General Terms and Conditions of Sale and Delivery of Via Guide GmbH
I. Scope of application, conflicting terms, future transactions, overriding agreements
1. These General Terms and Conditions of Sale and Delivery (“GTC”) apply to all contracts we conclude with our customers (“Customer”) concerning our deliveries and other services, including our related offers and acceptance confirmations as well as any side agreements.
2. The GTC apply exclusively. We will not accept any Customer general business terms conflicting with or diverging from these GTC, unless we have specifically approved them.
3. These GTC apply only in relation to businesses within the meaning of Sec. 14 BGB (German Civil Code), legal persons under public law and public law funds. In ongoing business relationships, these GTC will also govern all future transactions, whether or not they include an express reference to these GTC.
4. Any agreements negotiated individually with the Customer, including individually negotiated side agreements, amendments and changes, as well as conflicting terms in our offers or acceptance confirmations, take precedence over these GTC.
II. Written form or text form, offers, formation of contract, product documentation, rights to product documentation
1. All offers and acceptance confirmations, amendments, other side agreements and arrangements made prior to or at the conclusion of the contract must be set forth in written or text form (“in writing”) to become legally effective. This includes any guarantee as to quality as may be issued.
2. Our offers remain subject to change, unless expressly referred to or agreed as binding. The Customer remains bound by its offer for two weeks. A contract comes into effect upon our confirmation in writing of an order received by us, however, at the latest – and by way of derogation from section II.1 in this respect – upon the Customer’s acceptance of the delivery or service.
3. Product documentation, images, drawings, as well as performance, weight and dimensional specifications in our catalogues, product sheets and on our internet sites, are as accurate as possible. Unless stated or agreed otherwise, however, they are approximate only and in particular do not indicate any specific qualities. We reserve the right to make improvements and changes, to an extent that is customary in the trade and reasonably acceptable for the Customer.
4. We reserve rights of ownership and copyrights to all figures, drawings, calculations, tools, drafts and other documents provided to the Customer in connection with the offers and/or the conclusion of the contract. Without our prior consent, the Customer is not permitted to copy or make available to third parties or use for the Customer’s own manufacturing purposes, such material or parts thereof. Where no contract comes into effect, the material provided to the Customer shall be returned to us without delay. The material shall be returned upon the termination of the contract as well, except where it forms part of the agreed scope of deliveries or services.
Unless agreed otherwise, our prices are EX WORKS Arnsberg (EXW, Incoterms 2020) euro prices, plus packaging costs but exclusive of transport and installation. Our prices are plus statutory value-added tax.
IV. Delivery or service dates and times, delivery by instalments, upstream deliveries, late delivery, force majeure
1. Unless agreed otherwise, delivery or service dates (“delivery dates”) and delivery or service periods (“delivery periods”) are subject to change. Delivery periods commence upon the conclusion of the contract except where the Customer is obliged to make advance payment. In that event the delivery period commences upon our receipt of the payment owed by the Customer. Furthermore, delivery periods do not commence until all requirements for the fulfilment of the contract have been satisfied, in particular all details of the contract fulfilment have been agreed. Timely delivery of goods or services is contingent upon the Customer complying with the agreed payment terms.
2. Where assembly and installation by us at the Customer’s site has been agreed (“installation”), compliance with any completion deadlines is contingent upon the unhindered start of the installation at the originally agreed time as well as completion of any services and facilities to be supplied by the Customer.
3. We may make and bill delivery by instalments where reasonably acceptable for the Customer.
4. If we have not received delivery of any goods at all or in time, we will not be late with the delivery to the Customer unless we are responsible for not having received upstream delivery at all or in time. If it has been established that upstream delivery of ordered goods has failed for reasons beyond our control despite a matching cover transaction, we may withdraw from the contract. Nothing in this shall prejudice any statutory rights of withdrawal as may exist.
5. In any event of late delivery, our liability for claims for damages shall be governed by the terms of clause IX. In the case of ordinary negligence, however, the damage caused by the delay to be compensated by us shall be limited to 0.5% of the value of the late delivery or instalment for each full week of the delay, however, to a maximum of 5% of the value of the late delivery (instalment).
6. Four weeks after a non-binding delivery date or period has been exceeded, the Customer may request us to make delivery of goods or services. On receipt of this request we will be late with the delivery unless we are not responsible for exceeding the delivery date or period. If, in the event of a delay in delivery of goods or services, the Customer wishes to withdraw from the contract and/or claim damages instead of performance, the Customer, upon occurrence of the delay, shall give us notice in writing, setting a reasonable period of no less than two weeks. No such deadline has to be set if it may be waived under applicable law.
7. In any event of force majeure or other unforeseeable circumstances affecting us or our suppliers, such as riot, lawful industrial action or strike, epidemic or pandemic, natural disaster, import/export restrictions, official orders, etc., which temporarily prevent us, through no fault of our own or attributable to us, from delivering the purchased goods or services by the date or within the period agreed with or without binding effect, these delivery dates and periods will be postponed and extended – including during the delay - by the duration of the interference caused by such circumstances. If the delivery or part thereof becomes impossible or unacceptable as a result of these circumstances, we will to that extent be released of the obligation to make delivery and have the right to withdraw from the contract. If performance is delayed by more than four months as a result of such interference, both parties may withdraw from the contract. Nothing in this shall prejudice any statutory rights of withdrawal as may exist.
V. Delivery, passage of risk
1. Unless agreed otherwise, deliveries of goods will be at the Customer’s expense and risk, EX WORKS Arnsberg (EXW, Incoterms 2020).
2. The risk of deterioration and of accidental loss of the goods shall pass to the Customer as soon as the goods are transferred to the person in charge of transportation or have left our works in order to be dispatched. If the Customer fails to timely accept delivery of the goods although they were offered to the Customer, the risk shall pass to the Customer upon notice that the goods are ready for dispatch.
VI. Payment terms, late payment, deterioration of financial capacity, setoff, withholding of payment, assignment
1. Unless agreed otherwise, payments fall due upon delivery of the goods or services and invoicing and are payable net without deductions within 30 days. Upon the expiration of this deadline the Customer will be in default with payment unless the Customer is not responsible for the delay. If the Customer and we have agreed installation by us, the purchase price falls due upon delivery whether or not the installation takes place, if installation is delayed at the Customer’s request or for other reasons within the Customer’s responsibility.
2. For the duration of the delay in payment, we may charge the statutory interest on late payment (in the amount of currently 9 percentage points above the applicable base rate) as well as the statutory late fees (in the amount of currently EUR 40.00). We reserve the right to claim a higher loss caused by the late payment as well as further rights.
3. If it becomes foreseeable after the conclusion of the contract that our claim for a consideration is at risk for lack of financial capacity of the Customer, we may withhold the delivery of goods or services owed until the Customer has paid the consideration or provided security for it. We may determine a reasonable time limit for the Customer to, at the Customer’s discretion, pay the consideration or provide a security concurrently with the delivery. Upon the expiration of the deadline we will have the right to withdraw from the contract and/or claim damages or reimbursement of expenses if the legal requirements are fulfilled.
4. Any setoff by the Customer is permitted only on the basis of claims that are undisputed, are ready for judgment or have been established by final enforceable judgment. The Customer has the right to withhold payment only if the Customer’s claim is undisputed, is ready for judgment or has been established by final enforceable judgment and derives from the same contractual relationship.
5. Any assignment of claims against us is excluded. Nothing in this shall prejudice Sec. 354 a HGB (German Commercial Code).
VII. Reservation of title
1. The goods delivered remain our property (“goods under reservation of title”) until all our claims arising from the contract and all other claims we may later acquire – on any legal ground whatsoever - against the Customer in direct connection with the goods delivered, have been fully settled. Furthermore, the goods remain our property as goods under reservation of title until all other claims we may acquire – on any legal ground whatsoever - against the Customer now or in future (including all unsettled balances from current account), have been fully settled. In the event of a current account, the goods under reservation of title serve to secure our unsettled balances.
2. If the validity of this reservation of title is subject to any special requirements or formalities in the Customer’s country, the Customer shall ensure their fulfilment at the Customer’s expense.
3. The Customer may resell the goods under reservation of title in the ordinary course of business. The Customer will have no such right of resale if the Customer is in default with payment or has suspended payment not only temporarily. In order to secure all unsettled claims, the Customer herewith assigns to us the Customer’s claim against its customers arising out of any resale. We accept the assignment. As long as we retain title to the goods under reservation of title, we may revoke the Customer’s right to resell the goods for objectively justified reasons.
4. The Customer is authorised to collect the assigned claims unless and until such authority is revoked. We may revoke the Customer’s right to collect the claims for objectively justified reasons. Nothing in this shall prejudice our right to ourselves collect the claims, however, we agree not to collect the claims as long as the Customer duly complies with its payment obligations.
5. Where we are authorised to directly collect the claims as the Customer has failed to duly meet its payment obligations, the Customer shall, upon request, provide us with details of the assigned claims and their debtors, all information required to collect the claims and the related documents. Upon request, the Customer will be required and we will have the right to notify the debtors of the assignment of claims.
6. As long as the reservation of title remains valid, any pledging, transfer by way of security, letting or other transfer or change of the goods under reservation of title that adversely affects our collateral shall be subject to our prior consent. Nothing in this shall prejudice the Customer’s right to resell the goods under reservation of title in the ordinary course of business, at the conditions stated above. The Customer shall identify the goods under reservation of title as our property and, in the event the Customer’s entire stock of merchandise is transferred by way of security, notify third parties of our reservation of title and exclude the goods under reservation of title from the transfer by way of security by an express declaration.
7. In any event of judicial execution or other third party intervention affecting the goods under reservation of title, the Customer shall inform us in writing without delay, provide all information and documents required to safeguard our rights, and notify the third party of our reservation of title without delay.
8. The Customer shall treat the goods under reservation of title with care. The Customer shall at its expense insure the goods under reservation of title against fire and other property damage and against theft at reinstatement value, and maintain the insurance coverage. The Customer herewith assigns to us any claims relating to our property or joint property that the Customer will have against the Customer’s insurance company in the event of any insurance claim; we accept the assignment.
9. If the Customer discontinues payment not only temporarily or petitions the opening of insolvency proceedings or if insolvency proceedings are opened against the Customer, the Customer shall, on our request, release any goods under reservation of title that are still our property. Furthermore, if the Customer acts in breach of the contract, in particular in the event of late payment, we may require the Customer to release the goods under reservation of title. If we take back the goods under reservation of title we will not be deemed to have withdrawn from the contract, unless expressly declared so in writing. We may give the Customer notice in writing, setting a reasonable time limit for the Customer to fulfil its obligations and announcing that, should the Customer fail to timely fulfil the obligations, acceptance of the payment will be refused and the recovered goods under reservation of title will be disposed of while crediting the payment received against the purchase price. If the obligations are not fulfilled we may dispose of the goods under reservation of title by private contract. The Customer shall bear the cost incurred by the disposal in that case.
10. If the Customer has settled all claims relating to the goods under reservation of title of if the realisable value of our entire collateral arising from reservation of title, transfer by way of security and advance assignment, exceeds the sum total of our claims against the Customer by more than 10%, we shall at our discretion and upon the Customer’s request waive the reservation of title or release collateral from any transfer by way of security and advance assignment.
VIII. Notice of nonconformity, liability for nonconformity
1. The Customer shall inspect the delivered goods promptly upon delivery and report any apparent lack of conformity to us in writing without delay but at the latest seven days after delivery of the goods. Any latent nonconformity shall be reported in writing without delay as well, but at the latest seven days after the lack of conformity was discovered. If notice is given late any claims based on the relevant lack of conformity are excluded.
2. If the Customer has reported a nonconformity in a timely manner in accordance with clause VIII.1 we may, at our discretion, deliver a conforming product or remedy the lack of conformity at no charge (remedial action). Customer claims based on expenditures necessary for purposes of the remedial action (for example transport, infrastructure, labour and material costs) are excluded to the extent that the expenditures increase because purchased goods were moved after delivery to a location other than the Customer’s registered office or commercial establishment, unless the relocation is in keeping with the intended use of the goods.
3. Customer warranty rights are excluded for natural wear and tear as well as for any nonconformity caused after the passage of risk for reason of incorrect or improper handling by the Customer or a third party (for example, incorrect installation or putting into service or failure to maintain or incorrect maintenance by the Customer or a third party, excessive use or external impacts not provided for in the contract), and for any other lack of conformity for which we are not liable by law.
4. Any parts replaced in connection with remedial action undertaken by us become our property.
5. To the exception of claims for damages based on nonconformity, warranty rights become time-barred twelve months after the delivery of the goods, or after acceptance where acceptance of the delivery has been agreed.
6. The Customer has the right to claim damages for nonconformity, except where our liability has been disclaimed under clause IX of these GTC. Any rights or remedies further or other than those provided for in this clause VIII for nonconformity shall be excluded.
7. Nothing in this clause VIII shall be deemed to prejudice the Customer’s rights based on any lack of conformity which we have fraudulently concealed or which is covered by a guarantee as to quality or durability.
IX. Liability, time bar
1. We accept unlimited liability for damage and losses caused by intent and gross negligence. In the event of a breach by ordinary negligence of a material obligation or of a secondary obligation whose breach will put the achievement of the contractual purpose at risk, or whose fulfilment is essential for the due and proper fulfilment of the contract, and on whose fulfilment the Customer could reasonably rely (“material secondary obligation”), our liability shall be limited to losses foreseeable at the time of conclusion of the contract and characteristic for the type of contract, such liability, however, not exceeding double the order value.
2. We accept no liability for any breach by ordinary negligence of secondary contractual obligations which are not material secondary obligations.
3. Nothing in this shall prejudice the Customer’s rights in any event of fraudulent concealment of a nonconformity or if a guarantee as to quality has been issued, the liability for claims based on the Product Liability Act and the liability for injuries to life, limb or health. This shall not involve any reversal of the burden of proof to the Customer’s disadvantage.
4. Where our liability has been excluded or limited, this applies equally to the personal liability of our legal representatives, employees, staff and vicarious agents engaged in the discharge of our duties.
5. To the exception of claims based on tort, the Customer’s claims for damages for which our liability is limited under this clause IX become time-barred one year from the beginning of the statutory limitation period.
X. Place of fulfilment, place of jurisdiction, governing law, severability
1. The place of fulfilment shall be Arnsberg if the Customer is a merchant.
2. The courts having jurisdiction at our registered office shall be the exclusive place of jurisdiction if the Customer is a merchant, a legal person under public law or a public law fund. The same applies if the Customer has no general place of jurisdiction in Germany or moves its residence or customary place of abode to a location outside of Germany after the conclusion of the contract, or if the Customer’s place of residence or abode is unknown at the time legal proceedings are brought. However, we may bring legal proceedings against the Customer at any other legal place of jurisdiction. Nothing in this shall prejudice the validity of any legal provisions on exclusive jurisdiction.
3. These GTC shall be governed by the laws of Germany to the exclusion of the UN Sales Convention (CISG).
4. If any provision of these GTC is or becomes invalid, nothing in this shall prejudice the validity of the remaining provisions hereof. The statutory provisions apply as a supplement in that case.
Last amended: December 2020