General Terms and Conditions of WAS
- As of 03/2023 -
I. General Terms and Conditions
1. scope of application
1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) apply exclusively to all contracts of Wietmarscher Ambulanz- und Sonderfahrzeug GmbH, Darwinstr. 11, 48488 Emsbüren (hereinafter referred to as “Contractor”) with business partners (hereinafter referred to as “Client”) for deliveries and services of the Contractor.
1.2 The GTC shall also apply to future business relationships with the Client without the need for renewed reference to the GTC. The GTC shall apply even if they are no longer expressly agreed, in particular even if the Contractor provides deliveries or services to the Client without reservation in the knowledge of general terms and conditions of the Client that conflict with or deviate from or go beyond the GTC.
1.3 Conflicting, additional or other deviating terms and conditions of a client shall not become part of the contract, even if they are not expressly contradicted. Such terms and conditions of the Client shall only apply if they are confirmed by the Contractor in writing (whereby written form within the meaning of the GTC always means written form in accordance with Section 126 BGB). The written form requirement can only be waived by written agreement.
1.4 The GTC apply exclusively to clients who are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law.
2 Conclusion of contract and scope of order
2.1 The Contractor's offers are non-binding. Orders shall be deemed to have been accepted if they have been confirmed by the Contractor in writing or in text form or if they have been fulfilled by sending the goods or providing the service. Verbal agreements prior to conclusion of the contract are invalid. Verbal amendments and additions to the contract are only effective after written confirmation. The Contractor's employees are not authorized to make verbal agreements that deviate from written or textual contractual agreements.
2.2 The scope of the order is limited to the deliveries and services specified in the contract. In particular, the Contractor shall not be obliged to carry out functional tests on components supplied by third parties whose delivery and installation is not the subject matter of the contract.
2.3 The Contractor reserves the right of ownership and copyright to cost proposals, drawings, drafts, graphics and other documents and raw materials. Insofar as these rights are held by third parties that the Contractor uses as subcontractors for the provision of services, their rights are also reserved in their favor.
3. Payment
3.1 All payments shall be made within 10 days of receipt of the goods and invoice or, in the case of services for which acceptance is required by law or contract, within 10 days of acceptance and receipt of the invoice. Unless expressly agreed otherwise in writing, no discounts or other reductions shall be granted. Payments must be made exclusively by SEPA bank transfer, Girocard or direct debit.
3.2 The Contractor shall be entitled to make partial deliveries or render partial services if this is reasonable for the Client, in particular if the partial delivery or partial service can be used by the Client within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the Client does not incur any significant additional work or additional costs as a result (unless the Contractor agrees to bear these costs). In the event of justified partial deliveries or partial services, the Contractor shall be entitled to issue corresponding partial invoices.
3.3 If the Client defaults on payment, default interest of 9 percentage points above the prime rate shall be charged. Further claims of the Contractor shall remain unaffected.
3.4 If, after conclusion of the contract, the Contractor becomes aware of circumstances that indicate that the fulfillment of the payment obligation is at risk due to the Client's inability to pay, the Contractor shall be entitled - insofar as there is no disproportionality within the meaning of Section 320 (2) BGB - to perform outstanding deliveries and services only against advance payment or provision of security or to withdraw from the contract after expiry of a reasonable grace period while maintaining its claims for reimbursement of expenses.
3.5 The assertion of rights of retention and offsetting by the Client shall only be permitted insofar as the Client's counterclaims have been legally established, recognized by the Contractor or are undisputed or are in a reciprocal relationship with a claim of the Contractor within the meaning of Section 320 BGB.
3.6 Payments by the Client shall in any case be offset in the order specified in Section 366 (2) BGB.
4. delivery and performance time, quality deviations
4.1 Delivery and performance periods are non-binding and, unless otherwise stated, shall commence upon conclusion of the contract, but not before the documents, approvals and releases to be procured by the client have been provided or other necessary cooperation has been provided by the client.
4.2 If a party is temporarily prevented from providing services due to force majeure (e.g. labor disputes, operational disruptions due to fire, water or comparable external circumstances, war or terrorist conflicts, natural disasters, diseases, epidemics, pandemics, official measures and other unforeseeable, extraordinary events for which the respective party is not responsible), the mutual obligations to perform shall be suspended for this period and neither party shall be in default. If the provision of services by one or both parties is delayed by more than four months as a result, both the Contractor and the Client shall be entitled to withdraw from or terminate the respective contract. The affected party is obliged to inform the other party immediately as soon as circumstances arise that could constitute a case of force majeure in accordance with sentence 1. Statutory rights of withdrawal and any claims under Section 645 BGB remain unaffected.
4.3 In the case of customary, technically unavoidable deviations in quality that do not or only insignificantly reduce the suitability for use, the client shall not be entitled to any warranty rights. The same applies to deviations, in particular to dimensions, weights, performance data or color shades, which are within the scope of applicable DIN standards or tolerances customary in the industry. Also excluded are warranty claims by the Client for defects that are not attributable to the fault of the Contractor, such as natural wear and tear, improper use or handling of the goods, excessive strain, incorrect operation, assembly or commissioning by the Client or third parties, improper maintenance, wear and tear, use of unsuitable operating materials, modifications, repairs or maintenance without the consent of the Contractor or if the Client does not give the Contractor the necessary time and opportunity for maintenance.
4.4 If the Client delays the delivery or service by failing to cooperate as required, e.g. by failing to deliver items to be installed, modified or removed, by failing to accept the subject matter of the contract or by failing to meet its payment obligations, the Contractor may - after setting a reasonable grace period, unless such a grace period is dispensable under the statutory provisions - withdraw from the contract and claim damages for non-performance under the statutory conditions.
4.5 In the cases of clause 4.4 above, the Contractor shall be entitled to demand liquidated damages amounting to 10% of the net purchase price after setting a reasonable grace period, unless such a grace period is dispensable under the statutory provisions. The Client reserves the right to prove that the Contractor has incurred no or less damage. The Contractor reserves the right to assert a claim for higher damages to be demonstrated by the Contractor. There shall be no claim for damages if the Client proves that it is not responsible for the breach of its contractual obligations. Further statutory claims in the event of default of acceptance shall remain unaffected. However, the liquidated damages shall be offset against other claims for damages by the Contractor.
5. Liability
5.1 The Contractor shall be liable in accordance with the statutory provisions, unless and to the extent that these GTC, including the following provisions, provide otherwise.
The Contractor shall be liable without limitation for damages - regardless of the legal grounds - within the scope of fault-based liability in the event of intent and gross negligence, including intent and gross negligence on the part of legal representatives, employees or other vicarious agents.
5.2 In the event of simple negligence, the Contractor, including simple negligence on the part of legal representatives, employees or other vicarious agents, shall only be liable in the event of a culpable breach of a material contractual obligation. Material contractual obligations are those whose fulfillment is essential for the proper execution of the contract and on whose compliance the client regularly relies and may rely.
5.3 In these cases of simple negligent breach of a material contractual obligation, liability for damages shall be limited to the foreseeable, typically occurring damage, provided and insofar as the Contractor, its legal representatives, employees or other vicarious agents are not guilty of intent or gross negligence. In particular, the Contractor shall not be liable for the Client's loss of profit or for foreseeable indirect consequential damages (such as financial losses, contractual penalties, business interruptions or loss of production).
5.4 If the Contractor is in default with the delivery or service due to simple negligence, the liability for damages caused by default shall be limited to a maximum of 5% of the net price of the respective delivery or service that was not provided on time as a result of the default.
5.5 The exclusions and limitations of liability in this clause 5 shall not apply in the event of culpable injury to life, limb or health, the assumption of a guarantee or in the event of mandatory statutory liability such as under the Product Liability Act.
5.6 Unless otherwise regulated in this clause 5, liability for damages is excluded regardless of the legal nature of the claim asserted.
5.7 The above provisions shall apply accordingly insofar as the client demands compensation for futile expenses instead of a claim for damages in lieu of performance.
5.8 Insofar as the Contractor's liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of the Contractor's legal representatives, employees and other vicarious agents.
6. place of jurisdiction and applicable law
6.1 The courts at the Contractor's registered office shall have exclusive jurisdiction for all disputes arising from and in connection with the specific legal relationship in which these GTC are included, unless mandatory statutory provisions provide otherwise. Alternatively, the Contractor is also entitled to bring an action against the Client at the latter's registered office.
6.2 The law of the Federal Republic of Germany shall apply exclusively, excluding the UN Convention on Contracts for the International Sale of Goods.
7. Transfer of rights and obligations of the client
Transfers of rights and obligations of the Client arising from the specific legal relationship in which these GTC are included require the prior written consent of the Contractor in order to be effective. The provision of Section 354a HGB remains unaffected
II. special conditions for purchase contracts and contracts for work and materials
If the contract is a contract of sale or a contract for work and materials, the following provisions shall apply in addition to the provisions of Section I.
1. reservation of the right to make changes
The Contractor reserves the right to make changes with regard to design, material and execution, insofar as this is reasonable for the Client, taking into account the interests of the Contractor, and no impairment of the usability of the delivery item and no reduction in value occurs as a result.
2. delivery
2.1 Delivery shall be ex works (EXW Incoterms 2020). The risk of accidental loss or accidental deterioration shall pass to the Client upon provision of the delivery item at the location agreed with the Client and corresponding notification to the Client. If, in exceptional cases, the Contractor has assumed responsibility for transportation, the risk shall pass to the Client upon commencement of the loading activity. If the Client is in default of acceptance, the risk shall pass to the Client upon the occurrence of the default of acceptance.
2.2 The delivery deadline shall be deemed to have been met if, in the case of delivery ex works, the delivery item has been made available for collection at the location agreed with the Client and the Client has been notified of this or, in the case of acceptance of transportation, loading has commenced by the time the deadline expires.
2.3 After exceeding a non-binding delivery date, the Client may request the Contractor in writing (§ 126 BGB) to deliver within a reasonable period of time. If this grace period expires without result, the Contractor shall be in default. The Contractor shall not be in default as long as the Client fails to fulfill its contractual obligations. Further statutory claims remain unaffected.
2.4 If the Client is in default of acceptance of the subject matter of the contract, the Contractor shall be entitled to charge the customary local costs for storage. The customary local costs shall be EUR 20 plus VAT per calendar day. The Client reserves the right to prove that the costs for storage are lower or have not been incurred at all. The Contractor reserves the right to claim higher costs to be demonstrated by the Contractor. There shall be no claim if the Client proves that it is not responsible for the breach of duty. Further statutory claims and rights of the Contractor shall remain unaffected. However, the flat-rate costs shall be offset against other claims for damages by the Contractor.
3. purchase price
The purchase price shall apply ex works of the Contractor. Value added tax at the statutory rate applicable at the time of delivery shall be charged additionally, if applicable. The costs of packaging, freight, insurance, customs duties and other expenses shall be borne by the Client
4. retention of title
4.1 The Contractor shall retain title to all contractual items until full payment of all claims to which it is entitled from the business relationship with the Client. In the case of current accounts, all goods subject to retention of title shall serve as security for the balance claim.
4.2 The client may neither pledge the delivery item nor assign it as security. In the event of seizure, confiscation or other access by third parties, the Client must draw attention to the Contractor's ownership, notify the Contractor immediately in writing and bear the costs of measures to remedy the interference.
4.3 The Client is entitled to further process the reserved goods in the ordinary course of business. In this case, it is agreed that the further treatment and processing shall be carried out in the name of the Contractor as manufacturer and that the Contractor shall directly acquire ownership or - if the further treatment or processing is carried out from materials of several owners or the value of the processed item is higher than the value of the goods subject to retention of title - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the goods subject to retention of title to the value of the newly created item. The ratio of the gross invoice value of the reserved goods to the invoice value of the other materials used shall be decisive for calculating the value. In the event that no such acquisition of ownership should occur for the Contractor, the Client hereby transfers its future ownership or - in the above-mentioned ratio - co-ownership of the newly created item to the Contractor as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the Contractor shall, insofar as the main item belongs to the Contractor, transfer co-ownership of the uniform item to the Client on a pro rata basis in the aforementioned ratio.
4.4 Furthermore, the Client shall be entitled to resell the contractual items subject to retention of title in the ordinary course of business as long as it is not in default of payment of a claim arising from the business relationship with the Contractor. The authorization to resell shall not apply if a prohibition of assignment exists in the relationship between the Client and its customer.
4.5 The Client's claims arising from the further processing or treatment, resale or disposal of the reserved goods are hereby assigned to the Contractor, irrespective of whether the reserved goods are resold or disposed of to one or more customers. In the event of processing, combining and mixing of the reserved goods with items of third parties, the assignment shall be limited to the amount of the payment claim from the delivered reserved goods of the Contractor in the ratio of the rights of the Contractor to the rights of third parties involved in accordance with the above provision in Section II Clause 4.3.
4.6 The Client shall be authorized, revocable at any time, to collect the claims assigned to the Contractor for the account of the Contractor in its own name. The Client is obliged to inform the Contractor on request of the amount of the claim and other details, the reason for the claim and the names of the debtors, and to hand over all documents required for collection. The Contractor undertakes not to collect the claim himself as long as the Client meets his payment obligations to him and no application for insolvency proceedings is filed against his assets. The assignment shall only be on account of performance. The Contractor shall be free to enforce its payment claim against the Client without utilizing the security.
4.7 The right to resell, process, mix or combine shall expire upon the opening of insolvency proceedings against the Client's assets.
4.8 If the Client acts in breach of contract, in particular in the event of default in payment, the Contractor shall be entitled to withdraw from the contract under the statutory conditions and the Client shall be obliged to surrender the goods. All costs arising from the repossession shall be borne by the Client.
4.9 The Contractor undertakes to release the securities to which the Contractor is entitled at the request of the Client to the extent that the realizable value of the securities exceeds the claims to be secured against the Client by more than 10%; the Contractor shall be responsible for selecting the securities to be released.
5 Liability for defects in the delivery
5.1 The assertion of a warranty claim presupposes that the Client inspects the goods immediately upon receipt, insofar as this is feasible in the ordinary course of business, and, if a defect becomes apparent, notifies the Contractor immediately. If the Client fails to comply with this obligation, the goods shall be deemed to have been approved, unless the defect was not recognizable during the inspection. If such a hidden defect becomes apparent later, the Customer shall be obliged to notify the Contractor immediately after discovery. Otherwise, the goods shall also be deemed to have been approved in this case. The notification of defects must be made in text form. Warranty claims due to fraudulently concealed defects shall remain unaffected.
5.2 Items shall be accepted by the client, even if they have insignificant defects, without prejudice to the rights to which the client is entitled under the following paragraphs.
5.3 If the delivery item is defective, the Client shall be entitled - subject to the proper fulfillment of the obligations under clause 5.1 of this section - to demand subsequent performance, which shall be effected at the Contractor's discretion by repair of the delivery item or subsequent delivery.>
5.4 The location for carrying out the repair shall be determined by the Contractor while safeguarding the interests of the Client. If there is a defect and parts of the delivery item are replaced, the Client shall transfer ownership of the parts to be replaced to the Contractor. The costs of shipment (standard shipment) and the reasonable costs of assembly shall be borne by the Contractor. The reimbursement of installation costs is subject to the condition that the installation is carried out by the Contractor or by a recognized workshop of the Contractor. Only parts that are defective and parts that are inevitably damaged by these defects despite proper handling of the delivery item shall be replaced. Replaced parts shall become the property of the Contractor.
5.5 After consultation with the Contractor, the Client must give the Contractor the necessary time and opportunity for subsequent performance. Only if the Contractor is in default with subsequent performance after the Client has set a reasonable deadline shall the Client have the right to remedy the defect itself or have it remedied by a third party and to demand reimbursement of the reasonable costs from the Contractor.
5.6 If subsequent performance fails, is impossible or unreasonable or is refused by the Contractor, the Client shall be entitled to reduce the purchase price or withdraw from the contract subject to the statutory requirements. Warranty claims and claims for damages shall only exist in accordance with the liability provision in Section I Clause 5.
5.7 If it turns out that there was no defect, the Contractor may demand compensation from the Client for the costs incurred as a result of the unjustified request to remedy the defect, unless the lack of defectiveness was not recognizable to the Client.
5.9 In the event of the sale of used items, any warranty is excluded. Claims for damages due to culpable injury to life, limb or health, due to the assumption of a guarantee, due to mandatory statutory liability such as under the Product Liability Act, and in cases of gross negligence, intent and/or malice remain unaffected by this.
5.10 Claims by the client for defects in goods delivered by the contractor or services provided by the contractor – including claims for damages and claims for reimbursement of futile expenses due to such defects – shall become statute-barred within one year of the start of the statutory limitation period, unless otherwise specified in the provisions of this Section II, Clause 5.
5.11 If the client or another customer in the supply chain has fulfilled the claims of its buyer due to defects in newly manufactured goods delivered by the contractor and the last transaction in the supply chain is a consumer goods purchase, the limitation period for claims of the client against the contractor under Sections 437, 445a (1) of the German Civil Code (BGB) shall commence at the earliest two months after the date on which the client or the other customer in the supply chain has satisfied the consumer's claims, unless the client could have successfully invoked the statute of limitations against its contractual partner. The limitation period for the client's claims for defective goods delivered by the contractor shall in any case commence when the claims of the client's contractual partner against the client for defects in the goods delivered by the contractor to the client become time-barred.
5.12 If the contractor has provided advice and/or information that is not subject to separate remuneration in breach of its duty, without the contractor having delivered goods in connection with the information or advice or without the breach of duty in providing advice or information constituting a material defect in the goods delivered by the contractor in accordance with Section 434 of the German Civil Code (BGB), claims against the contractor based on this shall become time-barred within one year of the start of the statutory limitation period. Claims of the client against the contractor arising from the breach of contractual, pre-contractual or statutory obligations which do not constitute a material defect in accordance with § 434 BGB of the goods to be delivered or delivered by the contractor shall also become time-barred within one year of the start of the statutory limitation period. Insofar as the aforementioned breaches of duty constitute a material defect in accordance with Section 434 of the German Civil Code (BGB) of the goods delivered by the contractor in connection with the advice or information provided, the provisions set out in this Section II, Clauses 5.10, 5.11 and 5.13 shall apply to the limitation period for claims based thereon.
5.13 The provisions set out above in this Section II, Clauses 5.10 to 5.12, shall not apply to the limitation period for claims arising from injury to life, limb or health, nor to the limitation period for claims under the Product Liability Act and for legal defects in the goods delivered by the Contractor which exist in a right in rem of a third party on the basis of which the return of the goods delivered by the contractor can be demanded. Furthermore, they shall not apply to the limitation period for claims of the client based on the contractor's fraudulent concealment of defects in the goods delivered by the contractor or in the services provided by the contractor, or on the contractor's intentional or grossly negligent breach of duty. In such cases, the statutory limitation periods shall apply to the limitation of these claims.
III. Special conditions for contracts for work and services
In the case of a contract for work and services, the following provisions shall apply in addition to the provisions of Section I.
1. Obligations of the client to cooperate
1.1 The client shall make the vehicle or other object on which the services are to be performed (hereinafter referred to uniformly as the ‘subject matter of the contract’) available to the contractor in good time at the agreed location.
1.2 If services are to be provided at the client's place of business, the client shall provide the contractor with a suitable place for the performance of the services and shall grant unrestricted and safe access to the subject matter of the contract.
2. Collection and acceptance
2.1 If the services are provided at the Contractor's place of business or at a workshop designated by the Contractor, the Client shall collect the Subject Matter of the Contract immediately, but no later than one week after receipt of the notification of completion. If the Client fails to fulfil its obligation to collect the Subject Matter of the Contract within the aforementioned period, it shall be in default of acceptance. In this case, the contractor shall be entitled to charge the customary local costs for storage. The customary local costs amount to 20 EUR plus VAT per calendar day. The client reserves the right to prove that the costs for storage were lower or did not arise at all. The contractor reserves the right to claim higher costs to be demonstrated by him. There shall be no claim if the client proves that he is not responsible for the breach of duty. Further claims due to default of acceptance shall remain unaffected. However, the flat-rate costs shall be offset against other claims for damages by the contractor.
2.2 The client undertakes to accept the contractual services. If the services are provided at the contractor's place of business or at a workshop designated by the contractor, acceptance shall take place there upon collection of the object of the order. Acceptance cannot be refused on the grounds of minor defects.
2.3 The object of the order shall also be deemed to have been accepted if the client has not refused acceptance within a reasonable period set by the contractor after completion of the work, stating at least one defect. The reasonable period set by the contractor in this sense shall be the period specified above in Section III, Clause 2.1.
3. Liability for defective work
3.1 The obligation to give notice of defects in accordance with Section II, Clause 5.1 for contracts for work and services shall apply mutatis mutandis to the assertion of warranty claims.
3.2 If the service provided is defective, the contractor shall be obliged to provide subsequent performance, subject to the proper fulfilment of the obligations under Clause 3.1 of this section. If the Contractor refuses to provide subsequent performance, if this is not possible or unreasonable, or if it fails, the Client shall be entitled to a reasonable reduction in payment or to withdraw from the contract in accordance with the statutory provisions. Warranty and damage claims shall only exist in accordance with the liability provisions in Section I, Clause 5.
3.3 The above provisions in Section II, Clauses 5.10 to 5.13 shall apply mutatis mutandis to the limitation period.
4. Extended lien and retention of title
4.1 The contractor shall be entitled to a contractual lien on the items of the order that have come into its possession on the basis of the contract for work and services due to its claims arising from the contract for work and services. The contractual lien may also be asserted for outstanding claims from previous contracts for work and services, insofar as these are related to the subject matter of the order. For other claims arising from the business relationship with the client, the contractual lien shall only apply insofar as these are undisputed or have been legally established and the subject matter of the order is owned by the client.
4.2 Insofar as parts installed in the course of providing the services have not become essential components of the object of the order, the contractor retains ownership thereof until all claims to which it is entitled from the business relationship with the client have been paid in full. The above provisions in Section II, Clauses 4.2 to 4.9 apply accordingly.
Wietmarscher Ambulanz- und Sonderfahrzeug GmbH
Darwinstr. 11
48488 Emsbüren
Tel +49 5903 93201-100
Fax +49 5903 93201-602
info@was-vehicles.com
www.was-vehicles.com