General Terms and Conditions
I. Quotation, conclusion of contract & content
Our general terms and conditions as set forth below, shall apply with priority for our goods, in the absence of an agreement to the contrary.
1. Our quotations are subject to alteration. Purchaser’s purchase orders shall be binding. A contract shall only come into effect with our written order confirmation.
2. Our product description as agreed shall apply as the exclusive condition of goods. The information contained in brochures and advertisements does not constitute any assurance of attributes, and the purchaser obtains no legal guarantees from Wasserspiele Koolman, unless we expressly issue a declaration of guarantee.
3. Full and timely order execution shall be subject to availability of supplies. We shall inform purchaser without delay if a product is not available, and will refund the appropriate amount to purchaser without delay in the event of cancellation.
II. Prices and terms of payment
1. Prices are ex works in US $, cost for shipping and VAT to be added.
2. In the absence of an agreement to the contrary our invoices shall be due and payable in full, net cash, without discount.
III. Transfer of risk and acceptance
1. Risk is transferred to purchaser when the delivery items are sent, or if we have taken responsibility for other performances, such as the shipment and its costs.
2. If shipment is delayed due to circumstances for which purchaser is responsible, then the risk shall be transferred to purchaser from the day Wasserspiele Koolman is ready to ship.
IV. Retention of title
1. We shall retain title to the delivery item until all payments arising from the business relationship with purchaser have been received; retention of title is based on the recognized balance.
V. Notification of defect and liability for defects
1. Purchaser shall check each of our deliveries immediately for completeness and freedom from defects. After delivery purchaser shall report apparent defects, and defects that are apparent after proper examination, in writing, without delay. A short delivery shall not constitute a defect, nor shall an incorrect delivery constitute a defect; in these cases we are authorised to make an additional delivery, if requested.
2. If the goods are defective due to a delivery transaction, then we shall be authorised to either replace or repair at our discretion.
3. Claims of defect do not exist in the case of insignificant deviation from an agreed quality, or for insignificant impairment of usability.
4. If purchaser elects to withdraw from the contract after failed supplemental performance due to material defect of a delivery, then purchaser shall not be entitled to additional claims for damages. If after failed supplemental performance, purchaser elects to claim damages, then the goods shall remain with the purchaser if this is acceptable to purchaser. Replacement shall be limited to the difference between purchase price and the value of the defective item. This shall not apply if Wasserspiele Koolman wilfully or through gross negligence caused the violation of the contractual obligation.
5. Purchaser shall be obligated to provide Wasserspiele Koolman with the required time and opportunity to undertake replacements deemed necessary after coordination; otherwise Wasserspiele Koolman shall be released from liability for the defect.
6. The limitation period for claims and rights due to defects – regardless of legal grounds – shall be 2 year for delivery. This period shall also apply for other claims for damages on the part of purchaser, regardless of legal basis, except in the case of intent, guarantee violation, or malicious concealment of defects, or in the case of claims in accordance with the German Product Liability Act, and for culpable violation of essential contract obligations on the part of Wasserspiele Koolman.
8. We shall not be held liable for damage that is due to unsuitable or improper use, for incorrect handling on the part of purchaser or a third party, or damage that occurs through natural wear or negligent treatment, unsuitable cleaning and care, chemical and or mechanical influence, for which we are not at fault.
VI. Conditions governing the return of goods
1. The ordering party shall bear the transport risk for the return shipment. Return shipments should not be sent freight collect, otherwise Wasserspiele Koolman shall be authorised to refuse acceptance of the return shipment.
VII. Liability for secondary obligations
1. Our technical application advice as well as recommendations, and drawings merely illustrate the best possible use of our products, they are provided as approximations only, and are non-binding. They do not release purchaser from his obligation to verify for himself that our products are suitable for purchasers intended purpose.
VIII. Place of fulfilment, applicable law, legal venue
1. Place of performance for all deliveries and payments shall be the company’s seat at Bubenreuth/Germany.
2. German law shall apply exclusively. The uniform law on the international sale of goods (CISG) shall not apply.
3. Exclusive legal venue shall be the Erlangen/Germany Regional Court, if the purchaser is a merchant who has been entered in the Commercial Registry, a public sector corporation, or an investment fund (under German investment law).
IX. Severability clause
Invalidation of any one of the provisions in this contract shall not affect the validity of the other provisions.