General Terms and Conditions
§1 Scope of application
The business relationship between us and the customer shall be governed exclusively by the following General Terms and Conditions in the version valid at the time of the order. This shall also apply to all future transactions. We do not recognize deviating terms and conditions of the customer unless we have expressly agreed to their validity in writing. Our sales staff are not authorized to make verbal collateral agreements or give verbal promises that go beyond the content of the written contract.
§2 Conclusion of contract
- Our offers are subject to change. Verbal agreements and assurances shall only become binding upon our written confirmation. Every order placed by the customer is binding.
- The information contained in brochures, catalogs, circulars, advertisements, price lists or in the documents belonging to an offer, customer-specific drawings, illustrations, technical data, weight, dimension and performance descriptions are always non-binding and do not lead to an agreement on the quality of our products, unless they are expressly designated by us in writing as binding in the order confirmation.
- In particular, statements in connection with our offer (e.g. service descriptions, reference to DIN standards, etc.) do not contain any assumption of a guarantee. The assumption of a guarantee requires our express written confirmation.
- We do not assume any procurement risk. We are entitled to withdraw from the contract if we do not receive the delivery item or the primary materials despite the prior conclusion of a corresponding purchase contract on our part. Our liability for intent or negligence in accordance with § 10 of these GTC shall remain unaffected. We shall inform the customer immediately if the delivery item or primary materials are not available on time. If the customer wishes to withdraw from the contract, he must exercise his right of withdrawal immediately. In the event of withdrawal by the customer, we shall immediately reimburse any consideration already paid.
- The customer is obliged to accept the delivery. If the customer seriously and finally refuses to accept a delivery, we shall be entitled to withdraw from the contract by written declaration and to claim damages for non-performance.
- Force majeure, labor disputes, unrest, official measures and other unforeseeable, unavoidable and serious events shall release us from our performance obligations for the duration of the disruption and to the extent of its effect. This shall also apply if such an event occurs at a time when we are in default, unless we have caused the default intentionally or through gross negligence. In such a case, we are obliged to provide our customer with the necessary information without delay within the scope of what is reasonable. In such a case, the customer shall be obliged to adapt our performance obligations arising from the contractual relationship to the changed circumstances in good faith. If the hindrance lasts longer than 2 months, either party to the contract may withdraw from the part of the contract that has not yet been fulfilled.
§3 Prices
- Our prices on the day of delivery shall apply. Unless otherwise stated, we shall be bound by the respective valid price list or price file (Internet).
- Unless otherwise stated, all prices are exclusive of packaging and transportation as well as the applicable statutory VAT. The introduction of customs duties, import and export fees or other charges on the delivery of the contractual object shall entitle us to a corresponding price adjustment. We reserve the right to ship all deliveries cash on delivery or in advance. Additional deliveries and services shall be invoiced separately. In any case, no insurance costs will be charged if a debit order has been submitted. Foreign orders are always shipped freight collect from the WORTMANN TELECOM GmbH warehouse.
- In the case of orders, a written price commitment shall be deemed to be a non-binding guide price, as unforeseen complications, e.g. changes in currency parities, etc. may arise.
- Subject to prior sale, errors, changes and printing errors.
§4 Delivery and acceptance obligation
- Delivery shall be made in accordance with Incoterms 2020.
- Delivery dates must be in writing. In the case of orders, a written commitment to a delivery date shall be deemed to be a non-binding indicative date, as unforeseen complications, such as failure of means of transportation and energy, unforeseeable absence of deliveries from upstream suppliers, may also occur in this respect.
- Unless otherwise agreed, we shall determine the shipping route and means of shipment as well as the forwarding agent and carrier. When the goods are handed over to a forwarding agent or carrier, the risk, including the risk of confiscation of the goods, shall pass to the customer for all transactions, including franco or free delivery. We shall only provide insurance at the special instruction and expense of the customer. The obligation to unload and the costs of unloading shall be borne by the customer.
- If transportation on the intended route or to the intended place within the intended time becomes impossible through no fault of our own, we shall be entitled to deliver by another route or to another place. The additional costs incurred shall be borne by the customer. This also applies to short-term delays in delivery. The customer shall be given the opportunity to comment beforehand.
- We are entitled to make partial deliveries to a reasonable extent. The transportation or freight costs incurred for partial deliveries shall also be borne by the customer. This shall also apply in particular if the partial delivery is made in the customer's interest.
- In the case of contracts with continuous delivery, call-offs for approximately equal partial quantities shall be placed with us; otherwise we shall be entitled to determine the partial quantities at our reasonable discretion. If the contractual quantity is exceeded by the individual call-offs, we shall be entitled, but not obliged, to deliver the surplus. We may invoice the surplus at the prices valid at the time of the call-off or delivery.
- In any case, we shall only be in default with our obligations following a written reminder. A grace period of 4 weeks shall be deemed reasonable. Delay in delivery shall not occur in the event of force majeure, riots, operational disruptions, strikes, manufacturer delays, etc.
- In the case of delivery contracts, each partial delivery shall be deemed an independent service and may also be invoiced as such. In the event of a delay on our part of more than one month, the customer may withdraw from the contract after setting a grace period in writing and threatening to reject the delivery. In the event of a delay in delivery, claims for damages by the buyer are excluded, except in cases of intent and gross negligence.
- In the case of international orders, the goods will only be delivered after full payment has been received by one of our paying agents.
- There is no general right to return goods. Returns of goods must always be authorized. The customer will receive an order number for this purpose. We only accept goods with our order number. For returns that are not due to incorrect deliveries, a lump sum of EUR 15 or an appropriate expense allowance or a reduction in the value of the goods of up to 5% of the value of the goods will be charged as a cost contribution.
- If the customer does not accept the goods on the agreed date, we may set the customer a reasonable grace period. After unsuccessful expiry of the grace period, we are entitled to withdraw from the purchase contract. The assertion of claims for damages remains unaffected by this.
- Without prejudice to further claims for damages, we may demand compensation for non-performance in the amount of up to 20% of the purchase price. However, the customer has the option of proving a lower amount of damages.
§5 Terms of payment
- All payment terms are based on the invoice date. Payments for the purpose of fulfilling our claims must be made in accordance with our terms of payment. Unless otherwise stipulated or specified on the invoice form, payment must be made immediately after receipt of the goods without deduction. In the case of transfers to a bank account specified by us and in the case of payment by check, only the unconditional crediting to our account shall be deemed payment.
- Notwithstanding clause 1 of this section, advance payment shall be agreed with the customer for orders with a foreign connection. Any agreement deviating from this shall apply exclusively to the respective order and shall not form the basis of any subsequent transactions.
- Money orders and checks shall only be accepted after special written agreement and only on account of performance. Collection, discount and bank charges shall be charged to the customer separately.
- If the customer is in arrears with a payment in whole or in part, we shall be entitled in commercial transactions to charge interest from the relevant date in the amount of the applicable debit interest of the commercial banks, but at least 8 percentage points above the respective base interest rate in accordance with § 247 BGB (German Civil Code) as well as a flat-rate administrative fee of € 25 plus VAT at the current statutory rate. The customer is entitled to provide evidence of lower damages. We reserve the right to claim further damages.
- If the customer is in arrears with a payment for more than 3 weeks or if he does not cash a check or a bill of exchange on the due date or if doubts arise as to his solvency for any other reason, all payment obligations of the customer towards us shall become due immediately, regardless of the term of any bills of exchange accepted. We shall be entitled to demand the provision of security for all other claims, to make outstanding deliveries only against advance payment or provision of security, to prohibit the handling, processing and/or resale of the goods in our ownership or co-ownership and to demand their surrender.
- Payments (including partial payments and payments on account) are always used to settle the oldest debt item and the interest accrued on it as well as the administration fee.
§6 Offsetting and rights of retention
- The exercise of rights of retention and offsetting against any counterclaims is excluded unless they have been expressly recognized by us in writing by means of a credit note or have been legally established.
- If the buyer is in arrears with the payment of an invoice or if his financial circumstances have deteriorated significantly after conclusion of the contract, all his liabilities to us shall become due immediately. We are then entitled to carry out outstanding deliveries only against advance payment.
- In the event of the existence of any defects, the customer shall not be entitled to a right of retention insofar as the value of the delivery is not in reasonable proportion to the defects and the anticipated costs of subsequent performance (in particular rectification of defects). Furthermore, the customer is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
§7 Transfer of risk
- In the case of collection, the risk of payment and performance shall pass to the customer upon delivery of the goods to the forwarding agent, carrier or other person commissioned with the execution.
- In the case of shipment, the risk of payment and performance shall also pass to the carrier upon delivery of the goods.
§8 Retention of title
- All delivered goods shall remain our property (goods subject to retention of title) until all claims have been settled, in particular also the respective balance claim to which we are entitled within the scope of the business relationship. This shall also apply to future and conditional claims, e.g. from acceptor's bills of exchange, and also if payments are made on specially designated claims and also for the claims which are unilaterally established by an insolvency administrator by way of choice of fulfillment.
- All goods delivered by us shall remain our property until all claims - including future claims - to which we are entitled from the business relationship with the customer have been settled.
- The customer may only resell the goods delivered by us subject to retention of title until the purchase price has been paid in full and only in the ordinary course of business. The customer shall only be entitled to resell the goods in an unprocessed condition if this has been expressly agreed with us in writing beforehand.
- The customer's claims arising from the resale of the reserved goods are hereby assigned to us, together with all securities that the customer acquires for the assigned claims. They shall serve as our security to the same extent as the reserved goods. If the goods subject to retention of title are sold by the customer together with other goods not sold by us, the claim from the resale shall be assigned to us in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods. In the case of the sale of goods in which we have co-ownership shares in accordance with item 2 of this section, a part corresponding to our co-ownership share shall be assigned to us.
- The customer is entitled to collect claims from the resale in his own name. He is obliged to transfer the collected amounts to us in the amount of the invoice value of the reserved goods. This authorization to collect shall expire in the event of our revocation, but at the latest in the event of default of payment, dishonour of a cheque or bill of exchange or in the event of an application to open insolvency proceedings. We shall only make use of our right of revocation if we become aware of circumstances which indicate a significant deterioration in the customer's financial circumstances which jeopardizes our claim to payment. At our request, the customer is obliged to inform his customers immediately of the assignment to us and to provide us with the information and documents required for collection. Under no circumstances shall the customer be entitled to further assignment of the claim. This shall also apply to factoring transactions which the customer is not permitted to carry out on the basis of our authorization to collect.
- The customer must inform us immediately of any seizure or other impairment by third parties. The customer shall bear all costs that have to be incurred in order to cancel the seizure and to replace the object of purchase, insofar as they cannot be collected by third parties.
- If the value of the existing securities exceeds the secured claims, including ancillary claims (interest, costs or similar), by more than 50% in total, we are obliged to release securities of our choice at the customer's request until the excess does not exceed 50%.
- If the customer is in default of payment or does not cash a check or bill of exchange when due, we are entitled to take back the goods subject to retention of title and, if necessary, to enter the customer's premises or warehouse for this purpose. Taking back the goods does not constitute withdrawal from the contract.
- We may withdraw from the purchase contract or parts of the purchase contract by written declaration if the customer becomes insolvent, if the customer becomes over-indebted, if the customer suspends payments or if the customer has filed for insolvency. The right of withdrawal must be exercised until the opening of insolvency proceedings. The customer must inform us immediately of the occurrence of insolvency, over-indebtedness or suspension of payments. If the customer fails to provide such notification, he shall be obliged to pay us a lump sum of 5% of the value of the goods. We may also prohibit the resale, further processing and removal of the reserved goods. The provisions of the Insolvency Code remain unaffected.
§9 Warranty
- The buyer must inspect the goods immediately upon receipt and note any externally recognizable transport damage, defects or incorrect deliveries on the shipping documents and report them to us immediately. All delivered goods must be inspected for completeness, also with regard to individual components of the goods.
- Defects in the goods must be reported in writing immediately as part of the incoming goods inspection, at the latest 14 days after delivery. Defects which cannot be discovered within this period even with the most careful inspection must be reported in writing immediately after discovery, with immediate cessation of any handling and processing. The provision of § 377 HGB remains unaffected.
- In any case, the customer must immediately check the number and type of the delivered goods upon receipt by the customer. Any objections not raised immediately with regard to the number and type of the delivered items shall be deemed approved. The provision of § 377 HGB remains unaffected.
- Claims for defects shall not exist in the event of only insignificant deviation from any agreed quality or in the event of only insignificant impairment of usability.
- In the event of a justified, timely notice of defects, we shall be entitled, at our discretion, to take back the rejected goods and deliver defect-free goods in their place or to repair them. If the customer wishes to demand compensation for damages instead of performance or to carry out a self-remedy or withdraw from the contract, the rectification shall only be deemed to have failed after the second unsuccessful attempt. The statutory cases of the dispensability of setting a deadline shall remain unaffected. Liability for consequential damages is excluded.
- The customer is obliged to immediately give us the opportunity to convince ourselves of the claimed defect, in particular to make the rejected goods available in whole or in part upon request.
- We provide the same warranty for repaired goods or a replacement delivery as for the original delivery or service.
- The warranty period is 24 months.
- The warranty period shall commence on the date of delivery. This limitation period and the start of the period shall also apply to breaches of duty other than material defects and defects of title.
- Defects caused by improper intervention on the goods by the customer or third parties are excluded from any warranty.
- Furthermore, faults caused by non-compliance with operating or maintenance instructions as well as wear and tear and improper handling are excluded.
- We accept no liability and/or reimbursement of costs if damage is repaired by third parties at the instigation of the customer without prior consultation with us.
- If, after checking the returned goods, it is determined that there was no defect, the sender is obliged to bear the costs of checking and shipping.
§10 General liability and statute of limitations
- We shall be liable in cases of intent or gross negligence on our part or on the part of a representative or vicarious agent in accordance with the statutory provisions. Otherwise, we shall only be liable under the Product Liability Act for injury to life, limb or health or for culpable breach of material contractual obligations or insofar as we have fraudulently concealed the defect or assumed a guarantee for the quality of the delivery item. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract. However, liability for damage caused by the delivery item to the customer's legal interests, e.g. damage to other items, is completely excluded. The provisions of sentences 3 and 4 of this paragraph 1 shall not apply in the event of intent or gross negligence or in the event of liability for injury to life, limb or health or if we have fraudulently concealed the defect or have assumed a guarantee for the quality of the delivery item.
- The provisions of paragraph 1 above shall extend to compensation for damages in addition to performance and compensation for damages in lieu of performance, irrespective of the legal grounds, in particular due to defects, breach of duties arising from the contractual obligation or tort. It also applies to claims for compensation for futile expenditure. Liability for default shall be determined in accordance with the following paragraph 3, liability for impossibility in accordance with paragraph 4 of this section.
- We shall be liable for delays in performance in cases of intent or gross negligence on our part or on the part of a representative or vicarious agent in accordance with the statutory provisions. In other cases of delay in performance, our liability for damages in addition to and instead of performance shall be limited to 5% of the value of the part of the delivery affected by the delay. Further claims by the customer are excluded - even after expiry of any deadline set for performance. The above limitation shall not apply to liability for injury to life, limb or health.
- If delivery is impossible, the customer shall be entitled to demand compensation in accordance with the statutory provisions. However, the customer's claim for damages in addition to or instead of performance and for reimbursement of futile expenses shall be limited to 10% of the value of that part of the delivery which cannot be used due to the impossibility. Further claims of the customer due to impossibility of delivery are excluded. This limitation shall not apply in cases of liability based on intent, gross negligence or injury to life, limb or health. The customer's right to withdraw from the contract remains unaffected.
- The limitation period for claims for damages - for whatever legal reason - is 12 months from the delivery date.
- The limitation period pursuant to paragraph 5 shall also apply to other claims for damages against us, irrespective of their legal basis. They shall also apply if the claims are not related to a defect.
- The above limitation periods shall apply with the following proviso:
- The limitation period generally does not apply in the case of intent
- The limitation period according to paragraph 5 shall also not apply if we have fraudulently concealed the defect or have assumed a guarantee for the quality of the delivery item. If we have fraudulently concealed a defect, the legally applicable periods shall apply instead of the period stated in paragraph 5, excluding the extension of the period in the event of fraudulent intent pursuant to § 438 para. 3 BGB.
- The limitation period pursuant to paragraph 5 also does not apply to claims for damages in cases of injury to life, limb or health or freedom, in the case of claims under the Product Liability Act, in the case of a grossly negligent breach of duty or in the case of culpable breach of material contractual obligations.
- The limitation period for all claims for damages shall commence upon delivery.
- Insofar as this section refers to claims for damages, it also includes claims for compensation for futile expenses.
§11 Data protection/Internet
- The customer agrees to the further processing of his data insofar as this is necessary for the purpose of the contract. We regularly inform our customers about the respective pricing by fax, post, e-mail, SMS and our website. For this purpose, the customer may receive the respective access passwords that identify him.
- The disclosure of access passwords to third parties is prohibited and entitles us to change or block access. The customer hereby agrees to this. Passwords may only be disclosed to vicarious agents.
- Access to our network makes customer data transparent (parcel tracking, delivery availability, pricing, master data, data warehousing, etc.). Our Internet application meets the latest technical standards, we attach great importance to data security and can only guarantee this if the customer fulfills the usual obligations to cooperate.
- Errors caused by improper intervention in our system by the customer or third parties are excluded from any warranty.
- Furthermore, faults caused by non-compliance with operating or maintenance instructions are excluded.
§12 Place of jurisdiction and applicable law
- Unless otherwise agreed, the place of performance for our delivery is Hüllhorst.
- The place of performance for payment of the purchase price is Hüllhorst.
- The place of jurisdiction for all disputes arising from the contractual relationship is our registered office in Hüllhorst.
We can also sue the customer at his place of jurisdiction in any case. - German law shall apply to all legal relationships between the customer and us.
- The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) shall not apply to contracts concluded with us.
§13 Final provisions
- Should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
- Insofar as gaps in the provisions exist due to the above paragraph or in the absence of a contractual agreement, the contracting parties undertake to work immediately towards an agreement that corresponds legally and economically to what is intended according to the overall content of the contract, taking into account these terms and conditions.