Terms and Conditions of Sale and Delivery of Windau GmbH & Co. KG
1. Scope of Application
1.1.
These Terms and Conditions of Sale and Delivery (hereinafter referred to as "Terms and Conditions") exclusively govern all current and future legal relationships between Windau GmbH & Co. KG (hereinafter referred to as "Windau") and the buyer concerning the sale and/or delivery of movable goods ("Goods"). These Terms and Conditions apply only if the buyer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law within the meaning of Section 310(1) BGB.
1.2.
Deviating, conflicting or supplementary general terms and conditions ("GTC") of the buyer shall only become part of the contract if Windau has expressly agreed to their validity. This requirement for agreement also applies if the buyer refers to its GTC in the context of an order and Windau does not expressly object to them.
1.3.
Individual agreements (e.g. framework supply agreements, quality assurance agreements) and information contained in Windau's order confirmation take precedence over these Terms and Conditions.
2. Offer and Conclusion of Contract
2.1.
Offers made by Windau are non-binding and subject to change. The buyer's order of the goods constitutes a binding contractual offer pursuant to Section 145 BGB.
2.2.
Unless otherwise stated in the order, Windau is entitled to accept the buyer's contractual offer within two weeks of its receipt by Windau.
2.3.
Windau may declare its acceptance of the contractual offer either expressly or by delivering the goods to the buyer.
3. Delivery Deadlines, Delivery Dates and Delays in Delivery
3.1.
The delivery deadlines are individually agreed upon or specified by Windau when accepting the order. Delivery dates and deadlines stated in the buyer's orders are only binding if expressly confirmed by Windau in writing or in text form. Agreed delivery deadlines commence on the date of the order confirmation.
3.2.
If Windau is unable to meet binding delivery deadlines for reasons beyond its control ("Non-Availability of Performance"), Windau shall inform the buyer immediately and provide a new estimated delivery deadline. If performance remains unavailable within the new deadline, Windau is entitled to withdraw from the contract in whole or in part; any consideration already provided by the buyer will be refunded promptly. Non-Availability of Performance includes, for example, delayed self-supply by suppliers where Windau has concluded a congruent supply agreement, other disruptions in the supply chain due to force majeure (i.e. unforeseeable events, as well as events that – if they had been foreseeable – are outside the parties' sphere of influence, such as natural disasters, earthquakes, lightning strikes, avalanches, landslides, fire and explosion damage, plagues, pandemics or epidemics), or if Windau is not obliged to procure in an individual case.
3.3.
If Windau's deliveries are delayed, the buyer is only entitled to withdraw from the contract if it has set a reasonable deadline for delivery that has expired without success. This does not apply if a commercial fixed transaction was agreed upon.
3.4.
The buyer's rights pursuant to Clauses 7 and 8 of these Terms and Conditions and Windau's statutory rights, particularly in cases where performance obligations are excluded (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
4. Delivery, Shipping and Transfer of Risk
4.1.
Delivery is made ex-warehouse (Rudolf-Diesel-Straße 2, 33428 Harsewinkel), which also serves as the place of performance for the delivery and any subsequent performance. Upon the buyer's request and at its expense, the goods will be shipped to another destination ("Sale by Dispatch"). Unless otherwise agreed, Windau is entitled to determine the mode of shipment (particularly the transport company, shipping method and packaging). If the ordered quantities exceed 200 kg, Windau will bear the entire freight and shipping costs; however, Windau is not obliged to deliver by air freight or comparable expedited transport methods. The buyer shall bear the cost of any transport insurance it requests.
4.2.
The risk of accidental loss or deterioration of the goods passes to the buyer upon delivery of the goods. In the case of a Sale by Dispatch, the risk of accidental loss or deterioration of the goods, as well as the risk of delay, passes to the buyer upon handover of the goods to the carrier or freight forwarder. If handover or shipment is delayed for reasons attributable to the buyer, the risk passes to the buyer on the date Windau notifies the buyer of the goods' readiness for shipment.
4.3.
For a Sale by Dispatch where the destination is abroad, the buyer must notify Windau in writing (email suffices) of (i) the necessary documents and (ii) all applicable regulations and requirements for importing the goods into the destination country. Unless otherwise agreed in writing, Windau is not obliged to ensure that the goods and/or their packaging comply with the regulations and requirements for importation into the destination country. The buyer is responsible for obtaining import permits and any required approvals, authorisations or documents related to importation or transit through third countries. The buyer bears the risk of an import ban both at the time of concluding the contract and for subsequent bans. The buyer also bears any costs, duties or other public charges arising in connection with the export and import of the goods.
5. Prices and Payment Terms
5.1.
Unless otherwise agreed in writing in individual cases, the prices applicable at the time of the conclusion of the contract shall apply. These are ex-warehouse prices from Windau, plus the applicable statutory value-added tax. If no fixed price agreement has been made, reasonable price changes of up to 10% are reserved due to changes in labour, material or distribution costs for deliveries made three months or later after the conclusion of the contract.
5.2.
For deliveries outside the EU, the buyer is obligated to provide Windau with an export certificate within 20 working days of the invoice date. If this proof is not provided, Windau is entitled to subsequently invoice the value-added tax.
5.3.
Each invoice issued by Windau is due for payment without deduction within 14 days of receipt by the buyer. If this deadline expires unsuccessfully, the buyer will automatically be in default. Windau is entitled to charge default interest at the statutory rate. The right to claim flat-rate compensation for damages pursuant to Section 288(5) BGB and any additional damages resulting from the default remains unaffected. Windau's claim to commercial maturity interest under Section 353 HGB in transactions with merchants also remains unaffected.
5.4.
Payments made by the buyer shall only be deemed to have been made when Windau has received the amount.
5.5.
If, after the conclusion of the contract, it becomes apparent to Windau that the buyer's ability to fulfil its payment obligations is jeopardised, Windau is entitled under statutory provisions to refuse performance and, if necessary, to withdraw from the contract after setting a deadline in accordance with Section 321 BGB.
6. Retention of Title
6.1.
The goods remain the property of Windau until all claims arising from the business relationship with the buyer have been fully settled.
6.2.
Until full payment of the secured claims has been made, the goods subject to retention of title ("Reserved Goods") may not be pledged to third parties or transferred by way of security. The buyer must promptly notify Windau in writing if an application for the initiation of insolvency proceedings is made or if third parties gain access to the Reserved Goods. If the third party cannot reimburse Windau for the legal and extrajudicial costs of a lawsuit pursuant to Section 771 of the German Code of Civil Procedure (ZPO), the buyer shall be liable for the loss incurred by Windau.
6.3.
In the event of any breach of contract by the buyer, particularly non-payment of the due purchase price, Windau is entitled to withdraw from the contract under statutory provisions and/or demand the return of the Reserved Goods based on the retention of title. The request for return does not simultaneously imply withdrawal from the contract. Windau is entitled to demand only the return of the Reserved Goods and reserve the right to withdraw. In the event that the buyer fails to pay the due purchase price, Windau must have set a reasonable deadline for payment, which has passed unsuccessfully, before asserting these rights. This requirement applies only if such a deadline is not dispensable under statutory provisions.
6.4.
6.4.1. Until further notice, in accordance with Clause 6.4.3 below, the buyer is authorised to resell and/or process the Reserved Goods in the ordinary course of business. The following additional provisions shall apply in this case.
6.4.2. The retention of title extends to products resulting from the processing, mixing or combination of the Reserved Goods to their full value, with Windau deemed the manufacturer. If, in the case of processing, mixing or combination with goods of third parties, their ownership rights remain, Windau shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. If processing, mixing or combination occurs in such a way that the buyer's item is considered the main item, the buyer shall transfer co-ownership to Windau proportionally. Windau hereby accepts this transfer. Otherwise, the same rules apply to the product resulting from processing as to the Reserved Goods.
6.4.3. The buyer hereby assigns to Windau any claims arising from the resale of the Reserved Goods or the products created through processing. Windau accepts this assignment. The obligations of the buyer set out in Clause 6.2 also apply with regard to the assigned claims.
6.4.4. The buyer has a revocable authorisation to collect the claims assigned to Windau in its own name on behalf of Windau. Windau may revoke this authorisation, as well as the buyer's authorisation to resell, if the buyer is in default of material obligations, such as payment. In the event of revocation, Windau is entitled to collect the claims directly.
6.4.5. If the buyer resells the Reserved Goods after processing, transformation or combining them with other goods, or together with other goods, the assignment of the claim shall apply only to the part equivalent to the price agreed between Windau and the buyer, plus a security margin of 10% of this price.
6.4.6. The buyer is obligated, for the duration of the retention of title, to mark the Reserved Goods as the property of Windau wherever reasonably feasible. The buyer must also insure the Reserved Goods against any loss at their new value and handle them with care.
6.5.
The buyer is obligated, for the duration of the retention of title, to mark the Reserved Goods as the property of Windau wherever reasonably feasible. The buyer must also insure the Reserved Goods against any loss at their new value and handle them with care.
7. Quality of the Goods
7.1.
The goods are subject to regular, voluntary monitoring and comply in composition and designation with the applicable statutory requirements.
7.2.
The shelf life of the goods is indicated by the "best before date" (MHD in German) marking on the packaging of the product.
7.3.
The goods are free from material defects if, upon transfer of risk, they conform to the quality agreed upon between Windau and the buyer. The agreed quality is determined solely by the specific agreements made between the parties regarding the characteristics, features and performance specifications of the goods. If no quality is agreed, the statutory provisions apply to determine whether there is a defect (Section 434(3) BGB).
7.4.
Deviations in quantity and weight of up to 10% from the ordered amount are permissible. Customary variations in quality and composition due to the nature of the goods are also permitted.
8. Buyer's Claims for Defects, Inspection and Notification Obligations
8.1.
The buyer's rights regarding material and legal defects (including incorrect or short deliveries) are governed by statutory provisions unless otherwise specified below.
8.2.
The buyer's claims for defects require that it fulfils its statutory obligations to inspect and notify (Sections 377 and 381 HGB). Inspection must be carried out without delay. Goods intended for further processing must be inspected no later than prior to processing. If a defect becomes apparent upon delivery, inspection or at any later point, the buyer must promptly notify Windau in writing. In any case, obvious defects (such as losses, damage and discrepancies in quantity) must be reported in writing, including the invoice or order number, by the end of the working day (including Saturdays) following delivery. Non-obvious defects must be reported within the same timeframe after their discovery. If the buyer fails to carry out the proper or timely inspection and/or fails to report defects, Windau's liability for the defect that is unreported, not reported in time or improperly reported is excluded under statutory provisions.
8.3.
Windau provides no warranty for impairments to the goods resulting from improper logistics and/or storage of the goods after the transfer of risk (see Clause 4.2).
8.4.
Windau will, at its discretion, remedy defects either by rectifying the defect or by delivering a defect-free replacement (hereinafter collectively referred to as "Subsequent Performance").
8.5.
Windau shall bear the transport, travel, labour and material costs necessary for Subsequent Performance. However, if a defect complaint proves unfounded and the buyer acted intentionally or with gross negligence in disregarding relevant indications when raising the complaint, it must reimburse Windau for all expenses incurred in this context (e.g. travel or shipping costs) and any resulting damages.
8.6.
If Subsequent Performance fails – i.e. if it is impossible, unreasonable for the buyer, unduly delayed or refused by Windau under Section 439(4) BGB – the buyer may, at its discretion, withdraw from the contract or reduce the purchase price and/or claim damages in accordance with Clause 9 or reimbursement of its expenses under statutory provisions.
8.7.
The limitation period for the buyer's rights concerning defects in the delivered goods is twelve months from the date of delivery to the buyer. For claims for damages arising from injury to life, limb or health caused by Windau or its agents, as well as for other damages caused by gross negligence or intent, statutory limitation periods apply. Replacement deliveries under liability for defects do not restart the limitation period.
9. Liability and Compensation
9.1.
For slightly negligent breaches of essential contractual obligations ("Cardinal Obligations"), Windau's liability is limited to damage typical of the contract and foreseeable at the time of contract conclusion. Essential contractual obligations (Cardinal Obligations) are those obligations that grant the buyer legal positions that the contract, based on its content and purpose, specifically aims to provide, as well as obligations whose fulfilment is indispensable for the proper execution of the contract and on whose adherence the buyer regularly relies and is entitled to rely.
9.2.
Windau is not liable for slightly negligent breaches of obligations other than those specified in Clause 9.1.
9.3.
In all other respects, the buyer's statutory claims for damages remain unaffected; in particular, Windau is liable for intent and gross negligence in accordance with statutory provisions.
9.4.
The limitations of liability specified in Clauses 9.1 and 9.2 do not apply in cases of mandatory statutory liability (including under the German Product Liability Act), intentional or negligent injury to life, limb or health caused by Windau, guarantees issued by Windau or defects fraudulently concealed by Windau.
9.5.
Where Windau's liability for damages is excluded or limited under Clause 9, this also applies to the liability of Windau's legal representatives and other agents.
10. General Provisions
10.1.
The buyer may not assign its claims against Windau to third parties without Windau's written consent, except for monetary claims.
10.2.
Changes and additions to contractual agreements between Windau and the buyer and/or these Terms and Conditions, as well as ancillary agreements, must be made in writing. This also applies to any modification of the requirement for written form.
10.3.
If any provision of the contractual agreements between Windau and the buyer and/or these Terms and Conditions is wholly or partially invalid or ineffective, the validity of the remaining provisions shall remain unaffected.
10.4.
The exclusive place of jurisdiction for all disputes arising from or in connection with this contractual relationship is Harsewinkel. However, Windau is also entitled to bring legal action against the buyer at any other legally permitted place of jurisdiction.
10.5.
The substantive law of the Federal Republic of Germany applies, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
10.6.
Windau refers to its general data protection information, available at the following link: https://www.windau.de/de/datenschutz/
Last updated: January 2025