1. General provisions/Application

1.1 These GTC form the basis of all deliveries and other services of wadiko GmbH (hereinafter referred to as the user).

This relates in particular to the sale and maintenance of our products.

1.2 If the buyer or orderer is a merchant, our GTC shall also apply to all future contracts with him, without the need for any further declarations.

1.3 The assignment of the rights and/or the transfer of the obligation of the buyer arising from the purchase contract is not allowed without our written approval.

2. Contract conclusion

2.1 Our prices indicated in any brochures, ads, etc. are subject to change and non-binding. They are merely invitations to submit an offer. Misprints and errors are reserved. All previous offers lose their validity with the issue of new, more recent overviews of our offers, such as brochures, catalogues, etc.

We are bound to specifically prepared offers for a period of 30 calendar days.

2.2 A contract is concluded only when an order confirmation is received by the orderer or buyer.

2.3 Our sales staff are not authorised to make oral ancillary agreements or make oral representations exceeding the content of the written contract.

2.3 The written form requirement is met if the declaration is sent in a text form complying with the requirements of § 126b of the German Civil Code (BGB) (e.g. by fax or e-mail).

3. Prices/Payment terms

3.1 Unless agreed otherwise, the prices indicated in the order confirmation are unit prices. Flat-rate price agreements are expressly marked as such.

Unless agreed otherwise, the prices for the purchase of our products are ex works including loading at the works, but without packaging, shipping and unloading.

All indicated prices are net prices and do not include statutory value-added tax at the applicable rate.

3.2 If the parties did not make any agreements with regard to hourly wages that may accrue, the wages applicable at the day when the order was placed shall apply.

3.3 Our invoices are due for payment within 14 days from the invoice date.

We accept cheques and bills of exchange only after special agreement and only on account of payment. If the buyer is in default of payment, we are entitled to claim default interest in the amount of 8% above the applicable base rate.

If we can prove higher damage in the individual case, we are entitled to claim compensation for such damage.

3.4 The deduction of discounts requires a special written agreement.

3.5 The agreed price shall apply from the day of contract conclusion for a period of 4 months. When a delivery period of more than 4 months has been agreed, we are entitled to pass on any cost increases incurred in the meantime for the procurement, production, delivery, assembly, etc., including those caused by legislative changes (e.g. VAT increase), by price increases to the same extent to the customer.

3.6 The buyer or orderer cannot set off its obligation to pay the purchase price against any counterclaim which is not undisputed or accepted by us or has not been legally established as final and absolute. The buyer or orderer is entitled to assert a right of retention according to § 273 of the German Civil Code (BGB), provided that a counterclaim is based on the same contractual relationship.

4. Delivery time

4.1 The delivery time is agreed by the contracting parties. Compliance on our part requires that all commercial and technical issues have been clarified by the contracting parties, and that the contractual partner has met all of its obligations or has made a down payment. If this is not the case, the delivery time shall be extended appropriately. This shall not apply if the user is responsible for the delay.

4.2 Compliance with the delivery period is subject to our correct and timely delivery by our suppliers. We will inform you on any emerging delays as soon as possible. The delivery period is observed if the object of the delivery has left our works or we have informed you that the object of the delivery is ready for shipment until expiry of the delivery period. If an acceptance test has to be performed, the acceptance date shall be decisive, except in case of justified refusal to accept, or alternatively the notification that the goods are ready for acceptance.

4.3 If shipment or the acceptance of the object of the delivery is delayed for reasons for which the contractual partner is responsible, we shall charge the contractual partner with the costs incurred by the delay, starting one week after notification that the goods are ready for shipment or acceptance. The risk of accidental loss or accidental deterioration shall pass to the contractual partner upon the notification that the goods are ready for shipment or acceptance. If we are responsible for the delivery delay or non-compliance with the delivery date, the orderer shall set a reasonable grace period in writing, unless a fixed date was agreed.

4.4 If non-compliance with the delivery time is due to force majeure, labour disputes or other events outside our control, the delivery time shall be extended accordingly. We shall inform the contractual partner as soon as possible on the start and end of such circumstances.

4.5 The contractual partner may withdraw from the contract without giving notice if complete performance becomes definitely impossible for us before the risk has passed. The contractual partner may also withdraw from the contract if at the time of placing an order the fulfilment of part of the delivery becomes impossible and it has a justified interest in refusing partial delivery. If this is not the case, the contractual partner shall pay the contract price attributable to the partial delivery. The same shall apply in case of our inability. If the impossibility or inability occurs during the default of acceptance, or if the contractual partner is solely or predominantly responsible for these circumstances, it shall remain liable for consideration.

5. Passage of the risk

5.1 When purchasing our products, the risk shall pass to the buyer as soon as the shipment has been handed over to the carrier or has left the company premises of the user for the purpose of being shipped. This shall also apply in case of transport with vehicles of the user, or if the user pays the shipping costs, and in case of partial deliveries.

5.2 If the shipment is delayed or prevented for reasons outside the control of the user, the risk shall pass to the buyer from the day when readiness for shipment was notified. The user undertakes to take out at the buyer’s expense any insurance requested by the latter. Partial deliveries are admissible as far as they are reasonable to the buyer.

5.3 In case of contracts for work or services (in particular in case of assembly or maintenance works), the risk shall pass to the orderer after acceptance. Acceptance has to take place immediately at the acceptance date, or alternatively immediately after notification of the user that the works or services are ready for acceptance.

5.4 If the acceptance is delayed for reasons outside the user’s control, the risk shall pass to the orderer from the day when readiness for acceptance was notified. The user undertakes to take out at the orderer’s expense any insurance requested by the latter.

6. Warranty/Liability

6.1 The buyer or orderer shall immediately check the purchased object or work for its quantity and quality. Apparent defects shall be notified without delay, within 4 days at the latest, by written notification to us. The specifications of dimensions, weights, equipment, performance, power requirement, etc. made in brochures, advertising materials, descriptions, etc. are approximate values and are no quality specifications. They do not constitute any guarantee of quality or durability (§ 444 of the German Civil Code (BGB)). We reserve the right of deviations. The goods complained about shall be returned to us properly packaged and carriage paid.

6.2 If the buyer or orderer accepts any defective goods in spite of knowing the defect, it shall be entitled to the claims and rights in case of defects acc. to §437 and § 634 of the German Civil Code (BGB) only if it reserves such claims and rights with regard to the defect at the time of acceptance.

6.3 We are liable for defects of purchased objects or works performed by us as follows:

6.3.1 Within the scope of subsequent performance, we are only obligated to remove the defect. However, we reserve the right to perform delivery without any defects. A reasonable time and opportunity shall be granted to us to remove the defect or perform subsequent delivery. If this is refused, we are released from our warranty obligation to that extent.

6.3.2 The buyer or orderer is entitled to reduce the purchase price or withdraw from the contract at its option only when subsequent performance has failed. Claims for damages shall be in accordance with section 6.3.9. Subsequent performance has failed only after at least two attempts for subsequent performance have been made. The obligation of the buyer or orderer to notify any defect according to § 377 of the German Commercial Code (HGB) within the period mentioned in section 6.1 shall exist after each subsequent performance.

6.3.3 Claims of the buyer or orderer against us based on an infringement of the obligation to deliver or create any work without defects shall in general fall under the statute of limitations one year after handover of the delivery or acceptance of the works. Liability for the failure to observe the obligation of delivery without defects in case of the sale of used items to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) is excluded, with the exception of the claim for damages. In those cases, the liability for damages is in accordance with section 6.3.9.

The mandatory statutory limitation periods, in particular § 438 I no. 2 of the BGB and § 634 a I no. 2 of the BGB, as well as the regulations on the sale of consumer goods and recourse of the entrepreneur shall remain unaffected by the restrictions above.

6.3.4 Our liability does not extend to natural wear and tear or to damages resulting from faulty or negligent treatment, improper maintenance, excessive strain, unsuitable operating equipment or from special external influences which are not anticipated under the contract, and from non-reproducible software errors after the passing of the risk. If improper modifications or repairs are carried out by the buyer or orderer or by third parties, there is no liability for such modifications or repairs and for the resulting consequences.

6.3.5 We do not assume any liability for damages resulting from improper treatment or storage of our products by the orderer.

6.3.6 Existing operating or service instructions shall be complied with. If non-compliance results in damages to the work, they do not constitute defects of the work for which we would be liable or obligated to pay damages. The same applies if amendments are made to the work, materials supplied are incorporated into other items or processed otherwise, components are replaced by unauthorised persons, consumables or operating resources are used which do not comply with the original specifications, or damages are incurred due to excess strain or incorrect handling.

6.3.7 Apart from that, the orderer may refuse to accept the work only in case of material defects.

6.3.8 Notices of defects shall entitle the buyer or orderer to withhold the purchase price or compensation for work performed only if the claims of the buyer or orderer are undisputed or have been legally established.

6.3.9 There are no further claims of the buyer or orderer against us which are based on culpable behaviour irrespective of the legal ground, in particular any claim for compensation of indirect damages which have not occurred to the delivered object itself, as well as any claim for compensation of lost profit or other financial losses of the orderer, unless the damage is based on gross negligence or intent for which we are responsible.

In case of breaches of duty caused by simple negligence, we shall be liable in general only if a duty is concerned which is material for the performance of the contract, or if the breach of duty results in an injury to the life, body or health. To the extent our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents. This provision does not entail any change of the burden of proof to the disadvantage of the buyer or orderer.

6.3.10 The right of the buyer or orderer to withdraw from the contract is also excluded, unless the user is responsible for the reason of the withdrawal, or such reason is the delivery of a defective item.

7. Reservation of title

7.1 We reserve title to all goods delivered by us until all claims – including future claims – arising from the business relationship with the buyer or orderer have been satisfied. In case of placing any claim on current account, the reservation of title shall apply to the relevant balance.

7.2 If the buyer or orderer culpably behaves in breach of the contract, in particular in case of payment default, we are entitled to take the delivered object back without prior withdrawal from the contract.

The orderer is obligated to surrender the delivered goods. Our acceptance of the returned goods does not constitute withdrawal from the contract, unless we expressly declared such withdrawal in writing. The returned goods shall be credited against the actual remuneration after deducting the costs of selling and return.

7.3 In the event of seizures or other attacks by third parties, the buyer or orderer shall immediately inform us in writing so that we are able to take action acc. to § 771 of the Code of Civil Procedure (ZPO). If the third party is unable to compensate us for the judicial and extrajudicial costs of an action acc. to § 771 of the ZPO, the buyer or orderer shall be liable for the costs we have incurred.

7.4 The buyer or orderer is obligated to insure our property against fire, water and theft. The claims against the insurance shall be assigned to us.

7.5 The buyer or orderer is entitled to resell the delivered object in the ordinary course of business, unless it delivers under reservation of title on its part when its customer does not pay the full invoice amount.

The resale is not deemed to have been made in the ordinary course of business if the buyer or orderer has agreed an effective non-assignment clause with its customer; however, placing any claim on current account is allowed.

7.6 In case of resale, the buyer or orderer assigns to us with immediate effect all claims in the amount of the final invoice amount (including value-added tax) which accrue to the buyer or orderer from the resale against its consumers or third parties, regardless of whether the delivered item was resold without or after processing. The buyer or orderer is entitled to collect this claim also after its assignment. Our entitlement to collect the claims shall remain unaffected
thereof. However, we undertake not to collect the claims as long as the buyer or orderer duly meets its payment obligations to us and does not get into default with its payments. In case of payment default, we may request that the buyer or orderer shall disclose the assigned claims and their debtors to us, provides all information required for debt collection, submits the associated documents and informs the debtor (third party) on the assignment.

7.7 The processing or transformation of the delivered item by the buyer or orderer is always carried out on our behalf. If the delivered item is processed together with other objects which are not our property, we acquire co-ownership of the new item in the proportion of the value of the delivered item to the other processed items at the time of processing. Apart from that, the same shall apply for the item resulting from the processing as for the goods which are subject to reservation of title. The customer claims acquired by the sale of the processed item shall be assigned to us in the amount of our co-ownership share.

7.8 If the delivered item is inseparably combined or mixed with other items which are not our property, we acquire co-ownership of the new item in the proportion of the value of the delivered item to the other combined or mixed items at the time of the combination or mixing. If the combination or mixing takes place in such a way that the new item of the buyer or orderer is to be regarded as the main item, it is agreed that the buyer or orderer transfers co-ownership to us on a pro-rata basis. The buyer or orderer shall keep the solely owned or co-owned object in safe custody for us.

7.9 In order to secure our claims against the buyer or orderer, it shall also assign to us the claims it is entitled to against any third party through the connection of delivered object with real estate.

7.10 We undertake to release the securities we are entitled to at the buyer’s or orderer’s request to the extent their value exceeds the claims to be secured by more than 20%, provided that they have not been settled yet. No claim for return can be asserted if and to the extent this is opposed by a claim for release.

8. Software usage

If the scope of delivery includes any software, the buyer or orderer is granted a non-exclusive right to use the supplied software including its documentations. It is made available for use on the delivered item intended for this purpose. Using the software on more than one system is not allowed. The buyer or orderer undertakes to reproduce, revise, translate or change the software from the object code to the source code only to the extent permitted by law.In addition, it undertakes not to remove or modify any manufacturer data, in particular copyright notices, without the user’s express prior approval. All other rights to the software and the documentations including the copies remain with the user or the software supplier. No sub-licenses must be granted.

9. Statute of limitation

All claims other than those indicated in sec. 6.3.3 regardless of their legal grounds shall also fall under the statute of limitations 12 months after the start of the statutory limitation period.

10. Place of jurisdiction/Choice of law/Written form

10.1 If the buyer or orderer is a qualified merchant as defined in the Commercial Code, a legal person under public law or a special fund under public law, the court having jurisdiction for the registered office of the user shall be the exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship, including proceedings in connection with bills of exchange and cheques.

10.2 Any legal relationships between the buyer and our company are governed exclusively by the laws of the Federal Republic of Germany.

10.3 Any modifications or amendments of the contract shall always require the written form.