General Terms and Conditions
§1 Scope of application
The relationship between us and the customer shall be governed solely by the following general terms and conditions in the version valid at the time of order. This shall also apply for all future transactions. Deviating terms and conditions of the customer shall not apply unless expressly recognised by us in writing. Our sales staff are not authorised to conclude or give verbal ancillary agreements or verbal assurances that exceed the terms of the written contract.
§2 Formation of contract
- Our offers are non-binding. Verbal agreements and assurances and not to be considered binding until confirmed by us in writing. Every order from the customer shall be binding.
- The details contained in brochures, catalogues, newsletters, pricelists or in the documents forming part of an offer as well as all customer-specific drawings, images, technical data, weights, measurements and service specifications shall always be non-binding and shall not constitute any agreement regarding the properties of our products unless expressly described by us in writing as binding in our confirmation of order.
- Declarations given in connection with our offer (e.g. service specifications, reference to DIN standards etc.) shall not constitute any guarantee. Any guarantee shall be subject to our express written confirmation.
- We accept no procurement risk. We reserve the right to withdraw from the contract where despite prior formation of a procurement contract we fail to receive the contractual items or primary materials. This shall not affect our liability for malice or negligence under § 10 of these GTC. We shall inform the customer immediately of any non-availability of the contractual items or primary materials. Should the customer then wish to exercise its right of withdrawal, it must do so immediately. In the event of withdrawal by the customer, we shall immediately return any pre-payments.
- The customer shall accept delivery of the goods ordered. Should the customer seriously and definitively decline acceptance, we reserve the right to withdraw from the contract via written declaration and seek compensation for non-performance.
- Force majeure, labour disputes, unrest, official measures and other unforeseeable, unavoidable and significant events shall for the duration of the disruption and to the extent of their effect absolve us of our obligations to perform. This shall also apply if an event should occur at a time at which we are in default unless the default derives from our malice or gross negligence. In such an event we shall as far as reasonable immediately notify our customer of the information required. The customer shall in such an event in a spirit of goodwill adapt in light of the altered circumstances our contractual obligations to perform. Should the delay be of longer than two months’ duration, each contractual partner reserves the right to withdraw from the contract with respect to the unperformed part of it.
- Our prices as valid on the day of delivery shall apply. Unless stated otherwise we shall be bound by the price list valid at the time in question or by the price file (online).
- Unless stated otherwise, all prices are exclusive of packaging and transport and statutory VAT at the applicable rate. The imposition of customs duties, import and/or export duties or other fees on the items to be delivered shall entitle us to adjust prices accordingly. For all deliveries we reserve the right to demand pre-payment or cash on delivery. Additional deliveries and services are calculated separately. For an existing debit order no insurance costs shall be charged. Foreign orders are undertaken carriage forward from the WORTMANN TELECOM GmbH warehouse.
- Written confirmation of prices provided for orders shall constitute a non-binding guide price as unforeseen complications, such as fluctuations in exchange rates, may arise.
§4 Delivery and acceptance obligation
- Delivery shall be subject to Incoterms 2020.
- Delivery dates must be agreed in writing. Written confirmation of dates shall constitute non-binding guideline dates as there may arise unforeseeable complications such as interruptions to transport or power sources or unforeseeable failure of supply from our suppliers.
- Unless agreed otherwise, we shall specify route and method of despatch as well as despatch agents and freight carriers. With the transfer of goods to a despatch agent or freight carrier risk shall transfer to the customer even in the event of confiscation and for all transactions including free and domicile delivery. We undertake insurance solely at the customer’s cost and behest. The customer shall be responsible for unloading and for the costs thereof.
- Should through no fault of our own transport by the intended route or to the intended destination at the intended time be impossible, we reserve the right to deliver via an alternative route or to another destination. Any additional costs arising therefrom shall be borne by the customer. This shall also apply for the short-term exceeding of delivery dates. The customer shall be afforded the prior opportunity to comment.
- We reserve the right to reasonable partial delivery. Transport and freight costs for partial deliveries shall be borne by the customer. This shall especially apply where partial delivery is performed in the customer’s interest.
- For transactions involving ongoing delivery, partial deliveries of approximately the same amount are to be requested. Otherwise we reserve the right to determine the amounts of the partial deliveries at our own discretion. Should individual requests be greater than contractual amounts, we reserve the right, but shall not be obliged, to supply the excess. Prices for excess amounts are calculated in accordance with the prices valid at the time of the request or delivery.
- We shall not be deemed to be in default of our obligations until we are in receipt of a written warning. A grace period of four weeks shall be deemed appropriate. Delivery shall not be considered delayed in the event of force majeure, insurgency, operational disruptions, strike, manufacturer’s delay etc.
- For contracts of supply each partial delivery shall be considered a separate service that can be invoiced as such. In the event of default on our side of more than three months the customer can withdraw from the contract following written confirmation of a grace period and notice of withdrawal. Except in cases of malice or gross negligence compensation claims of the purchaser in the event of default are hereby excluded.
- For foreign orders supply shall be subject to receipt of full amount due by one of our payment offices.
- There shall be no general right to return of goods. Return of goods must be approved, for which process the customer will be given an order number. We shall accept goods only with our commission number. Returns not due to mistaken delivery shall be subject to a charge of €15.00 or other appropriate processing fee such as a fee of up to 5% of the value of the goods.
- Should the customer fail to accept the goods at the agreed time and date we reserve the right to stipulate an appropriate grace period. Following fruitless expiry of the grace period we reserve the right to withdraw from the purchase contract. The right to bring further claims for compensation shall remain unaffected.
- Without prejudice to further claims for compensation we reserve the right to claim for non-performance compensation of up to 20% of the purchase price. The customer shall nonetheless be entitled to prove lesser loss.
§5 Payment terms
- All payment deadlines are based on the invoice date. Settlement of our claims must comply with our payment terms. Unless specified otherwise or stated otherwise on the invoice payment shall be due in full immediately on receipt of goods. For transfers to a bank account specified by us and for payment by cheque payment shall not be deemed received until unconditional credit of the payment to our account.
- Contrary to no. 1 of this section, for foreign orders pre-payment must be agreed with the customer. Any agreement in deviation here from shall apply solely to the order concerned and shall not form the basis of any subsequent transaction.
- Payment orders and cheques shall be accepted subject to special written agreement and as conditional payment only. Collection, discount and bank fees shall be charged to the customer separately.
- Should the customer be wholly or partly in arrears with payment we reserve the right as part of commercial dealings and from the date in question to charge interest at the applicable commercial bank rate and at least eight percentage points over the applicable base rate as per “§ 247 BGB” as well as a flat fee of €25 excl. sales tax at the applicable rate to cover administration costs. The customer reserves the right to prove a lesser loss. We reserve the right to bring claims for further loss.
- Should a customer be longer than three weeks in arrears with a payment or fail to submit a cheque or bill of exchange when due or should other doubts arise as to the customer’s solvency, all payments due to us from the customer shall be immediately due without regard to the duration of any bill of exchange. In respect of all other claims we reserve the right to demand the payment of securities, to complete outstanding deliveries only on payment in advance or on payment of security, to prohibit the processing, handling and/or sale of goods in our ownership or co-ownership and to demand their return.
- Payments (including partial payments and instalments) are always applied to the oldest debt item and to the interest accrued thereto and to the administrative fee.
§6 Offsetting and right of retention
- The exercise of rights of retention and offsetting against counterclaims are hereby excluded unless such rights expressly recognised by us in writing by means of a credit note or unless legally enforceable.
- Should a customer be in arrears with payment of an invoice or should his assets significantly depreciate following contract formation then all its debts to us shall be due immediately. We shall then be entitled to make further delivery subject to payment in advance.
- In the event of defect the customer shall not be due any right of retention insofar as the value of the delivery is disproportionate to the defect and to the likely costs of subsequent performance (especially costs of remedy of defect). Otherwise the customer shall be due a right of retention only insofar as its counterclaim is based on the same contractual relationship.
§7 Transfer of risk
- On collection the payment risk and service risk shall pass to the customer on transfer of the goods to the despatch agent, freight carrier or other person charged with execution of order.
- On despatch the payment risk and service risk shall likewise transfer to the haulage operator on transfer of goods.
§8 Reservation of title
- All goods supplied shall remain our property (reserved goods) until settlement of all claims arising from the transaction concerned.
- All goods supplied by us shall remain our property until all claims under the transaction concerned are paid.
- Until it has paid the full purchase price the customer may dispose of the goods supplied by us solely under reservation of title and only by way or ordinary commercial activity. Disposal of goods by the customer in unprocessed condition shall be subject to our express prior written agreement.
- The customer shall notify us immediately of any seizure or other intervention by any third party. The customer shall be liable for all costs for the suspension of seizure and the recovery of the purchased items insofar as such costs cannot be recovered from third parties.
- Should the total value of securities provided exceed the secured claims, including ancillary claims (interest, costs or similar), by more than 50% we shall at the customer’s request release securities, the choice to be at our discretion, until the excess value is less than 50%.
- Should the customer be in payment arrears or should it fail to submit a cheque or bill of exchange when due we reserve the right to reclaim the reserved goods and for this purpose to enter the customer’s premises or warehouse. The reclamation of goods shall not be deemed withdrawal from contract.
- We reserve the right to withdraw from the purchase contract or parts thereof via written declaration if the customer becomes insolvent or over-indebted or ceases its payments or applies for insolvency proceedings. The right of withdrawal is to be exercised prior to the commencement of insolvency proceedings. The customer shall inform us immediately of the onset of insolvency, over-indebtedness or cessation of payment. Should it fail to provide such notification it shall be liable for payment to us of a sum equal to 5% of the value of goods. We further reserve the right to prohibit the disposal, processing and removal of the reserved goods. The provisions of the Insolvency Regulations [Insolvenzordnung – InsO] shall remain unaffected.
- The purchaser shall inspect the goods immediately on receipt and immediately inform us of and note on the consignment documents any externally discernible transport damage, defects or wrong deliveries. All goods delivered must be inspected for completeness, including for any missing components.
- Defects to goods must as part of inspection on receipt be communicated in writing immediately and within 14 days of delivery. Any defects that cannot be discovered within this period even with the most careful inspection must be communicated in writing immediately on discovery and any processing or handling must immediately cease. The regulations of § 377 HGB shall remain unaffected.
- The customer must on receipt of goods immediately inspect the quantity and type of the items delivered. Complaints not immediately raised regarding quantity and type of goods delivered shall be deemed void. The regulations of § 377 HGB shall remain unaffected.
- Claims for defects shall not be valid in the event of immaterial deviation from any agreed specification or of immaterial impairment of usability.
- In response to legitimate notice of defect delivered within the period allowed we shall at our discretion either take back the goods in question and replace them with defect-free goods or repair them. Should the customer desire compensation in place of service or undertake its own measures or withdraw from the contract, repair shall be deemed failed only after two unsuccessful attempts. Statutory instances of waiver of deadline shall remain unaffected. Liability for loss due to consequence of defect is hereby excluded.
- Customer shall immediately allow us to inspect the alleged fault and shall on request make the items in question wholly or partly available.
- For repaired or replaced goods we shall offer the same guarantee as for the original goods or service.
- The guarantee period shall be 24 months.
- The guarantee period shall commence on the date of delivery. The expiry and commencement dates shall also apply to breaches of obligation not connected to material or legal defect. Expiry shall not be delayed by negotiations initiated by the customer.
- Inappropriate interference with the goods by the customer or by any third party shall not be covered by any guarantee.
- Also excluded shall be faults caused by failure to follow operating or maintenance instructions or by wear and tear or incorrect handling.
- For damage rectification undertaken by third parties at the instigation of the customer without prior consultation with us we shall not accept any liability or reimburse any costs.
- Should it be established following inspection of goods returned that there is no defect the sender shall bear the costs of inspection and despatch.
§10 General liability and expiry
- Wir haften in Fällen des Vorsatzes oder der groben Fahrlässigkeit unsererseits oder eines Vertreters oder Erfüllungsgehilfen nach den gesetzlichen Bestimmungen. Im Übrigen haften wir nur nach dem Produkthaftungsgesetz wegen Verletzung des Lebens, des Körpers oder der Gesundheit oder wegen der schuldhaften Verletzung wesentlicher Vertragspflichten oder soweit wir den Mangel arglistig verschwiegen oder eine Garantie für die Beschaffenheit des Liefergegenstandes übernomme
- In the event of malice or gross negligence by us or our representatives or agents we shall be liable in accordance with statutory regulations. Otherwise in the event of death, injury or impairment of health or in the event of culpable breach of essential contractual obligation or if we have intentionally failed to disclose a defect or if we have provided a guarantee for the properties of the goods supplied our liability shall be limited to that provided for under the Product Liability Act [Produkthaftungsgesetz – ProdHaftG]. Compensation claims for the breach of essential contractual duties shall nonetheless be limited to typical foreseeable loss. Liability for loss caused to the customer’s chattels by the goods supplied – e.g. damage to other items – is nonetheless hereby fully excluded. The provisions of sentences 3 and 4 of this paragraph 1 shall not apply in the event of malice or gross negligence or in the event of liability for death, injury or impairment of health or if we have intentionally failed to disclose a defect or if we have provided a guarantee for the properties of the goods supplied.
- The provisions of the above paragraph 1 shall regardless of grounds include i) compensation as well as performance and ii) compensation in place of performance and especially compensation due to defect, breach of contractual obligation or tort. They shall also apply for claims for reimbursement of fruitless expenditure. Liability for default shall be governed by the following paragraph 3 of this section and liability for impossibility by paragraph 4 of this section.
- Our liability for delay of performance in cases of malice or gross negligence by us or by our representatives or agents shall be subject to statutory provision. In other cases of delay of performance our liability for compensation in addition to or in place of performance shall be limited to 5% of the value of the part of the delivery affected by the delay. Further claims of the customer, even those brought after expiry of any deadline imposed upon us, are hereby excluded. The aforementioned restriction shall not apply in the event of liability for death, injury or impairment of health.
- Where supply is impossible the customer shall be entitled to statutory compensation. The customer’s claim for compensation in addition to or in place of performance and for fruitless expenditure shall be limited to 10% of the value of the part of the supply that cannot be used due to the impossibility. Further claims of the customer based on impossibility of supply are hereby excluded. This restriction shall not apply in the event of liability for malic, gross negligence, death, injury or impairment of health. The customer’s right to withdraw from the contract shall remain unaffected.
- Claims for compensation shall regardless of grounds expire twelve months after the supply date.
- The expiry deadline specified under paragraph 5 shall apply for all other compensation claims against us regardless of grounds. They shall also apply for claims not connected to defect.
- The above expiry dates shall apply under the following conditions:
- The expiry date shall not apply in the event of malice.
- The expiry date under paragraph 5 shall also not apply if we have intentionally failed to disclose the defect or have provided a guarantee for the properties of the goods supplied. Should we have intentionally failed to disclose the defect then in place of the deadline specified under paragraph 5 the statutory deadlines shall apply subject to the exclusion of deadline extension in the event of malice as per § 438 paragraph 3 BGB.
- The expiry dates as per paragraph 5 shall not apply to compensation claims in the event of death, injury, impairment of health or violation of liberty, for claims brought under ProdHaftG, for grossly negligent breaches of obligation or for the culpable breach of essential contractual obligations.
- The expiry period for all compensation claims shall commence on supply.
- Where in this section reference is made to claims for compensation, claims for reimbursement of fruitless expenditure shall also be included.
§11 Data protection/Internet
- The customer hereby consents to the processing of its data insofar as is required for contractual purposes. We keep our customers regularly informed of price changes via fax, post, email and text message and also via our website, for which the customers will receive a personalised password.
- The disclosure of passwords to third parties is prohibited and shall entitle us to limit or block access. The customer consents to this restriction. Passwords may nonetheless be issued to agents.
- Accessing our network renders customer data (order tracking, product availability, pricing, core data, data warehousing etc.) transparent. Our website conforms to the latest technical standards. We place great value on data security but can guarantee it only if the customer fulfils the customary obligation to comply.
- No guarantee is provided for errors or faults caused by inappropriate accessing of our system by the customer or by third parties.
- Also excluded are errors and faults caused by failure to follow operating or maintenance instructions.
§12 Jurisdiction and applicable law
- Unless agreed otherwise the place of performance for our deliveries shall be Hüllhorst.
- Place of performance for purchase price payment shall be Hüllhorst.
- Jurisdiction for all disputes arising from the contractual relationship shall be the location of our head office, Hüllhorst. We nonetheless reserve the right to bring claims against the customer in its own jurisdiction as well.
- All legal relations between the customer and us shall be subject to German law.
- The United Nations Convention on Contracts for the Sale of Goods of April 11 1980 (CISG) shall not apply to contracts to which we are party.
§13 Closing provisions
- Should any provision in these terms and conditions or any provision under other agreements be or become invalid the validity of all the other provisions or agreements shall remain unaffected.
- Insofar as based on the above paragraph or on lack of contractual agreement there exist gaps in provisions the parties shall immediately work towards an agreement that corresponds to their intention in accordance with the overall content of the contract and with due regard to these terms and conditions.