General Terms and Conditions of Sale and Delivery of Witte-Lastrup GmbH
1. We deliver or provide services exclusively on the basis of the following terms and conditions of delivery and payment. We expressly object to any terms and conditions of business and purchase of the buyer. We shall only be bound by them if we expressly agree to them in writing.
2. Our offers are subject to change. Agreements made verbally by our field staff require our written confirmation to become effective.
3. Details of our goods (technical data, dimensions, etc.) are only approximate and approximate; they do not constitute a guaranteed quality unless the guarantee is given expressly and in writing.
II. Order and Acceptance
1. The buyer is bound to their order for one week. The order requires our written order confirmation to be legally effective. An order is also confirmed by us by delivery. The regulations apply accordingly to changes to the order by the buyer. Verbal agreements with the ordering party regarding the order shall not become subject matter of the contractual agreements.
2. For electrical deliveries, the conditions of the VDE apply subsidiarily.
III Prices and Terms of Payment
1. Unless otherwise agreed in writing, the prices quoted by us are free ex works or ex delivery warehouse Lastrup. The statutory value added tax is not included in our prices; it will be shown separately in the invoice. In respect of persons within the meaning of Section 310 (1) sentence 1 of the German civil code [BGB] (entrepreneurs, legal entities under public law or special funds under public law), we shall apply the rate of value added tax applicable at the time of delivery.
2. If delivery is made later than 4 months after conclusion of the contract, we shall be entitled to increase the agreed price if, between conclusion of the contract and delivery, the applicable prices of our suppliers or any other costs (including public charges) on our goods increase; otherwise, the price stated in the order confirmation shall apply. We shall also be entitled to increase prices for persons within the meaning of Section 310 (1) sentence 1 of the German civil code [BGB] if delivery is made within four months of conclusion of the contract and the costs of our goods increase between conclusion of the contract and delivery. The price increase shall become effective as soon as we have notified the customer thereof in writing.
3. Our invoices are issued in euros and are payable net (without deduction) within 14 days of receipt of the invoice by the customer, unless another payment term has been agreed with us. A cash discount deduction requires an express agreement. We shall not grant a cash discount if the customer is in arrears with the payment of earlier deliveries. If payment terms agreed with us are exceeded, the statutory consequences of default shall apply without the need for a separate reminder.
4. The buyer’s rights of retention based on another contractual relationship are excluded. The buyer’s rights of retention based on the same contractual relationship are also excluded if the customer is a person within the meaning of Section 310 (1) sentence 1 of the German civil code [BGB] and the counterclaim is disputed or has not been established by a final court decision.
5. If the buyer is in default of payment, we shall be entitled to charge interest at a rate of 5% above the respective base rate; if the buyer is an entrepreneur or another person within the meaning of Section 310 (1) sentence 1 of the BGB, the interest rate shall be 8% above the base rate. We reserve the right to prove higher damage caused by default.
6. If the buyer is in arrears with a due payment in whole or in part, we shall be entitled to withdraw from the contract after the unsuccessful expiry of a reasonable period of grace set for them. Our right to withdraw from the contract shall also apply if circumstances become known which are likely to reduce the creditworthiness of the buyer. If we withdraw from the contract, we shall be entitled to have the goods delivered by us marked, stored separately and collected at the buyer’s expense. The buyer hereby declares their consent that the persons commissioned by us to collect the goods may enter and drive onto the premises where the goods are located for this purpose.
7. As an alternative to our right to withdraw from the contract in accordance with clause 6 above, we may demand security from the buyer.
IV. Cancellation costs
If the buyer withdraws from a placed order without justification, we may claim 15% of the sales price for the costs incurred in processing the order and for loss of profit, without prejudice to the possibility of claiming higher actual damages. The buyer reserves the right to prove a lower damage.
V. Retention of title
1. The goods delivered by us shall remain our property until all claims arising from the specific order have been fulfilled. With respect to entrepreneurs and other persons within the meaning of Section 310 (1) sentence 1 of the German civil code [BGB], we reserve title until all claims to which we are entitled against the buyer on any legal grounds whatsoever arising from the business relationship have been satisfied.
2. The assertion of the reservation of title as well as the seizure of the reserved goods by us shall not be deemed to be a withdrawal from the contract, unless the provisions of the consumer credit act apply or this is expressly declared by us.
3. The buyer undertakes to sell the goods subject to retention of title only in the ordinary course of business, under their normal terms and conditions of business and as long as they are not in arrears with payment. They are only entitled to resell the goods subject to retention of title subject to the condition that the claim from the resale is transferred to us in accordance with the following clauses 4 – 7. They are not entitled to dispose of the reserved goods in any other way.
4. The buyer hereby assigns to us their claims arising from the resale of goods subject to retention of title, irrespective of whether the goods subject to retention of title are sold to one or more customers. The buyer is entitled to collect the assigned claims from the resale until our revocation, which is possible at any time. The buyer is not entitled to assign the claim under any circumstances.
5. At our request, the buyer is obliged – insofar as we do not inform their customer ourselves – to immediately inform the customer of the assignment to us and to provide us with evidence of the notification as well as to send us the information and documents necessary for the collection of the assigned claim with this notification.
6. At the request of the buyer, we are obliged to release the securities to the extent that their realisable value exceeds our claim by more than 20%. We reserve the right to select the securities to be released.
7. The buyer may neither pledge the reserved goods nor assign them as security. The buyer is obliged to inform us immediately of any seizure or other impairment by third parties and to provide us with all information and documents required to protect our rights. If the buyer fails to meet a payment deadline or breaches any other contractual agreements or if we become aware of circumstances which are likely to reduce the creditworthiness of the buyer, we shall be entitled to prohibit the resale of goods subject to retention of title, to demand their return or the granting of indirect possession to us at the buyer’s expense or, if the goods have already been resold but not yet paid for in full or in part, to demand payment directly from the buyer’s customer.
VI Delivery Time
1. Our delivery times are in principle only approximate and non-binding. Agreements deviating from this regarding a binding delivery time must be made expressly and in writing. If we are unable to deliver on time, we shall inform the buyer immediately.
2. The delivery period begins with the dispatch of the order confirmation, but not before the provision of any documents, approvals, releases to be procured by the buyer and not before receipt of any agreed down payment. The delivery period shall be deemed to have been complied with if readiness for dispatch has been notified or the delivery item has left the factory by the time of its expiry.
3. If we are in arrears with the delivery for reasons for which we are responsible and the buyer has unsuccessfully set us a reasonable period of grace, he may withdraw from the contract. Claims for damages by the buyer due to breach of duty are excluded unless we or our vicarious agents have acted with gross negligence or wilful intent.
4. We shall only be obliged to deliver to the buyer if, to the extent that and as soon as we ourselves have been supplied. Unforeseen events for which we are not responsible, such as energy shortages, delays in the delivery of essential components and other materials, import difficulties, operational and traffic disruptions, strikes, lock-outs, lack of labour, non-delivery by upstream suppliers, theft, force majeure (wet conditions, frost), shall extend the delivery period appropriately. If we are still unable to deliver after a reasonable extension, both the buyer and we shall be entitled to withdraw from the contract. Claims for damages on the part of the buyer are excluded. If we withdraw from the contract, we shall immediately reimburse the buyer for all payments already made. If delivery difficulties occur for the aforementioned reasons only with regard to a part of the goods, this provision shall apply accordingly. In the event of delivery difficulties, we shall be entitled to reduce the quantities sold in proportion to our own supply.
VII. Scope of Delivery
1. The scope of delivery is determined by our written order confirmation.
2. We reserve the right to make changes to the design, dimensions, weight, material or shape which are due to improvements in technology or to requirements of the legislator during the delivery period, provided that the delivery item is not significantly changed and the changes are reasonable for the buyer.
3. If a brand designation is specified in our written order confirmation with regard to the delivery item, we reserve the right to deliver an equivalent delivery item with a different designation.
VIII. Dispatch and transfer of risk
1. Dispatch costs ex works or delivery warehouse are not included in the price. The route and method of dispatch shall be determined by us at our discretion, unless express written dispatch instructions have been issued by the buyer. HGV access and unloading must be guaranteed. We shall only be obliged to take out transport insurance if expressly instructed to do so in writing by the customer; the costs of this insurance shall be borne by the buyer.
2. The goods shall be shipped to the best of our knowledge to the exclusion of any liability on our part. In particular, we are not responsible for changes and deterioration of the goods during transport or due to improper storage. Any transport damage must be reported to us by the buyer in writing without delay, at the latest, however, within one week after the date of dispatch. To substantiate this, a written confirmation from the carrier regarding the transport damage that has occurred must be enclosed with the notification.
3. The risk shall pass to the buyer as soon as the goods have left our works or the distribution warehouse, even if we assume further services such as carriage-paid shipment, delivery or similar. If we have notified the buyer that the goods are ready for dispatch or collection, the risk shall pass to the buyer if they do not call off or collect the goods and we have unsuccessfully set them a reasonable deadline for doing so. The above provisions shall not apply if the buyer is a consumer.
IX. Breach of duty due to defects
1. The buyer must inspect the goods immediately upon receipt. We must be notified in writing of any recognisable defects within one week of receipt of the goods. If this is not done, the goods shall be deemed to have been approved. Colour deviations or differences in the colour of the goods due to manufacturing do not constitute a defect and do not entitle the buyer to withdraw from the contract. In relation to consumers, this provision shall only apply insofar as obvious defects are concerned.
2. Our liability shall extend to the goods being free of defects in accordance with the state of the art. The buyer shall bear the burden of proof that an advertising statement has become the cause of their decision to purchase. We accept no liability for advertising statements made by third parties.
3. Insofar as we have claims against our suppliers, our liability shall be effected by assignment of these claims to the ordering party, who hereby accepts this assignment for this case. A claim by the buyer for reimbursement of costs incurred in the course of asserting claims against a supplier is excluded in any case if any measures incurring costs, in particular the initiation of legal proceedings, are not agreed with us in advance.
4. If a claim against the supplier cannot be considered or if the supplier refuses to be liable to the buyer, our liability shall be limited to supplementary performance, i.e., at our discretion, replacement delivery or rectification of defects. The buyer must return the defective goods or the replaced part to us. If this does not happen within 2 weeks after our replacement delivery, the costs of the supplementary performance can be charged to the buyer by us. We shall not reimburse any further costs incurred by the buyer for the use of loan equipment etc. during the period of subsequent performance. If the supplementary performance has failed or if we are not in a position to do so, the buyer shall be entitled to withdraw from the contract or to reduce the purchase price.
5. All of the above limitations of liability do not apply to the purchase of consumer goods.
6. Our liability for defects shall be two years from delivery of the goods; if the buyer is an entrepreneur or another person within the meaning of § 310 para. 1 sentence 1 BGB, the limitation period shall be one year.
7. Further claims of the buyer other than those mentioned above, irrespective of the legal grounds, are excluded. We shall therefore not be liable for damage that has not occurred to the goods themselves and not for other financial losses of the buyer. The above exclusion of liability shall not apply to personal injury; it shall not apply to other damage insofar as the cause of the damage is based on intent or gross negligence; finally, it shall not apply insofar as damage is caused by the absence of a quality which we have guaranteed. The exclusion of further liability for damages does not apply to claims under §§ 1, 4 of the Product Liability Act.
X. Samples and drawings
1. We reserve the property rights and copyrights to illustrations, drawings, sketches, planning documents, calculations, offer documents, other documents and samples. They are to be returned immediately on request and may not be passed on to third parties without our consent.
2. Unless otherwise agreed, samples are to be returned within one month or taken over for sale. Custom-made samples must always be purchased and are excluded from exchange. Custom-made items are items that are not produced in series and are not listed in price lists. Special colourings per colour samples sent in are also deemed to be custom-made products, unless otherwise agreed in writing. The buyer shall be liable for ensuring that the rights of third parties are not infringed by the use of drawings, samples and similar aids sent in.
XI. Place of performance, place of jurisdiction
1. The place of performance in relation to merchants, legal entities under public law or special funds under public law – also in bill of exchange and cheque proceedings – is Lastrup.
2. If the buyer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be Lastrup. If the buyer does not have a general place of jurisdiction in Germany or if they move their place of residence or usual abode abroad after the contract has been concluded or if their place of residence or usual abode is not known at the time the action is brought, the place of jurisdiction shall also be Lastrup.
XII. Final Provisions
1. German law shall also apply exclusively to deliveries abroad. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
2. In the event that our goods are exported by our customers to areas outside the Federal Republic of Germany, we shall not assume any liability in the event that our products infringe the industrial property rights of third parties. The buyer is obliged to compensate for all damages caused by the export of our goods which were not expressly delivered by us for export.
3. Should these provisions be partially legally ineffective or incomplete, this shall not affect the validity of the remaining provisions.