Terms and Conditions - Waeco

Terms and Conditions

As of March 2003




The deliveries, services and offers of the Seller shall be performed exclusively under these terms and conditions. These shall also apply for all future business relations, even if they are not explicitly agreed once again. These terms and conditions shall be deemed as accepted at the latest with the acceptance of the goods or services. Counter confirmations of the Buyer by reference to his/her own terms and conditions of business or purchase are hereby rejected.


Deviations from these terms and conditions shall only apply if explicitly accepted by the Seller in writing.


Offer and conclusion of contract


If an order can be qualified as an offer to contract pursuant to Section 145 German Civil Code (BGB), we are entitled to accept this within 4 weeks. Our offers shall always be subject to change.


The Seller reserves title and copyright to all illustrations, drawings, calculations, data and other documents; these must not be transferred to third parties. This shall especially apply to information, in particular written documents, identified as “confidential”. The Buyer shall require the explicit written consent of the Seller before communicating such information to third parties.


Drawings, illustrations, dimensions, weights and other specifications shall only be deemed binding if explicitly agreed as such in writing. Such specifications shall not be taken as a warranty of condition.


Time of delivery and performance; default


The start of the delivery period specified by the Seller shall require the prior clarification of all technical issues.


Delivery periods and deadlines specified by the Seller are subject to change, unless otherwise agreed explicitly in writing. The Seller does not assume any procurement risks.


Delays in delivery and performance due to force majeure and other events which considerably impede delivery or make it impossible (e.g. strike, lockout, war, riots, official directives, etc., even if these occur with the Seller’s suppliers or sub-suppliers) shall entitle the Seller to delay the delivery or performance for the duration of the hindrance plus a reasonable start-up time.


Adherence to the delivery time is subject to correct and timely self-supply.


If the Seller fails to perform a due service as agreed under the contract and the failure is only of minor significance, the Buyer shall not be entitled to withdraw from the contract and/or claim compensation in lieu of performance or reimbursement of vain expenses.


The Seller shall be deemed to be in delay not until he/she receives a reminder – unless otherwise stipulated by law or contract. Reminders and deadline notifications made by the Buyer require the written form to become effective


The Seller’s compliance with delivery and performance obligations shall require the timely and correct fulfilment of obligations on the part of the Buyer. The defence of non-performance of the contract shall remain reserved. The Seller shall be entitled at all times to make part deliveries or render partial performance.


If the Seller fails to provide a due performance, or fails to do so in compliance with the contract, the Buyer is entitled to withdraw from the contract. In the event of a culpable breach of contractual obligations on the Seller’s part, without prejudice to the other conditions made hereinafter in Sections 3.9 to 3.11, the Buyer shall be entitled to claim compensation in lieu of performance or reimbursement of vain expenses. Another condition is that the Buyer has set a reasonable deadline for performance or subsequent performance and such deadline has elapsed without results.


The Buyer is obliged to notify the extended deadline according to the aforegoing Section 3.8 in combination with an unambiguous declaration that he/she will, after fruitless elapse of such a deadline, reject delivery and assert his/her rights towards the Seller as they result from aforegoing Section 3.8.


In the event of partial performance, the Buyer may only be entitled to claim compensation in lieu of performance if this is required by his/her interest in complete performance. In this case withdrawal from the contract shall only be possible if the Buyer can prove that he/she has no interest in partial performance.


If the Seller is culpably in default of delivery, liability for damage based on ordinary negligence shall be excluded. The aforementioned limitation of liability shall not apply in case of serious and culpable infringement of the contract by the Seller. In such cases the Seller’s liability shall be limited, as stipulated hereinafter in Section 3.13, to the foreseeable damage typically occurring in the event of infringement of an essential contractual obligation. In case of intentional infringement of the contract, the Seller shall be liable pursuant to the statutory provisions. Any further damage claims by the Buyer in case of delayed delivery shall be excluded, even after expiration of an extended deadline the Buyer may have set. This provision shall not apply in case of intent, gross negligence and bodily injury where liability is mandatory; a change in the onus of proof to the detriment of the Buyer is not associated with this provision.


In case of default of acceptance or any other non-performance of cooperation obligations by the Buyer, the Seller shall be entitled to assert his/her statutory claims. The risk of random loss and/or chance deterioration of the goods purchased shall pass to the Buyer at the beginning of such default.


If the Seller is in default and the Buyer can credibly show that this has caused damage to him/her, the Buyer shall be entitled, in case of slight negligence, without prejudice to the liability limitations according to aforegoing Section 3.11, to claim compensation to the maximum extent of 0.5% for each full week, but limited to a maximum of 10% of the price of the part of the delivery affected by the delay.


Passing of risk, packaging


Unless otherwise agreed, shipment is agreed to be “ex stock”, Emsdetten. The risk shall pass to the Buyer as soon as the consignment has been handed over to the person performing the transport or has left the Seller’s warehouse for the purpose of shipment; this will also apply if the Seller performs the transport with his/her own means.


Should shipment become impossible without the Seller’s fault, the risk shall pass to the Buyer upon notice of the Seller’s readiness to deliver.


If requested by the Buyer, the Seller shall insure the shipment against transport damage; the costs for such shall be borne by the Buyer.


As stipulated by the German Packaging Ordinance, transport packaging and all other packaging shall not be taken back, except for reusable means of transport, such as pallets, lattice boxes, pressure containers, etc. The Buyer shall be obliged to ensure disposal of non-reusable packaging at his/her own cost. Reusable means of transport shall be made available to the Buyer only on a lending basis; the Buyer shall be obliged to return them in proper condition, empty and undamaged. For damaged or contaminated means of transport, the Buyer shall bear the repair costs, or, where repair is impossible, pay compensation for the value.


Prices and payment


Prices shall be as specified in the Seller’s current price lists, plus the respective statutory value-added tax. Additional deliveries and services shall be charged separately.


All prices are, unless otherwise agreed, ex works Emsdetten including standard packaging.


Invoiced amounts are payable, unless explicitly otherwise agreed, within 30 days of the invoice date, without any deduction.


Should the Buyer get into default with the payment, the Seller shall be entitled to exercise his/her rights resulting from Section 288 German Civil Code (BGB).


The Buyer shall only be entitled to set-off if his/her counterclaims are declared legally binding, beyond controversy or recognised by the Seller. Additionally, the Buyer shall only be entitled to exercise a right of retention insofar as the counterclaim is based on the same contractual relationship.


If circumstances come to the Seller’s knowledge that question the Buyer’s credit worthiness, especially if a cheque or bill of exchange is not cashed or payments are suspended, the Seller is entitled to fix a due date for payment of the remainder of the debt, even if he/she has already accepted a cheque or bill of exchange. In such case the Seller is also entitled to demand payment in advance or the deposit of a security.


Cheques and bills of exchange are deemed as payment only when they have been cashed. The Seller reserves the right not to accept payment by cheque or bill of exchange. Any discount and bank charges shall be borne by the Buyer.


Under these terms and conditions, the goods are sold subject to retention of title. If the Seller agrees with the Buyer that payment be made by reverse bill of exchange, retention of title shall extend to the time when the bill of exchange accepted by the Seller has been cashed by the Buyer; credit entry of the cheque accepted by the Seller shall not cancel the said retention.




The Buyer shall only be entitled to his/her warranty rights if he/she has properly fulfilled his/her obligations under Section 377 German Commercial Law (HGB) concerning the inspection and notification of defects.


Legal claims under a right of recourse by the Buyer against the Seller are possible only insofar as the Buyer has made with his/her customer no agreements extending beyond the statutory claims arising from defects.


If subsequent fulfilment fails, the Buyer can – without prejudice to any rights for compensation he/she may have – withdraw from the contract or reduce payment. Any claims of the Buyer for compensation of expenses incurring for the purpose of subsequent fulfilment, in particular travel and transport expenses, labour and material costs, are excluded if such expenses increase because the object of delivery was taken to a place other than the formerly agreed place of fulfilment.


If the goods supplied show any defects the Seller is liable for, the Seller shall first be given the opportunity for subsequent fulfilment within a reasonable time. The Seller shall be entitled, at his/her discretion, to provide subsequent fulfilment by rectification of the defect or by replacement.


Claims concerning defects are not recognised in cases of negligible deviation from the agreed condition, negligible impairment of serviceability, natural wear and tear or damage caused, after the passing of the risk, by faulty or careless handling, excessive stress and strain, use of inappropriate equipment and/or due to special external influences and/or other conditions not provided under this contract.


If the Seller’s operating or maintenance instructions are not observed, impermissible modifications are carried out on the products, parts are exchanged or consumable are used that do not comply with the original specifications, no claims for material defects will be recognised either; this provision shall not apply if the Buyer proves that the defect was not attributable to one of the aforementioned reasons for exclusion.


Claims concerning material defects expire by limitation after 12 months of the passing of risk. This provision shall not apply if the legal provisions stipulated in Section 438, Sub-section 1, No. 2 (objects for structures), Section 479, Sub-Section 1 (claim under a right of recourse) and Section 634a (structural defects) of the German Civil Code (BGB) prescribe longer terms.


Unless otherwise resulting from the provisions hereinafter, any further claims of the Buyer – for any legal causes whatsoever – shall be excluded. The Seller shall therefore not be liable for damage other than damage to the object of delivery; in particular, the Seller shall not be liable for lost profits or other financial damage incurred by the Buyer.


The Seller shall be liable according to the statutory provisions if he/she culpably infringes a major contractual obligation; in this case the claim for compensation shall, however, be limited to foreseeable, typical damage. Any other claim for compensation shall be excluded; insofar the Seller shall not be liable for damage other than damage to the object of delivery.


The aforementioned limitations of liability shall not apply if the damage was caused by wilful intent or gross negligence; they shall not apply either in cases of bodily harm and/or damage to health as well as in cases where the Buyer claims compensation for a damage caused by the absence of a guaranteed characteristic, unless the purpose of the guaranteed characteristics only extends to contractual compliance of the respective delivery but not to the risk of consequential harms caused by defects.  A change in the onus of proof to the detriment of the Buyer is not associated with this.


Overall liability


Liability for compensation beyond that provided in Section 6 is excluded – regardless of the legal nature of the claim asserted, and especially so for liability due to violation of contract obligations and wrongful acts.


The exclusion of liability provided in Section 7.1 shall not apply in case of liability according to the German Law on Product Liability and for liability for death, bodily harm and damage to health.


Insofar as the Seller’s liability has been excluded or limited, such exclusion or limitation shall also apply to the liability of the Seller’s employees, workers, staff, representatives and vicarious agents.


Retention of title


The Seller shall retain title of the goods delivered until all outstanding accounts arising from the business relation between the Seller and the Buyer have been paid. Said retention of title shall also apply if individual receivables have been included into a current account and the account balance has been acknowledged. Payment shall be deemed effected upon receipt of the counter value at the Seller’s account.


If the Buyer acts in breach of the contract, in particular in case of payment default, the Seller shall be entitled to repossess the goods purchased. The repossession by the Seller of the goods purchased shall not be deemed as a withdrawal from the contract unless otherwise explicitly declared by the Seller in writing.


In the event of attachment or other interventions by third parties the Buyer shall notify the Seller thereof immediately in writing to enable the latter to file an action pursuant to Section 771 of the Code of Civil Procedure (ZPO). Should said third party prove unable to reimburse the Seller for the judicial and extra-judicial costs of an action pursuant to Section 771 of the Code of Civil Procedure, the Buyer shall be liable for the loss incurred by the Seller.


The Buyer shall be entitled to resell the goods subject to retention of title in the ordinary course of business; however, he/she already herewith assigns to the Seller all receivables from such resale to his/her customers or third parties to the amount of the final sum of the invoice (including value-added tax) of the Seller’s claim, regardless of whether the goods purchased are resold without or after processing. The Buyer accepts this assignment. If the assigned receivable against the acquirer of the goods sold subject to retention of title has been included into a current account (open account), the assignment shall also apply to the acknowledged account balance as well as, in the event of the Buyer’s bankruptcy, to the then existing “causal balance”. The Buyer shall remain empowered to collect such receivable even after such assignment. The aforesaid shall not affect the Seller’s right to collect the receivable him-/herself. However, the Seller undertakes not to collect the receivable as long as the Buyer fulfils his/her payment obligations from the proceeds received, does not come into payment default and, in particular, no application is filed for the initiation of a bankruptcy procedure or the Buyer ceases to make payments. If such occurs, however, the Seller shall be entitled to demand that the Buyer notifies the Seller of the assigned receivables and the debtors concerned and provides all details and documents required to collect the receivable and notifies the debtors (third parties) of the assignment.


Processing or transformation of the goods sold subject to retention of title by the Buyer shall be effected on the Seller’s behalf. If the goods sold subject to retention of title are processed with other goods to which Seller has no title, the Seller shall acquire joint title of the new product in the same ratio as the ratio between the value of the goods sold subject to retention of title (total invoice amount including value-added tax) and that of the other goods processed at the time of such processing. With regard to the product resulting from processing, the same shall apply as to goods sold subject to retention of title.


If the goods sold subject to retention of title are mixed inseparably with other goods to which the Seller has no title, the Seller shall acquire joint title of the new product in the same ratio as the ration between the value of the goods sold subject to retention of title (total invoice amount including value-added tax) and that of the other goods thus mixed at the time of such mixing. If such mixing is effected in such a way that the Buyer’s goods are to be regarded as the main goods, it is deemed to be agreed that the Buyer shall assign to the Seller pro rata joint title. The Buyer shall thus safekeep the sole title or joint title for the Seller.


The Seller undertakes, at the request  of the purchaser, to release the collateral to which he/she is entitled if the realisable value of the Buyer’s collateral exceeds the claims to be secured by more than 10%; the choice of the collateral to be released shall lie with the Seller.


Applicable law, legal venue, severability clause


For all current and future claims from the business relationship with registered merchants, public bodies as well as special assets subject to public law, including bill of exchange and cheque claims, the exclusive legal venue shall be at the Seller’s registered  place of business. The Seller shall however also be entitled to file an action against the Buyer at the court with jurisdiction for his/her place of residence.


Unless the contrary follows from the confirmation of the order, the place of performance shall be the registered office of the Seller, Emsdetten.


These Terms & Conditions of Sale and all legal relations between the Seller and the Buyer shall be subject to the law of the Federal Republic of Germany. The application of UN law on sale (United Nations Convention of April 11th 1980 on Contracts for the International Sale of Goods, BGBL 1989 II, p. 588, amended 1990 II 1699) is excluded.

Dometic WAECO International GmbH
Hollefeldstraße 63
D-48282 Emsdetten

Phone +49 (0) 25 72 / 8 79-0
Fax +49 (0) 25 72 / 8 79-3 00


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