WiSMa Gesellschaft für Wissen, Service und Material in der Wissenschaft mbH
- Stand: 04/2013 –
These terms and conditions exclusively apply to our deliveries, services, offers, and order confirmations and supplant the terms and conditions of the purchaser.
2. Conclusion of the Contract
Our offers are subject to change and can be cancelled until receipt of declaration of acceptance without having to state the reasons.
3. Prices and Price Adjustments
All of our prices are ex works in Euros (€) and include delivery, assembly, packaging costs, and the legal value added tax unless explicitly stated otherwise. Prices provided in our product catalog are non-binding and exclude the legal value added tax.
Our prices are subject to change and are based on our operating costs at the time of order confirmation. If operating costs increase within a time frame of 4 months between the time of the contract agreement and actual delivery, we reserve the right to adjust our prices accordingly. This does not apply, however, if we are behind schedule with delivery, increased costs were foreseeable before the contract agreement, or increased costs resulted from other circumstances under our control.
4. Delivery Schedules and Delays
In absence of any explicit agreement to the contrary, delivery schedules provided by us are to be considered the minimum and remain subject to change.
Delivery schedules shall become binding upon receipt of order confirmation, but not before clarification of all technical matters, not before the provision by purchaser of necessary documentation (drawings, required authorization, etc.) to facilitate completion of the transaction, and not before receipt of the agreed down payment. Delivery schedule shall be deemed as complied with if, by the time it has expired we have made the goods available for shipping and have notified the purchaser or the goods have been dispatched.
Agreed upon delivery schedules may be accordingly prolonged in cases of disruptions to our daily operations caused through no fault of our own, such as industrial action or delays caused by our suppliers. In cases where a disruption exceeds a minimum period of three weeks, the purchaser is entitled to void the contract agreement. We also reserve the right to void a contract agreement if the disruption to our daily operations caused through no fault of our own continues for more than three weeks. The purchaser is obliged within the period of disruption to declare whether he voids the contract agreement because of the delay in delivery or whether he intends to have the delivery carried out.
If a delay in delivery occurs due to fault of our own and the purchaser can prove damages incurred as a result, we shall be liable for damages limited to 0.5 % of the net price for each seven day period of delay and a maximum limit of 5 % of the net price for the affected item of the consignment. This limit of liability shall not apply in cases of malice or negligence. Liability for damages due to negligence shall be limited to foreseeable damage typical of the delivery in question.
5. Delivery, Packaging, Return Policy for Goods and Packaging
Partial deliveries are permitted provided the purchaser deems it reasonable.
Deliveries are ex works (EWX) Freiburg (Incoterms 2010). Upon purchaser request, deliveries can be insured for standard transport risks.
Packaging materials may only be return delivered provided these return delivery costs are not borne by us.
Costs resulting from return delivery of goods are to be borne by the purchaser unless these goods qualify as a warranty case. If we must process returned goods not covered under warranty conditions, we reserve the right to charge compensation in the amount of 20 % of the purchasing price (minimum of 40 Euros) plus value added tax. Compensation charges may be increased or reduced provided parties involved can verify and justify adjusted charges.
Invoices for goods ordered shall be paid within a period of 10 days at no extra cost to us. Payment shall be deemed completed upon receipt of payment. The 10 day period takes effect on the day the ordered goods are provided in the Freiburg warehouse and notification of the consignment of goods is given. Receipt of invoice is not a prerequisite for payment becoming due.
If the purchaser is late on payment in the amount of 1,000.00 Euros or more or if the purchaser’s credit rating is downgraded to the extent that full payment of outstanding invoices is put at risk, we reserve the right to revoke all agreed upon payment conditions up to that point and demand immediate full payment of the outstanding invoice.
The purchaser shall not be entitled to withhold payment or offset them against counter claims unless these claims are undisputed or have been legally established.
All documentation, including trademark and copyrights, provided for the purchaser by us remains our property. Documentation provided by us may neither be used by the purchaser for his/her own purposes nor made accessible to third parties.
8. Reservation of Ownership Rights
Delivered goods shall remain our property until all terms of the agreed upon contract with the purchaser are met. The transfer of individual claims to a current invoice and the statements of balance and their acknowledgement shall not affect reservation of ownership. The purchaser is authorized within the proper course of business operations to resell, process, or combine the ordered goods provided he is not behind on payment. Any other appropriation of the goods such as pledging and collateral assignment is not permitted without our explicit consent.
The resale of goods is permitted on the sole condition that the purchaser (reseller) does not transfer ownership rights of the goods in question to his customer until after that customer has fully settled payment resulting from the resale of goods. The purchaser shall assign all receivables equivalent to what is owed to us. We hereby accept such assignment.
The purchaser is authorized to collect assigned receivables as long as the purchaser is not behind on payment or not in financial distress. Should that be the case, we shall be entitled to notify the customer of the assignment and collect the assigned receivables ourselves. In order to enforce the collection of assignment, the purchaser is obliged to provide all necessary documentation and permit the proper review of this documentation. Furthermore, the purchaser, at his own expense, is obliged to provide us with a detailed list (names, addresses of customers, amount of receivables, invoice dates, etc.) regarding assigned receivables.
Processing, combining, and transforming goods under reservation are carried out for us as the manufacturer in accordance with §§ 946 ff. BGB, without any obligation on our part. When goods under reservation are processed and combined with other items, the purchaser confers to us joint ownership of the newly created item in proportion to the value of our goods relative to the entire value of the newly created item.
Should the purchaser cease making payments owed to us, experience a rapid deterioration of asset values which may jeopardize conclusion of our agreed upon contract, or be subject to an attachment legal process, the purchaser is required to notify us immediately. We must be notified of the name and address of the attachment creditor. The purchaser shall bear all costs resulting from the legal process as well as those resulting from the recovery of the goods.
Should the purchaser be behind on a significant amount of payment owed to us, cease making payments owed to us, or experience a rapid deterioration of asset values, which may jeopardize our claims, in particular if insolvency legal proceedings are begun on the purchaser’s assets, we shall be entitled to demand a return of goods. The demand for return of goods constitutes a withdrawal from the contract and renders setting an appropriate deadline superfluous. We reserve the right to claim compensation.
The purchaser shall store goods under reservation free of charge. This does not entitle the purchaser to claim a lien on goods stored. Moreover, the purchaser is required to appropriately insure the goods against standard risks such as fire, theft, water and transport damage. The purchaser hereby assigns us his compensation claims, which he is entitled to in cases of damage caused by third parties, in the amount of the invoiced value of the goods.
9. Warranty Conditions, Unjustified Claims for Defects
Warranty claims do not apply to negligible defects.
The purchaser shall be required to inspect delivered goods (see paragraph 5.2) immediately upon receipt of those goods from the carrier and assert claims on any detectable defects and missing goods without delay, at the latest 14 days after the transfer of risk. If undetectable defects are discovered, claims shall be immediately asserted no later than seven days after their discovery. The time limit for asserting claims equally applies for direct deliveries to third parties nominated by the purchaser. In such cases as well as for the transfer of goods to the carrier, the purchaser shall comply with the time limit for asserting claims.
In the event of defects, we are entitled and obliged, at our discretion and free of charge, to make three attempts to repair or provide new goods (subsequent performance) within a reasonable time period provided the following three criteria apply: the defect appeared within the limitation period, a claim for the defect was asserted in a timely manner, and the root cause of the defect already existed at the time of transfer of risk. The purchaser must provide proof for the third criterion. Should the third attempt of subsequent performance fail, the purchaser can withdraw from the contract, irrespective of any right to assert damage claims as prescribed in section 9, or reduce payment.
Claims for defects shall lapse in one year. This shall not apply in cases of injury to life and limb, of premeditated or grossly negligent breach of duty on our part or on part of our agents, or of malicious failure to disclose a defect. This shall not affect statutory regulations relating to suspension and recommencement of the limitation period.
Purchaser claims for expenses incurred due to subsequent performance, in particular transport, travelling, labor, and material costs shall be excluded if the expenses incurred increase as a result of the transfer of the delivered good to a location other than the purchaser’s place of business.
For damage claims based on material defects, section 9 shall apply. The purchaser shall not be entitled to assert any claims beyond those regulated by section 8 in conjunction with section 9.
Should the purchaser make an unsubstantiated warranty claim, we reserve the right to charge the purchaser for any costs incurred as a result thereof.
10. Damage Compensation Claims
Claims for damages and expenditure by the purchaser (damage compensation claims), regardless of the legal grounds, and in particular owing to the infringement of obligations resulting from a contractual relationship and tort law are excluded.
The exclusion of liability in accordance with paragraph 9.1 shall not apply for cases in which our liability is mandatory, such as product liability legislation, premeditated action, malicious failure to disclose a defect, injury to life and limb or the infringement of pertinent contractual obligations. Such contractual obligations are deemed pertinent if their compliance enables the execution of the contract in the first place and if compliance is normally to be expected from the purchaser. In the case of negligent infringement of these contractual obligations, our liability shall be limited to contractually typical, foreseeable damages at the point of time of the conclusion of the contract unless there is an exceptional and compelling basis for liability regulated in paragraph 9.2. If our agents negligently infringe non-contractual obligations which are not included in the regulated liabilities in paragraph 9.2, we shall not be held liable. A change in the burden of proof to the detriment of the purchaser is not implied by these provisions.
Damage compensation claims due to material defects (section 9) shall lapse according to paragraph 9.4.
11. Assignment, Place of Performance, Applicable Law, Jurisdiction
The assignment of rights and obligations from this contract by the customer to third parties requires prior explicit consent from us.
Place of performance for all deliveries and services provided is Germany- Freiburg. Germany – Freiburg has sole jurisdiction pertaining to all disputes which may arise from the agreed upon contract. We also reserve the right to take legal action in the jurisdiction of the purchaser.
German commercial law shall apply to all agreed upon contracts between purchasers and us. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply to stipulations contained in these terms and conditions.