Terms & conditions

1. Scope

1.1 These General Terms and Conditions of Sale (GTC) apply to all our business relationships with our customers (“buyer”). The General Terms and Conditions of Sale only apply if the buyer is an entrepreneur (Section 14 of the German Civil Code), a legal entity under public law or a special fund under public law within the meaning of Section 310 Paragraph 1 of the German Civil Code.

1.2 Our General Terms and Conditions of Sale apply exclusively. Differing, conflicting or supplementary General Terms and Conditions of the buyer only become part of the contract if and to the extent that we have expressly agreed to their validity. This consent requirement also applies if the buyer refers to his General Terms and Conditions as part of the order and we have not expressly objected to the General Terms and Conditions.

1.3 These General Terms and Conditions of Sale apply to contracts for the sale and/or delivery of movable items (“goods”). It does not take into account whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 650 of the German Civil Code). Unless otherwise agreed, the General Terms and Conditions of Sale apply in the version valid at the time of the buyer’s order or in the version last communicated to him in text form as a framework agreement for similar future contracts, without us as the seller having to refer to them again on a case-by-case basis.

1.4 Individual agreements made with the buyer in individual cases (including collateral agreements, additions and changes) and information in our order confirmation take precedence over these General Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.

1.5 Legally relevant declarations and notifications from the buyer regarding the contract (e.g. notifications of defects, setting of deadlines, withdrawal or reduction) must be made in writing, i.e. in written and text form (e.g. letter, e-mail, fax). Further statutory formal requirements and further evidence (if there are doubts about the legitimacy of the person making the declaration) remain unaffected.

1.6 If references are made to the validity of statutory provisions, it should be noted that these are only intended to clarify matters. The statutory provisions apply – even if no corresponding clarification has been made – to the extent that they are not modified or excluded by the General Terms and Conditions of Sale.

2. Offer and conclusion of contract

2.1 Our offers are non-binding and subject to change. This also applies if we have provided the buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, references to DIN standards) and other product descriptions or documents (also in electronic form). We reserve ownership and copyright to all documents provided to the buyer in connection with the order. These documents may not be made available to third parties unless we give the buyer our express written consent to do so.

2.2 When the buyer orders the goods, this is a non-binding contract offer in accordance with Section 145 of the German Civil Code. In the event that nothing else arises from the order, we are entitled to accept this contract offer within two weeks of its receipt.

2.3 Acceptance of the contract offer by the buyer can be declared either in writing (e.g. by an order confirmation) or by delivery of the goods to the buyer. In the event that we as the seller do not accept the buyer’s offer within the period specified in section 2.2, documents sent to the buyer must be returned to us immediately.

2.4 Drawings, illustrations, dimensions, weights or other performance data are only binding if this is expressly agreed in writing.

2.5 The seller’s employees are not authorized to make oral side agreements or give oral assurances that go beyond the content of the written contract.

3. Prices and payment agreements

3.1 Unless otherwise stated, the seller is bound to the prices contained in its offers for 30 days from the date of the offer. Otherwise, the prices stated in the seller’s order confirmation plus the respective statutory sales tax apply. Additional deliveries and services are charged separately.

3.2 The seller reserves the right to correct offered and confirmed prices up until delivery or service provision, provided that price increases of at least 20% are offset after confirmation of the prices. The buyer expressly agrees to the correction.

3.3 Unless otherwise agreed in writing in individual cases, our current prices ex warehouse at the time of conclusion of the contract apply, plus statutory sales tax. The costs of packaging are invoiced separately. Unless a fixed price agreement has been made, reasonable price changes due to changes in wage, material and distribution costs for deliveries that take place 3 months or later after conclusion of the contract remain reserved.

3.4 In the context of a mail order purchase, the buyer must bear the transport costs from the warehouse and the costs of any transport insurance requested by the buyer. In the event that we do not invoice the transport costs incurred in the individual case, we charge a flat rate for transport costs (excluding transport insurance). Any customs duties, fees, taxes and other public charges must be borne by the buyer.

3.5 Payment of the purchase price must be made exclusively to the account specified overleaf. The deduction of discounts is only permitted with a special written agreement.

3.6 Unless otherwise agreed, the purchase price is due and payable within ten days of invoicing and delivery or acceptance of the goods. However, even within the framework of an ongoing business relationship, we are entitled at any time to make a delivery in whole or in part only against advance payment. We will declare a corresponding reservation at the latest with the order confirmation.

3.7 The seller is entitled, despite any contrary provisions of the buyer, to initially offset payments against the buyer’s older debts and will inform the buyer of the type of offsetting that has taken place. If costs and interest have already been incurred, the seller is entitled to offset the payment first against the costs, then against the interest and finally against the main payment.

3.8 The buyer is in default if the above payment period expires. During the default, the purchase price is subject to interest at the applicable statutory default interest rate according to Section 288 Paragraph 2 of the German Civil Code (BGB) in the amount of nine percentage points above the respective base interest rate. We reserve the right to assert further damages for default. In the case of merchants, our claim to commercial due date interest according to Section 353 of the German Commercial Code (HGB) remains unaffected.

3.9 If, after conclusion of the contract, it is foreseeable that our claim to payment of the purchase price is at risk due to a lack of performance on the part of the buyer (e.g. by filing for insolvency proceedings), we are entitled to refuse performance and, if necessary after setting a deadline, to withdraw from the contract in accordance with the statutory provisions (Section 321 of the German Civil Code). In the case of contracts in which the production of non-fungible items (custom-made items) is owed, we can immediately declare withdrawal. The statutory provisions on the dispensability of setting a deadline remain unaffected in this respect.

3.10 The buyer is only entitled to offset, retention or reduction, even if complaints about defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed.

4. Design changes

The seller reserves the right to make design changes at any time; however, he is not obliged to make such changes to products that have already been delivered.

5. Retention rights

The buyer is only entitled to set-off or retention rights if his claim has been legally established or is undisputed and his counterclaim is based on the same contractual relationship. In the event that defects occur during delivery, the buyer’s counterclaims remain unaffected, in particular in accordance with clause 8.6 sentence 2 of these General Terms and Conditions of Sale.

6. Delivery period and delay in delivery

6.1 The delivery period is agreed individually or stated by us when the order is accepted. Delivery dates or periods, which can be agreed bindingly or non-bindingly, must be in writing.

6.2 The seller is not responsible for delays in delivery and performance due to force majeure and events that make delivery significantly more difficult or impossible for the seller, not just temporarily – this includes in particular strikes, lockouts, official orders, etc., even if they occur with the seller’s suppliers or their subcontractors – even if binding deadlines and dates have been agreed. They entitle the seller to postpone delivery or performance for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part that has not yet been fulfilled.

6.3 In the event that we are unable to meet contractually agreed delivery deadlines for reasons for which we are not responsible, we must inform the buyer of this fact immediately and at the same time communicate the expected or new delivery deadline. If a delayed delivery cannot be made due to the unavailability of the service even within the newly announced delivery period, we are entitled to withdraw from the contract in whole or in part; we must immediately reimburse any consideration already provided by the buyer (in the form of payment of the purchase price). The unavailability of the service is the case, for example, if our supplier has not delivered on time, if we have concluded a congruent hedging transaction, if there are other disruptions in the supply chain (for example due to force majeure) or if we are not obliged to procure in the individual case.

6.4 If the hindrance lasts longer than three months, the buyer is entitled to withdraw from the contract with regard to the part not yet fulfilled after setting a reasonable grace period. If the delivery time is extended or the seller is released from his obligation, the buyer cannot derive any claims for damages from this. The seller can only invoke the circumstances mentioned if he notifies the buyer immediately.

6.5 Whether there is a delay in delivery on our part as the seller is determined by the statutory provisions. However, a reminder from the buyer is a prerequisite for a delay in delivery on our part as the seller. In the event that there is a delay in delivery, the buyer can claim flat-rate compensation for the damage caused by the delay. The flat-rate compensation is 1/12% of the net price (delivery value) for each completed calendar week of the delay, but a maximum of 3% of the delivery value of the goods delivered late. We reserve the right to provide appropriate proof that the buyer has suffered no damage or only less damage than the above flat rate. Any further claims are excluded unless the delay is due to at least gross negligence on the part of the seller.

6.6 The seller is entitled to make partial deliveries and partial services at any time, unless the partial delivery or partial service is of no interest to the buyer.

6.7 Compliance with the seller’s delivery and service obligations requires the timely and proper fulfillment of the buyer’s obligations.

6.8 If the buyer is in default of acceptance, the seller is entitled to demand compensation for the damage incurred; upon the occurrence of default of acceptance, the risk of accidental deterioration and accidental loss passes to the buyer.

6.9 The buyer’s rights in accordance with Section 9 of these General Terms and Conditions of Sale and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the performance and/or subsequent fulfillment), remain unaffected.

7. Delivery, transfer of risk, acceptance, delay in acceptance

7.1 Delivery is ex warehouse. The warehouse is also the place of performance for delivery and the place for any subsequent performance. In the event that the buyer wants the goods to be sent to another destination (sale by dispatch), he must bear the costs of shipping. In the event that nothing has been contractually agreed, we can determine the type of shipping ourselves (packaging, shipping route, transport company).

7.2 When the goods are handed over to the buyer, the risk of accidental loss and accidental deterioration is transferred to the buyer. In the context of a sale by dispatch, the risk of accidental loss of the goods, accidental deterioration of the goods and the risk of delay are transferred when the goods are delivered to the forwarding agent or carrier. In the event that acceptance of the goods is contractually agreed, this is decisive for the transfer of risk. Further statutory provisions of the law on contracts for work and services remain unaffected. The handover or acceptance of the goods is deemed to have taken place if the buyer is in default of acceptance.

7.3 In the event that the buyer is in default of acceptance or our delivery is delayed for other reasons for which the buyer is responsible, we have a claim against the plaintiff for compensation for the damage incurred, including additional expenses (e.g. storage costs). If this is the case, we will invoice the buyer a flat-rate compensation per calendar day (beginning with the delivery period or, if no delivery period has been specified, with the notification that the goods are ready for dispatch). Our statutory claims (reimbursement of additional expenses, reasonable compensation, termination) and proof of greater damage remain unaffected.

7.4 Proof of greater damage and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the flat rate must be offset against further monetary claims. However, the buyer reserves the right to prove that we have suffered no damage at all or only significantly less damage than the above-mentioned flat rate.

8. Retention of title

8.1 We retain title to the goods delivered until all of our current and future claims from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.

8.2 Until the secured claims have been paid in full, the goods subject to retention of title may not be pledged to third parties or transferred as security. The buyer must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) access the goods belonging to us. If the third party is unable to reimburse us for the legal and extrajudicial costs of a lawsuit in accordance with Section 771 of the Code of Civil Procedure, the buyer is liable for the loss we incur.

8.3 In the event of the buyer’s breach of contract, in particular in the event of non-payment of the purchase price due, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not simultaneously contain a declaration of withdrawal; rather, we are entitled to simply demand the return of the goods and reserve the right to withdraw. In the event that the buyer does not pay the purchase price due, we must have unsuccessfully set the buyer a reasonable deadline for payment before asserting these rights. This only applies if such a deadline is not dispensable under the statutory provisions.

8.4 The buyer is entitled to resell and/or process the goods subject to retention of title in the ordinary course of business until revoked in accordance with section 7.4.c. In this case, the following provisions apply in addition:

1. a) The products of our goods resulting from combining, mixing or processing are subject to retention of title at their full value, whereby we are considered the manufacturer. In the event that the property rights of third parties remain in place when combining, mixing or processing with the goods of third parties, we acquire co-ownership in proportion to the invoice values ​​of the combined, mixed or processed goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title. The buyer also assigns to us, for security purposes, any claims that arise against a third party as a result of the combination of the reserved goods with a property. In this case, we accept the assignment.
2. b) The buyer hereby assigns to us, for security purposes, the claims against third parties arising from the resale of the goods or the product in the amount of the final invoice amount agreed with us (including VAT) in full or in the amount of our possible co-ownership share in accordance with section 7.4.a. We accept the assignment. The buyer’s obligations listed in section 7.2 also apply with regard to the assigned claims.
3. c) The buyer remains authorized to collect the claim alongside us. As long as the buyer meets his payment obligations to us, there is no lack of the buyer’s ability to pay and we do not assert the retention of title by exercising a right in accordance with section 7.3, we undertake not to collect the claim. If we assert the exercise of a right in accordance with section 7.3, we can demand that the buyer disclose the assigned claims and their debtors, and that the buyer provides all information required for collection, hands over the associated documents and informs the debtors (third parties) of the assignment. In addition, we are entitled to revoke the buyer’s authority to resell and to process the goods subject to retention of title.
4. d) In the event that the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the buyer’s request.

8.5 The buyer is obliged to treat the purchased item with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure it at his own expense against theft, fire and water damage to the replacement value (note: only permitted when selling high-value goods). If maintenance and inspection work must be carried out, the buyer must carry it out in a timely manner at his own expense.

9. Buyer’s claims for defects

9.1 The statutory provisions apply to the buyer’s rights in the event of material and legal defects (including incorrect and incomplete delivery, improper assembly/installation or inadequate instructions), unless otherwise specified below. This does not affect the statutory provisions on the purchase of consumer goods (§§ 474 ff. BGB) and the buyer’s rights from separately issued guarantees, in particular from the manufacturer.

9.2 Agreements that we have made with buyers regarding the quality and the assumed use of the goods (this also includes accessories and instructions) regularly form the basis of our liability for defects within the scope of the warranty. A quality agreement includes all product descriptions and manufacturer information that are the subject of the individual contract or that were made public by us at the time the contract was concluded. In the event that no quality has been agreed, it must be assessed according to the provisions of Section 434 Paragraph 3 of the German Civil Code (BGB) whether a defect exists. In this context, it should be noted that public statements made by the manufacturer as part of advertising or on the label of the goods take precedence over statements made by other third parties.

9.3 For goods with digital elements or other digital content, it should be noted that we are only obliged to provide and update the digital content if this is expressly stated in a quality agreement in accordance with Section 8.2. We accept no liability for public statements made by the manufacturer or other third parties.

9.4 We are not liable for defects that the buyer is aware of at the time of conclusion of the contract in accordance with Section 442 of the German Civil Code (BGB) or that he is grossly negligent in not knowing about.

9.5 The buyer’s claims for defects only exist if the buyer has complied with his statutory inspection and notification obligations (Sections 377, 381 of the German Commercial Code (HGB)). If the goods are building materials or other goods intended for installation or other processing, an inspection must be carried out immediately before processing. We must be notified in writing immediately if a defect becomes apparent during delivery, inspection or at a later point in time. Obvious defects must be reported in writing within 5 working days of delivery and non-obvious defects within the same period of time from the discovery of the defects. In the event that the buyer neglects or does not fulfill his obligation to carry out a proper inspection and/or report defects, liability on our part for the defect not reported or not reported in time or not properly is excluded in accordance with the statutory provisions. If the goods were intended for installation, attachment or installation, this also applies if the defect only became apparent after the corresponding processing as a result of non-compliance with or violation of one of these obligations. In this case, the buyer is not entitled to claim compensation for the “installation and removal costs”.

9.6 If the goods delivered are defective, we as the seller have the right to choose whether we provide subsequent performance by removing the defect (repair) or by delivering a defect-free item (subsequent delivery). If the type of subsequent performance chosen by us is unreasonable for the buyer in the individual case, he can refuse it. However, we reserve the right to refuse subsequent performance under the statutory conditions. In addition, we are entitled to make the subsequent performance we are to provide dependent on the buyer paying the purchase price due. However, the buyer has the right to retain a portion of the purchase price that is appropriate in relation to the defect.

9.7 The buyer must grant us the necessary time and opportunity to provide the subsequent performance to be provided. In particular, the buyer must hand over the item for which he has claimed a defect to us for inspection purposes. In the event that we make a subsequent delivery of a defect-free item, the buyer must return the defective item to us in accordance with the statutory provisions. However, the buyer is not entitled to a right of return.

9.8 Unless we have contractually committed ourselves to this, the subsequent performance does not include the dismantling, removal or deinstallation of the defective item or the installation, attachment or installation of a defect-free item. This does not affect the buyer’s claims for reimbursement of the “installation and removal costs”.

9.9 We will reimburse the expenses that are necessary for inspection purposes and for subsequent performance (transport, labor and material costs as well as removal and installation costs, if applicable) in accordance with the statutory provisions and these General Terms and Conditions of Sale in the event that a defect exists. However, we can demand reimbursement from the buyer for costs incurred due to an unjustified request for defect rectification in the event that the buyer knew or could have recognized that there was actually no defect. 9.10 The buyer has the right to remedy the defect himself and to demand reimbursement of the objectively necessary expenses in this case if there is an urgent case (e.g. in the event of a risk in relation to operational safety or to prevent disproportionate damage). The buyer must inform us immediately if he undertakes the repair himself. In the event that we are entitled to refuse subsequent performance in accordance with the statutory provisions, the buyer has no right to undertake the repair himself.

9.11 The buyer can withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions if a deadline set by the buyer for subsequent performance has expired without success or is dispensable according to the statutory provisions. In the event of a minor defect, however, the buyer has no right of withdrawal.

9.12 Claims by the buyer for reimbursement of expenses in accordance with Section 445a Paragraph 1 of the German Civil Code (BGB) are excluded, unless the last contract in the supply chain is a purchase of consumer goods (Sections 478, 474 of the German Civil Code) or a consumer contract for the provision of digital products (Sections 445c Sentence 2, 327 Paragraph 5, 327u of the German Civil Code).

9.13 Claims for damages or claims for reimbursement of wasted expenses incurred by the buyer (Section 284 of the German Civil Code) only exist in accordance with Sections 9 and 10, even if there is a defect.

10. Limitation period

10.1 The general limitation period for claims resulting from material or legal defects is one year from delivery, in deviation from Section 438 Paragraph 1 No. 3 of the German Civil Code (BGB). In the event that acceptance has been contractually agreed, the limitation period begins with acceptance.

10.2 The limitation period is five years from delivery in accordance with the statutory regulation (Section 438 Paragraph 1 No. 2 of the German Civil Code) in the event that the goods are a building or an item that has been used for a building in accordance with its usual use and has caused its defectiveness (building material). This applies subject to the other special statutory provisions on limitation periods (in particular Section 438 Paragraph 1 No. 1, Paragraph 3, Sections 444, 445b BGB)

10.3 The above limitation periods under the law of purchase also apply to contractual and non-contractual claims for damages by the buyer that are based on a defect in the goods, unless the application of the regular statutory limitation period according to Sections 195, 199 BGB would lead to a shorter limitation period in individual cases. Claims for damages by the buyer according to Sections 10.1 and 10.2.a) as well as those under the Product Liability Act expire exclusively according to the statutory limitation periods.

11. Patents

11.1 The seller will indemnify the buyer and its customers against claims arising from infringements of copyrights, trademarks or patents, unless the design of a delivery item originates from the buyer. The seller’s obligation to indemnify is limited in amount to the foreseeable damage.

11.2 An additional requirement for the indemnification is that the seller is left to conduct legal disputes and that the alleged infringement is attributable exclusively to the design of the seller’s delivery items without connection or use with other products.

11.3 The seller has the option of exempting itself from the obligations assumed in paragraph 1 by either a) obtaining the necessary licenses for the patents allegedly infringed or b) providing the buyer with a modified delivery item or parts thereof which, in the event of exchange for the infringing delivery item or part thereof, eliminates the allegation of infringement with regard to the delivery item.

12. Other liability

12.1 Unless otherwise stated in these General Terms and Conditions of Sale, including the following provisions, we as the seller are liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.

12.2 Within the scope of liability based on fault, we are liable for damages, regardless of the legal basis, only in the event of intent and gross negligence. In the event of simple negligence, we are liable, subject to statutory limitations of liability (e.g. care in one’s own affairs; insignificant breach of duty), only:

1. a) for damages resulting from injury to life, body or health,
2. b) for damages resulting from the breach of an essential contractual obligation (obligations whose fulfillment enables the proper execution of the contract and on whose compliance the contractual partner relies and may rely). In this case, however, our liability is limited to compensation for foreseeable, typically occurring damage.

12.3 The liability limitations resulting from section 10.2 also apply to third parties and to breaches of duty by persons whose fault we are responsible for according to statutory provisions. If a defect was fraudulently concealed and a guarantee for the quality of the goods was given, the liability limitations do not apply. This also applies to claims by the buyer under the Product Liability Act.

12.4 The buyer can withdraw or terminate the contract due to a breach of duty that does not result from a defect only if we as the seller are responsible for the breach of duty.

12.5 The buyer’s right of termination (in particular according to §§ 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.

13. Confidentiality

Unless otherwise expressly agreed in writing, the information provided by the buyer to the seller in connection with orders is not considered confidential.

14. Choice of law and place of jurisdiction; partial invalidity

14.1 These general terms and conditions of sale and the contractual relationship between us as the seller and the buyer are governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

14.2 If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, our place of business in Berlin is the exclusive and international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code.

14.3 We are also entitled to file a lawsuit at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Sale or a priority individual agreement or at the general place of jurisdiction of the buyer. Priority statutory provisions (exclusive places of jurisdiction) remain unaffected by this.

14.4 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.

Wisch Engineering GmbH

Valid from: January 1st, 2024