AGB der Wichmann-Gruppe, Wichmann GmbH und CSN Gelenkwellen GmbH, Barleben
Terms of delivery and payment
These general contractual terms and conditions shall apply exclusively unless they are amended through an express written agreement between the parties. In particular, conflicting general contractual terms and conditions of the contracting party shall not amend or influence these provisions. The offer, acceptance of the offer and confirmation of the order shall only be subject to these terms and conditions. Any terms and conditions or contract-amending provisions of the orderer shall be opposed; they shall only become effective with respect to the supplier if the supplier agrees to these amendments in writing. These general terms and conditions shall apply irrespective of whether the contracting party is an entrepreneur or a consumer. Pursuant to Section 13 of the German Civil Code (BGB), a consumer within the meaning of the following provisions is any natural person who enters into a legal transaction for a purpose which cannot be attributed to either his or her trade, business or profession. Pursuant to Section 14 BGB, an entrepreneur is a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in the exercise of his, her or its trade, business or profession.
- Offers and offer documents
- a) Our offers are non-binding. A binding effect is ruled out unless a binding period is expressly stated along with the offer.
- b) Purchase orders submitted by the orderer can only be accepted in writing. If an offer is not accepted in writing within 14 days of submission, the offer shall be regarded to have been rejected.
- c) The following shall apply to purchase orders submitted via our online shop: The presentation of the products in the online shop shall not constitute a legally binding offer, but merely an invitation to submit an offer (invitatio ad offerendum). By clicking the order button, you submit a binding purchase order or an offer to conclude a purchase contract with respect to the products contained in the shopping basket at that point in time. You are bound to the purchase order for a period of 14 days following the submission of the purchase order; this shall have no bearing on any right to revoke your purchase order that exists in accordance with these terms and conditions or the law. We shall immediately confirm receipt of your purchase order submitted via our online shop by e-mail. Such an e-mail shall not yet constitute the binding acceptance of the purchase order. The purchase contract shall only come into existence with the separate dispatch of the order confirmation or the shipment of the goods.
- d) We shall retain the right of ownership and copyright to cost estimates, drawings, specifications and other offer documents; these shall be treated confidentially and shall not be made accessible to third parties even as excerpts or in the form of copies or the like.
- e) The orderer shall assume full responsibility for documents to be supplied by it. The orderer shall bear responsibility as regards the accuracy of the purchase order and shall be responsible for providing us with any necessary information with respect to the ordered goods within an appropriate period of time so that the purchase order can be executed pursuant to the contract.
- f) If the goods have to be manufactured by us or processed or machined in any other way and the orderer has submitted specifications for this, the orderer shall indemnify us against any loss, damage, costs or other expenses which we have to incur as a result because it has been discovered that the contractual processing or machining of the goods violates a patent, copyright, trademark or other proprietary right of a third party due to the orderer’s specifications.
- g) We reserve the right to amend the description of the goods with respect to the specifications to the extent that legal requirements have to be taken into consideration, insofar as this amendment does not lead to the deterioration of the purchase order in terms of quality and usability.
- Data protection notice
We undertake all data processing processes (e.g. collection, processing, transfer) in accordance with the statutory regulations. The data required from you for transaction processing and business initiation will be stored and forwarded to the extent necessary to service providers commissioned by us for purchase order processing. Within the context of what is legally permissible and subject to consideration of your respective legitimate interests concerning the exclusion of transfer or use, we may pass on address data to and request creditworthiness data from CRIFBÜRGEL for creditworthiness and credit checks for purchase orders. In addition to other creditworthiness data, we also use address data in the event of purchase orders on account and hire purchases in order to enable us to assess the risk of payment defaults in individual cases. We always grant our customers the option of purchasing goods using non-secure methods of payment (e.g. purchase on account, hire purchase). Companies that always grant their customers non-secure payment methods have a legitimate interest in protecting themselves as well as possible from the occurrence of payment defaults. Among other practices, this is done by checking the customer’s creditworthiness before the option of using non-secure payment methods is granted. In the context of this check, we are entitled to use negative creditworthiness information that we ourselves have collected about the respective customer. This creditworthiness information involves information concerning unpaid claims and information that directly indicates a payment default risk (e.g. insolvency, debt counselling, deferment due to insolvency). We are entitled to obtain and use information concerning extremely atypical purchase order processes (e.g. simultaneously ordering a high number of goods for delivery to the same address using various customer accounts). The aim of this is to avoid payment defaults and to protect our customers from the misuse of their accounts or their identity. We may additionally collect and process address and purchase order data for our own marketing purposes. Only data that are legally permitted to be forwarded are forwarded for third-party marketing purposes (generally published data and certain data that are summarised in lists pursuant to Section 28 III No. 3 (old version), and Section 47 II (new version) of the German Federal Data Protection Act as well pursuant to Section 28 III Nos. 2 and 4 (old version) of the German Federal Data Protection Act). Note: you can object to the use, processing and transfer of your personal data for marketing purposes at any time by sending us an informal message by mail to Dieselstr. 5-7 in 49076 Osnabrück, Germany or by sending us an e-mail at email@example.com. However, this does not apply to the data required to process your purchase order. After receiving your objection, we will no longer use, process or transfer the data concerned for purposes other than processing your purchase order and will refrain from continuing to send you advertising material, including our catalogues.
- Scope of delivery
Our written order confirmation shall be authoritative as regards the scope of delivery as well as the quantity, quality and description and any specifications for the goods. Partial deliveries shall be permissible. In the event that custom productions are ordered, we reserve the right to undertake excess or short deliveries insofar as these are attributable to the fact that the products ordered by us on behalf of the orderer for the custom productions are only supplied in specific quantities by third parties.
- Purchase price
- a) The purchase price should be the price specified by us or, wherever this has not occurred in individual cases, the price which is shown in our current price lists and is valid at the time of order confirmation.
We reserve the right, after informing the orderer in good time and prior to the delivery of the goods, to increase the price of the goods as required due to general price developments that are beyond our control (e.g. exchange rate fluctuations, currency regulations, customs duty changes, sharp rises in material or manufacturing costs) or due a change of third-party suppliers, insofar as the goods are not scheduled for delivery within four months of contract completion.
- b) Unless otherwise specified in the offer or the sales price list, or unless otherwise agreed in writing, all of the stated prices are ex works. The prices do not include value added tax.
- c) The prices that are offered or shown in our price lists are based on the fact that the respective product to be replaced (used part) is transferred to us by the orderer. The used part values inherent in each contractual product are therefore disclosed in the order confirmation or in the price list in this respect. The used part values are registered in a separate account on delivery. If the orderer returns the used part that is to be replaced to us, the respective used part values are credited to this account. The account balance is regularly reconciled based on the used part return slips to be created by us. Used parts that are not returned after four weeks are invoiced at the net used part value listed in this price list. Returning used parts for a credit note is no longer possible once the used parts have been invoiced.
- Terms of payment
- a) Payments should be made only by cash payment without any deductions free our payment office or through bank transfer; payment by means of bill of exchange or cheque shall not be recognised as fulfilment of the payment obligation.
- b) The orderer’s offsetting against the supplier’s claims shall be out of the question unless the orderer’s claim is undisputed or has been recognised by a declaratory judgement.
- Delivery time
- a) At the earliest, he delivery period shall commence when the order confirmation is sent, but not prior to the provision of the documents, approvals, releases, etc. to be obtained by the orderer or prior to the receipt of an agreed down payment.
- b) The delivery period is adhered to if the item to be supplied has left the factory or notification of readiness for shipping has been provided by the time of its expiry.
- c) The delivery period shall be extended accordingly in the event of measures in the context of industrial disputes, particularly strikes and lock-outs, and also on occurrence of unforeseen obstacles that cannot be influenced by the supplier, insofar as such obstacles verifiably influence the completion or delivery of the item to be supplied. This shall also apply if such circumstances occur at the supplier’s sub-suppliers. Nor shall the aforementioned circumstances be the responsibility of the supplier if they occur during a previously existing delay. In important cases, the supplier shall inform the orderer of the beginning and end of such obstacles as soon as possible.
- d) Adherence to the delivery period shall necessitate the fulfilment of the orderer’s contractual obligations.
- Passage of risk
The risk of damage to or loss of the goods should pass to the orderer as follows:
- a) Insofar as the goods are not supplied to the supplier’s business premises, at the point in time of transfer, or if the orderer has defaulted on acceptance.
- b) Insofar as the goods are supplied to the supplier’s business premises (‘ex works’), at the point in time at which the supplier informs the orderer that the goods are ready for collection.
- Retention of ownership
- a) Irrespective of delivery and the passage of risk or other provisions contained in these terms of delivery, ownership of the goods should not pass to the orderer until the purchase price has been paid in full. As long as ownership is retained by us, the orderer shall hold the goods in trust for us, shall keep the goods separate from its property and that of third parties and shall properly store, secure and insure the goods in which ownership is retained and shall identify them as our property.
- b) If an ongoing business relationship exists between us and the orderer, ownership of the contractual products shall remain retained by us until all of our outstanding claims against the respective orderer have been settled in full. Sub-section a) of this regulation shall otherwise remain unaffected.
- c) We shall be entitled to insure the supplied item against theft, transport, breakage, fire, water and other damage at the expense or the orderer unless the orderer has verifiably taken out such insurance itself.
- d) The orderer shall not mortgage the supplied item or assign it by way of security. The orderer shall notify us immediately in the event of seizure as well as confiscation or other disposal by third parties.
- e) In the event of conduct that is not in conformity with the contract by the orderer, we shall have the right to withdraw from the purchase contract.
- f) The orderer may sell or process the items owned by us in the context of a proper business transaction. However, this shall apply only insofar as the orderer has not defaulted on its payment to us. The claims accruing to the orderer against its customers from selling on shall be assigned to us, up to the amount of our outstanding claims, by way of security on completion of the contract. We shall accept this assignment and shall be entitled to demand information regarding the customers and the amount of the claim. The orderer shall remain authorised to collect the claim against the customers in addition to us. We shall be entitled to revoke this authority at any time by means of a unilateral declaration.
- g) Any processing or machining of the goods subject to retention of ownership shall be carried out for us by the orderer without this resulting in the occurrence of any obligations for us. If the goods subject to retention of ownership become an integral part of another item through combination or mixing, or if a new item is produced through processing or conversion, the order shall hereby already assign its ownership or co-ownership of this item to us and shall be obliged to keep the item in custody for us with commercial care and without charge. Sub-section f) shall be applied accordingly in the event of selling on. In the event that co-ownership arises, our share shall correspond to the ratio of the value of the supplied goods to the value of the new item.
- Warranty in the event of defects in the delivery
- a) If the orderer is an entrepreneur, it shall immediately inspect the delivery for defects on receipt and shall notify the supplier of these in writing within eight days. If a defect that was not recognisable during the inspection following the receipt of the delivery only becomes apparent later on, the orderer shall notify the supplier immediately following discovery. If the orderer fails to notify the supplier in good time, the supplied goods shall be regarded as approved.
- b) Insofar as the purchased item is defective and the supplier is notified of the defect in good time, the supplier shall be obliged supply a replacement or to rectify the defect free of charge. If the orderer is not a consumer, the supplier shall have the right to choose between supplying a replacement or rectifying the defect.
- c) The orderer shall only be entitled to withdraw from the contract or to reduce the remuneration following the unsuccessful expiry of an appropriate period of grace set by it for subsequent performance. Setting such a period of grace shall not be necessary if this supplementary performance has failed or is unreasonable or if the supplier refuses to undertake subsequent performance. Any claim for damages or compensation for futile expenses shall be in accordance with the statutory regulations.
- d) The warranty period shall be one year if the orderer/purchaser is not a consumer.
- e) We shall not be liable for defects in the goods insofar as these have been manufactured according to the orderer’s wishes and the defects are exclusively attributable to the orderer’s description of the goods or specifications.
- f) Our responsibility shall not extend to parts, material or other items of equipment manufactured by the orderer or by third parties on its behalf unless the manufacturer of these parts accepts responsibility towards us.
- g) The recourse rights of a company with respect to the warranty rights of an end consumer pursuant to Section 478 of the German Civil Code (BGB) shall be ruled out if the asserted defect was not already present when the risk passed to the orderer. This shall particularly apply to defects caused by improper storage or handling of the goods by the orderer or its agents. The statutory regulations shall apply in all other regards.
- h) No responsibility shall be assumed for damage arising due to the following reasons: unsuitable or improper use, incorrect assembly or commissioning by the orderer or third parties, natural wear, incorrect or negligent handling, unsuitable operating equipment, substitute materials, chemical, electrochemical or electrical influences, insofar as they are not attributable to fault on our part.
- i) In the event of a defect attributable to incorrect assembly instructions, the seller shall only bear liability for material defects if the sold item has otherwise been assembled or installed professionally. The orderer shall be required to demonstrate and prove professional execution.
- j) Complaints shall only ever be taken into consideration by us if the orderer submits the goods that are the subject of a complaint to us for inspection.
Irrespective of legal grounds, our liability for compensation for damages or futile expenses shall be in accordance with the following regulations:
- a) We shall bear liability in accordance with the statutory regulations in the event of intent and gross negligence, claims in accordance with the German Product Liability Act, the provision of a warranty for the quality of a work performance or purchased item, fraudulent concealment of a defect in a work performance or purchased item, and in the event of loss of life, bodily injuries or damage to health (also solely through negligence).
- b) In the event of simple negligence, we shall bear liability only if a material contractual obligation has been breached. In this case, liability shall be limited to the typical, foreseeable damage. This shall also apply to damage that occurs during our delay.
- c) If goods are produced by us for the orderer and supplied to the orderer, these goods shall be based on the technical specifications set out by the orderer subject to consideration of the operating conditions stated by the orderer. The orderer is aware that using the goods outside of the technical series production specifications or outside of the specifications agreed in the individual case is unsafe and can lead to personal injury and property damage. Use of the goods outside of the operating conditions familiar to us shall therefore necessitate prior coordination between the parties. In this respect, the orderer shall indemnify us against any liability for personal injury, property damage or financial loss caused by goods that are used for purposes that were not known to us prior to contract completion. This exclusion of liability particularly refers to possible legal claims arising as a result of defectiveness, positive violation of a contractual duty and tort.
- Right of withdrawal
If the orderer is a consumer, i.e. a natural person who submits purchase orders for a purpose that cannot be ascribed to his or her trade, business or profession, he or she shall have a right of withdrawal subject to the statutory provisions. Reference is additionally made to the withdrawal information, which can be called up separately at http://www.wichmann-os.de.
- Further provisions
- a) We shall be entitled to modify and improve the goods without having to inform the orderer of this beforehand, insofar as the modification or improvement does not impair or deteriorate either the form or the function of the goods in the long term.
- b) These terms and conditions should not be made accessible to any third party without the written approval of the other contracting parties.
- c) Each contracting party shall bear its own costs for the implementation of this agreement.
- Choice of law; legal venue
- a) Insofar as it concerns a foreign country, this agreement shall be governed by German law. The applicability of the uniform UN Convention on Contracts for the International Sale of Goods shall be expressly ruled out.
- b) The exclusive legal venue for all disputes arising from and in connection with the existing business relationship shall be our place of business insofar as the orderer is a merchant, a public law entity or a special fund under public law. In this case, however, we shall also have the right to file a lawsuit at the court that has jurisdiction for the orderer or at any other court which may have jurisdiction in accordance with national or international law.
Last updated: 07.10.2019