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AGB - Terms and Conditions

General Terms and Conditions of Wilhelm Modersohn GmbH & Co. KG (part of Leviat)
Industriestrasse 23, 32139 Spenge

Preliminary remark

The following General Terms and Conditions form the basis of the delivery and service relationships of Wilhelm Modersohn GmbH & Co KG, Spenge - hereinafter referred to as "Modersohn". Deviating provisions of the customer are only binding for Modersohn if they have been expressly confirmed by us in writing. Modersohn only enters into contractual relationships with entrepreneurs (§ 14 BGB), legal entities under public law or a special fund under public law. A B2C business is not offered.

§ 1 General and scope of application

(1) Our General Terms and Conditions of Business ("Terms and Conditions") shall apply to all contracts which predominantly concern the delivery of movable goods ("Goods"). Additionally assumed obligations shall not affect the validity of these Terms and Conditions.

(2) Our Terms and Conditions shall apply exclusively; we do not recognise any terms and conditions of the Buyer that conflict with or deviate from our Terms and Conditions or the statutory provisions unless we have expressly agreed to their validity in writing. Our terms and conditions shall also apply if we accept the buyer's performance without reservation or provide our services without reservation in the knowledge that the buyer's terms and conditions conflict with or deviate from our terms and conditions.

(3) Our terms and conditions shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law. Contracts with consumers (§ 13 BGB) are excluded.

(4) References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are amended or expressly excluded in these Terms and Conditions.

(5) Insofar as these General Terms and Conditions refer to "in writing", the text form, also by e-mail, shall be sufficient. Something else applies insofar as "written form" is spoken of, for which the requirements arise from § 126 BGB.

§ 2 Offer, conclusion of contract and content of the contract

(1) Our offers are subject to change and non-binding. Subject to change and non-binding in this sense means that the conclusion of the contract still requires our order confirmation.

(2) The order of the goods by the buyer is a binding offer of contract. We may accept this offer of contract - unless otherwise stated in the order - within fourteen (14) days of its receipt.

(3) The conclusion of the contract always requires our written order confirmation.

(4) The Buyer is already obliged to inform us in writing prior to the conclusion of a contract if (a) the goods to be delivered are not intended to be exclusively suitable for normal use or the Buyer assumes a certain suitability for use, (b) the goods are to be used under unusual conditions or exposed to special stresses, (c) the goods are to be used under conditions involving a special health or safety risk, or (d) the goods are to be used outside Germany or delivered to Buyer's customers located outside Germany.

(5) Our information on the goods (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless usability for the contractually intended purpose requires exact conformity. They do not constitute guarantees of quality or durability of the goods to be delivered by us. Any guarantees to be assumed by us at the time of the conclusion of the contract require an express written confirmation as a "guarantee".

(6) Deviations customary in the trade and deviations which occur due to legal regulations or which represent technical improvements as well as the replacement of components by equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.

(7) The German Construction Contract Procedures (VOB), in particular the VOB/B, shall not apply to the contract concluded between us and the Buyer.

(8) With the exception of the acceptance of the goods in accordance with § 433 para. 2 BGB (German Civil Code), an acceptance of the goods is not agreed.

(9) With the conclusion of the contract, we do not assume any procurement risk within the meaning of § 276 BGB. Furthermore, we do not assume any guarantee for the goods.

(10) All agreements made between us and the Buyer for the purpose of the execution of this contract at the time of the conclusion of the contract are set down in writing in the contract and these terms and conditions.

(11) We reserve all property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents which are designated as "confidential". The buyer must obtain our express written consent before passing them on to third parties.

§ 3 Delivery, Delivery Time, Withdrawal in the Event of Default, Compensation for Damages in the Event of Default

(1) Unless another delivery modality has been agreed, delivery shall be made in accordance with the provisions of EXW Incoterms 2010 to the delivery address specified in our order confirmation or, if no delivery address is specified in our order confirmation, to the Buyer's home address.

(2) The respective shipping costs will be communicated to the buyer within the order process before conclusion of the contract.

(3) The transfer of risk takes place with the delivery. The buyer shall bear the transport risk.

(4) The start of the delivery period stated by us presupposes the clarification of all technical questions. Compliance with our delivery obligation further presupposes the timely and proper fulfilment of all obligations of the buyer. We reserve the right to plead non-performance of the contract.

(5) The respective delivery times shall be communicated to the customer prior to conclusion of the contract in the order process. Agreed delivery periods do not constitute a firm deal.

((6) We are entitled to partial deliveries and partial services within the agreed delivery periods or until the agreed delivery date, insofar as this is reasonable for the buyer.

(7) If the buyer wishes to make changes to the goods after the contract has been concluded, this will lead to an extension of the delivery period - provided we agree to these changes, which we are not obliged to do. Depending on the order situation, the period of the extension may be longer than would be necessary for the mere implementation of the change requests.

(8) If we are unable to comply with binding delivery periods or delivery dates for reasons for which we are not responsible (non-availability of the performance), we shall inform the Buyer of this without delay and at the same time notify the Buyer of the expected new delivery period or delivery date. If the service is also not available within the new delivery period or on the new delivery date for reasons for which we are not responsible, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the buyer. A case of non-availability of performance in this sense shall include in particular the failure of our supplier to deliver to us on time if we have concluded a congruent hedging transaction, or if neither we nor our supplier are at fault.

(9) If the buyer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.

(10) The buyer shall only be entitled to withdraw from the contract due to delayed delivery and/or non-delivery if we are in default with the fulfilment of the main obligations incumbent upon us or have significantly breached obligations established by the contract in another way and we are responsible for the default or breach of obligation. In order to cause the default, a written request to us to perform within a reasonable period of time shall always be required, without waiving any other statutory provisions, even if the time of performance is determined by calendar. In all other respects, the statutory provisions shall apply to the occurrence of default.

(11) Should we be in default of delivery in accordance with the statutory requirements, taking into account the provisions made in these terms and conditions, and should the buyer have claims for damages against us due to default, our liability in the event of default of delivery shall be limited to 0.5% of the agreed net price of the goods not delivered or delivered late for each full week of default, but not more than 5% of the net price of the goods not delivered or delivered late. Claims for fraudulent, intentional and grossly negligent breach of contract as well as claims for injury to life, body and health and in the event of liability under the Product Liability Act shall remain unaffected.

(12) Insofar as we bear the risk of transport in deviation from § 3 para. 1 of these terms and conditions, the buyer shall be obliged to notify the carrier of an externally recognisable loss as well as an externally recognisable damage to the freight goods at the latest upon delivery by the carrier and to mark the loss or damage sufficiently clearly. If the loss or damage is not externally apparent, the loss or damage must be notified to the carrier within seven (7) days of delivery at the latest and the loss or damage must be sufficiently clearly marked. The notification shall be made in text form. Notwithstanding the provisions of § 5 (4) to (6) of these Terms and Conditions, the buyer shall be obliged to send us a copy of this notification without delay.

(13) If it has been expressly agreed with the customer that deliveries that have not been used can be returned, the return is only permitted in unopened original packaging. The costs of the return shipment shall be borne by the buyer. In the event of an accepted return, the buyer shall be refunded 80% of the value of the goods. The 20% not refunded shall cover the flat-rate restocking costs.

§ 4 Prices, terms of payment and default in payment

(1) Unless otherwise stated in our order confirmation, our prices are EXW Incoterms 2010, excluding packaging. The prices stated are net prices and do not include statutory VAT. Packaging will be invoiced separately.

(2) Below an order price of € 50.00 net, the customer shall additionally bear a minimum quantity surcharge of € 30.00.

(3) The buyer is obliged to pay the full purchase price (as well as transport and packaging costs, if applicable) without discount on the date specified in our order confirmation or, if such a date is not specified, on issue of the invoice to the account specified by us free of costs and charges. The receipt of payment on our account is decisive for the timeliness of payment. The statutory value added tax shall be shown separately and shall be paid additionally by the Buyer.

(4) The statutory provisions shall apply to default in payment. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial interest on arrears in accordance with § 353 of the German Commercial Code (HGB) shall remain unaffected.

(5) The buyer shall only be entitled to rights of set-off and retention if his counterclaims have been legally established, are undisputed or recognised by us or are based on the same contractual relationship.

(6) If the buyer does not pay due invoices, exceeds granted payment terms or if his financial circumstances deteriorate after conclusion of the contract or if we receive information after conclusion of the contract which calls into question the solvency or creditworthiness of the buyer, we shall be entitled to, (a) to declare the entire remaining debt of the buyer due and payable and to demand advance payment or the provision of security in amendment of the agreements made, (b) to demand immediate payment of all our claims based on the same legal relationship after delivery has been made, and (c) to raise the plea of uncertainty in accordance with § 321 BGB (German Civil Code).

§ 5 Rights of the buyer in the event of defects

(1) The statutory provisions shall apply to the rights of the buyer in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly and/or defective assembly instructions), unless otherwise stipulated below. In all cases - even if this is not mentioned separately below - the statutory provisions pursuant to § 439 para. 2 and para. 3 BGB (reimbursement of the expenses required for the purpose of subsequent performance) shall remain unaffected insofar as the goods sold by us are newly manufactured goods, pursuant to § 445a BGB (recourse of the buyer against us in the event that he incurs expenses in relation to his customer within the scope of subsequent performance pursuant to § 439 para. 2 and/or para. 3 BGB and/or § 475 para. 4 and/or para. 6 BGB) and according to § 478 BGB (special provisions for the entrepreneur's recourse in the case of a purchase of consumer goods).

(2) The goods are defective in quality if they deviate noticeably from the specifications stated in our order confirmation at the time of the transfer of risk. If no specifications are stated in the order confirmation, the goods shall be defective if they deviate from the quality customary in Germany.

(3) The goods shall only be defective in title if they are not free of rights enforceable in Germany at the time of transfer of risk. If, however, the goods are not free of rights enforceable in Germany at the time of the passing of risk and this is due to instructions given by the buyer, there is no defect of title, notwithstanding § 5 para. (3) sentence 1.

(4) Claims for defects on the part of the buyer presuppose that the buyer has duly complied with his obligations to give notice of defects owed under § 377 of the German Commercial Code (HGB), taking into account the provisions contained in these terms and conditions.

(5) The buyer is obliged to report obvious material defects to us in writing immediately after delivery of the goods. The buyer is further obliged to inspect the goods immediately after delivery. The buyer shall notify us in writing of any material defects which are identifiable by proper inspection or which are obvious without undue delay, but at the latest within seven (7) calendar days after delivery of the goods. Hidden material defects must be reported immediately after their discovery.

(6) The notification shall be made in writing and directly to us. It must be drafted in such detail that we can initiate remedial measures and secure recourse claims against our upstream suppliers without further enquiry with the buyer. In all other respects, the complaint must comply with the statutory provisions. Our employees are not entitled to accept notices of defects or to make statements regarding the warranty outside our business premises.

(7) Insofar as there is a material defect in the goods which has been notified in good time, we shall be obliged, at our discretion, to provide subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. The supplementary performance may, at our discretion, take place at our registered office or at the place of use of the goods. We shall not be liable for any expenses incurred as a result of the goods being taken to a place other than the buyer's place of business, unless the buyer has informed us in writing in his order prior to conclusion of the contract that the goods will be taken to a place other than his place of business and we have expressly agreed to this.

(8) If the subsequent performance fails, the buyer shall be entitled to demand withdrawal or reduction after setting a deadline with the threat of refusal and additionally in compliance with the statutory provisions. A remedy shall be deemed to have failed - in each case in relation to the specific individual defect - after the third unsuccessful attempt, unless the nature of the defect or the other circumstances in particular indicate otherwise.

(9) Insofar as the Buyer has suffered damage or incurred futile expenses due to defects in goods delivered by us, the provisions of § 6 of these Terms and Conditions shall apply in addition.

(10) With the exception of the cases regulated in § 5 para. 12 of these Terms and Conditions, any claims of the Buyer for delivery of defective goods shall become statute-barred one (1) year after the statutory commencement of the limitation period.

(11) Notwithstanding § 5 para. 11 of these Terms and Conditions, the statutory warranty periods shall apply - if the goods are a newly manufactured item which is a building and/or an item which has been used for a building in accordance with its customary manner of use and has caused the defectiveness thereof; if the buyer's claims are based on an intentional and/or grossly negligent breach of contract; if we have fraudulently concealed the defect; for claims based on injury to life, limb and/or health; for claims pursuant to § 445a BGB (German Civil Code) (recourse of the buyer against us in the event that, in the relationship with his customer, he has incurred expenses within the scope of subsequent performance pursuant to § 439 para. 2 and/or para. 3 BGB and/or § 475 para. 4 and/or para. 6 BGB); for claims pursuant to § 439 para. 2 and para. 3 BGB (reimbursement of the expenses required for the purpose of subsequent performance), insofar as the goods sold by us are newly manufactured goods, whereby such a claim requires that the claim for subsequent performance pursuant to § 439 para. 1 BGB (German Civil Code) has not become statute-barred in accordance with these terms and conditions; as well as for claims falling within the scope of § 478 BGB (special provisions for entrepreneurial recourse in the case of a purchase of consumer goods).

(12) Replacement delivery or rectification of defects shall not lead to newly commencing limitation periods.

(13) Notwithstanding further statutory provisions, the suspension of the statute of limitations shall also end if the suspension negotiations are not continued on the merits for more than four (4) weeks. A new start of a suspension of the statute of limitations of claims of the buyer requires our express written confirmation in any case.

§ 6 Liability for damages and expenses

(1) Our liability for damages and expenses shall be governed by the following regulations in addition to the above provisions in § 5 of these Terms and Conditions. Subject to a limitation period pursuant to § 5 para. 11 in conjunction with § 5 para. 12 of these Terms and Conditions, the statutory provisions pursuant to § 445a of the German Civil Code (recourse of the Buyer against us in the event that he has to bear expenses in relation to his customer within the scope of subsequent performance pursuant to § 439 para. 2 and/or para. 3 of the German Civil Code and/or § 475 para. 4 and/or para. 6 BGB), as well as our obligation to bear the expenses necessary for the purpose of subsequent performance pursuant to § 439 para. 2 and/or para. 3 BGB, provided that the goods sold by us are newly manufactured goods, whereby such a claim presupposes that the claim for subsequent performance pursuant to § 439 para. 1 BGB is not time-barred in accordance with these Terms and Conditions.

(2) Our liability for damages or futile expenses of the buyer shall only arise if the damage or the futile expenses a) have been caused by a culpable breach of an obligation, the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which the buyer may regularly rely (material contractual obligation), or b) are attributable to a grossly negligent or intentional breach of obligation.

(3) If we are liable pursuant to § 6 para. 2 a) of these Terms and Conditions for the breach of an essential contractual obligation, our liability for damages shall be limited to the typically occurring damage foreseeable at the time of the conclusion of the contract. For damage caused by delay, § 3 para. 10 of these Terms and Conditions shall apply.

(4) The above limitations of liability set out in § 6 para. 2 to para. 3 of these Terms and Conditions shall not apply to liability (a) under the Product Liability Act, (b) due to the assumption of a guarantee for the quality of the goods, (c) due to fraudulent concealment of a defect, (d) for damages resulting from culpable injury to life, limb or health, and (e) for damages based on a grossly negligent or intentional breach of duty.

(5) The buyer's duty to mitigate damages according to § 254 BGB remains unaffected. Any agreement of the buyer with his purchasers which aggravates the legal liability of the buyer to his disadvantage constitutes a breach of this duty to mitigate damages and leads - insofar as the legal liability of the buyer has been aggravated to his disadvantage - to an exclusion of a claim for compensation against us

(6) We shall be liable to pay damages for breach of contractual and/or pre-contractual obligations owed to the Buyer exclusively in accordance with the provisions of these Terms and Conditions. Any recourse to competing bases for claims, e.g. culpa in contrahendo pursuant to § 311 para. 3 BGB, positive breach of contract pursuant to § 280 BGB or due to tort claims pursuant to § 823 BGB is excluded. Similarly, it is excluded to make personal claims against our organs, employees, representatives and/or vicarious agents due to the breach of contractual obligations incumbent upon us.

(7) The above provisions in § 6 of these terms and conditions shall apply subject to

§ 445a BGB of the German Civil Code (recourse of the Buyer against us in the event that he has to bear expenses in relation to his customer within the scope of subsequent performance pursuant to § 439 para. 2 and/or para. 3 of the German Civil Code and/or § 475 para. 4 and/or para. 6 BGB); § 478 BGB (special provisions for entrepreneurial recourse in the case of a purchase of consumer goods); as well as subject to the expenses to be borne by us for the purpose of subsequent performance pursuant to § 439 para. 2 and/or para. 3 BGB, insofar as the goods sold by us are a newly manufactured item, also for claims of the buyer for reimbursement of expenses.

§ 7 Retention of title

(1) We retain title to the goods sold until all our present and future claims under the contract (secured claims) have been paid in full. Unless the buyer has paid in advance, we retain title to the sold goods also for all present and future claims (secured claims) arising from the current business relationship.

(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The buyer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties have access to the goods belonging to us.

(3) In the event of conduct by the buyer in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and then to demand the return of the goods on the basis of the retention of title.

(4) If the buyer processes the goods subject to retention of title in the ordinary course of business, the retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If a third party's right of ownership remains in the event of processing, mixing or combining with goods, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.

(5) If the Buyer resells the goods subject to retention of title in the ordinary course of business, the Buyer hereby assigns to us by way of security the resulting claim against the purchaser - in the event of co-ownership of the Seller in the goods subject to retention of title, in proportion to the co-ownership share. The same shall apply to other claims which take the place of the reserved goods or otherwise arise in respect of the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. We accept the assignment. We revocably authorise the buyer to collect the claims assigned to us in his own name. We are entitled to revoke this direct debit authorisation if the buyer is in default of payment, if the buyer does not fulfil his payment obligations towards us or if we have exercised our right according to § 7 para. 3 of these terms and conditions.

(6) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the request of the buyer.

§ 8 Place of performance, choice of law and place of jurisdiction

(1) The place of delivery follows from § 3 para. 1 of these terms and conditions. The place of payment and performance for all other obligations arising from the contract with the buyer is Industriestrasse 23, 32139 Spenge. These provisions shall also apply if services rendered are to be reversed. However, we reserve the right to carry out subsequent performance at the place where the goods are located.

(2) These terms and conditions and the contractual relationship between us and the buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

(3) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in 32139 Spenge. However, we are also entitled in all cases to bring an action at the general place of jurisdiction of the buyer. Overriding statutory provisions on exclusive jurisdiction shall remain unaffected.

§ 9 Miscellaneous

(1) Should any provisions of these terms and conditions be or become invalid in whole or in part, the remaining provisions shall remain valid.

(2) The personal data necessary for the business transaction will be stored and treated confidentially in compliance with the applicable data protection regulations.

(3) Even though our terms and conditions are not directed at consumers, we hereby inform you as a precaution that we are not willing and also not obliged to participate in a dispute resolution procedure before a consumer arbitration board.

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