General Terms and Conditions

General Terms and Conditions

As of May 2019

§ 1 – General Scope

• All provisions agreed to by BIT and the customer for the execution of any given contract shall be stipulated in writing in the same contract.

§ 2 – Conclusion of the Contract

• All of our offers and quotations are made according to availability. As such, they are provisional in nature and legally non-binding. They merely constitute an invitation to the buyer to submit an offer to BIT.

• Our minimum order value (MOV) is €50.00.

§ 3 – Price, Pricing and Payment Terms; Storing of Goods

• For any given transaction, prices listed on our corresponding order confirmation apply – plus value-added or sales tax (where applicable). Applicable VAT or sales tax rate and totals shall be clearly designated and listed at the bottom of the invoice (in accordance with any pertinent legal requirements).

• Reasons including but not exclusive to rising material, labor or production costs may make price adjustments necessary even while an underlying contract is still in effect. The customer shall be informed of such adjustments without delay. The customer may then withdraw from the contract in writing up to 10 days after receiving such notification.

• The buyer shall also be invoiced for any additional costs and expenses arising from non-standard shipping instructions issued by the buyer (such as express delivery, dispatch goods, commissioning of a specific carrier or forwarder, etc.).

• Any extra work and effort required for proper contract execution may also be invoiced separately by BIT. This applies in particular in the event that a customer demands short-term delivery or delivery on a fixed day. Insofar as respective additional charges are readily foreseeable, BIT shall inform the customer about any estimated additional cost incurred by such extra work and effort.

• We reserve the right to conduct specific transactions either only against full payment in advance, cash on delivery, payment through direct debit authorization or through a direct debit scheme (like SEPA DD).

• Checks, drafts, and bills of exchange shall only be accepted in place of cash if covered and if the money is actually transferred. Acceptance shall constitute no legal obligation on the part of BIT to cash such securities or file a protest in time. Any costs or expenses associated with these types of payment shall be defrayed by the customer.

• Unless expressly stipulated otherwise in individual agreements, all payments shall be made in Euros (€). Receivables in foreign currencies are valued in Euros at the selling rate officially noted by Deutsche Bank for the billing date shown on the invoice. However, this shall not apply in the event an invoice was made out explicitly in a foreign currency.

• Against receivables owed to BIT, a customer can only set off such outstanding counterclaims that are either undisputed by us or those that have undergone final adjudication. Commercial customers shall have no right to refuse or withhold services or payment of the purchasing price or remuneration.

• In case a customer’s financial situation has substantially deteriorated, we reserve the right to make performance of our contractual obligations contingent upon advance payment of remuneration or upon posting of corresponding collateral or security. After an appropriate deadline has been set and then expired, BIT has the right to cancel the contract and claim damages accordingly.

• Default on payment shall ensue automatically after 14 days have elapsed without us receiving full payment due or without the full balance due credited to any of our accounts. No reminder is needed for such default to occur.

§ 4 – Transfer of Risk and Transport

• The provisions listed under Section 1 above shall equally apply to partial shipment and delivery, to partial performance of contractual services, to the assumption of additional obligations and services (such as defrayment of transport costs or direct delivery by us), and to instances when a third party conducts delivery directly to the customer (as in the case of drop-shipping goods).

• In those instances when goods are reserved and stored by the manufacturer exclusively for the customer or sold for further processing without specific delivery and shipping instructions (as is the case with orders on call-off), the customer shall accept delivery within 6 weeks of notification that production has been completed. Otherwise, this will be treated as laid out in Section 3 above.

• If no specific method or terms for shipping and delivery have been agreed to, choice of the appropriate method or terms shall be at our discretion.

• Transport costs may be recalculated, invoiced and billed subsequently.

§ 5 – Performance and Delivery, Partial Deliveries, Dates and Deadlines, Force Majeure

• We reserve the right to ship products or render services that deviate from those actually ordered if such changes solely serve to improve and upgrade said products or services and if such changes neither imperil execution of the contract nor are unreasonable for the customer to accept.

• In case no legally binding deadlines, periods, times or dates have been agreed to for delivery, the customer shall be obligated to grant us an appropriate period of time during which we can reasonably satisfy the contractual obligations incumbent upon us.

• Delivery of natural resources, raw materials, semi-finished goods or subassemblies for the purpose of commission or subcontract production or processing occurs at the customer’s risk and expense. As does return delivery of finished goods.

§ 6 – Performance of Obligations by Third Parties

• Unless expressly agreed to otherwise, we reserve the right to commission or employ external representatives, subcontractors, or other vicarious agents to comply with or fulfill our obligations toward the customer, either in part or in their entirety.

§ 7 – Insurance of Goods

• In all other instances, we shall only take out such insurance at customer expense at the customer’s express request.

§ 8 – Liability for Defects, Warranty, Third-Party Patent and Property Rights

• Customers shall have no right to return or to exchange and replace custom manufactured goods unless such goods are defective or the result of faulty production. Mutual approval is assumed in the event of customary deviations in quantity, with binding prices per unit remaining in effect. Customary deviations in color, surface or tensile tolerances are reserved as well.

• Analogously, the provisions in Section 3 above shall apply to excess and wrong deliveries. If such delivery is not reported to us as defective immediately, it shall be considered accepted and can, thus, be invoiced by us in accordance with the price list valid on the day of delivery.

• In the event that customers accept defective goods while aware of the respective defect(s), they shall have recourse only to warranty claims pursuant to § 442 BGB, possibly in conjunction with § 651 BGB (the German Civil Code).

• Damage to the goods during transport must be reported immediately upon receipt of said goods to the carrier, forwarder, or to any other vicarious agent charged with execution of shipment.

• In the event that the chosen action fails or we ultimately refuse to take any of the actions listed in Section 7, the customer is generally entitled to choose either to reduce remuneration or to withdraw from the contract. However, the customer shall not be entitled to do so if contract violations are minor in nature, as in the case of minor defects or slightly reduced usability of goods.

• Customers who chose to withdraw from the contract shall have no further claim to compensatory or punitive damages.

• Warranty is one year after delivery, handover or acceptance of the goods. Warranty shall not apply if the customer failed to notify us of the defect(s) in time (cf. Section 2 above). This does in turn not apply if we are held legally culpable for any damage to the customer’s life, body, or health.

§ 9 – Default in Acceptance by the Purchaser

• If the customer still refuses the goods or expressly declares to have no intention of accepting the goods after we granted the customer a reasonable amount of extra time in which to accept delivery and after said period has expired, we shall be entitled to withdraw from the contract.

§ 10 – Retention of Title, Conversion and Processing, Combination and Mixing of Goods, Resale and Cession of Rights

• The customer shall be obligated to store retained goods appropriately with all due care free-of-charge and, if at all possible, separately from third-party goods. In either case, retained goods shall be clearly marked as ours.

• Subject to provisions listed in subsequent sections, the customer has the right to properly use, consume, process, or resell retained goods or combine them with other goods as intended during the course of due business, as long as said customer has not defaulted on payment.

• Any conversion or processing of retained goods by the customer shall always be performed for us in our name as manufacturer (pursuant to § 950 BGB) without us incurring any obligations thereby.

• If the customer resells retained goods while payment for these goods is deferred, the customer shall be obligated to retain title vis-à-vis the purchaser with respect to any claims and receivables resulting from the resale in accordance with the provisions of Article § 10 of these Terms.

• The customer cedes any claims and receivables derived from resale of retained goods to us effective immediately. We do hereby accept such cession expressly. Claims and receivables ceded in this way serve as collateral for our claims at the same rate as the retained goods themselves.

• In the event that third parties actually access and take possession of retained goods, the customer shall be liable for any costs and legitimate expenses incurred in the course of enforcing our claims arising from retention of title, be they judicial or extrajudicial, inasmuch as reimbursement of such costs and expenses cannot be enforced against third parties involved.

• In the event customers are in violation of their contractual obligations, in particular of those listed in section 2 to 11 above or if they are in default of payment, we shall be entitled to withdraw from the contract and demand that all retained goods be returned to us.

• Attempts by us to enforce any claims arising from retention of title shall not constitute withdrawal from contract on our part, unless so stipulated expressly in writing. With enforcement of such claims by us, the customer shall lose any right to possession of retained goods.

§ 11 – Limitations and Exclusion of Liability

• Liability for violations of contractual obligations by us is limited to intent and gross negligence. This shall also apply to the actions of our legal representatives and vicarious agents.

• Claims for damages relating to defects of any kind shall lapse one year after delivery of goods or after approval of deliverables and performance or services. This shall not apply if we acted with gross negligence, recklessness, or intentional misconduct or if we are held legally culpable for any damage to the customer’s life, body, or health.

• Inaccurate or incorrect information on our website or in our catalogs, line cards, price lists, or similar material shall constitute no grounds for legal claims against us. We will point out such errors to customers before executing a transaction if we are already aware of the erroneous passages or if such errors have already been brought to our attention at the time.

• The provisions for limitations and exclusion of liability listed above shall apply analogously to the issue of reimbursement for futile effort and expenditures pursuant to § 284 BGB (the German Civil Code).

• The provisions listed above shall have no bearing on the issue of burden of proof and how such burden is assigned among all actors and agents involved.

§ 12 – Individual Agreements

• Individual agreements negotiated with the customer (including any ancillary, supplementary or side agreements, addendums, appendices, and changes) shall always prevail over these Terms. As for the interpretation of the content of such agreements, only those provisions put or confirmed in writing shall be considered, unless there is clear evidence to the contrary.

§ 13 – Applicable Law, Jurisdiction and Legal Venue, Place of Fulfillment

• Unless otherwise dictated by pertinent provisions of private international law, only the law of the Federal Republic of Germany shall apply to all business relations between the customer and ourselves. This also means that neither the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) nor any other bilateral or multilateral agreements shall apply.

• By accepting these Terms, the customer also agrees that German legal interpretation and language version of contractual agreements including these Terms shall prevail over any translation thereof.

• Place of fulfillment shall always be at our company’s location unless something else has expressly been agreed to by both the customer and ourselves.

§ 14 – Data Protection and Privacy

• All personal data are processed by us in strict adherence to the EU’s General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG). For more information on data processing, please refer to https://www.bit-gmbh.de/en/privacy-policy.

§ 15 – Foreign Language Versions

• The original version of these Terms is in German. Foreign-language versions of these Terms like this version are intended for information purposes only. In the event of any ambiguity, inconsistency, conflict or contradiction between the German version and any translation thereof, the German version and its wording shall prevail.