening insolvency proceedings), that our claim to the purchase price is at risk due to lack of payment capacity of the Buyer, then we are entitled to rescind from the contract (§ 321 BGB) under the legal provisions for refusal of payment and – where applicable, after setting a deadline. In contracts for the manufacture of non-substitutable goods (custom-made products), we can declare the rescission immediately; the legal regulations on the dispensability of the setting of deadline remain unchanged.

§ 6 Retention of Title

(1) Until complete payment of all our present and future claims is made from the purchase contract and an ongoing business relationship (secured claims), we are entitled to the ownership of the sold goods.

(2) The goods under the retention of title may neither be pledged nor transferred as security to third parties before the full payment of the secured claims. The Buyer has to notify us immediately in writing if an order for opening insolvency proceedings is placed or if third parties access (e.g. seizures) the goods belonging to us.

(3) In case of the Buyer’s behaviour contrary to the contract, especially in case of non-payment of the due purchase price, we are authorised under the legal provisions to withdraw from the contract or/and to demand the surrender of goods on the grounds of retention of title. The demand for surrender does not concurrently include the declaration of the rescission; rather, we shall be entitled to demand only the surrender of goods and to reserve our right to rescission. If the Buyer does not pay the purchase price due, we may assert this right only if we have unsuccessfully set the Buyer a reasonable term for payment before, or such a setting of a term is unnecessary under the legal provisions.

(4) The Buyer is authorised up to the withdrawal as per (c) below to re-sell and/or process the goods subject to retention of title in the orderly course of business. In this case, the following provisions also apply.

(a) The retention of title extends to cover the full value of the products emerging from processing, mixing or combination of our goods, where we are considered as manufacturer. If the ownership right of a third party remains in existence during the processing, mixing or combination with their goods, we shall gain co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. Otherwise the same rules apply for the resulting product as to the goods delivered under the retention of title.

(b) The claims against third parties arising from the resale of goods or the products are already now assigned to us as security by the Buyers in total or rather in the amount of our potential share of co-ownership as per the preceding paragraph. We shall accept the assignment. The Buyer’s obligations named in Para 2 also apply in consideration of the assigned claims.

(c) The Buyer remains authorised to collect the claim alongside us. We commit to not collect the claim as long as the Buyer complies with his payment obligations to us, there is no lack in his payment capacity and we do not assert the claim to retention of title by exercising a right as per Para 3. However, if that is the case, we can demand that the Buyer discloses to us the assigned claims and their debtor, gives us all the details required for the collection, turns over the associated documents and communicates the assignment to the debtor (third party). Otherwise, we are entitled in this case to revoke the authority of the Buyer to further disposal and processing of the goods subject to retention of title.

(d) If the realisable value of the securities exceeds our claims by more than 10%, upon the request of the customer, we shall release the securities by our choice.

§ 7 Buyer’s Claims for Defects

(1) The legal provisions apply for the rights of the Buyer in case of defects in goods and title (including incorrect and short deliveries as well as improper installation or insufficient installation instructions), unless specified otherwise below. In all cases, the legal special regulations remain unchanged upon final delivery of the unprocessed goods to a consumer, even if he has processed it further (Supplier regress as per §§ 478 BGB). Claims from supplier regress are excluded if the defective goods were further processed by the Buyer or another entrepreneur, e.g. by integrations in another product.

(2) The basis of our warranty for defects is primarily the agreement made about the quality of the goods. All product descriptions that are objects of individual contract or were made public by us (particularly in catalogues or on our internet homepage) are considered as agreement on the quality of goods.

(3) If the quality was not agreed, it must be assessed according to the statutory regulations whether there is a defect or not (§ 434 Para 1 Clauses 2 and 3 BGB). We nevertheless do not take any responsibility for the public statements of the manufacturer or other third parties (e.g. advertising statements).

(4) The Buyer’s claims for defect require that he has complied with his legal duties of inspection and notification of defects (§§ 377, 381 HGB). If a defect is apparent at the time of delivery, inspection or at a later point in time, we should be immediately notified about it in writing. In any case, apparent defects must be notified in writing within 5 working days from delivery and the defects not visible in the inspection within the same period starting from their discovery. If the Buyer neglects the proper inspection and/or notification of defects, our liability for the defects that are not notified, or not notified on time or not notified properly is excluded under the legal provisions.

(5) If the delivered object is defective, we can first choose whether we shall provide retrospective fulfilment by remedying the defect (rectification) or by delivery of a good that is free of defect (replacement). Our right to refuse retrospective fulfilment under the statutory conditions remains unaffected.

(6) We are authorised to make the retrospective fulfilment dependent on the payment of the due purchase price by the Buyer. The Buyer is however authorised to withhold a part of the purchase price in proportion to the defect.

(7) The Buyer has to give us the time and opportunity required for the owed retrospective fulfilment, in particular, to hand over the rejected goods for purposes of tests. In case of replacement, the Buyer has to return to us the defective objects under the legal provisions. The retrospective fulfilment includes neither dismantling of the defective object nor the reinstallation, if we were not originally obligated for installation.

(8) We shall reimburse the expenses required for the testing and retrospective fulfilment, especially transport, road, work and material costs as well as possible dismantling and installation costs according to the statutory regulations if a defect is actually present. Otherwise, we can demand to have the costs arising from the unjustified request for the rectification of defects (especially testing and transportation costs) reimbursed from the Buyer, unless, the absence of defectiveness was not identifiable for the customer.

(9) In urgent cases, e.g. when operational safety is endangered or to avert excessive damages, the Buyer has the right to rectify the defect himself and to demand reimbursement from us for the objectively required expenses for it. We must be notified promptly, if possible before the repair, with respect to such a rectification by the buyer. The buyer’s right to rectify does not exist if we would be authorised to refuse corresponding retrospective fulfilment under the legal provisions.

(10) If the retrospective fulfilment has failed or a reasonable term set by the Buyer for the retrospective fulfilment has expired without success or it is dispensable under the legal provisions, the Buyer can withdraw from the purchase contract or reduce the purchase price. However, there the right to withdraw does not exist in case of an insignificant defect.

(11) Claims of the Buyer to damages or reimbursement of fruitless expenses exist even in case of defects only according to § 8 and are otherwise excluded.

§ 8 Miscellaneous Liabilities

(1) Insofar as not derived otherwise from this AVB including the following provisions, we shall be liable according to the legal provisions in case of breach of contractual and non-contractual duties.

(2) We are liable for compensation – irrespective of their legal grounds – within the scope of the fault-based liability in case of intention and gross negligence. In case of minor negligence, we are liable subject to a milder liability criterion under the legal provisions (e.g. for diligence in our own matters) only

a) for damages from the loss of life, bodily injury or damage to the health,

b) for damages from the significant breach of an essential contractual duty (obligations whose fulfilment is a prerequisite for the execution of the contract in the first place and whose compliance is regularly trusted or may be trusted by the contract partner); but in this case, our liability is limited only to the compensation of the typically foreseeable damage.

(3) The limitations of liability arising from Para 2 also apply for breaches of duty by or in favour of persons whose fault must be represented by us under the legal provisions. They do not apply if we have maliciously concealed a defect or have taken over a guarantee for the procurement of the goods and for the claims of the Buyer under the Product liability law.

(4) On account of a breach of duty that is not attributable to a defect, the Buyer can withdraw or give notice only if we are responsible for the breach of duty. A free right to termination by the Buyer (particularly as per §§ 651, 649 BGB) is excluded. Apart from that, the statutory conditions and legal consequences apply.

§ 9 Statute of Limitation

(1) Notwithstanding § 438 Para 1 no. 3 BGB, the general statute of limitation for claims from defects in goods and title is one year from delivery. Provided an approval process is agreed, the statute of limitation begins with the approval.

(2) However, if the goods are a building or an object that has been used as a building in accordance with its customary manner of use and its defect has caused the defectiveness (building material), the statute of limitations is 5 years from the delivery as per the statutory regulations (§ 438 Para 1 no. 2 BGB). Other special statutory regulations of statute of limit (especially § 438 Para 1 no. 1, Para 3, §§ 444, 445 b BGB) also remain unaffected.

(3) The present statutes of limitations of the purchase right also apply for contractual and non-contractual claims of damages of the Buyer that are based on a defect in the goods, unless the application of the regular legal statute of limitation (§§ 195, 199 BGB) would lead to a shorter statute of limitation in individual cases. Claims of damages of the Buyer as per § 8 Para 2 clause 1 and clause 2(a) and according to Product liability law nevertheless lapse only after the legal statute of limitations.

§ 10 Applicable Law and Place of Jurisdiction

(1) The law of the Federal Republic of Germany excluding the uniform international law, especially of UN purchase right applies for this AVB and the contractual relationship between us and the Buyer.

(2) If the Buyer is a merchant within the meaning of the German commercial code, a legal entity under the public law or a special asset under the public law, the exclusive – and even international – jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our business location in Stolberg. The corresponding applies if the Buyer is an entrepreneur within the meaning of § 14 BGB. We are however also authorised in all cases to bring an action at the place of fulfilment of the delivery obligation as per this AVB or an overriding individual or at the general place of jurisdiction of the Buyer. Overriding legal provisions, especially to exclusive authorities, remain unaffected.

§ 11 Privacy Statement with respect to the Processing/Collection of Customer’s

Personal Data

  1. Information about the collection of customer’s personal data

  1. In the following section, we inform you about the collection of customer’s personal data. Personal data is all information that can be related to you personally e.g. name, address, email address etc.

  1. The Responsible Party as per Article 4 Para 7 EU General Data Protection Regulation (GDPR) is

Weforma Dämpfungstechnik GmbH,
legally represented by the Executive Directors
Armin Schmidt and Thomas Schmidt
Werther Straße 44 in 52224 Stolberg
Telephone: +49-(0)2402 - 9892-0
Fax: +49-(0)2402 - 9892-20

Amtsgericht / County Court: Aachen HRB 11532

You can contact our data protection officer under our postal address with the addition “The Data Protection Officer”.

c) For the purpose of fulfilling the contract or the execution of pre-contractual actions, which happen upon your request, we process / collect especially the following personal data that is disclosed by you and/or has become known to us:

- Your name or your company name including the name of the natural persons dealing for you

- Your contact data, i.e. your business address and where applicable, your telephone numbers, fax numbers and email addresses

- Your bank details

- All the data about your payment history and handling of complaints that is required for the execution/fulfilment of the contract.

d) The legal foundation for the processing of personal data is Article 6 Para 1 clause 1 b) GDPR.

e) Categories of recipients of personal data are

aa) The Responsible Party, Weforma Dämpfungstechnik GmbH

bb) Order Processor, e.g. external service provider such as the tax consultant appointed by us with the financial accounting

cc) Persons, who are allowed under the direct responsibility of the Responsible Party (i.e. Weforma Dämpfungstechnik GmbH) or an Order Processor to process the personal data (e.g. employees of our service department)

dd) Subcontractors and/or payment service providers where applicable

ee) Public bodies and officials where applicable

(2) Duration of the storage of personal data

We shall limit the storage periods for your personal data to the minimum mandatory time. We have introduced a deletion approach for this purpose, in which the time limits for the regular review and deletion of your personal data are scheduled to ensure that your personal data is not stored longer than necessary. The following time limits are decisive according to it:

- For the execution of the contractual relationship relevant data records/documents:

Maximum storage of up to legal termination time of the contractual relationship + safety margin of three years (till the expiry of the regular three year statute of limitation as per §§ 195, 199 BGB)

- Data records/documents that can be relevant for the annual financial statement of our company, e.g. documents of financial accounting:
Maximum storage up to the expiry of ten years, § 257 Para 1 no. 1 and Para 4 HGB, § 147 Regulation of Tax (AO)

- Data records/documents that can be relevant for tax, e.g. emails of employees that are deemed as commercial letters:
Maximum storage up to the expiry of six years, § 147 Para 3 clause 1 AO

- Data records/documents, e.g. about your payment history and handling of complaints, for which there is no retention period:
Maximum storage of up to till the expiry of the regular three year statute of limitation as per §§ 195, 199 BGB + safety margin of three months, unless the data records/documents are needed beyond that time for the execution of the contractual relationships.

(3) Your Rights

You have the following rights towards us regarding the personal data concerning you:

- Right to Information (Article 15 of GDPR, § 34 Federal Data Protection Act, (BDSG)),
- Right to Correction and Deletion (Article 16 and 17 of GDPR, § 35 BDSG),
- Right to Restriction of Processing (Article 18 of GDPR),
- Right to Objection against the Processing (Article 21 of GDPR, § 36 BDSG),

- Right to Data Portability

In addition, you have the right, to file complaints with a regulatory authority about the processing of your personal data in our company.

(4) You are legally and/or contractually obliged, to make available your personal data processed for the purposes of execution/fulfilment of contractual behaviour. Possible consequences of not providing the data would be termination of the contractual relationship.