TERMS AND CONDITIONS.

 

General Terms and Conditions of WITTE STEEL + FLANGE SYSTEMS GMBH

 

1. Scope of validity, protective clause

1.1 These General Terms and Conditions apply towards companies, legal entities as governed by public law and special trusts under public law.

1.2 Our offered goods, supplies and services are solely based on the following General Terms and Conditions. They also apply for all future business transactions, even if they are not explicitly once more agreed.

1.3 Deviations from these Terms and Conditions are only valid if we confirm them in writing. Any other purchasing conditions are also not included as an element of the contract if they exclude the inclusion of our Terms and Conditions and/or if these conditions are not expressly contradicted.

 

2. Quotations, conclusion of contract, properties of the purchased items

2.1 Our quotations are generally non-binding. Contracts concerning our goods and services are concluded on the basis of our order confirmation, and if this is not issued, on the basis of our delivery.2.2 Material combination, quality and dimensions of the purchased goods are determined in accordance with the DIN/EN specifications valid at the time of contract conclusion or the material data sheets, otherwise according to conventional commercial usage. Otherwise the agreed properties of our products are only the characteristics and features stated in our order confirmation. Our information only applies as a guarantee of condition if it is expressly stated 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 this has been expressly guaranteed by us in writing.

2.4 We are entitled to carry out weight-based accounting in accordance with the theoretical weight of recognised standards and tables. Claims for any differences in weight ascertained by the customer can only be submitted on the basis of official subsequent weighing results obtained immediately upon delivery.

 

3. Prices

The prices of the supplied items are quoted ex stock. Any additional costs must be borne by the customer. These also include customs duties, consulate fees, freight and insurance premiums.

 

4. Payment and accounts, discounts

4.1 If no agreements to the contrary have been made, our invoices are due for payment immediately upon receipt without discount and without any charges to us so that the full due sum is at our disposal on the due date.

4.2 The customer is only entitled to exercise a right of retention and to offset counterclaims if such counterclaims are uncontested or legally deemed as binding.

4.3 If the customer is in default of payment to a scope of more than 15 percent of our due invoice for more than 10 days, we are entitled to immediately assert all our due claims towards him, even if different payment terms have been agreed which have not yet elapsed. If other payment terms have been contractually agreed, in this case we can demand advance payment or other absolute equal securities for subsequent services and supplies.

4.4 Any agreed discounts are based on the value of the goods without ancillary costs. The requirement for any discount is that the customer has already paid all due sums in full before discount is deducted. If no contrary agreements have been made in writing, the discount period commences on the date of the invoice.

 

5. Delivery, delivery delay

5.1 Delivery dates or periods that are not expressly defined as binding in writing are regarded as non-binding. Delivery periods commence with the dispatch of our order confirmation and are concluded on the date of dispatch of the ready-for-collection notice or notification of readiness for shipment.

5.2 The customer is entitled to send us a written demand for delivery within an appropriate period three weeks after a non-binding delivery date or delivery period has elapsed. We are in default upon receipt of this demand. In addition to demanding supply of the overdue goods, the customer is entitled to demand compensation for damages incurred as a result of the delay; this is, however, restricted to a maximum sum of 5 percent of the agreed purchase price if we are guilty of slight negligence. If this period elapses without success, the customer is entitled to withdraw from the contract by means of a written declaration and to submit a claim for damages due to non-fulfilment; in the event of slight negligence on our part this claim is limited to the damages that can be typically foreseen for such contracts. The right to delivery is excluded in the cases described in this paragraph. If we are by chance rendered unable to deliver the goods, we are liable as described in paragraphs 1 and 2, unless the damage would have also occurred if the goods had been punctually delivered.

5.3I f a binding delivery date or a binding delivery period is exceeded, we are already in default when the delivery date or delivery time is exceeded. The rights of the customer are then determined in accordance with sections 5.2 paragraph 1, sentence 3, section 5.2 paragraph 2 and section 5.2 paragraph 3.

5.4 Force majeure or any operational interruptions at our works or the works of our suppliers due to, for example, riots, strikes, lock-outs or destruction of the production equipment which prevent us from supplying the contractual goods at the agreed time or within the agreed period with no fault of our own, extend binding and non-binding delivery dates and periods by the duration of the interruptions caused by these events.

 

6. Transfer of risk, shipment, delay in acceptance, immediate notification of defects

6.1 The customer must accept goods that have been reported as ready for shipment or collection immediately. Otherwise we are entitled to send the goods to the customer or store these with the risk and costs being borne by the customer as we deem appropriate irrespective of our rights as stipulated in section 6.4.

6.2 If nothing to the contrary has been agreed in writing, we will select the means of transport and transport route.

6.3 When the goods are submitted to the rail carrier or forwarding agent or the customer or upon commencement of storage, the risk is transferred to the customer, even if delivery free domicile delivery has been agreed. We will only insure the goods if instructed accordingly by the customer who will bear the incurred costs accordingly.

6.4 If the customer is negligibly in default of acceptance for longer than 8 days after receipt of the notice of readiness of the goods or if the customer becomes in default of acceptance in the event of sale for delivery, we are entitled to set the customer a deadline of 8 days with the declaration that we will withdraw from the contract and submit a claim for damages after this period. If this period elapses without success, we are entitled to withdraw from the contract by means of a written declaration and to submit a claim for damages due to non-fulfilment. It is not necessary to set a subsequent period if the customer seriously and finally refuses to accept the goods or is obviously unable to make the agreed payment within the subsequent period.

6.5 If we submit a claim for damages in accordance with section 6.4 paragraph 1, this will amount to 20 percent of the agreed purchasing price, not including VAT. The damages claim shall be higher or lower if we provide evidence of greater damage or the customer provides evidence of less damage.

6.6 The customer must examine the goods upon receipt and report any recognisable faults and damage immediately, and in the case of delivered goods these must be noted on the delivery papers. Otherwise the customer loses all warranty rights. Articles 377, 378 of the Germany Commercial Code (HGB) remain unaffected.

 

7. Reservation of title

7.1 We reserve all property rights until all due sums arising from the business relationship have been paid, including open accounts from any current account relationship. If the customer is in payment arrears, we are entitled to demand surrender of the goods which are subject to retention of title at the expense of the customer, also without setting a subsequent deadline, and if applicable to demand the assignment of the claims for return of the goods held by the Customer towards third parties. In demanding surrender, assignment of claims and assignment of claims to third parties, we are not withdrawing from the contract. When our outstanding claims have been settled, we will return the reserved goods to the customer or reassign the claims towards third parties back to the customer.

7.2 The customer is entitled to sell or process goods subject to retention of title (reserved goods) within the framework of his normal course of business. As a precautionary measure the customer already assigns any claims arising from the subsequent sale of the reserved goods to us.

7.3 We hereby grant the customer the revocable right to collect claims assigned to us in his own name. We are entitled to revoke this collection authorisation if the customer is fully or partly in arrears with his payments or if an application for insolvency proceedings has been submitted. If this collection authorisation of the customer has been revoked, he is obliged when requested to disclose the information necessary and hand over the necessary documents to collect the claims assigned.

7.4 Processing and machining of reserved goods is carried out on our behalf as a manufacturer in the sense of Article 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 are part 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 rights are rendered invalid as the result of collection or mixing, the customer already assigns his property rights to the new items to us 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 customer as if there were no (longer) any interests worthy of protection.

7.6 The customer 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 customer is obliged to keep the reserved goods safe and in correct order. If the reserved goods are damaged or destroyed, the resulting claims for compensation to restore the reserved goods must used if this is not possible for payment of our claims towards the customer. The customer therefore assigns such compensation claims to us by way of security in advance.

7.8 Pledging or assigning as security, renting or other transferral of the reserved goods that could negatively affect security is not permitted without our prior written consent. In the event of access of third parties to the reserved goods, especially in the case of attachment, the customer must inform us immediately in writing and also notify the third party immediately of our property rights. The costs for remedial measures, especially intervention processes, will be borne by the customer if they cannot be recovered by the counter party.

 

8. Warranty

8.1 The warranty period for new and used goods is one year after delivery of the goods.8.2 If our goods are defective, we will initially rework or replace the goods (subsequent fulfilment) as we deem appropriate.

8.3 If the subsequent fulfilment fails, the customer is entitled to reduce payment or to cancel the contract (withdrawal). The right of withdrawal of the customer does not apply in the event of only a slight violation of contract, especially in the event of slight faults.

8.4 Any warranty obligation does not apply a) if the fault or damage has occurred because – the customer has not reported a fault or failed to have the fault recorded or – the customer has not granted an opportunity for rectification immediately or – the goods have been treated incorrectly by the customer or if they were subjected to excessive use or – the subject of the contract has been modified in a manner which we have not authorised; and/or b) if the customer has not fulfilled his obligation to examine the goods and submit a complaint correctly (Articles 377, 378 German Commercial Code (HGB); section 6.6 of these conditions).

8.5 Natural wear is excluded from warranty.

8.6 If the claim is submitted for used goods, the customer is obliged to provide evidence of the defectiveness of the goods when they were delivered.

8.7 The provisions of Article 478 of the German Civil Code (BGB) remain unaffected.

 

9. Limitations of liability, period of limitation for claims for damages

9.1 The following limitations of liability do not apply for physical injury and damage to health or loss of life of the customer that can be attributed to us.

9.2 In the event of major violation of contractual obligations (so-called cardinal obligations), we are generally liable for unlimited damages in the event of intent or gross negligence; in the event of slight negligence, liability is restricted to foreseeable, typical contractual damages.

9.3 In all other cases, claims for damages are excluded, irrespective of the legal basis, unless we, our legal representatives or our vicarious agents violated our obligations with intent or gross negligence. In the event of simple negligent violation of minor contractual obligations, our liability is excluded, and if we have acted with gross negligence, our liability is limited to the typical, foreseeable contractual damages.

9.4 If our liability is excluded or restricted on the basis of the previous provisions, this also applies to the independent liability of our vicarious agents.

9.5 Claims for damages by the customer based on defects of the goods fall under the statute of limitations one year after delivery of the goods. This does not apply if we are guilty of gross negligence or intent, or in the event of physical injury or damage to health or loss of life of the customer if this can be attributed to us.

9.6 If a customer can derive claims from warranted properties, his rights remain unaffected by the previous liability restrictions.9.7Irrespective of any fault on our behalf, any liability stipulated by product liability legislation remains unaffected.

 

10. Place of fulfilment, court of jurisdiction, applicable law

10.1 The place of fulfilment for delivery of the contractual goods is 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 26180 Rastede, Germany.

10.3 If the customer does not have any inland general court of jurisdiction, changes his domicile or place of habitual residence to a location abroad after contract conclusion or if his domicile or place of habitual residence is unknown when legal proceedings are instigated, the sole court of jurisdiction is 26180 Rastede, Germany­.

10.4 The contractual relations with the customer are subject to German material law, especially the provisions of the German Civil Code and the German Commercial Code; also if the goods are to be delivered abroad or the concluded contract has any other foreign connections. German international private law, any laws from other countries, bilateral or multilateral international agreements, especially the UN Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980, shall not apply.