General Terms and Conditions of Business of
Wasco GmbH and Wasco International
GmbH&Co.KG hereinafter both called Wasco
I. General and Scope of Application
(1) These following terms and conditions of sale, delivery and payment shall apply, unless otherwise agreed, to all our contracts, deliveries and other services in business transactions with entrepreneurs, legal entities under public law or special funds under public law.
We object to any deviating terms and conditions, in particular the Buyer’s terms and conditions of purchase, unless we confirm deviating agreements in text form.
(3) In an ongoing business relationship between merchants, the terms and conditions shall become an integral part of the contract even if we have not expressly pointed out their inclusion in the individual case and the Buyer has not objected to the terms and conditions.
(4) These General Terms and Conditions are designed for contracts that do not fall under the special provisions of the sale of consumer goods (§ 474 et seq. BGB). Should this assumption not apply, the customer will inform us immediately and in writing in each individual case.
II Offers and Conclusion of Contract
(1) Our catalogs and sales documents, as well as the goods and services offered for sale on the Internet do not constitute an offer to conclude a purchase contract, but are to be understood as an invitation to submit an offer to us. Our offers are always subject to change.
2. orders are considered as accepted, if they are confirmed by us either in text form or are executed
executed immediately after receipt of the order. In that case, the delivery bill or the invoice for the goods shall be deemed to be the order confirmation.
3. insofar as our employees make verbal subsidiary agreements or give assurances which go beyond the written purchase contract, these always require our confirmation in text form in order to be effective. Verbal declarations by the seller or by persons authorized to represent the seller (procuration or power of attorney) shall remain unaffected by the above provision.
(4) If, after conclusion of the contract, we become aware of facts, in particular default in payment with regard to earlier deliveries, which, according to due commercial discretion, indicate that the purchase price claim is at risk due to the Buyer’s lack of ability to pay, we shall be entitled, after setting a reasonable period of time, to demand from the Buyer, at the Buyer’s option, payment concurrently or corresponding securities. In the event of refusal, we may withdraw from the contract, in which case invoices for partial deliveries already made shall become due immediately. We are entitled to the rights according to § 321 BGB.
5. services on this side which go beyond our duties as a seller, e.g. the assumption of consulting and planning services which are incumbent on the purchaser vis-à-vis third parties, require a special agreement and will only be assumed against remuneration.
6. requests of the buyer for subsequent reduction or cancellation of a legally effective order can only be taken into account on the basis of special agreements and – unless the goods are in stock – only to the extent that the upstream supplier is prepared to take back the goods. In any case, for orders cancelled with his consent, we are entitled to reduce the credit note by 25% of the net invoice amount for handling costs, inspection and repackaging. Damaged goods will not be credited. In cases of error contestation, we are entitled to compensation for the damage incurred. 7.
(7) We shall be entitled to terminate the contract in the event of cessation of payments, insolvency, application for insolvency proceedings by the debtor, the ordering of provisional insolvency proceedings, the opening of insolvency proceedings or the rejection of insolvency proceedings for lack of assets.
(8) the customer is obligated to expressly notify us prior to conclusion of the contract if the ordered goods are not to be exclusively suitable for normal use or are to be used under conditions that are unusual or pose a particular health, safety or environmental risk or require increased stress.
III. Data Protection
We refer to our information on data protection regarding our data processing in accordance with Article 13 and Article 21 of the General Data Protection Regulation (DS-GVO)
IV. Delivery, transfer of risk and default
(1) Delivery shall be made for the account and at the risk of the customer. If free delivery has been agreed, the risk shall pass upon arrival of the vehicle in front of the delivery address at ground level or at the location reasonably accessible by the vehicle. Our customer is obliged to provide the equipment or employees required for unloading, insofar as this is technically necessary. 2.
Partial deliveries shall be permissible within the framework of the statutory provisions. They shall be deemed to be independent deliveries. We reserve the right to choose the transport route and the means of transport.
3. the delivery is to be checked immediately upon receipt for completeness and damage as well as freedom from defects.
4. delivery dates and delivery periods, which may be agreed as binding or non-binding, must be made in writing.
5. events of force majeure entitle us to postpone delivery for the duration of the hindrance and a reasonable start-up period. Force majeure shall include strikes, lockouts, mobilization, war, blockades, export and import bans, shortages of raw materials and energy, fire, traffic blocks, cyber attacks on the IT system, disruptions to operations or transport and other circumstances for which we are not responsible, irrespective of whether they occur at our premises, those of our suppliers or those of a subcontractor. If delivery becomes impossible or unreasonable as a result of the aforementioned events, we shall be entitled to withdraw from the contract. Our customer may demand a declaration from us as to whether we intend to deliver or withdraw within a reasonable period of time. If we do not make a declaration within a reasonable period of time, the customer may, for his part, withdraw from the contract with regard to the part of the delivery that has not been fulfilled. We shall be liable for impossibility of delivery / performance in cases of intent or gross negligence on our part or on the part of our representative or vicarious agent in accordance with the statutory provisions. In cases of gross negligence, however, liability shall be limited to the foreseeable damage typical for the contract. In all other cases, our liability for damages due to impossibility and for reimbursement of futile expenses shall be limited to a total of 10% of the value of the delivery/service. Further claims of the customer due to impossibility of delivery are excluded. This limitation shall not apply in cases of liability due to intent, gross negligence or injury to life, body or health. The customer’s right to withdraw from the contract shall remain unaffected. 6.
6. our deliveries are subject to complete self-supply, unless the delay or non-delivery is our fault.
7. we are entitled to take out transport and breakage insurance at the expense of the customer. Damage reports are to be made immediately upon receipt of the goods and immediately confirmed in writing in an evidential manner according to type and scope.
8. goods delivered by us will be taken back only in perfect condition and only after prior agreement with us, with freight prepaid return. Voluntarily taken back goods will be credited depending on the condition less 25% cost share. The credit note will be issued as soon as we receive the credit note from the previous supplier. A return of custom-made products or goods specially procured at the request of the customer is excluded.
9. the export of certain goods may be subject to approval requirements, for example, due to their nature, their intended use or their final destination. In case of exports, the Buyer’s attention is drawn to the relevant national as well as international export regulations, such as the export control regulations of the European Union.
10. deliveries to the buyer are subject to national or international regulations of foreign trade law, embargoes or other legal prohibitions.
V. Prices and Payment
a) Terms of payment:
1. Unless otherwise agreed, our deliveries shall be payable immediately upon receipt of the invoice without any deductions. The prices are always exclusive of value added tax.
2. if a discount is granted, it is a prerequisite that all previous invoices have been settled by then. The gross invoice amount after deduction of discounts, freight, etc. shall be decisive for the cash discount calculation.
We are not obliged to accept bills of exchange and checks. We accept bills of exchange only subject to the possibility of discounting. Cheques and bills of exchange shall only be credited after they have been cashed, assignments of claims only after payment. The claim and its maturity remain unaffected until then. We do not assume any liability for timely cashing and protesting. Protest and collection charges are at the expense of the customer.
(4) We shall be entitled, despite any provisions of the customer to the contrary, to set off payments first against the customer’s older debts and shall inform the customer of the type of set-off made. If costs and interest have already been incurred, we shall be entitled to set off the payment first against the costs, then against the interest and finally against the main claim.
(5) offsetting shall be excluded unless the claim is undisputed or has been established by a court of law.
(6) the assertion of rights of retention is excluded, unless the rights of retention are based on the same contractual relationship.
b) Default in payment and creditworthiness: In the event that the agreed payment periods are exceeded, in the event that the trade credit insurance cover is terminated by the trade credit insurer, in the event that a check or bill protest becomes known and in the event of other conduct on the part of our customer that is in breach of contract, we shall be entitled to the following rights after notice of default has been given:
1. to withdraw from all contracts and to claim damages for non-performance, to assert our reservation of title, to take possession of delivered goods, to demand securities, to realize securities provided, to declare all outstanding payments due and to perform outstanding deliveries only against advance payment. Our receivables are credit insured and are subject to the general insurance conditions. In order to maintain the insurance protection, we are obliged to report the delay in payment. After this notification, no more deliveries will be made.
2. to demand further damage caused by delay, in particular a lump sum of 40.00 € in the case of delay and to claim interest on arrears in the amount of 9% points above the respective base interest rate.
c) Changes in the ownership of the company form or other circumstances affecting the economic circumstances as well as changes of address must be notified to us in writing without delay. Such changes in the person or the economic circumstances of the customer entitle us, according to our assessment and choice:
1. to claim payment or security for due or deferred claims arising from all existing contracts; this shall also apply to bills of exchange accepted,
2. to refuse performance of the existing contracts until advance payment or provision of security.
d) Our customers shall always have the right to prove that we have incurred significantly lower damages.
VI Retention of title
1. we retain title to the goods delivered until the purchase price has been paid in full. In the case of goods which the buyer purchases from us within the framework of an ongoing business relationship, we shall retain title to the goods until all claims against the buyer arising from the business relationship have been settled. This shall also apply if individual or all of our claims have been included in a current invoice and the balance has been struck and acknowledged. If, in connection with the payment of the purchase price by the buyer, a bill of exchange liability on our part is established, the reservation of title shall not expire before the bill of exchange has been honored by the buyer as drawee. 2.
If the goods subject to retention of title are processed by the buyer to form a new movable item, the processing shall be carried out on our behalf without any obligation on our part; the new item shall become our property. In the event of processing, together with goods not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other goods at the time of processing and the processing value. If the reserved goods are combined, mixed or blended with goods not belonging to us in accordance with §§ 947, 948 BGB, we shall become co-owners in accordance with the statutory provisions. If the Buyer acquires sole ownership by combining, mixing or blending, he hereby assigns co-ownership to the Seller in proportion to the value of the reserved goods to the other goods at the time of combining, mixing or blending. In such cases, the Buyer shall hold in custody, free of charge, the item owned or co-owned by the Seller, which shall also be deemed to be goods subject to retention of title within the meaning of the above conditions.
3. if goods subject to retention of title are sold alone or together with goods not belonging to us, the buyer assigns already now, i.e. at the time of conclusion of the contract, the claims arising from the resale in the amount of the value of the goods subject to retention of title with all ancillary rights; we accept the assignment. The value of the reserved goods shall be our invoice amount. If the resold goods subject to retention of title are in our co-ownership, the assignment of the claims shall extend to the amount corresponding to our share value in the co-ownership.
4. if goods subject to retention of title are installed by the buyer as an essential component in the real estate, ship, ship structure or aircraft of a third party, the buyer hereby assigns the assignable claims for payment arising against the third party or the party to whom it relates in the amount of the value of the goods subject to retention of title with all ancillary rights, including a right to the granting of a security mortgage, with priority over the remainder; we accept the assignment.
(5) The Buyer shall be entitled and authorized to resell, use or install the reserved goods only in the ordinary course of business and only subject to the proviso that the claims within the meaning of subsections 3 to 4 shall actually pass to us. The Buyer shall not be entitled to dispose of the reserved goods in any other way, in particular by pledging them or assigning them as security. The Buyer shall only be permitted to make an assignment by way of genuine factoring on condition that we are notified of this and are informed of the factoring bank and the Buyer’s accounts maintained there and that the factoring proceeds exceed the value of our secured claim. Upon crediting of the factoring proceeds, the Seller’s claim shall become immediately due and payable.
(6) The Seller authorizes the Buyer, subject to revocation, to collect the claims assigned pursuant to subsections 3 to 5. The Seller shall not make use of its own collection authority as long as the Buyer meets its payment obligations, including those to third parties. At our request, the Buyer shall name the debtors of the assigned claims and notify them of the assignment; we shall be authorized to notify the debtors of the assignment ourselves.
(7) The Buyer shall inform us without delay of any compulsory execution measures by third parties against the reserved goods or the assigned claims, handing over the documents necessary for the objection.
8. the right to resell, use or install the goods subject to retention of title or the authorization to collect the assigned claims shall expire upon cessation of payments and/or filing for insolvency proceedings; the authorization to collect shall also expire in the event of a protest of a check or bill of exchange. This shall not apply to the rights of the insolvency administrator.
9. insofar as the realized value of the securities to which we are entitled exceeds the claims to be secured by more than 10%, we undertake to release a corresponding part of the security interests at the request of the purchaser. We shall be entitled to select the securities to be released. 10.
Insofar as the value of the goods subject to retention of title is taken as a basis, this shall be determined on the basis of our invoice amount.
VII Notice of Defects, Warranty and Liability
We shall only be liable for material defects within the meaning of § 434 BGB as follows:
1. the buyer has to examine the received commodity immediately for quantity and condition and to reprimand obvious lack immediately by announcement in text form to the salesman. If a defect becomes apparent later, the buyer must notify us of this in text form immediately after discovery. If the purchaser fails to notify us of the defect in good time, the goods shall be deemed to have been approved. In this case, all defect rights of the buyer shall lapse. In the case of mutual commercial transactions between merchants, § 377 of the German Commercial Code (HGB) shall remain unaffected.
(2) In the event of intended installation or attachment of the goods, the Buyer shall be obliged, already upon receipt of the goods, to inspect the properties of the goods relevant for the installation or attachment and the subsequent intended use and to notify us of any defects in text form without undue delay, insofar as an inspection of these properties is reasonable at that time in view of the type and condition of the goods. If the Buyer fails to notify us of defects with regard to the properties pursuant to sentence 1, although an inspection would have been reasonable, or if he fails to notify us of the defects in due time, the goods shall be deemed approved to that extent. In this case, the Buyer shall not be entitled to any warranty rights with respect to such defects. In the case of mutual commercial transactions between merchants, § 377 of the German Commercial Code (HGB) shall remain unaffected.
(3) If, in the event of installation or attachment of the goods, the Buyer fails to inspect the external and internal properties of the goods which are decisive for this and the subsequent intended use and which can be verified with reasonable effort prior to installation or attachment, he shall be deemed to have acted with gross negligence within the meaning of Sections 439 (3), 442 (1) sentence 2 of the German Civil Code (BGB). In this case, the purchaser’s rights in respect of defects with regard to these properties shall only come into consideration if the defect in question was fraudulently concealed by us or a guarantee was given for the quality of the goods.
4. if the purchaser discovers defects in the goods, he shall be obliged to make the goods complained of or samples thereof available to us for the purpose of examining the complaint and to allow us to examine the goods complained of within a reasonable period. In the event of refusal, the warranty shall lapse. Until the inspection by us has been completed, the Buyer may not dispose of the goods complained about, i.e. they may not be divided, resold or further processed.
(5) In the event of justified complaints, we shall be entitled to determine the type of subsequent performance (replacement delivery, rectification of defects), taking into account the nature of the defect and the justified interests of the Buyer. If the supplementary performance fails, or if it does not take place despite the Buyer setting a reasonable deadline and grace period, the Buyer shall be entitled – without prejudice to any claims for damages pursuant to Section VIII of these Terms and Conditions of Delivery – to demand, at its option, a reduction in the purchase price or, if the defect is not merely minor, rescission of the contract.
(6) If the Buyer has installed the goods which were defective at the time of the passing of the risk in another item or attached them to another location in accordance with their nature and intended use, he may only claim reimbursement from us for expenses incurred in removing the defective goods and installing or attaching the repaired or delivered non-defective goods (“removal and installation costs”) in accordance with the provisions set out in Clauses VII.7 and VII.8.
(7) Required costs within the meaning of Section 439 3 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) are only those removal and installation costs that relate to the removal and installation or attachment of identical products, are incurred on the basis of standard market conditions and are proven to the Seller by the Buyer by submitting suitable receipts at least in text form before the work is carried out. Any right of the Buyer to advance payment for removal and installation costs shall be excluded. After presentation of these receipts, we shall have the right to carry out the work ourselves or to obtain further cost estimates. Within a decision period of three weeks after receipt of the aforementioned documents, we shall commission a third party to carry out the necessary work or carry it out ourselves. Any commissioning by a third party shall exclude any claim for the assumption of costs by us. The purchased item must be readily accessible to us. Any necessary aids, such as scaffolding or working platforms, shall be provided by the Buyer at his own expense. The purchaser shall bear the costs for any necessary re-commissioning, new software installations or software updates. The Buyer shall also not be permitted to unilaterally offset claims for reimbursement of expenses for removal and installation costs against purchase price claims or other payment claims of the Seller without the Seller’s consent. Section VII.8 shall, however, remain unaffected. Any claims of the Buyer exceeding the necessary removal and installation costs, in particular costs for consequential damages due to defects, such as lost profit including imputed
costs for replacement procurements shall not be deemed to be removal and installation costs and shall therefore not be compensable within the scope of subsequent performance pursuant to § 439 para. 3 of the German Civil Code (BGB).
(8) If the costs of subsequent performance, including the expenses claimed by the Buyer within the meaning of Section 439 (3) BGB, are disproportionate – in particular in relation to the purchase price of the goods in a defect-free condition and taking into account the significance of the lack of conformity – the Seller shall be entitled to refuse subsequent performance and reimbursement of such expenses.
(9) Claims of the Purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded to the extent that such expenses are increased because the goods were subsequently transported to a place other than the Purchaser’s branch office or than was contractually agreed, unless such transport is in accordance with the intended use of the goods.
(10) In the event of unjustified notices of defects, the Buyer shall reimburse the Seller for the costs incurred by the Seller in this respect if the Buyer has recognized or negligently failed to recognize that there is no defect but that the cause of the phenomenon complained of by the Buyer lies within the Buyer’s own sphere of responsibility.
11. claims for material defects shall become statute-barred 12 months after delivery. This period shall not apply insofar as longer periods are prescribed by law in accordance with § 438 para. 1 no. 2 (buildings and items for buildings), § 438 para. 3 (fraudulent concealment), § 445 b para. 1 (right of recourse) in the case of consumer status of the ultimate purchaser and § 634a para. 1 no. 2 (construction defects) BGB.
12. we offer a voluntary, four-year bring-in manufacturer’s warranty on the entire LED light up to the fifth year from the date of purchase, including the provisions on warranty law stated in these GTC. For the Cantena light strips, this bring-in manufacturer’s warranty is two years, i.e. a total of three years from the date of purchase. The warranty applies only to the product and no installation or removal costs are covered. The purchaser must send us the rejected light unit, adequately protected by packaging, at his own expense.
13. recourse claims according to §§ 445a, 478 BGB (German Civil Code) exist only if the claim of the buyer was justified and only to the legal extent, but not for goodwill arrangements of the buyer not agreed with us. Moreover, they presuppose that the party entitled to recourse has complied with its own obligations, in particular its obligations to give notice of defects.
(14) We shall be liable for damages or reimbursement of futile expenses for material defects in accordance with Section VIII (General Limitation of Liability).
(15) We shall not be obliged to provide a warranty as long as the customer has not paid the part of the purchase price which is due in consideration of a defect.
16. goods sold as inferior quality or used goods, we sell under exclusion of any warranty. This limitation does not apply in cases of intent, gross negligence or liability for injury to life, limb or health.
17. regarding useful life: 1. for LED lights, L90 B10 at ta up to max. 35°C 50,000 hours/ L80 B10 at ta up to max. 45°C 50,000 hours/ L80 B10 at ta up to max. 35°C 100,000 hours/ L80 B50 at ta up to max. 45°C 100,000 hours 2. for batten luminaires, L80 B10 at ta up to max. 45°C 50,000 hours
VIII. General limitation of liability
1. we shall be liable in accordance with the statutory provisions if the purchaser asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Furthermore, we shall be liable for culpable breaches of material contractual obligations in accordance with the statutory provisions. Essential contractual obligations are those whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner may regularly rely. Insofar as we are not accused of intent or gross negligence, the liability for damages shall be limited to the foreseeable damage typically occurring in contracts of this type. This does not imply a change in the burden of proof to the detriment of the purchaser. Liability for culpable injury to life, limb or health shall remain unaffected. Liability under the Product Liability Act shall also remain unaffected. (2) Any further claims for damages, irrespective of their legal basis, shall be excluded. This shall also apply insofar as the Buyer demands reimbursement of futile expenses instead of a claim for damages in lieu of performance. (3) The statutory limitation provisions shall apply to liability for gross negligence and to claims for damages based on injury to life, limb or health. In all other respects, the limitation periods set forth in Section VII/11 shall apply to claims for defects. IX. Place of Performance and Jurisdiction: 1. The place of performance for the delivery shall be the respective place of dispatch of the goods. Place of performance for all obligations of the customer is Norden.
2. insofar as the customer is a fully qualified merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Norden shall be the exclusive place of jurisdiction – also for actions on bills of exchange and checks – and for all disputes arising directly or indirectly from our legal relations with our customer.
3. the inclusion and interpretation of these terms and conditions of sale and delivery, as well as the conclusion and interpretation of legal transactions with the purchaser itself, shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
IX. Confirmation of compliance with the REACH Regulation EC 1907/2006
WASCO is a manufacturer of electrical luminaires. The products manufactured are articles according to REACH regulation article 3 – definition. WASCO is a downstream user in the supply chain within the meaning of the REACH Directive.
Wasco does not manufacture or import any substances subject to registration according to the candidate list (SVHC list). We do not exceed the concentration limit of 0.1% by mass for any of our products. Therefore, we are not subject to registration with the ECHA (European Agency for Chemicals), nor do we have to prepare safety data sheets. In implementing the REACH regulation, we are pursuing the goal – in the interest of our customers – of ensuring a high level of product safety. Therefore, we have requested our suppliers to notify us in accordance with the REACH Regulation, Article 33, if more than 0.1 mass percent of the substances classified by the ECHA as substances of very high concern according to the candidate list are contained in the supplier’s product.
In order to continue to provide safe articles to our customers, we assure to use only REACH compliant substances and articles.