General terms and conditions
1. Application of these conditions
a) The following conditions shall apply, under exclusion of all deviating terms and conditions of the customer, to all of our offers and services, as well as to installations, repairs, maintenance, and consulting services or other comparable services.
b) Agreements that supplement or modify these conditions, side agreements and conditions of the customer are only effective if confirmed by us in writing.
a) Any documents that belong to the offer, such as figures, drawings, specifications and weight indications, only serve orientation of the customer and are in no case to be deemed property agreements or acceptance of a property warranty regarding the described goods or service, and must only be passed on to third parties upon our consent. If the no order is placed, they must be returned to us without delay.
b) We assume no liability for any deviations between the information in the documents and the services and deliveries rendered, unless the deviations have been caused by us at least grossly negligently.
3. Orders, order confirmations
Our offers are subject to confirmation. Orders shall only be deemed accepted when they have been confirmed by us in writing. Our written order confirmation shall be essential for the content of the contract.
Apart from this, orders are deemed accepted when we have performed the order. Handover of the documents named is essential for services.
4. Prices and payment
a) All prices apply from our delivery warehouse; transport costs and the VAT applicable on the day of delivery shall be added.
b) Price corrections due to error, on invoices as well as on price lists, delivery receipts, order confirmations and offers, are reserved.
c) The customer is not authorised to retain payments due to counterclaims that are not due to this contractual relationship.
d) Setoff or a right of retention must only be executed and/or asserted regarding non-disputed or legally determined claims.
e) The occurrence of an essential deterioration of the customer’s assets or any other circumstances (e.g. non-clearance of a cheque, cessation of payment, filing for insolvency proceedings) that impair his creditworthiness shall cause all of our claims to fall due at once. In this case, we shall have the right to only deliver against cash payment of the due claims, against advance payment or provision of collateral and to declare rescission of the contract after unsuccessful request to do so. If the customer continually or essentially violates the payment conditions, we shall have the right to demand damages instead of performance after the unsuccessful expiration of an appropriate payment period. The liability for default damage and further statutory claims shall not be affected.
f) The place of performance for the payments shall be Mühlheim am Main / Germany. The rules of § 270, Para. 1, German Civil Code shall not be affected by this.
g) Trade agents and business travellers have no right to enter into collection and suspension agreements.
h) The services, part numbers and qualities determined by us are essential for calculation unless the customer does not contradict without delay.
j) Our invoices shall be payable net at once within 8 days from the day of the invoice if no other written agreements have been entered into. Payments with bills of exchange are inadmissible.
k) Default interest shall be interest at 8 % above the base interest rate according to § 288 German Civil Code. This shall also apply in the case of suspension of the payment.
l) The WSP has the right to demand payment of the goods before delivery.
m) Payments shall be made freely to one of our indicated accounts.
5. Delivery and delivery time, shipping, passing of risk, reservation of self-delivery
a) If nothing else is expressly agreed on, the delivery shall take place from our delivery warehouse in Rodgau / Germany.
b) The risk shall pass to the orderer once the shipment has been handed over to the person executing the transport or has left our business or the warehouse of the previous supplier (in the transfer orders) for shipment or transport. This applies independently of whether the transport or shipment takes place through us or on our order or through the customer or officer of the customer.
c) Where we have entered into a transport insurance and the orderer has met his payment obligations regarding the goods subject to transport insurance towards us in full, we shall assign the claims against the insurance to the customer at the scope permitted by law and insurance contract, except if the assignment is not admissible according to the insurance contract.
d) If there is any damage, any credit for the payment shall only be paid if we have received the coverage from the insurance company. Further obligations are not assumed in this respect. The general business and delivery conditions of the WSP shall be deemed accepted due to a written, binding order of goods and services.
e) if collection is agreed on, the risk of accidental destruction and accidental deterioration of delivery objects shall pass to the customer with the report on provision. Apart from this, the risk shall pass to the customer at the time at which the goods are transferred to the forwarder by us.
f) If shipping is delayed by circumstances due to the customer’s fault, the risk shall pass to the customer from the day of readiness for shipment.
g) The indicated delivery time shall not be any agreement on a fixed delivery date. If we are prevented from timely delivery by unforeseeable events or events for which we are not at fault (e.g. force majeure, strike, lockout), which are unavoidable at reasonable care, the delivery time shall extend accordingly. We reserve correct and timely supply to us in any case. Bottlenecks and delays that are due to the manufacturer or our supplier shall not be due to our fault. If such events subsequently render delivery impossible or unreasonable for use, we shall have the right to wholly or partially declare rescission of the contract.
h) The delivery time shall commence with dispatch of the order confirmation, but not before receipt of an agreed prepayment, not before clarification of all technical details and not before the customer has met all requirements due to him for execution of the business.
j) The delivery time is deemed complied with when the object of the delivery has left our delivery storage by its expiration or if readiness for shipment has been reported.
k) Partial deliveries reasonable for the customer are admissible.
l) If we enter default, the customer must – even if he can make credible that he has incurred damage from this – not demand any compensation for the part of the delivery or service that could not be taken into suitable operation due to default.
m) The customer is obliged to declare within an appropriate time whether he wants to declare rescission of the contract due to delay of the delivery or service or insisted on the delivery or service.
n) Where we have entered into a consistent coverage business with a third party to perform our delivery obligations towards the customer, we reserve the right to declare rescission of the contract with the customer if our contracting partner of the coverage business does not properly meet our delivery obligations, specifically in time and fully comprehensively. Our authorisation to rescission is dispensed with when the non-delivery from this coverage business is due to our fault. We shall inform the customer of improper delivery by our contracting partner of the above coverage business without delay. If the supplier of the coverage business can only supply us partially, partial deliveries by us to the customer are admissible as well where they are reasonable for the customer. In case of partial delivery, our above reservation of rescission shall cover the delivery obligation remaining after the partial delivery towards the customer. In case of execution of our above right to rescission, we shall reimburse the customer for any compensation that may already have been rendered by it. Any damages claims of the customer exceeding this shall be excluded or limited according to the stipulations of the rules in numbers 9 and 10. Any other claims of the customer against us shall be excluded upon execution of our above right of rescission.
o) The customer must not refuse acceptance of deliveries and acceptance of services due to inessential defects. The customer shall review deliveries for completeness and freeness from defects at acceptance.
p) If the customer initiates a time delay when the delivery date has been confirmed and readiness for delivery has been announced, we shall store them for him at his risk where possible. This storage shall not release the customer from his payment obligation that occurs at the time of provision.
If dispatch or delivery are delayed by more than two weeks after indication of readiness for shipment on the customer’s request, the customer shall be invoiced a storage fee of at least 0.5 % of the price of the projects of the delivery for each started month. We reserve proof of higher storage costs.
Any announced additional costs from external stock keeping that can be proven by the supplier shall be at the expense of the customer as well.
q) At a delay as described in 5f), we have the right to declare rescission of the contract after unsuccessful expiration of a set acceptance period of 7 days, and additionally demand reimbursement for expenses made in vain.
6. Retention of title
We only deliver on the basis of the retention of title described in more detail below. This shall also apply for any future deliveries, even if we do not always expressly refer to it.
a) We reserve title in the delivered object until complete payment of all claims from the delivery contract. We have the right to take back the purchased object if the purchaser acts in violation of the contract.
b) The purchaser is obliged to treat the purchased object with care until title has passed to him. In this respect, he is obliged to sufficiently insure it at his own costs against theft, fire and water damage at the new value. If maintenance and inspection work has to be performed, the purchaser must perform them at his own costs in time. If title has not passed yet, the purchaser must inform us in writing without delay when the delivered object is pledged or subject to any other third-party access. Where the third party is unable to reimburse us for the court and out-of-court-costs of a claim according to § 771 ZPO, the purchaser shall be liable for the resulting loss.
c) The purchaser is authorised to sell on the goods subject to retention of title in regular business transactions. The purchaser hereby assigns the claims of the purchaser from the further sale of the goods subject to retention of title to us at the amount of the agreed final included amount (including VAT). This assignment shall apply independently of whether the purchased object is sold on without or after processing. The purchaser remains authorised to collect the claim even after the assignment. Our right to collect the claim ourselves is not affected by this. We shall, however, not collect the claim while the purchaser meets his payment obligations from the received revenue, has not entered delay of payment and specifically has not filed for opening of insolvency proceedings or ceases to make his payments.
d) Processing and finishing or reforming of the purchased object by the purchaser shall at all times happen in our name and on our order. In this case, the purchaser’s right to the purchased object shall continue in the reformed object. Where the purchased object is processed with other objects that do not belong to us, we shall acquire co-property in the new object at the ratio of the objective value of our purchased object to the other processed objects at the time of processing. This shall also apply to the case of mixture. If mixing takes place in a manner so that the object of the purchaser is considered the main object, it is deemed agreed that the purchaser transfers a pro-rated joint title to us and keeps the resulting sole or joint property for us. To secure our claims against the purchaser, the purchaser shall assign such claims to us as well that arise for him against a third party from the connection of the goods subject to retention of title to a property; we hereby accept this assignment.
e) We commit to releasing the collateral due to us on request of the purchaser where their value exceeds the claims to be secured by more than 20 %.
We shall provide application-technical consulting to the best of our knowledge. Any information and indications on suitability and use of our goods shall not release the customer from his own inspections and tests regarding suitability of the products for the intended procedures and purposes.
8. Obligation to examine and complain
a) The customer shall examine the goods without delay and report any defects to us in writing without delay and no later than 14 days of receipt at the site of determination. Reporting to trade agents and business travellers shall not be sufficient.
b) Hidden defects shall be reported in writing no later than 3 working days after discovery. Later reports of defects are not recognised.
c) To comply with the complaint period, timely dispatch of a written complaint about defects under precise indication of the defects subject to the complaint shall be sufficient.
d) At non-timely reporting of complaints or reports on defects, the delivery shall be deemed approved.
e) In case of reports about defects, payments by the customer must only be kept back at the scope at an appropriate reaction to the defects of material that occurred. The customer must only retain payments when a complaint about defects is asserted about the justification of which there is no doubt. If the complaint about defects is submitted incorrectly, we shall have the right to demand reimbursement for the resulting expenses from the customer.
a) Only the product description in the offer or the order confirmation is deemed agreed as property of the goods. A warranty of the property of the goods or for the duration of the property in deviation from the specified service and product warranties of the manufacturer is not given.
b) Warranty information and warranty conditions are pure manufacturer information for which we assume no liability. In a warranty case, the manufacturer may, at his choice, compensate or improve the delivery. We assume no liability for expenses, specifically for assembly, travel costs pp., arising in connection with the manufacturer’s liability. In this case, the warranty conditions of the previous suppliers are essential.
c) Recourse of the purchaser (customer) against the supplier (us) according to § 478 German Civil Code (recourse of the entrepreneur) is only permitted where the purchaser(customer) has not entered into any agreements with his customer that exceed the statutory minimum claims.
d) Our liability for assembly or repair work is excluded if installation companies independently acquire the goods from us and there are no servants in the sense of § 434 Para. 2 of the German Civil Code.
e) For damage arising in the scope of warranty due to violation of contractual secondary obligations, consulting errors, tort, culpable violation of improvement or replacement delivery obligations or other legal reasons – specifically also where this damage does not arise to the delivery object as such – we shall not be liable except in case of wilful intent or where exclusion of liability is not permitted by law for any other reasons. If any warranted properties are missing, damages claims shall also be excluded if it was not the purpose of the warranty to avoid consequential damage from defects.
f) If the delivery object is subject to defects of material when risk passes, the customer shall have a claim to improvement or replacement delivery – according to our choice. The seller shall be authorised to three improvements or replacement deliveries in case of defects. We are authorised to refuse subsequent improvement or replacement delivery when they would be connected to unreasonable effort. The customer is due only the rights determined in item 10 b) in this case. Unreasonable effort for the chosen type of subsequent performance is to be assumed if the costs for subsequent performance exceed the value of the object to be subsequently delivered by 20 % when the risk is passed.
g) If it is not possible to remove the defect of material within an appropriate grace period, the customer may, at his choice, reduce the purchasing price, declare rescission of the contract or demand damages according to the stipulations of item 10. If the chosen subsequent performance is unreasonable for the purchaser, he shall be due to rights determined in sentence 1. The claim to rescission of the contract and damages shall be excluded in case of inessential defects of material.
h) The warranty period shall be 24 months. It shall commence at the time of delivery of the ordered goods, no later than at invoicing; in case of item 5 f), it shall commence at the time of reporting of readiness for shipment.
j) A case of warranty for defects shall specifically not be present when and where damage to the delivery object or other legal goods of the customer are due to the following reasons:
– Defective information on the purpose, usage site or conditions of the object of the delivery.
– Defective further processing, assembly, treatment.
– Defective installation of the delivery object by the customer or third parties, except if the defective installation is due to our instructions.
– Non-observance of the instructions named in the operating instructions or placed by us on commissioning and operation of the delivery object; this shall specifically apply for the operating instructions of the previous supplier if they were reported to the customer or known for any other reason.
– Access of persons not authorised by us, normal or excessive wear not due to defects of production or material.
– Excessive strain.
k) The above warranty according to this item is only rendered at the scope and amount as it applies at use of the object of the delivery at the agreed site of delivery. Where the expenses increase by the purchased object being taken to another site than the agreed delivery site, the customer shall assume these additional costs.
l) We shall assume the direct costs resulting from subsequent improvement replacement delivery – where the complaint turns out to be justified – the expenses directly required for the purpose of subsequent performance, specifically the costs of the replacement piece, including shipment, and the appropriate costs of the removal and installation, but no more than twenty per cent of the purchasing price for the replacement piece. Apart from this, the customer shall assume the costs.
m) The removal of defects of material according to item 9 or the services according to items 9 and 10 shall in any case take place without recognition of a legal obligation if nothing else is expressly agreed on.
n) Further or other claims of the customer than those named in items 9 and 10 against us or due to any defect of material are excluded.
10. Other damages claims, liability
a) In case of wilful intent and gross negligence, we shall be liable according to the statutory provisions. In case of gross negligence, we shall be liable for the typically foreseeable damage, but at no more than 2.5 % of our sales price, where no higher damage can be proven from case to case. This shall also apply at culpable violation of an essential contractual obligation. Liability for lack of a warranted property shall be unaffected. Liability under the product liability act and for other injury shall also be unaffected. Apart from this, liability is excluded
b) Where delivery is impossible, the purchaser shall have the right to demand damages, except if we are not at fault for the impossibility. The purchaser’s claim to damages shall be limited to 2.5 % of the value of that part of the delivery that cannot be taken into proper use due to the impossibility. This limitation shall not apply where mandatory liability applies in cases of wilful intent, gross negligence or due to violation of life, body, or health. No changes to the burden of evidence to the detriment of the purchaser are connected to this. The purchaser’s right to rescission of the contract shall not be affected.
c) Where unforeseeable events essentially change the economic importance or content of the delivery or essentially affect our business operation, the contract is adjusted under observance of good faith. Where this is not economically reasonable, we shall have the right to declare rescission of the contract. The customer shall be informed of this right of rescission without delay, even if extension of the delivery time was agreed on with the customer initially.
11. Data privacy
We have the right to process the data received on the customer regarding the business relationship or in connection with it, no matter if provided by the customer or by third parties, in the sense of the Data Privacy Act.
12. Validity clause
Changes and/or supplementations of these contractual conditions shall require written form to be valid. This shall also apply to the requirement of written form. If one or several provisions of the terms and conditions are or become invalid, void, or impractical, the validity of the remaining provisions shall not be affected. In case of invalidity or voidness or impracticality of a clause, the WSP shall have the right to phrase a replacement clause according to its discretion, which the customer may have reviewed in court according to § 315 German Civil Code.
13. Place of jurisdiction and place of performance
a) Place of performance and place of jurisdiction shall be Offenbach am Main / Germany, where the contracting partner is a merchant, legal entity of public law or a public special funds.
b) The contractual relationships with our customers shall be solely subject to the law of the Federal Republic of Germany, under exclusion of the Convention of the United Nations on Contracts for the International Sale of Goods (CISG) and international private law.