Terms and conditions
General terms and conditions of delivery and services WITTE HiTEMP GMBH
1. Scope of validity, protective clause
1.1 These General Terms and Conditions apply to companies, legal entities as governed by public law and special funds under public law.
1.2 Our deliveries, services and offers aremade exclusively on the basis of the following terms and conditions. They shall apply to all future business relations, even if they are not explicitly agreed once again.
1.3 Deviations from these terms and conditions are only effective if we confirm them in writing. Deviating terms and conditions of purchase shall not become part of the contract even if the exclude the inclusion of our terms and conditions of business and/or if these terms and conditions have not explicitly been contradicted.
2. Quotations, contract conclusion, properties of the objects of purchase
2.1 Our quotations are subject to change without notice. In the case of an order, contracts for our services and deliveries are only concluded on the basis of our order confirmation – if no order confirmation is issued – on the basis of our delivery.
2.2 Material composition, quality and dimensions of the objects of purchase shall be determined in accordance with the DIN/EN regulations or material sheets applicable at the time of conclusion of the contract, or in the absence thereof in accordance with commercial practice. Furthermore, the agreed quality of our products shall be exclusively those properties and features specified in our order confirmation. Statements on our part shall only constitute a guarantee of quality if we have explicitly designated them as such in writing.
2.3 We are not obliged to examine the suitability of confirmed materials and properties of the goods we supply for any use of which we have been informed, unless we have expressly guaranteed in writing that the corresponding properties and suitability specifications have been met.
2.4 We shall be entitled to make weight-related invoices according to theoretical weights of standards and tables recognised in the Federal Republic of Germany. Deviating weight determinations by the buyer can only be claimed immediately upon delivery, on the basis of official subsequent weighing.
3. Prices
3.1 The price of the object of purchase is ex warehouse (EXW). All additional costs incurred shall be borne by the buyer. This includes in particular customs duties, consulate fees, freight and insurance premiums.
4. Payments and offsetting, discount
4.1 Our receivables are due immediately after delivery without discount deduction and are to be paid to our business account free of charge for us.
4.2 The buyers shall have a right of retention and a right of offsetting only to the extent that is counterclaims are undisputed or have been legally determined by a court of law.
4.3 If the buyer is in default with payment obligations towards us amounting to more than 15% of our due claims against him for more than 10 days, we shall be entitled to demand immediate payment of all claims against him, even if payment periods have been agreed which have not yet expired. Even if other terms of payment have been contractually agreed, we may in this case make further deliveries and services dependent on advance payment to be made or absolute equivalent securities to be provided.
4.4 Any agreed discount shall only apply to the value of the goods without ancillary costs. The prerequisite for any discount deduction is that the buyer has completely settled all due liabilities with us at the time of discounting. Unless otherwise agreed in writing, the discount period begins with the invoice date.
5. Delivery, delay in delivery
5.1 Delivery dates or delivery periods shall be deemed to be non-binding unless they are designated as binding in writing. Delivery periods begin with the dispatch of our order confirmation, they end with the date of dispatch of the ready-for-collection notice or the notification of readiness for shipping.
5.2 Three weeks after a non-binding delivery date or a non-binding delivery period has been exceeded, the buyer may ask us in writing to deliver within a reasonable period. We shall be in default upon receipt of the request. In addition to requesting delivery, the buyer may demand compensation for any damage caused by the delay; in the event of slight negligence on our part, this claim is limited to a maximum of 5% of the agreed purchase price. After the unsuccessful expiry of the deadline set, the buyer is entitled to withdraw from the contract by written declaration and to claim damages for non-performance; in the event of ordinary negligence on our part, this claim for damages is limited to the foreseeable damage typical for the contract. The claim for delivery is excluded in the cases of this section. If it becomes impossible for us to deliver while we are in default of delivery, we shall nevertheless be liable in accordance with sections 1 and 2, unless the damage would also have occurred if the goods had been delivered on time.
5.3 I f a binding delivery date or a binding delivery period is exceeded, we shall be in default as soon as the delivery date or the delivery period is exceeded. The buyer’s rights shall then be determined in accordance with the buyer’s rights shall then be determined in accordance with section 5.2 sub-section 1 sentence 3, section 5.2 sub-section 2 and section 5.2 sub-section 3.
5.4 Force majeure or operational disruptions occurring at our or our supplier‘s premises, e.g. due to riot, strike, lockout, destruction of production facilities, which temporarily prevent us, through no fault of our own, from delivering the subject matter of the contract on the agreed date or within the agreed period, shall extend binding and non-binding delivery dates and delivery periods by the duration of the disruptions caused by these circumstances.
5.5 If our delivery is dependent on the fact that we ourselves are supplied by a pre-supplier, we shall not be in default and shall be entitled to withdraw from the contract without any claims for damages arising from this, if our supply by the pre-supplier is omitted, unless delivery by the pre-supplier does not occur for reasons that we are responsible for. In any case, however, we are obliged to notify the buyer immediately of the lack of self-supply; on request, we will refund any compensatory measures already taken by the buyer.
6. Transfer Of Risk, Dispatch, Delay In Acceptance, Immediate Notification Of Defects
6.1 Goods declared ready for dispatch or collection must be accepted by the buyer without delay, within a maximum of two working days (Mon-Fri). Otherwise, we shall be entitled, at our discretion, to dispatch them at the expense of the buyer or to store them at the expense and risk of the buyer, notwithstanding our rights pursuant to section 6.4.
6.2 Unless otherwise agreed in writing, we shall select the means and route of transport.
6.3 The risk shall pass to the buyer upon transfer to the railway, freight forwarder or carrier or the buyer, and/or upon commencement of storage, even if free door-to-door delivery has been agreed. We shall only provide insurance if instructed to do so by the buyer and at his expense.
6.4 If the buyer is culpably in default with the acceptance of the object of purchase for more than 8 days from receipt of the notification of readiness or if the buyer is in default with the acceptance of the shipment purchase, we may set the buyer a grace period of 8 days in writing and declare that we will withdraw from the contract after expiry of this period and that we will claim damages. If the grace period expires without success, we shall be entitled to withdraw from the contract by means of a written declaration and to claim damages for non-performance. The setting of a grace period is not required if the buyer seriously and finally refuses acceptance or is obviously unable to pay the agreed remuneration within the grace period.
6.5 If we demand damages in accordance with the section 6.4, this shall amount to a flat rate of 10% of the agreed purchase price excluding value-added tax. Damages shall be set higher or lower if we prove higher damages or the buyer proves lower damages.
6.6 The buyer has to examine the goods upon receipt and report any recognisable defects and damage immediately, and record them on the delivery note in the event of sale by dispatch. Otherwise, the buyer shall lose all warranty rights. Sections 377, 378 of the Germany Commercial Code (HGB) remain unaffected.
7. Retention of title
7.1 We reserve ownership of all delivered goods until complete satisfaction of all claims arising from the business relationship including the balance claim from any current account relationship. In the event of default in payment on the part of the buyer, we shall be entitled to demand the return of our goods subject to retention of title at the purchaser’s expense even without setting a grace period and, if applicable, to demand the assignment of the buyer’s claims for return of the goods towards his customer. The demand for surrender, the surrender, the demand for assignment and the assignment of claims against third parties shall not constitute a withdrawal from the contract by us. In exchange for payment of our due claim we shall return the goods subject to retention of title to the buyer or reassign the claims against the buyer’s customers to the buyer.
7.2 The buyer is entitled to sell or process goods subject to retention of title (reserved goods) within the framework of his normal business operations. The entrepreneur assigns the claims arising from the resale with regard to the reserved goods to us in advance by way of security.
7.3 We revocably authorise the buyer to collect the claims assigned to us in his own name. We are entitled to revoke the authorisation to collect if the entrepreneur is in default with his payment obligations in whole or in part, or if an application for the opening of insolvency proceedings has been filed against his assets. If this collection authority of the entrepreneur expires, the entrepreneur shall, upon request, provide all the information as well as hand over the documents necessary for the enforcement of the assigned claims.
7.4 Processing and machining of reserved goods is carried out on our behalf as a manufacturer within the meaning of Section 950 of the German Civil Code (BGB) without any obligation on our part. Processed goods are regarded as reserved goods. If reserved goods are connected and mixed with other goods, we shall be co-owners of the new items in the ratio of the invoiced value of the reserved goods to the invoiced value of the other items. If our property expires or ceases to exist as the result of combining and mixing of reserved goods, the buyer shall assign to us his already existing property rights to the new items to the extent of the invoiced value of the reserved goods.
7.5 If according to law we do not have any safeguarding interest in the securities due to us that is worthy of protection, we shall release these when requested by the buyer as if there were no (longer) any interests worthy of protection.
7.6 The buyer must disclose the location of the reserved goods. Changes to this location are only permitted with our prior written consent or if the goods are sold in the course of normal business. We must be permitted access to the reserved goods at any time during normal business hours.
7.7 During the period of retention of title, the buyer is obliged to keep the reserved goods safe and in orderly condition. If the reserved goods are damaged or destroyed, the resulting claims for compensation to restore the reserved goods shall be applied, if this is not possible, for payment of our claims against the customer. Such compensation claims shall be assigned to us by the buyer, in advance as security.
7.8 Pledging, transferring by way of security, leasing or any other transfer of the reserved goods, which impairs security, is not permitted without our prior written consent. In the event of access of third parties to the reserved goods, in particular in the event of seizure of the reserved goods, the buyer must inform us immediately in writing as well as notify the third party immediately of our property rights. The costs for remedial measures, particularly intervention processes, will be borne by the buyer if the counter party cannot recover them.
8. Liability for defects
8.1 The warranty period for new and used goods is one year from delivery of the goods, unless and to the extent that claims for damages due to injury to life, limb or health or claims due to grossly negligent or intentionally caused damaged are affected.
8.2 For defects in the goods, we shall initially provide a warranty at our discretion by repair or replacement (subsequent fulfillment).
8.3 If the supplementary fulfillment fails, the buyer may, at his discretion, demand a reduction in payment (price reduction) or cancellation of the contract (withdrawal). The buyer’s right to rescind the contract shall not apply in the event of only a minor breach of contract, in particular in the event of only minor defects.
8.4 A warranty obligation does not exist,
a) if the material defect or damage was caused by the fact that
- the buyer did not immediately report a fault or had a fault recorded or
- the buyer has not immediately given the opportunity to subsequent improvement despite being requested to do so, or
- the goods have been improperly handled or excessively used by the buyer or
- the goods have been altered in a manner not approved by us; and/or
b) If the buyer has not duly complied with his obligations to inspect and give notice of defects in accordance with the above section 6.6 of these terms and conditions.
8.5 Natural wear and tear is excluded from warranty.
8.6 In any case, the burden of proof for the defectiveness of the item at the time of its delivery lies with the buyer.
9. Limitations of liability, limitation period of claims for damages
9.1 The following limitations of liability shall not apply to physical injury or damage to health attributable to us, nor to the loss of the buyer’s life.
9.2 In case of violation of fundamental contractual obligations (so-called cardinal duties) we shall be liable for damages in case of intent or gross negligence without limitation, in case of simple negligence limited to compensation for the foreseeable damage typical for the contract.
9.3 In all other cases, claims for damages against us, for whatever legal reason, shall be excluded unless we, our legal representatives or vicarious agents have breached their obligations intentionally or have committed gross negligence of duty. Our liability shall be excluded in the case of simple negligent breach of insignificant contractual obligations and shall be limited to the foreseeable damage typical for this type of contract in the event of gross negligence for which we are responsible.
9.4 As far as our liability is excluded or limited in accordance with the sections specified above, this shall also apply to the personal liability of our vicarious agents and assistants.
9.5 The buyer’s claims for damages due to a defect in the goods shall become statute-barred one year after delivery of the goods. This shall not apply if we can be accused of gross negligence or willful intent, or in the event of bodily injury or damage to health attributable to us, or upon the loss of the buyer’s life.
9.6 If a buyer can derive claims from a guarantee of quality, his rights remain unaffected by the above limitations of liability.
10. Place of fulfillment, jurisdiction, applicable law
10.1 The place of fulfillment for all our obligations, in particular the delivery of the subject matter of the contract, shall be our warehouse in 26180 Rastede, Germany.
10.2 The sole court of jurisdiction for all current and future claims arising from the business relationship with companies, including claims resulting from bills of exchange and cheques, is 26655 Westerstede, Germany.
10.3 If the buyer does not have a general place of jurisdiction in Germany, moves his domicile or usual place of residence outside Germany after conclusion of the contract or if his domicile or usual place of residence is not known at the time the action is filed, the exclusive place of jurisdiction shall be 26655 Westerstede.
10.4 The contractual relationship with the buyer shall be governed by German substantive law, in particular by the provisions of the German Civil Code and the German Commercial Code, even if the delivery item is to be delivered abroad or the contract concluded has any other foreign reference. German international private law, any foreign law, bilateral or multilateral international agreements, in particular the UN Convention on Contracts for the International Sale of Goods dated April 11,1980, shall not apply and are excluded.
