I. Content of the contract
a)
The contract is deemed to have been concluded upon receipt of the customer's order by DeWi Back Handels GmbH and written acknowledgement by DeWi Back Handels GmbH or directly by delivery.
b)
The contract is conclusively delimited by the customer order; amendments and supplements must be in writing , contract and business conditions of the customer shall only become effective with written a acknowledgement or written confirmation by DeWi Back Handels GmbH; silence does not constitute acceptance.
c)
The transfer of rights and obligations from the concluded contract by the customer requires the prior written consent of DeWi Back Handels GmbH.
II. Prices and due date
a)
All prices are subject to statutory value added tax; they include free delivery, including packaging. They are based on the price list of DeWi Back Handels GmbH valid at the time of delivery.
b)
Invoices are due within 7 days. In the case of an agreed direct debit, immediately after receipt of the invoice without deduction.
c)
The timeliness of payment shall be determined by the date of receipt of payment by DeWi Back Handels GmbH, not the date it eas made. In the event of late payment, interest shall be due at a rate of five percentage points above the base interest rate if the customer is a consumer, otherwise at a rate of nine percentage points above the base interest rate.
d)
Cheques or bills of exchange shall be accepted on account of payment with an additional charge for collection or discount charges.
e)
The customer may only offset against claims of DeWi Back Handels GmbH if they are entitled to an undisputed or legally established counterclaim.
f)
The customer shall only be permitted to exercise rights of retention if these arise from the specific contractual relationship.
g)
In the event of default in payment by the customer, DeWi Back Handels GmbH shall be entitled to blockdeliveries of goods. Claims of a legal nature that can be derived from default remain unaffected.
III. Dates and deadlines
a)
Delivery dates or delivery periods are binding only if agreed in writing or by way of a written order confirmation by DeWi Back Handels GmbH; subsequent contract amendments or contract addenda invalidate previously agreed delivery dates unless they are confirmed by DeWi Back Handels GmbH.
b)
If DeWi Back Handels GmbH exceeds a non-binding delivery date or delivery period, the customer is entitled, after the the non-binding date has been exceeded, to fulfil the delivery within a reasonable time if requested to do so.
The customer can only claim damages for delay if DeWi Back Handels GmbH has acted intentionally or with gross negligence. The customer may also set a reasonable period of grace in writing, stating that they will refuse acceptance of the delivery after expiry of the deadline.
c)
After expiry of the grace period, the customer may withdraw from the contract or claim damages for nonperformance. If the customer is a legal entity under public law, a special fund under public law or a merchant, they shall only have a claim for damages over and above this if DeWi Back Handels GmbH has acted wilfully or with gross negligence; in these cases a claim for delivery shall be excluded.
If binding delivery dates are exceeded, automatic default arises at the expense of DeWi Back Handels GmbH; the rights of the customer shall be determined analogously to the legal consequences just described in the event of exceeding non-binding delivery dates or delivery periods cf. section III lit. b and c.
e)
Delivery dates and delivery periods shall be extended in the event of disruptions to performance for which DeWi Back Handels GmbH is not responsible by the duration of the same (e.g. force majeure, strike, lockout, operational disruptions through no fault of its own, catastrophes, etc.); DeWi Back Handels GmbH shall only be responsible for services provided by subcontractors in the event of its own intent or gross negligence.
IV. Acceptance and transfer of risk
a)
The customer shall be obliged to accept the goods; if the customer does not accept the goods, DeWi BackHandels GmbH may set a period of grace of 5 working days and thereafter either withdraw from the contract or demand compensation.
Additional costs for logistics shall be borne by the customer. In the event of delayed acceptance, the customer shall be obliged to pay a price that may be higher. Further claims for damages remain unaffected.
b)
The risk shall pass to the customer in the event of collection by the customer or their forwarding agent upon loading of the goods into the transport vehicle. From this point onwards, DeWi Back Handels GmbH is no longer liable for risk of delay or deterioration. Products with expired best-before dates will not be taken back by DeWi Back Handels GmbH. In the case of products which the wholesaler offers in turn, the wholesaler shall ensure proper declaration and handling.
V. Warranty
a)
Immediately after receipt, the customer shall inspect the delivered goods and notify DeWi Back Handels GmbH of any defects without delay.
Rejected goods shall be properly stored for inspection by DeWi Back Handels GmbH.
Acceptance subject to reservation is not permissible.
b)
Justified notices of defects shall entitle the customer to demand a replacement delivery, whereby further other claims shall be excluded.
c)
If a replacement delivery is refused, culpably delayed or rendered impossible by DeWi Back Handels GmbH, the customer may reduce the price or withdraw from the contract, whereby they shall not be entitled to claim damages in this case either.
d)
In this case, the customer is only entitled to claims for damages if DeWi Back Handels GmbH acts with intent or gross negligence.
e)
If properties are warranted, the law applies.
f)
The provisions of the Product Liability Act shall remain unaffected.
VI. Retention of title
a)
The delivery item shall remain the property of DeWi Back Handels GmbH until all contractually owed payments have been made in full.
b)
If the customer is a legal entity under public law, a special fund under public law or a merchant for whom the contract is part of the operation of his trade, the retention of title shall also apply to claims which DeWi Back Handels GmbH has against the customer from its current business relations.
c)
The customer may dispose of the goods within the scope of proper business transactions, whereby they shall assign any claims against third parties arising from this to DeWi Back Handels GmbH by way of security.
d)
If DeWi Back Handels GmbH asserts rights arising from the retention of title, the customer must disclose to which customers the goods have been resold and which claims have arisen from this resale. The customer must notify DeWi Back Handels GmbH immediately of any access by third parties to the goods subject to retention of title.
e)
DeWi Back Handels GmbH shall be entitled to enter the customer's business premises or have them entered by authorised representatives in order to ascertain which goods are subject to retention of title.
f)
DeWi Back Handels GmbH is entitled, but not obliged, to release the securities as soon as the value of theclaims to be secured is exceeded by more than 20%.
VII. Place of performance and place of jurisdiction
a)
The place of performance for all payments is Berlin.
b)
The place of jurisdiction, also for actions on bills of exchange and cheques, is Berlin, provided the customer is a registered trader.
Otherwise, the place of jurisdiction shall be determined in accordance with the provisions of the he German Code of Civil Procedure (ZPO).
c)
The law of the Federal Republic of Germany shall apply exclusively.
VIII. Severability clause
a)
No ancillary agreements have been made.
b)
Should individual provisions of this contract or individual additional contractual conditions be or become ineffective in whole or in part or should there be a loophole in this contract, the remaining provisions shall remain unaffected. In place of the invalid provision, a provision shall be deemed to have been agreed which comes closest to the meaning and purpose of the invalid provision. In the event of a loophole in the contract, the parties shall be deemed to have agreed on the provision which they would have agreed on, taking into account the meaning and purpose of the contract and the interests of both parties, if they had considered this point from the outset. If the invalidity of a provision is based on a measure, performance or time, the legally permissible measure shall be deemed agreed.
IX. Packaging disposal via an industry solution
a)
The customer hereby confirms that — as a collection point equivalent to private households pursuant to sect. 3 para. 11(2) and (3) German Packaging Ordinance (VerpackV) — they join and participate in the industry solution set up with our cooperation with regard to all sales packaging delivered by us and accumulating on their premises as at 1 January 2015.
b)
IX. a) shall not apply if and insofar as the customer actively objects to participation in the industry solution.