First Wise Media GmbH General Terms and Conditions of Sale
§ 1 General, Scope of Validity
(1) The following general Terms and Conditions of Sale (Terms) apply to all our business relationships with our clients (hereinafter referred to as "Buyer"). These Terms apply only when the Buyer is a legal entity under public law or special fund under public law (§ 14, BGB, German Civil Code).
(2) The Terms apply particularly for contracts on sales and/or delivery of movable objects (hereinafter referred to as "goods"), irrespective of whether these goods are manufactured by us or purchased from suppliers (§§ 433, 651, BGB). The Terms shall also apply in their respective version as framework agreement for future contracts concerning the sale and/or the delivery of movable objects with the same purchaser without any requirement on our part to repeat reference to them in an individual case. Any changes to these Terms will be forwarded to the Buyer immediately.
Our Terms shall apply exclusively. Any general terms and conditions of business or of purchase contrary to the above shall only become an integral part of the contract in case we explicitly agree to their validity. Such requirement of approval shall apply in any case, even if we conduct the delivery without any reservations and have knowledge of the conditions of the Buyer.
(4) Separate individual agreements with the purchaser (including subsidiary arrangements, amendments and changes) shall all cases have precedence over these Terms. The content of such agreements requires a contract and our signature in writing.
Legally relevant declarations and notifications, which are to be submitted towards us by the Buyer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of cancellation or reduction), require the written form in order to be valid.
(6) References to the validity of statutory regulations shall only have clarifying significance. Therefore, the statutory regulations shall also apply without such a clarification insofar as they are not directly changed or are explicitly excluded in these Terms.
§ 2 Conclusion of Contract
(1) Our offers shall be non-binding and subject to change. This shall apply even if we have supplied the Buyer with catalogues, technical documentation (such as drawings, plans, calculations, costings and references to DIN standards), other product descriptions or documents including in electronic form - in which we reserve ownership and copyright.
(2) Ordering of goods by the Buyer shall be deemed a binding contractual offer. Unless otherwise indicated in the order we shall be entitled to accept the contractual offer within three weeks of receipt by us.
(3) Acceptance can take place either in writing (e.g. by an acknowledgement) or by delivery of the goods to the Buyer.
§ 3 Delivery Period and Default in Delivery
(1) The delivery period will be individually stipulated or indicated by us when accepting the order. If this is not the case the delivery period is two weeks from conclusion of contract.
If we are unable to meet firm delivery periods for reasons beyond our control (non-availability of performance) we will inform the Buyer without delay, at the same time giving the expected new delivery period. If the performance is still not available within the new delivery period we shall be entitled to withdraw wholly or partly from the contract; any consideration already paid by the Buyer will be reimbursed without delay. A particular instance of non-availability of performance in this respect is late delivery to us by our suppliers if we have concluded a congruent covering transaction, neither us or our suppliers were at fault or we are not obliged to delivery of performance in particular cases.
(3) The occurrence of default in delivery shall be determined by the provisions of law. A reminder by the Buyer shall be required in all cases, however. If we are in default of delivery the Buyer may demand lump-sum compensation for the loss he has thus suffered. The lump-sum compensation shall be 0.5% of the net price (delivery value) per complete calendar week’s default, subject to a maximum of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the Buyer has suffered no loss at all or only a substantially smaller loss than the above lump sum.
(4) The Buyer's rights according to § 8 of these Terms and our statutory rights, in particular for the exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or supplementary performance) remain unaffected.
§ 4 Delivery, Passing of Risk, Acceptance, Default in Acceptance
(1) Delivery is ex warehouse and this is also the place of performance. The goods will be sent to a different destination at the Buyer’s request and expense (sale to destination according to Buyer’s instructions). Unless otherwise agreed we are entitled to decide on the manner of shipping (in particular the carrier, routing and packaging).
(2) The risk of accidental loss and accidental deterioration of the goods passes to the Buyer at delivery at the latest. However, in the case of sale to destination according to Buyer’s instructions, the risk of accidental loss and accidental deterioration of the goods and the risk of delay passes to the Buyer at handover of the goods to the forwarder, carrier or other person or organisation carrying out the shipping. If acceptance has been agreed then acceptance determines the passing of risk. The statutory provisions of the law on contracts for services shall apply analogously in other respects to an agreed acceptance. Default of acceptance by the Buyer shall be equivalent to delivery or acceptance.
(3) If the Buyer is in default of acceptance, if it fails to provide an act of assistance or if our delivery is delayed for other reasons for which the Buyer is responsible then we are entitled to request compensation for the thus arising damages including additional expenses (e.g. storage costs) defined by the usual storage costs for the delivery items.
The proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the lump sum is however to be offset against further monetary claims. The Buyer may reserve the right to prove that we have suffered no loss at all or only a substantially smaller loss than the above lump sum.
§ 5 Prices and Terms of Payment
(1) Unless otherwise agreed in a particular case, our prices current at the time of conclusion of contract shall be valid on the basis ex warehouse, exclusive of VAT at the rate in force.
(2) In the case of sale to destination according to Buyer’s instructions (Section 4 (1)) the Buyer shall bear the cost of transport ex warehouse and the cost of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges are to the Buyer’s account. Transport packaging and all other packaging in accordance with the Packaging Ordinance is non-returnable and becomes the Buyer’s property, except for pallets.
(3) The purchase price is due and payable within 10 days net cash
(a) from invoicing and
(b) acceptance or delivery of the goods in case of delivery according to individual agreement.
(4) Upon expiry of the above time for payment the Buyer is in default. During the default period interest at the statutory default interest rate at the time shall be due on the purchase price. We reserve the right to claim further damage caused by default. Our claim against merchants for commercial interest after due date (Section 353 of the German Commercial Code) shall not be affected.
The Buyer shall have rights of set-off or retention only if the claim is res judicata or undisputed. The Buyer's rights, in particular according to section 7, paragraph 6, sentence 2 of these Terms shall not be affected by defects in the delivery.
If after conclusion of the contract it becomes apparent that our claim for payment of the purchase price is jeopardized by the Buyer’s inability to pay (e.g. an application for commencement of insolvency proceedings) we shall be entitled in accordance with the provisions of law to refuse to perform and – if necessary after fixing a time limit – to withdraw from the contract (Section 321 of the German Civil Code). In the case of contracts for the manufacture of specific items (making to specification) we can withdraw immediately; this shall not affect the legal provisions concerning the dispensability of fixing a time limit.
§ 6 Retention of Title
(1) We retain title to the goods sold until full payment of all our present and future claims arising from the contract of sale and current business relations (secured claims).
(2) Until the secured claims have been satisfied in full the goods subject to retention of title shall not be pledged to a third party or assigned as security. The Buyer shall notify us immediately in writing if and insofar as a third party executes attachment of our goods.
(3) In the event of contract-breaching behaviour by the Buyer, in particular failure to pay the purchase price due, we shall be entitled according to the provisions of law to withdraw from the contract and/or to reclaim the goods on the basis of the retention of title. Reclaiming does not at the same time constitute declaration of withdrawal; instead we shall be entitled simply to reclaim the goods and to reserve the right of withdrawal. If the Buyer does not pay the purchase price due, we may assert these rights only if we have first set the Buyer an appropriate time limit for payment without result or if setting a time limit may be dispensed with according to the provisions of law.
(4) The Buyer is authorised to resell and/or to process the goods subject to retention of title in the ordinary course of business. In this case the following provisions shall additionally apply.
(a) Retention of title extends to the full value of the products created by processing, mixing or combining our goods, in which context we shall be deemed the manufacturer. If in the case of processing, mixing or combining with third party goods the latter’s retention of title still applies, we shall acquire joint ownership in proportion to the invoice values of the processed, mixed or combined goods. In other respects the same rules shall apply to the product created as to the goods delivered subject to retention of title.
(b) The Buyer here and now assigns to us as security the claims against third parties arising from resale of the goods or product, in total or, if applicable, in the amount of our joint ownership share according to the previous clause. We accept assignment. The Buyer’s duties according to Section 2 shall also apply with regard to the claims assigned.
(c) The Buyer remains authorised to collect the claim with us. We undertake not to collect the claim as long as the Buyer fulfils its payment obligations towards us, is not in default of payment, no application for commencement of insolvency proceedings is made and its ability to pay is not otherwise impaired. However, if this is the case we can demand that the Buyer gives us details of the claims assigned and the debtors, supplies all the information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(d) If the realisable value of the securities exceeds our claims by more than 10%, upon request from the Buyer we shall release securities at our option.
§ 7 Buyer’s Warranty Claims
(1) Save as otherwise provided below, the Buyer’s rights in the event of defects of quality and legal imperfections in title (including wrong and short shipments and incorrect installation or defective installation instructions) shall be governed by the provisions of law. The special legal provisions in the case of ultimate delivery of the goods to a consumer (suppliers’ recourse according to Sections 478, 479 of the German Civil Code) shall be unaffected in all cases.
(2) The primary basis of our liability for defects shall be the agreement made concerning the quality of the goods. All product descriptions that are the subject of the individual contract shall be deemed the agreement concerning the quality of the goods, irrespective of whether the product description originates from the Buyer, from the manufacturer or from us.
(3) In the absence of any quality agreement, the existence or non-existence of a defect shall be assessed according to the statutory provision (Section 434 (1) paragraphs 2 and 3 of the German Civil Code). We shall not be held liable, however, for any public statements by the manufacturer or other third parties (e.g. advertising messages).
(4) The Buyer’s warranty claims presuppose him to have fulfilled his statutory duties of examination and notification (Sections 377 and 381 of the German Commercial Code). Any defect discovered during examination or later shall be notified to us without delay. Notification shall be deemed ’without delay’ if given within two weeks; the time shall be deemed observed if the notification is sent in time. Irrespective of the above mentioned duties of examination and notification the Buyer shall notify obvious defects (including wrong and short delivery) within two weeks from delivery; the time shall be deemed observed if the notification is sent in time. If the Buyer fails to notify defects as stipulated above, our liability for defects not notified shall be excluded.
(5) In the case that the delivered item is faulty, we have the right to chose repair of the fault (rectification) or delivery of a flawless item (replacement) at our discretion. Our right to refuse subsequent performance under statutory law remains unaffected.
(6) We are entitled to make due subsequent performance conditional upon the Buyer’s paying the purchase price due. The Buyer shall, however, be entitled to withhold an appropriate part of the purchase price in proportion to the defect.
The Buyer shall allow us the necessary time and opportunity for due subsequent performance and shall in particular hand over the goods concerned for inspection. In the case of replacement the Buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include removal of the faulty item nor re-mounting of the new item, in case we were not contractually obliged to mount the item.
Should a fault actually exist, then we shall bear the expenses incurred for the purposes of inspection and repair, specifically the costs of transportation, labour and materials (excluding removal and mounting costs). However, should a Buyer demand for repair be proven unjustified, then we can demand the incurred costs be reimbursed by the Buyer.
(9) In urgent cases, e.g. if operating safety is jeopardised or to avert disproportionate damage, the Buyer shall be entitled to remedy the defect himself and demand reimbursement by us of the objectively necessary expenses incurred. We shall be advised without delay, if possible beforehand, of self-remedying of defects. The right of self remedy shall not apply if we would have been entitled to refuse corresponding subsequent performance in accordance with the statutory provisions.
If subsequent performance is unsuccessful or a deadline to be set by the Buyer for subsequent performance has elapsed without result or may be dispensed with according to the statutory provisions, the Buyer may withdraw from the contract of sale or diminish the purchase price. No right of withdrawal applies in the case of a minor defect.
The Buyer shall be entitled to claim compensation or reimbursement of expenses incurred in vain only as provided in Section 8; otherwise such claims shall be excluded
§ 8 Other Liability
(1) Save as otherwise provided in these Conditions including the provisions below, in case of breach of contractual and non-contractual duties we shall be liable in accordance with the relevant statutory provisions.
(2) We shall be liable to compensate, irrespective of legal ground, in the event of intent and gross negligence. In the case of ordinary negligence we shall be liable only
a) for damage due to injury to life, limb or health;
b) for damage due to breach of an essential contractual duty (an obligation that has to be fulfilled to enable the contract to be duly performed and on the satisfaction of which the other party regularly relies and may rely); in this case our liability shall be limited to compensation for the foreseeable damage typically occurring.
(3) The limitations of liability according to Clause 2 shall not apply if we conceal a defect with intent to deceive or if we have warranted the quality of the goods. The same shall apply to the Buyer’s claims under the Product Liability Act.
(4) The Buyer may withdraw or cancel on the grounds of a breach of duty that is not a defect only if we are responsible for the breach of duty. The Buyer’s free right of cancellation (in particular in accordance with Sections 651 and 649 of the German Civil Code) is excluded. Otherwise the statutory requirements and legal consequences shall apply.
§ 9 Period of Limitation
(1) Section 438 (1) paragraph 3 of the German Civil Code notwithstanding, the general period of limitation for claims based on defects of quality and legal imperfections in title shall be one year from delivery If acceptance has been agreed the limitation period commences at acceptance.
However, if the commodity is a building or an object used for a building as a result of its customary mode of use and has caused its defectiveness (building material), the period for barring by limitation according to the statutory regulation shall be five years from delivery (§ 438 sub-section 1, No. 2 German Civil Code). Statutory special regulations for in rem claims to return of third parties (§ 438 sub-section 1, No. 1 German Civil Code), wilful deceit of the vendor (§ 438 sub-section 3 German Civil Code) and for claims of recourse against the supplier in final supply to a consumer (§ 479 German Civil Code) shall also be unaffected.
(3) The aforementioned periods of barring of purchase law shall also apply to contractual and extra-contractual claims to damages of the Buyer based on a defect in the commodities unless application of regular statutory barring by limitation (§§ 195, 199, German Civil Code) would lead to a shorter barring in the individual case. The periods of barring of the Product Liability Act shall remain unaffected in any case. Apart from this the statutory periods of barring shall exclusively apply to claims to damages of the Buyer pursuant to Section 8 of the present Terms and Conditions of Sale.
§ 10 Choice of Law and Venue
(1) These Terms and all legal relations between us and the Buyer shall be governed by the law of the Federal Republic of Germany excluding all international and supranational (contractual) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods. Preconditions and effects of retention of title according to Section 6 shall, however, be subject to the law of the place where the item is located if the choice of law made in favour of German law is thus impermissible or ineffective.
(2) If the Buyer is a merchant as defined by the German Commercial Code, a legal entity under public law or a public law special fund, the exclusive venue, including in international matters, for all disputes arising indirectly or directly from the contractual relationship shall be our registered office at 27404 Weertzen, Germany. We shall, however, also be entitled to sue at the Buyer’s place of general jurisdiction.
§ 11 Severability
Should individual terms of this contract be or become inoperative, this will not affect the remaining terms of this contract.
In the eventuality of the contract or these Terms containing regulatory gaps, to fill these gaps, those legally effective regulations apply, which the contractual parties would have agreed upon keeping in mind the cost-effective objectives of the contract and the purpose of these Terms and Conditions of Sale, if they had known of these regulatory gaps.