Witte-Lastrup GmbH General Conditions
General Conditions of Sale and Delivery of Witte - Lastrup GmbH
General Conditions of Sale and Delivery
of Witte - Lastrup GmbH
1. We shall only deliver and/or perform on the basis of the following sales and payment terms. We explicitly object to the business and purchasing terms and conditions of the Orderer. We are only obligated if we have expressly and in writing declared our agreement.
2. Our offers are not binding. Agreements made verbally by our field service require our written confirmation to become effective.
3. Information about our goods (technical data, dimensions, etc.) are only approximations; this is not a guaranteed condition unless the warranty occurs explicitly and in writing.
II. Order and acceptance
1. The Orderer is committed to his order for one week. To become legally effective, the order requires our written order confirmation. We also confirm an order through delivery. The corresponding provisions apply if the Orderer makes changes to the order. Verbal agreements made with the Orderer concerning the order will not become the object of the contractual agreements.
2. Subsidiary terms and conditions of the VDE (German Electrical Engineering Association) apply to electrical deliveries
III. Prices and terms of payment
1.If not otherwise agreed in writing, the prices we state are understood as free ex works or distributing warehouse in Lastrup. Statutory VAT is not included in our prices; it is shown separately on the invoice. The applicable VAT rate is taken as basis for delivery for persons as defined by Section 310 Paragraph 1 Clause 1 BGB (German Civil Code) (entrepreneurs, corporate bodies under public law or public separate assets).
2.If the delivery takes places more than 4 months after contract conclusion, we are entitled to raise the agreed price if the applicable prices of our suppliers, or other costs applicable to our goods (including public charges), have increased between the time the contract was concluded and the delivery; otherwise the price stated in the order confirmation applies. We are also then entitled to increase the prices towards persons as defined by of Section 310 Paragraph 1 Clause 1 BGB if the delivery occurred within the four months after contract conclusion and the costs on our goods rose in the time between contract conclusion and delivery. The price increase becomes effective as soon as the Orderer is notified in writing.
3.Our invoices are issued in euros and, if no other period of payment was agreed, is due strictly net (without deductions) within 14 days after the Orderer receives the invoice. A discount requires an explicit agreement. We do not grant cash discounts if the Orderer is in arrears regarding payment of earlier deliveries. When the agreed period of payment is exceeded, the statutory penalty for default shall occur without the necessity of a separate delinquency notice.
4.The Orderer's rights of retention, which are based on a different contractual relationship, are excluded. The Orderer's rights of.
IV. Cancellation charges
If the Orderer makes an unwarranted withdrawal from a placed order, then irrespective of the possibility of asserting higher actual damage, we can demand 15% of the sales price for the costs incurred by the processing of the order and for the loss of profit. The Orderer can reserve the right to prove a lesser damage.
V. Retention of title
1. We shall retain full title of the goods that we delivered until all claims resulting from the concrete order have been fulfilled. We reserve the right towards companies and other persons as defined by Section 310 Paragraph 1 Clause 1 BGB to retain the ownership until all claims to which are entitled for any legal reason arising from the business relationship towards the Orderer are fulfilled.
2.Our assertion of the retention of title as well as distraining the reserved goods is not considered a withdrawal from the contract, provided the provisions of the German Consumer Credit Act do not apply,or if we have stated this explicitly.
3. Der Besteller verpflichtet sich, die Vorbehaltsware nur im gewöhnli¬chen Geschäftsverkehr, zu seinen normalen Geschäftsbedingun¬gen und solange er nicht im Zahlungsrückstand ist, zu veräußern. Er ist zur Weiterveräußerung der Vorbehaltsware nur mit der Maßgabe berechtigt, dass die Forderung aus der Weiterveräußerung gemäß nachfolgend Ziff. 4. – 7. auf uns übergeht. Zu anderen Verfügungen über die Vorbehaltsware ist er nicht berechtigt.
4. The Orderer agrees to sell the reserved goods only within the ordinary course of business, to his normal terms and conditions of business and for as long as he is not in payment arrears. He is only entitled to the resale of the reserved goods subject to the proviso that the claims from the resale are passed to us in accordance with the following subsections 4 - 7. He is not entitled to other dispositions over the reserved goods.
5. Upon our request, the Orderer is obliged - provided we do not notify his Purchaser ourselves - to immediately notify the Purchaser about the assignment to us and to verify this notification to us as well as hand over the information and documents necessary to collect the assigned claims together with this notification.
6. At the request of the Orderer, we are obliged to release the collateral securities to the extent that their realizable value exceeds our claims by more than 20%. We reserve the right to choose the collateral securities to be released.
7. The Orderer may neither pledge the reserved goods nor transfer ownership for security. The Orderer is obliged to notify us immediately about a distraint or other third party infringement and to provide us with all information and documents that are necessary to uphold our rights. If the Orderer does not keep a payment deadline, or if he violates other contractual agreements, or if we become aware of circumstances that are appropriate to reduce the credit-worthiness of the Orderer, then we are entitled to prohibit the resale of reserved goods, to demand its return or the concession of indirect possession at the expense of the Orderer to us, or, if the goods have already been sold but not been paid completely or in part, to demand payment directly from the Purchaser of the Orderer.
VI. Delivery time
1. Our delivery times are fundamentally only an approximation and are non-binding. Any deviating agreements about a binding delivery time
2. The delivery deadline begins with the dispatch of the order confirmation, but not before the Orderer furnishes any documents, permits or releases to be procured, as well as before the receipt of an agreed down payment. The delivery deadline is maintained if notification about readiness for dispatch occurred before its expiration, or if the delivery item has left the factory.
3. If we are responsible for the backlog of the delivery, and if the Orderer ineffectually set an reasonable cure period, then he may withdraw from the contract. Damage claims of the Orderer due to breach of duty are excluded, unless we or our vicarious agents acted with gross negligence or intent.
4. We are only obliged to deliver to the Orderer if, insofar and as soon as we ourselves have received delivery. Unforeseen events for which we are not responsible, such as lack of energy, delays in the supply of essential components and other materials, import difficulties, interruption of operations and traffic disruptions, strikes, lock-outs, missing employees, non-supply from upstream suppliers, theft, superior force (wet, frost), will reasonably extend the delivery time. If we are unable provide even after reasonable extension, then we as well as the Orderer are entitled to withdraw from the contract. Damage claims of the Orderer are excluded. If we withdraw, then we shall immediately reimburse all of the already rendered payments to the Orderer. If delivery problems occur due to the afore-mentioned reasons concerning only a part of the goods, then this settlement shall apply accordingly. In case of delivery problems, we are entitled to reduce sold quantities proportionally for self delivery.
VII. Scope of delivery
1. The scope of delivery is determined by our written order confirmation.
2. Changes to the construction, dimension, weight, material or form that are the result of improved technology and/or at the request of the legislator, remain reserved during the delivery time, provided the delivery item was not changed considerably and the changes are not unreasonable for the Orderer.
3.If a brand name concerning the delivery item was specified in our written order confirmation, then we reserve the right to deliver a delivery item of equal quality with a different designation.
VIII. Dispatch and transfer of risk
1. Dispatch costs ex works or distributing warehouse are not included in the price. The dispatch route and dispatch type is determined according to free discretion, provided the Orderer did not give explicit written dispatch instructions. Lorry access and unloading must be guaranteed. We are only obliged to conclude transport insurance upon the explicit and written instructions of the Orderer; the costs of this insurance are carried by the Orderer.
2.Dispatch occurs according to our best knowledge and upon exclusion of any own liability. In particular, we are not responsible for changes to and deterioration of the goods during transport or due to improper storage. The Orderer must immediately notify us about any damage in transit in writing, by the latest, however, within a week after the dispatch date. For authentication, written confirmation of the carrier concerning the effected damage in transit must be added to the notice.
3. The risk is transferred to the Orderer as soon as the goods have left our factory or the distributing warehouse, and even then if we assume further services, such as freight-free delivery, carriage or similar. Once we have notified the Orderer that the goods have been dispatched or are ready to be picked up, the risk is transferred to the Orderer if he does not retrieve or pick up the goods and we have ineffectually set him a reasonable deadline. The above provisions do not apply if the Orderer is a consumer.
IX. Breach of duty due to defect
1.The Orderer must inspect the goods immediately upon receipt. Recognisable defects must be reported to us in writing within one week after receipt of the goods. If this does not occur, then the goods are regarded as approved. Production-caused colour deviations and/or colour differences of the goods do not represent a defect and are not reason for withdrawal. In the case of consumers, this provision only applies provided it is an obvious defect.
2. Our liability extends to freedom from defects of the goods according to the latest state of technology. The onus of proof lies with the Orderer that an advertising message was the cause for his decision to buy. We shall not assume liability for third party advertising messages.
3. Should we have claims against our Suppliers, then our liability shall occur by transferring these claims to the Orderer who hereby accepts this transfer for this case. Claims of the Orderer for the compensation of costs that were incurred as part of enforcing claims against a Supplier are excluded in any case, if any cost-triggering measures - in particular the initiation of legal proceedings - were not previously agreed with us.
4. If claims against the Supplier are not a possibility, or if the Supplier refuses liability towards the Orderer, then our liability shall be restricted to supplementary performance, i.e. replacement delivery or rework according to our choice. The Orderer must surrender the defective goods and/or the replaced part. If this does not occur within 2 weeks after our substitute delivery, the costs of the supplementary performance can be invoiced to the Orderer. We shall not reimburse the Orderer for any further costs that accrued as part of the supplementary performance for the availment of loan units, etc., during the period of supplementary performance. If the supplementary performance failed, or if we are unable to do so, then the Orderer is entitled to withdraw from the contract or to reduce the purchase price.
5. All afore-mentioned limitations of liability do not apply to purchase of consumer goods
6. Our liability concerning defects is two years as of delivery of the goods; if the Orderer is an entrepreneur or an other person as defined by Section 310 Paragraph 1 Clause 1 BGB, the limitation period is one year.
7.Further claims of the Orderer other than those mentioned previously, no matter the legal reasons, are excluded. We therefore are not liable for damages that occurred to the goods themselves or for other pecuniary losses of the Orderer. Above-mentioned exemption from liability does not apply to personal injuries; it does not apply to other damages, provided the cause of damage is based on intent or gross negligence; finally, it also does not apply if damage occurred through the lack of a condition which we guaranteed. The exclusion of a further liability for compensatory damages does not apply to claims in accordance with Sections 1, 4 of the Product Liability Act.
X. Samples and drawings
1.We reserve rights of ownership and copyright to illustrations, drawings, sketches, planning documents, calculation, bidding documents, other documents and samples. They must be sent back promptly upon request and may not be passed on to third parties without our consent.
2. If not otherwise agreed, sample items must be returned within one month, or accepted by purchase. Custom-made sample items must always be accepted by purchase and are non-returnable. Custom-made products are such articles not produced in series and which are not kept in price lists. Special colourings according to sent colour samples are also regarded as custom-made products, if no other written provision was made. The Orderer shall assume liability that the rights of third parties are not violated through the use of sent in drawings, samples and similar remedies.
XI. Place of Performance, legal venue
1. Place of performance in relation to merchants, corporate bodies under public law or public separate assets - also for bill of exchange cases and cheque proceedings - is Lastrup.
2. If the Orderer is a merchant, a corporate body under public law or public separate assets, legal venue shall be Lastrup. If the Orderer has no general domestic legal venue, or if he relocates his legal residence or usual place of residence outside the country after materialization of the contract, or if his registered office or usual place of residence is unknown at the time of filing of an action, then the legal venue shall also be Lastrup.
XII. Final Provisions
1. German law applies exclusively also to deliveries to outside the country. The application of the UN sales law shall not apply
2.We shall not assume liability for the export of our goods by our Purchasers in areas outside the Federal Republic of Germany, if the proprietary rights of third parties are violated by our products. The Orderer is obliged to replace all damages that were caused due to the export of our goods that we did not deliver expressly for export.
3. Should any of these provisions become void or incomplete, then this shall not affect the validity of the remaining provisions.