General Terms and Conditions
General Terms and Conditions
As of May 2019
§ 1 – General Scope
Our General Terms and Conditions, hereinafter referred to only as “Terms” in capitalized spelling, form an integral part of BIT business activities. They shall apply to all purchase and delivery contracts, sales and other agreements to which BIT is a party. These Terms shall equally apply to offers and quotations given as well as any support or services rendered by BIT. These Terms do take effect automatically upon acceptance of an offer or quotation, placement of an order or, at the latest, upon acceptance of delivery. Our offers and quotations are aimed exclusively at business customers as defined in § 14 BGB (German Civil Code) and are intended solely for use by such natural persons, legal entities or partnerships in their pursuit of commercial or professional activities. Hence, by placing an order or accepting delivery, buyers do also confirm their legal status as business owners pursuant to § 14 BGB.
In addition, these Terms shall remain in force for all future transactions with buyers without the need for repeated, separate notification or resubmission by BIT during any transaction after the first. By contrast, individual arrangements or provisions deviating from these Terms shall only apply to the underlying contract and not to any other transactions between the parties involved, unless expressly agreed to otherwise by all parties.
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.
We expressly reject all terms and conditions from the contracting party that deviate or differ from, contradict or amend our own Terms. Even in full acknowledgment of such diverging terms, they shall not become part of the contract, unless BIT expressly agrees to their validity in writing. Our Terms shall even apply in the event that we make full delivery to the customer without reservation in full acknowledgment of conflicts or deviations between our own Terms and a customer’s terms and conditions.
§ 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.
Placement of an order or award of a contract is a legally binding declaration by the customer to purchase the ordered goods or to solicit the services offered. However, we only consider orders and contract awards legally binding if they contain the name and address of the customer in addition to a valid VAT identification number (if needed) and a domestic or foreign shipping address (if different from the billing address provided).
Furthermore, we reserve the right to confirm the customer’s contract offer, as expressed in the order or in the award, within two weeks of receipt. Such confirmation can either be made in writing or through delivery of the ordered goods to the buyer or to a third party designated by the buyer, as stipulated in the written order confirmation. Timely shipment by BIT shall be sufficient for this purpose. Oral agreements or agreements by telephone or telegraph as well as those made by e—mail only become legally binding upon subsequent confirmation. In particular, confirming receipt of customer orders or contract awards by e-mail does not in itself constitute confirmation that a valid contract has in fact been entered into. However, confirmation of receipt can of course be given together with a legally binding contract confirmation.
The contract taking effect is further predicated on correct and timely delivery by our own suppliers. This shall only apply in the case that we are not ourselves responsible for delayed delivery or for failure to deliver, especially in the case of a congruent hedging or matching cover transaction. The customer shall be informed immediately that the desired goods or services are currently unavailable. In case payment has already been made, the customer shall be fully reimbursed without any undue delay.
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).
Barring any individual agrrements to the contrary, prices listed on the price list that is in effect on the respective day of shipment shall apply. With the release of a new catalog, price list or a similar reference, old prices are no longer valid. Until then, all confirmed orders shall be processed using agreed pricing, unless superseded by explicit individual agreements or provisions to the contrary. For any order entailing or requiring lead and delivery times in excess of 4 months or for any order for which such times were agreed upon, pricing may be determined by the price list valid at the time of delivery instead.
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.
Unless superseded by explicit individual agreements or provisions to the contrary, the customer shall be responsible for defraying any applicable packaging and rental charges, depreciation costs for packaging material, charges for return shipment of packaging, freight and shipping charges, miscellaneous charges, as well as all public fees and tariffs. We reserve the right to invoice any such costs and charges thus accrued separately.
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.
After receipt of the goods or after a respective service has been performed, the customer is responsible for non-cash payment of the full purchasing price or, respectively, of full remuneration within 14 days of receipt of the invoice. Such payments shall be made to one of the accounts designated by BIT – without deductions and without incurring any bank fees, postal charges or other expenses to us. A right to deduct a cash discount from the total balance must explicitly be granted in writing by BIT.
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.
In the event of default, BIT reserves the right to charge the customer €3.00 in default charges and overdue fines per reminder issued. In addition, BIT may charge interest for late payment at a rate determined either by pertinent statutory provisions or by the actual resulting shortfall, insofar as the latter is clearly documentable. This shall in no way preclude us from claiming or filing for additional damages. Neither shall this preclude the customer from submitting evidence that actual shortfall and damages were lower than those claimed by us.
§ 4 – Transfer of Risk and Transport
Risk of accidental loss, destruction or degradation of goods passes to the customer as soon as said goods have been handed or otherwise been made available to a broker, carrier or forwarder, or to any other person or institution responsible for handling execution of the respective shipment. When rendering specific contractual services, deliverables and performance, the risk passes to the customer at the time of approval.
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).
Default in acceptance on the part of the customer shall be treated as if handover or acceptance of the delivery had been executed and finalized. This shall likewise apply in the event that customers conduct or organize transport of the goods themselves, if delivery or performance of a service has been delayed at the customer’s request or if the delay is due to circumstances attributable to the customer. Relevant in these cases shall be the point in time at which we notify the customer that we are prepared to have the goods shipped or that we are ready to perform a contractual service.
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.
We further reserve the right to deliver ordered positions in several separate shipments if doing so can reasonably be assumed to be both acceptable to the customer and in the customer’s best interest. In the event that, after partial delivery has been made, the remaining delivery is not made at the customer’s request within a reasonable period of time, the customer shall be entitled to claim damages or to cancel the contract in lieu of full performance – but only if partial fulfillment of the contract is demonstrably of no interest to the customer. Each such partial delivery may be invoiced and billed separately. The same applies to any service or work performance owed by us.
Delivery times and deadlines for rendering services start to run from the date of our order confirmation, but never before receipt of any partial or down payments previously agreed to and never before full clarification of all circumstances and details affecting the respective order. Neither do delivery times or deadlines for rendering services ever commence before all necessary documentation and all instructions for calibration or setup of any ordered devices or machinery have been provided in full by the customer. In the event that goods do not reach the customer or that a service is not rendered in time, compliance on our part shall be assumed upon notification if such delay occurs through no fault of ours.
Any delivery or performance deadlines, periods, times, and dates indicated by us are non-binding insofar as nothing different has been agreed upon in writing. If, however, a deadline, period, time or date have been stipulated as legally binding, compliance on our part shall be assumed if, by the respective date or by the end of the respective deadline, the object of delivery has already left the point of departure or if we have already notified the customer that we are either prepared to have the goods shipped or are ready to perform a contractual service.
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.
In the event of force majeure or other unforeseeable circumstances or such circumstances that occur through no fault of ours (including but not limited to disruption of operations of any kind, catastrophic weather conditions, pandemic outbreak, strike, lockout, war or warlike events, and delay due to regulatory intervention) interfering with delivery or performance, all agreed-upon deadlines, periods, times and dates shall be extended by the duration of the respective obstruction. To the extent that such events result in delivery or performance becoming permanently impossible, we are entitled to withdraw from the contract. In this case, the customer shall be precluded from claiming any damages. The same applies if said circumstances adversely affect any of our suppliers. We are equally entitled to withdraw from the contract without giving the customer recourse to damages in the event that the customer is in violation of contractual obligations toward us or cannot satisfy such obligations in time. This shall apply without prejudice to any of our other rights arising from default or attendant considerations.
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
We reserve the right to insure goods at customer expense against damage from theft, breakage, fire, water, transport and other miscellaneous causes, inasmuch as such insurance can reasonably be viewed as vital for protecting the integrity and security of said goods. This applies in particular with respect to safeguarding any rights afforded to us by retention of title, especially if the customer refuses or ignores our requests to produce proof or documentation of valid insurance coverage for the respective 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
We guarantee that, at the time of risk transfer, goods are free of material and manufacturing defects and possess contractually agreed properties. Based on samples, illustrations or descriptions provided on our website or in our brochures and catalogs, minor deviations (particularly in shape, color, size, and/or quality) are reserved. Likewise reserved within reason are technical adjustments and changes in shape, chemical composition, color, content, size and/or weight. For goods produced or manufactured according to drawings, sketches, specifications and samples provided by the customer, the customer shall assume full liability for violating patent and property rights of third parties. If we deliver according to specifications from our own drawings, sketches, samples or models, such specifications are only binding in terms of shape and technical execution. We assume no liability that performance rendered to a customer is indeed suitable for a specific use or application intended by said customer unless expressly agreed to in writing.
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.
The customer must check delivered goods for defects and completeness immediately. Apparent defects need to be reported to us in writing immediately after receipt of goods. If such defects are found at a later time, they must be reported immediately upon discovery, pursuant to § 377 HGB (the German Commercial Code). Otherwise, assertion of any defect warranty claims shall be precluded. To meet the deadline for retaining warranty claims, notice of such defects must be received by us in time. Full burden of proof with regard to any and all prerequisites for claims shall rest entirely with the customer, particularly insofar as the defect itself, discovery of the defect and timeliness of notice are concerned. When rendering specific contractual services, deliverables and performance, the customer must ‒ immediately upon discovery ‒ inform us of any defects that occur after approval. The provisions listed above with regard to burden of proof and notice of defect for purchases apply accordingly here as well. Our sales representatives are not authorized to accept notices of defect.
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.
As first remedy to any defects that are both justified and have been reported in time, we reserve the right to choose between rectification of defects and subsequent delivery within a reasonable time (or, analogously, renewed rendition of contractual services, renewed production or provision of deliverables and performance). To this end, we shall defray all necessary expenses as long as such costs do not exceed standard rates.
- 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.
Delivered goods shall remain with customers who opt to claim damages after rectification actions have failed, if holding on to the goods puts no undue burden on said customers. In this case, damages claimed shall be limited to the difference between the purchasing price and the monetary value of the respective goods. However, this restriction shall not apply if we violated the contract with malicious intent.
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.
As damages caused by default in acceptance, we can claim 30 percent of the purchasing price or of the wages paid for work performed ‒ with no deductions ‒ unless the purchaser provides evidence that damages were incurred in a lesser amount or that no damages were caused at all. We further reserve the right to claim higher damages and present evidence to that end if circumstances warrant such claims as, for instance, in the case of custom manufacture, processing or production.
§ 10 – Retention of Title, Conversion and Processing, Combination and Mixing of Goods, Resale and Cession of Rights
Delivered goods shall remain our property (as reserved or retained goods) until full settlement of all our receivables, irrespective of legal basis, including any future receivables from an ongoing business relationship as well as any ancillary claims. Retention of title shall remain effective if individual claims have been incorporated into an open account and the balance has been drawn and recognized. This shall apply even in the event that the customer has explicitly designated an individual receivable toward which repayment is to be made.
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 other use of retained goods by the customer is not permitted. In particular, the customer shall not be entitled to forfeit, pawn, pledge, or chattel mortgage retained goods to third parties. Neither may the customer use such goods as collateral or assign them as security. Insofar as the customer has derived valid claims against third parties arising from such pledges, distraint, forfeiture, seizure, chattel mortgage or similar statutory provisions, the customer agrees to cede these claims to us effective immediately. We do hereby accept such cession expressly.
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 retained goods and items not belonging to us are processed, combined, mixed, and/or intermingled together to such a degree that the retained goods become an essential component of a uniform product (as per §§ 947 and 948 BGB), we shall become co-owner of the resulting products at a ratio of the value of the retained goods in relation to the total value of all other items used therein. If items belonging to the customer constitute the main component, the customer shall be obligated to assign us proportionate co-title to the new products. Sections 1 and 2 above shall apply analogously to products to which we have such co-title. As such, they shall be treated exactly as any goods subject to retention of title.
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 retained goods are sold by the customer together with other goods which were not supplied by us for one lump-sum price or that ceded claims have been incorporated into an open account, cession shall be in the amount invoiced for retained goods or as a portion of the balance commensurate with that of the retained goods, including the final total balance of the respective customer account.
In case of resale, we authorize the customer to collect any claims or receivables ceded to us. However, such authorization is subject to revocation by us. This shall apply in particular if said customer fails to meet contractual obligations like timely payment in the course of an ongoing business relationship or if we learn of any circumstances that could call the customer’s credit rating into question. If authorization has been revoked, the customer shall at our request notify us immediately of any ceded claims and receivables as well as of any debtors affected thereby. In addition, the customer shall provide us with all information required for collection, forward all respective data and documentation to us, and notify debtors which claims and receivables have been ceded. However, we also reserve the right to notify the debtor ourselves that cession has occurred. Otherwise, customers shall not be entitled to cede claims and receivables even if authorization for collection has been granted by us. This prohibition shall not apply in the event that claims and receivables are ceded by way of old-line (non-recourse) factoring. In this case, the customer shall give us advance notification that such factoring is to be used. Furthermore, factoring receipts need to exceed the value of our secured claims and receivables, which shall become payable immediately at the time factoring receipts are credited to account.
The customer shall notify us without delay if retained goods are exposed to access by third parties ‒ especially as a result of existing pledges, distraint, forfeiture, seizure, chattel mortgage or due to potential confiscation ‒ and shall provide us with names and addresses of all third parties involved. The same shall apply if retained goods were damaged or destroyed. Customers shall likewise inform us immediately of any change of possession or in ownership or when they relocate their business.
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.
If the nominal value (i.e., the invoice balance for goods or the nominal sum of all claims) of collateral and securities owed to us ‒ such as retained goods and ceded rights, claims and receivables ‒ exceeds the value of our secured claims and receivables by more than 20 percent, we shall be obligated upon customer request to release collateral and securities accordingly. We shall be entitled to select which collateral or securities to release but shall do so with due consideration to the customer’s legitimate concerns and interests.
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.
Liability shall be limited to damages that were foreseeable and might typically occur in circumstances such as they were known to us at the time that we entered into the contract. However, damages we are liable for shall never exceed the monetary amount of the underlying order. This shall pertain in particular to loss of profit, indirect damages, consequential harm caused by defect, and damages from claims held by third parties against the customer.
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 limitations of liability laid out in these Terms do neither affect any claims by the customer for bodily harm or any damage to the customer’s life or health for which we are held legally culpable, nor do they pertain to any violations of contractual obligations due to simple negligence. Liability pursuant to the Gesetz über die Haftung für fehlerhafte Produkte (ProdHaftG) (the German Product Liability Act) shall likewise not be affected by provisions of these Terms.
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 jurisdiction and sole legal venue for all disputes resulting directly or indirectly from the contractual relationship shall always be at our company’s location if the customer is a merchant as defined in the German Commercial Code (pursuant §§ 1 to 3 HGB). The same shall apply as well if the customer is either a public separate estate, a legal fund or entity under public law. The same shall further apply if there is no place of jurisdiction or general legal venue responsible for the customer in Germany or if neither the place of residence nor the business location of said customer are known at the time the complaint is filed. However, we do reserve the right to file a claim or complaint at the customer’s place of business.
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.