General Terms and Conditions of the Wichmann-Group, Wichmann GmbH and CSN Gelenkwellen GmbH, Barleben

Terms of Delivery and Payment.

1. Scope of validity

These General Contract Terms and Conditions shall apply exclusively, unless they are amended by an explicit written agreement between the parties. In particular, the contracting partner’s different general contractual terms and conditions shall not change or influence these Terms and Conditions.

The quote, acceptance of the quote and order confirmation are subject only to these Terms and Conditions. Any terms and conditions or contract-changing terms and conditions of the customer are hereby gainsaid; they shall only affect the supplier if the supplier agrees to these changes in writing.

These General Terms and Conditions shall apply regardless of whether the contracting partner is a business or a consumer. A consumer according to the following provisions is any natural person according to Section 13 BGB (German Civil Code) who concludes a legal transaction for a purpose which cannot be assigned to their commercial or independent professional activity. According to Section 14 BGB, a business is a natural or legal person or a judicable partnership which acts in line with its commercial or independent professional activity when concluding a legal transaction.

2. Quotes and quote documents

a) Our quotes are non-binding. A binding effect is excluded unless a binding period is explicitly declared when the quote is offered.

b) Orders submitted by the customer can only be accepted in writing. If a quote is not accepted in writing within 14 days of being issued, the quote shall count as rejected.

c) Orders submitted in our online ship are subject to the following: The representation of products in the online shop does not represent a binding quote, but rather simply an invitation to issue a quote (invitatio ad offerendum). By clicking the order button, you issue a binding order/an offer to conclude a purchase agreement regarding the products in your basket at that point in time. You are bound by the order for a period of 14 days after submitting it; any right to cancel your order according to these Terms and Conditions or to the law shall remain unaffected by this. We will immediately confirm by email that we have received your order via our online shop. Such an email does not constitute binding acceptance of the order. The purchase agreement shall only come into being when the order confirmation is sent separately or the goods are dispatched.

d) We retain rights of ownership and copyright to cost suggestions, drawings, specifications and other quote documents; they must be treated as confidential and may not be made accessible to third parties, including in excerpt form or in the form of copies or similar.

e) The customer takes full responsibility for documents to be delivered by it. As regards the precision of the order, the customer is responsible for providing us within an appropriate period with any necessary information regarding the goods ordered, so that the order can be carried out in a contractually compliant manner.

f) If goods have to be manufactured or otherwise processed by us, and the customer has provided a specification for this, the customer must release us from any losses, costs or other expenditure which we incur because the contractual processing based on the customer’s specification turned out to breach a patent, copyright, trademark or other property right of a third party.

g) We reserve the right to change the product description with regard to the specification to the extent that legal requirements must be taken into account, as long as this change does not cause any deterioration of the order as regards quality and usability.

3. Data protection notice

We proceed according to the legal regulations in data processing (e.g. collection, processing, transmission). The information required to process and initiate transaction processing will be stored and forwarded to service providers commissioned by us within the necessary scope. Within what is legally permitted and in view of your protection-worthy interests in excluding transmission or use, we may send and request address and creditworthiness data to CRIFBÜRGEL for credit checking purposes. For purchases on account and hire purchase, we use address data and other creditworthiness data to estimate the risk of defaults on payment.

We generally grant our customers the option of purchasing goods using insecure payment methods (e.g. purchase on account, consumer credit). Companies which generally allow customers to use insecure payment methods have a legitimate interest in protecting themselves as well as possible from the risk of defaults on payment. This may include checking the customer’s creditworthiness before granting them the option of using insecure payment methods. Within the framework of this check, we are entitled to use negative creditworthiness information which we ourselves collected on the relevant customer. Creditworthiness information is information regarding open payment claims and information which directly relates to the risk of non-payment (e.g. insolvency, debt counselling, deferral of payments due to inability to pay). We are entitled to obtain and use information on highly atypical order patterns (e.g. simultaneous order of numerous goods to the same address using different customer accounts). This should prevent non-payment and protect our customers from misuse of their accounts and identities.

We can also collect and process address and order data for our own marketing purposes. Data will only be passed on for third-party marketing purposes within what is legally allowed (published data and particular data collected in lists according to Section 28 III(3) old version, and Section 47 II new version Bundesdatenschutzgesetz (Federal Data Protection Act) according to Section 28 III (2) and 4 new version Bundesdatenschutzgesetz.

Please note:
You can object to the use, processing and transfer of your personal data for marketing purposes at any time by means of an informal communication by post to Pätzkamp 4 in 49504 Lotte, or by email to info@wichmann-os.de. This generally does not apply to data which is required to process your order. After receiving your objection, we will no longer use, process and transfer the data in question for other purposes than to process your order, and will cease sending you advertising materials including our catalogues

4. Scope of the delivery

Our written order confirmation is decisive for the scope of the delivery as well as the quantity, quality and description as well as any specifications of the goods. Part-deliveries are permitted. If you order a special production, we reserve the right to under- or over-deliver, insofar as this is because the third-party products we order for the special productions on the customer’s behalf are only delivered in particular quantities.

5. Purchase Price

a) The purchase price should be the price named by us, or, where this does not happen in the individual case, the price listed in our current price lists, as it applies at the time of the order confirmation.

We reserve the right to increase the price of goods after informing the customer in good time and before delivering the goods, insofar as this is necessary due to general price development beyond our control, or to a change of third-party suppliers, unless the goods are to be delivered within four months of the contract being concluded.

b) Unless the quote or sales price list suggests otherwise, or unless otherwise agreed in writing, all named prices shall apply ex works. Prices are exclusive of VAT.

c) The prices offered or shown in our price lists are based on the fact that the product to be replaced (the ‘old part’) is handed to us by the customer. The order confirmation/price list thus shows the old part values inherent to each contractual product. The old part values are collected in a separate account. If the customer returns the old part to be replaced to us, the respective old part values will be credited to this account. The account balance will be regularly adjusted using the old part return certificates to be created by us. We will charge for old parts which have not been returned within four weeks using the old part values listed in this price list. Old parts can no longer be returned for credit after they have been charged for.

6. Terms and conditions of payment

a) Payment should only be made by cash payment without deduction free to our paying agent, or by bank transfer; payment by cheque or bill of exchange shall not count as fulfilling the payment obligation.

b) Set-off by the customer against the supplier’s claims is excluded, unless the customer’s claim is uncontested or has been made legally binding. 

7. Delivery time

a) The delivery period shall begin at the earliest when the order confirmation is sent, but not before the documents, permits, releases etc. to be obtained by the customer have been submitted, or before an agreed advance payment has been received,

b) Delivery shall be deemed within the time allowed if the order left the factory prior to the end of the period or if notification has been issued that the order is ready for shipment.

c) Delivery times shall be reasonably extended in the context of events relating to industrial disputes, in particular strikes and lockouts, or if unforeseen obstacles shall arise which lie outside the control of the supplier, insofar as such obstacles are proven to exert significant influence on manufacture or delivery of the item ordered. This shall also be the case if these circumstances occur for our suppliers. We shall also not be liable for the circumstances described above if they arise during an already existing delay. We shall in significant instances notify the beginning and end of such obstacles to the customer as soon as possible.

d) Adherence to delivery times shall require performance of contractual duties by the customer.

8. Transfer of risk

The risk of damage or loss of the goods should be handed over to the customer as follows:

a) Insofar as the goods are not delivered to the supplier’s premises, at the time of handover or if the customer is in default on payment.

b) Insofar as the goods are delivered to the supplier’s premises (“ex works”), at the time, when the supplier informs the customer that the goods are ready for collection.

9. Retention of title

a) Regardless of the delivery and handover of risk or other terms of these Terms and Conditions of Delivery, ownership of the goods should not be handed over to the customer until the whole purchase price has been paid. As long as we retain ownership, the customer must keep the goods in trust for use and keep the goods separate from its property and that of third parties, and properly store, secure and insure the retained goods, and label them as our property. 

b) If there is an ongoing business relationship between us and the customer, we shall retain ownership of the contractual products until all our open claims against the customer have been fully settled. (a) of this provision shall otherwise remain unaffected.

c) We are entitled to insure the goods against theft, breakage, damages in transit, fire damage, water damage as well as other insurable risks provided there is evidence that the customer has not taken out said insurance.

d) The purchaser may neither pledge the delivery item nor assign it as security. The customer must immediately inform us of seizures or other disposals by third parties.

e) We have the right to withdraw from the purchase contract if the customer breaches it.

f) The customer may sell or process the items we own within the proper course of business. However, this is only the case as long as the customer is not in default on payment to us. The claims which the customer has from resale against its consumers shall be transferred to us when the contract is concluded, up to the amount of our open claims. We accept this assignment and are entitled to demand information on consumers and the amount of the claim. The customer shall remain authorised along with us to collect the claim from the consumer. We are entitled to revoke this authorisation at any time by unilateral declaration.

g) Any handling or processing of the Retained Goods shall be undertaken for us by the Buyer, without this giving rise to any obligations on our part. If the retained goods become and integral component of another item by blending of mixing, or if a new item is manufactured by processing or restructuring, the customer hereby transfers us its ownership or co-ownership of this item and undertakes to retain the item for us with due business diligence and without charge. In case of resale, (f) shall apply accordingly. If co-ownership arises, our portion shall be determined by the relationship of the value of the goods delivered to the value of the new item.

9. Warranty in the event of defects in the delivery

a) If the customer is a business, it must check the delivery for defects immediately after receiving it, and inform the supplier of this within 8 days. If a defect is only discovered later and was not identifiable in the check following receipt of the delivery, the customer must inform the supplier immediately after it identifies the defect. If the customer fails to inform the supplier on time, the delivered goods shall count as approved.

b) If there is a defect in the purchased item and the supplier is informed of it in good time, the supplier shall be obliged to deliver a replacement free of charge, or to rectify the defect. If the customer is not a consumer, the supplier has the choice between replacement delivery and rectifying the defect.

c) The customer shall only be entitled to withdraw from the contract or reduce remuneration if an appropriate period for supplementary performance expires fruitlessly. If this supplementary performance has failed or is infeasible, or the supplier refuses to provide it, there shall be no need for such a period to be set. Any compensation claim or claim for reimbursement of expenditure in vain shall depend on the legal regulations.

d) The warranty period is one year, if the customer/buyer is not a consumer.

e) We shall not be liable for defects in the goods if they were manufactured according to the customer’s wishes and the defects can be traced back exclusively to a description of the goods or specification provided by the customer.

f) Our responsibility does not cover parts, material or other equipment items which were manufactured by the customer under its own responsibility, unless the manufacturer of these parts accepts responsibility in relation to us.

g) Recourse claims by a company in relation to an end consumer’s warranty claims according to Section 478 BGB are excluded if the defect asserted was not there when risk was transferred to the customer. This shall apply especially to defects caused by improper storage or handling of the goods by the customer or its agents. In all other respects the legal stipulations shall apply.

h) We do not provide any warranty for losses arising for the following reasons: inappropriate or improper use, defective installation or start-up by the customer or third parties, natural wear and tear, defective or negligent treatment, inappropriate tools, exchange materials, chemical, electrochemical or electrical influences, unless they can be traced back to our fault.

i) In the event of a defect based on incorrect assembly instructions, the seller shall only be obliged to accept liability if the assembly or installation of the sold item was otherwise carried out correctly. The customer must prove that the item was installed properly.

j) We generally only consider complaints if the customer makes the goods in question available to us for checking.

10. Liability

Our liability for reimbursement of losses or fruitless expenditure - regardless of legal reason - depends on the following provisions:

a) In the event of intention and gross negligence, claims according to the Produkthaftungsgesetz (Product Liability Act), acceptance of a guarantee for the quality of a service or purchased item, fraudulent failure to disclose a defect in a service or purchased item, or (even merely negligent) injury to life, body or health, we shall be liable according to the legal regulations.

b) In cases of simple negligence, we shall only be liable if an important contractual obligation has been breached. Also in this case the liability for compensation shall be limited to foreseeable, typically occurring damage. The same applies to losses incurred during our delay.

c) If we produce goods for the customer and deliver them to the customer, these goods shall be based on the technical specifications named by the customer, in view of the terms of use named by the customer. The customer is aware that use of the goods outside of the technical series specification or outside the specifications agreed in the individual case is a concern, and may lead to personal and material damage. Use of the goods outside the operational conditions known to us therefore requires prior consultation between the parties. The customer thus releases us from any liability for personal, material and financial damages caused by goods which are being used for purposes which we were not aware of before concluding the contract. The exclusion of liability especially relates to any legal claims due to defectiveness, due to positive breach of contract and due to illegal actions.

11. Right of cancellation

If the customer is a consumer, that is a natural person which submits orders for a purpose which cannot be assigned to their commercial or independent activity, they shall have a right of cancellation under the legal regulations.

We also refer to the Cancellation Policy, which can be found at www.wichmann-os.de.

12. Additional provisions

a) We are entitled to change the goods, and to improve them without having to inform the customer of this, insofar as changes or improvements do not affect the form or function of the goods in the long run.

b) These Terms and Conditions should not be made accessible to any third parties without the written consent of the other contracting parties.

c) Each contracting party shall itself be liable for the costs of executing this agreement.

13. Choice of law, place of jurisdiction

a) This agreement is subject, where it affects other countries, to German law. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

b) The exclusive place of jurisdiction for all disputes arising from and in connection with the existing business relationship is our registered office, insofar as the customer is a business, legal entity under public law or special asset under public law. In such a case we have, however, the right to bring actions against the customer at the court responsible for it, or at any other court which can be responsible according to national or international law.

Version: 07/10/2019