General delivery and order terms and conditions of Witte Barskamp GmbH & Co. KG for delivery to contractors (customers)
1. Scope
The following terms and conditions apply exclusively to the business relationship with our customers, including information and consultation. If our general business terms have been accepted for the business with the customer, they shall also apply to all further business relations between the customer and our company, unless agreed otherwise in writing. Corresponding terms and conditions of the customer shall only apply if and to the extent we have expressly agreed these in writing. Our silence with regard to such deviating terms and conditions in particular does not constitute an acknowledgement or consent, not even in the case of future contracts. Our terms and conditions shall also apply instead of any terms of purchase of the customer even if according to these terms and conditions the order acceptance is envisaged as unconditional acknowledgement of such terms of purchase. The customer expressly acknowledges, by accepting our order confirmation, that he waives any legal objections derived from his own terms of purchase.
2. Information, consultation, properties of the goods
2.1.
Information and consultation with regard to our products is provided exclusively based on our previous experience. The values specified should be regarded as average values. All specifications concerning our products, and in particular the illustrations, drawings, dimensional and performance specifications contained in our quotations and printed matter as well as other technical specifications should be regarded as approximate average values. We reserve the right to make changes to the design, technical data, dimensions and weights.
2.2.
A reference to standards, similar technical regulations and technical specifications, descriptions and illustrations of the goods delivered in quotations and brochures and our advertising only constitute a specification of the properties of our goods if we have expressly declared the condition to be a “property” of the goods; otherwise this constitutes a non-binding general description of the goods.
2.3.
A guarantee is only deemed to have been assumed by us if we have described a property as guaranteed in writing.
3. Samples, models
The properties of our samples or models shall only form part of the contract if this has been expressly agreed in writing. Our samples, models and prototypes remain our property, and may neither be used nor made available to third parties without our written agreement.
4. Contract conclusion, scope of delivery, acceptance
4.1
Our quotations are made without obligation. These are requests to place an order. A contract, including in the course of ongoing business, shall only be concluded when we confirm the customer’s order in writing. Our order confirmation is decisive for the contents of the supply contract. In case of immediate delivery, our order confirmation may be replaced by our invoice or a delivery note.
4.2
All agreements, collateral agreements, assurances and contract amendments require a written form. This also applies to the exclusion of the written form agreement itself. Verbal collateral agreements are null and void.
4.3
In the case of release orders or delays in acceptance caused by the customer, we are entitled to procure the material for the whole order and produce the full ordered quantity immediately. Any change requests by the customer cannot therefore be taken into account after placement of the order, unless this has been expressly agreed.
4.4
The customer must draw our attention to any special requirements from our goods in time before conclusion of the contract.
4.5
We are entitled to make additional or shortfall in deliveries in terms of quantity or weight of up to 5 % of the order volume.
The minimum order value, net goods value, per order is € 75.
For orders below € 75 net goods value, we will make a surcharge for shortfall in quantity. If this amount cannot be reached, despite a corresponding enquiry to the customer, we are entitled to increase the invoice amount to the minimum order value.
4.7
We do not assume any procurement risk solely because of the delivery of an object of which the class is determined.
5. Delivery, delivery time, delivery delay
5.1
Binding delivery dates and deadlines must be expressly agreed in writing. In case of non-binding or approximate (approx., around, etc.) delivery dates and deadlines, we will make every effort to observe such dates and deadlines.
5.2
Delivery times shall begin with the receipt of our order confirmation by the customer, however not before all details concerning the execution of the order have been clarified, and all other requirementswhich are to be fulfilled by the customer have been met; The same shall apply to delivery dates. If the customer has requested changes after placement of the order, a new delivery deadline shall begin after we have confirmed the change.
5.3
Deliveries before expiry of the delivery time are permitted. The day of notification that the goods are ready for dispatch applies as the day of delivery, otherwise the day upon which the goods are dispatched. We are entitled to make part deliveries. In the absence of any other written agreement, the interest in our services shall only lapse if we fail to deliver significant parts of the order, or such delivery is late.
5.4.
If we are in default with the delivery, the customer must initially set us a reasonable final deadline for the service. If this final deadline lapses without delivery, the customer, subject to the respective pre-requisites of §§ 280,281,284,286,323 BGB [German Civil Code], may assert the rights regulated therein. Claims for damages due to breach of duties – no matter for whatever reason – shall only exist in accordance with the regulation in Subclause 11. If we have not provided the service by a date specified in the contract, or within the contractually agreed deadline, the customer may only cancel the contract if his interest in the service is contractually bound to timely performance of the service.
5.5
We shall not be considered to be in default as long as the customer is in default with the satisfaction of obligations towards us, including those from other contracts.
6. Reservation of deliveries to us; force majeure and other impediments
6.1
If for reasons beyond our control we do not receive deliveries or services from our sub-suppliers, or if such are incorrect or not in time, or if events of force majeure occur, we will notify our customer in time and in writing. In this case we are entitled to postpone the delivery by the duration of the impediment or to cancel the contract in full or in part owing to the not yet satisfied part insofar as we have satisfied our afore-mentioned information obligation and have not assumed the procurement risk. Deemed equivalent to force majeure are strike, lock-out, official interventions, shortage of energy and raw materials, transport bottlenecks without a fault, impediments to operation without a fault for example through fire, water and machine damages and all other impediments which have not been culpably caused by us with an objective consideration.
6.2
If a delivery date or delivery deadline has been agreed binding and if the agreed delivery date or the agreed delivery deadline is exceeded by more than four weeks owing to events according to 6.1 then the customer is entitled to cancel the contract owing to the part which has not yet been satisfied. No further rights of the customer exist in this case.
7. Dispatch and transfer of risk
7.1
Unless otherwise agreed in writing the shipment shall be carried out by us not insured and at the risk and for the account of the customer. We reserve the right to choose the transport route and the means of transport.
7.2
The risk of accidental loss or accidental deterioration shall pass to the customer when the goods which are to be delivered are handed over to the customer, the carrier, the freight forwarder or the undertakings which have otherwise been determined to carry out the shipment, by no later however than when they leave our plant, the warehouse or the branch.
7.3
If the shipment is delayed due to the fact that as a result of full or partial default of payment of the customer we exercise our right of retention or for another reason for which the customer is responsible, then the risk shall pass to the customer by no later than from the date of the notification that the goods are ready for dispatch.
8. Infringement of obligations / guarantee
8.1
Identifiable breaches of duty owing to bad performance (defects) are to be reported by the customer in writing immediately, by no later however than 12 days after the provision of the service also with regard to a part of the service which can be used by the customer -, hidden defects immediately, by no later than within the warranty period stated in Subclause 8.5. Defects which can be identified upon delivery must moreover be reported to the transport company and the recording of the defects arranged for by said company. Reports of defects must contain a description of the defect which is to be detailed as far as possible. A complaint which is not made within the deadline or in line with the form excludes all claims of the customer owing to defects. Insofar as insufficient numbers of units and weight were identifiable upon delivery already according to the afore-mentioned inspection obligations the customer must submit a complaint for these defects towards the transport entrepreneur with receipt of the goods and have the report of a defect certified. A complaint which is not made in time also excludes insofar all claims of the customer from a breach of duty owing to defects.
8.2
A warning must be sent about other breaches of duty by the customer immediately in writing before the assertion of further rights by setting a reasonable deadline for remedy of the defects.
8.3
If a defect exists this shall at our choice – with the exception of the event of the delivery recourse in accordance with §§ 478,479 BGB – be remedied through free subsequent improvement or replacement delivery, whereby we are principally to be given two attempts at subsequent performance. We shall remedy defects, for which the customer is personally responsible and unjustified complaints, insofar as the customer is a merchant, by order of and at the costs of the customer. We shall only owe subsequent improvement and replacement delivery in the country, in which we sold our product to the customer or delivered the goods as intended according to the contract.
8.4
Insofar as the breach of duty does not as an exception refer to a work service on our part the cancellation is excluded insofar as our breach of duty is insignificant. With the exception of the liability for defects the cancellation is also excluded if we are not responsible for the breach of duty.
8.5
For verifiable material, manufacturing or design defects, we make
Unless expressly agreed otherwise or in case of § 478 BGB (right of recourse is available) over a period of one year guarantee from the date of the statutory limitation period.
8.6
The afore-mentioned statute of limitations shall also apply to competing claims from tortious act and to possible claims from follow-up damages from defects.
8.7
Further claims of the customer owing to or in connection with defects or follow-up damages from defects, no matter for what reason, shall only exist according to the provisions in Subclause 11, insofar as it does not concern claims for damages from a guarantee, which should protect the customer against the risk of possible follow-up damages from defects. In this case we shall also however only be liable for the typical and foreseeable damages.
8.8
Our warranty and liability is excluded insofar as defects and associated damages are not as proven due to faulty material, faulty construction or faulty execution or faulty assembly instructions. No warranty shall in particular be assumed in the following cases: unsuitable or improper use, faulty assembly or commissioning by the buyer or third party, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable equipment, faulty construction work, unsuitable foundation, chemical, electro-chemical or electrical influences – insofar as they are not the responsibility of the supplier. Our warranty shall also cease to apply if the serial number on the purchased object is removed by the buyer. Our liability according to Subclause 11 remains unaffected.
8.9
If the buyer or a third party improperly makes a subsequent improvement there shall be no liability for the supplier for the ensuing consequences. The same shall apply to changes made to the delivered object without the prior consent of the supplier.
8.10
The recognition of defects to quality always requires a written form.
9. Prices, terms of payment, plea of uncertainty
9.1
All prices are principally given in Euro excluding packaging, freight and possible surcharge for shortfall in quantity ex supply works or warehouse, plus the applicable rate of value added tax which is to be borne by the customer.
9.2
Services, which are not a part of the agreed scope of delivery, shall be carried out based on our respective applicable general price lists in the absence of a deviating agreement.
9.3
We are entitled to unilaterally increase the remuneration to a reasonable extent (§ 315 BGB) in the event of the increase of material procurement costs, wage and secondary wage costs as well as energy costs and costs through environmental conditions if there are more than four months between the conclusion of the contract and delivery.
9.4
Our invoices are payable within 14 days after invoice date without cash discount or other deductions.
9.5.
The customer is considered to be in default of payment, even without a reminder, within 15 days following the date of invoice.
9.6
Interest on maturity in the amount of 8 % above the respective base lending rate will be charged with the occurrence of the default. Deemed as day of the payment is the date upon which the money is received by us or when it is credited to our account. We reserve the right to assert damages in addition to this.
9.7
If terms of payments are not observed or circumstances become known or can be identified which according to a dutiful commercial discretion give cause to justified doubts about the creditworthiness of the customer, also such facts, which existed when the contract was concluded already, however were not known or did not have to be known to us then irrespective of further statutory rights in these cases we are entitled to suspend the continued work on current orders or the delivery and to request advance payments or provision of reasonable collateral for still outstanding deliveries and after the unsuccessful expiry of a reasonable final deadline for the provision of such collateral – irrespective of further statutory rights – to cancel the contract. The customer undertakes to reimburse us all damages incurred through the non-execution of the contract.
9.8
A right of retention or offsetting of the customer shall only exist with regard to those counter-claims which are not disputed or have been declared final and binding unless the counter-claim is due to a breach of essential contractual duties on our part. A right of retention can only be exercised by the customer to the extent that his counter-claim is based on the same contractual relationship.
9.9
Payments may only be made directly to us or to an authorised agent, who has a collection identification card.
9.10
The creditor is entitled to assign the claims to a third party.
9.11
Incoming payments from the debtor are to be offset according to 366 Para. 2 BGB
9.12
If the debtor is in arrears with a claim, all other claims against the debtor can be made due. The debtor shall bear all fees, costs and expenses incurred by the creditor or a third party to whom he has assigned a claim arising out of and in connection with a successful debt collection
proceedings against the debtor outside of the Federal Republic of Germany.
10. Reservation of title
10.1
We reserve the right to the property to all plants and goods delivered by us (hereinafter collectively "Reserved Goods") until all of our claims from the business relationship with customers, including the claims which occur in future from subsequently concluded contracts, have been settled. This shall also apply to a balance for our benefit if individual or all claims are included in current account by us and the balance is drawn.
10.2
The customer must sufficiently insure the Reserved Goods, in particular against fire and theft. Claims against the insurance from a damaging event relating to the Reserved Goods are hereby assigned to us already in the amount of the value of the Reserved Goods.
10.3
The customer is entitled to resell the delivered goods in customary business transactions. He is not permitted other disposals, in particular pledges or the granting of collateral property. If the Reserved Goods are not paid immediately by the third party buyer in case of a resale the Customer undertakes to only resell under the reservation of title. The entitlement to resell the Reserved Goods shall cease to apply without further ado if the customer suspends his payment or is in default of payment towards us.
10.4
The customer hereby now already assigns us all claims including collateral and secondary rights to which he is entitled against the end buyer or against third parties from or in connection with the resale of Reserved Goods. He may not reach any agreement with his buyers which exclude or impair our rights in any manner or which destroy the advance assignment of the claim. In the event of the sale of reserved goods with other objects the claim against the third party buyer shall be deemed as assigned in the amount of the delivery price agreed between us and the customer insofar as the amounts relating to the individual goods cannot be determined from the invoice.
10.5
We shall assume warranty for proven material, production or construction defects – insofar as not expressly agreed otherwise or there is an event of § 478 BGB (Recourse claim) – over a period of one year, beginning from the day of the start of the statute of limitations.
The customer remains entitled to incorporate the goods assigned to us until our revocation which is permitted at all times. At our request he undertakes to provide us the information and documents which are necessary for collecting assigned claims and, insofar as we do not do this ourselves, to inform his buyers of the assignment to us immediately.
10.6
If the customer includes claims from the resale of Reserved Goods in a current account relationship existing with his buyers then he hereby assigns an ensuing recognised final balance for his benefit to us now already in the amount which corresponds with the total amount of the claim from the resale of our Reserved Goods which was transferred into the current account relationship.
10.7
If the customer has already assigned claims, from the resale of the goods which were delivered or are to be delivered by us, to third parties in particular owing to real or unreal factorings or reached other agreements based on which our current or future collateral rights according to Subclause 10 can be impaired he must inform us thereof immediately. In the event of an unreal factoring we are entitled to cancel the contract and request that already delivered goods are handed over; the same shall apply in the event of a real factoring if according to the contract with the factor the customer cannot dispose freely of the purchase price of the claim.
10.8
In case of conduct in breach of the contract, in particular with default of payment – without us having to cancel the contract in advance – we are entitled to take back all Reserved Goods; in this case the customer undertakes to hand the goods over without further ado. In order to determine the stocks of the goods delivered by us we may access the business premises of the customer at all times during the normal business hours. The taking back of the Reserved Goods shall only be deemed as a cancellation of the contract if we expressly declare this in writing or this is provided for in mandatory statutory provisions. The customer must inform us immediately in writing of any access of third parties to Reserved Goods or a claim assigned to us.
10.9
If the value of the collateral existing for us according to the afore-mentioned provisions exceeds the secured claims by a total of more than 10% we are insofar at the customer’s request obligated to release collateral at our choice.
10.10
Processing of the Reserved Goods is carried out on our behalf as manufacturer within the meaning of § 950 BGB without however obligating us. If the Reserved Goods are processed or inseparably connected with other objects which do not belong to us then we shall acquire the co-ownership to the new object in the ratio of the invoice value of our goods to the invoice values of the other processed or connected objects. If our goods are connected with other movable objects to form one uniform object, which is to be seen as the main object, then the customer hereby now already assigns the co-ownership thereto to us in the same ratio. The customer shall keep the ownership or the co-ownership in safekeeping free of charge on our behalf. The co-ownership rights incurred accordingly shall be deemed as Reserved Goods. At our request the customer undertakes to provide us the information which is necessary in order to pursue our ownership or co-ownership rights at all times.
11. Exclusion and limitation of the liability
11.1
We shall not be liable, in particular not for claims of the customer for damages, no matter for what legal grounds, in particular with the breach of duties from the contractual obligation and from tortious acts. This shall not apply insofar as liability is laid down by law, inparticular:
- for own wilful or grossly negligent breach of duty and wilful or grossly negligent breach of duty by legal representatives or vicarious agents;
- for the breach of essential contractual duties (directly such contractual duties upon the satisfaction of which by us the contractual partner must be able to rely in any case according to the nature of the legal transaction) and in the event of impossibility for which he is responsible and substantial breach of duty;
- if in the event of the breach of other duties within the meaning of § 241 Par. 2 BGB it can no longer be deemed reasonable for the customer to accept our service;
- in the event of the injury to life, body and health also by legal representatives or vicarious agents;
- insofar as we have assumed the guarantee for the condition of our goods or the existence of success with the service or a condition risk as well as with a liability according to the Product Liability Act.
11.2
In other cases we shall be liable for all claims for damages or reimbursement of expenses directed against us from this contractual relationship owing to culpable breach of duty, no matter for what legal grounds not in the event of slight negligence.
11.3
In the event of the afore-mentioned liability according to Subclause 11.2 and a liability without a fault, in particular with initial impossibility and defects of title, we shall only be liable for the typical and foreseeable damages.
11.4
We shall only be responsible for a liability from the assumption of a condition risk if we have expressly assumed the condition risk by virtue of a written agreement.
11.5
The liability for indirect damages and follow-up damages from defects is excluded insofar as we have not breached an essential contractual duty or we, our executives or vicarious agents cannot be accused of a wilful or grossly negligent breach of duty.
11.6
Further liability is excluded.
11.7
11.8
Claims of the customer for damages from this contractual relationship can only be asserted within an exclusion period of one year from the start of the statute of limitations.
11.9
A reversal of the burden of proof is not effected through the afore-mentioned regulations.
12. Place of performance; place of jurisdiction; applicable law
12.1
The place of performance for all contractual obligations is the registered seat of our company. Exclusive place of jurisdiction for all disputes is – insofar as permitted by law – Lüneburg. We are however also entitled to file action against the customer at his general place of jurisdiction.
12.2
The law of the Federal Republic of Germany shall apply exclusively to all legal relations between the customer and our company, in particular under the exclusion of the UN convention on the international sale of goods.
13. Software use
Insofar as the scope of delivery includes software our “Licence terms and conditions for the use of Witte Barskamp GmbH & Co. KG intrinsic computer programmes (software)“ shall have precedence.
14. Export control
14.1
The delivered good is always determined for remaining and for use in the country of delivery as agreed with the customer.
14.2
The export of certain goods can - e.g. owing to their type or their intended use or final location – be subject to approval obligation. The customer is personally obligated to strictly comply with the relevant export regulations and embargos for these goods (goods, software, technology), in particular of the European Union (EU), Germany or other EU member states as well as if applicable the USA.
14.3
The customer shall in particular examine and ensure that
- the goods which were handed over are not determined for a use relevant to defence equipment, nuclear technology or weapons technology;
- no companies and persons, which or who are named in the US Denied Persons List (DPL0), are supplied with US origin goods, software and technology;
- no companies and persons, which or who are named in the US-Warning List, US-Entity List or US-Specially Designated Nationals List, are supplied with US origin products without consent;
- no companies and persons are supplied, which or who are named in the list of the Specially Designated Terrorists, Foreign Terrorist Organizations, Specially Designated Global Terrorists or the terrorist list of the EU;
- no military recipients are supplied;
- the early warning instructions of the responsible German or national authorities of the respective country of the origin of the delivery are complied with.
The liability exclusions or restrictions according to the afore-mentioned Subclauses 11.2. to 11.5. shall apply to the same extent for the benefit of the executives and non-executive employees and other vicarious agents as well as our sub-contractors.
14.4
Access to and use of goods of Witte Barskamp GmbH & Co. KG may only be carried out if they comply with the afore-mentioned examination and assurance; otherwise Witte Barskamp GmbH & Co. KG is not obligated to service.
14.5
The customer undertakes to obligate further recipients to the same extent when forwarding goods and to inform about the necessity to comply with such legal regulations.
15. Return of old electrical appliances, environmental protection
15.1
Electical and electronics appliances with the manufacturer’s label „Witte“ and additionally affixed symbol for the labelling of electrical and electronics appliances according to § 7 ElektroG [Law governing electrical appliances] (depiction of a deleted waste bin on wheels with a solid bar below) are principally and exclusively to be returned by the customer in the case of disposal to return points in Germany authorised in this respect by Witte Barskamp GmbH & Co. KG for the further treatment, recycling or disposal. The return to other collection points in Germany, in particular to public collection points for electrical scrap from private households is not permitted. Subclause 15.4 shall apply accordingly to deliveries to customers with stay or head office outside of the national territory of the Federal Republic of Germany.
15.2
The customer must inform himself about the details and conditions of the German Witte return system and about the possible return locations with the delivery of old electrical appliances already according to Subclause 15.1 as well as in particular at the end of a respective product life in Germany.
15.3
The customer undertakes when forwarding old electrical appliances according to Subclause 15.1 within Germany to obligate the recipient in the same manner and to inform him in particular about the exclusivity of the return.
15.4
In case old electrical appliances according to Subclause 15.1 are located outside of the national territory of the Federal Republic of Germany in the event of a disposal – notwithstanding the afore-mentioned regulations – they are principally to be taken to a recycling respective disposal on site accorindg to the applicable law of this state.
In the event of the invalidity of individual contractual provisions the other provisions shall continue to be valid in full. Invalid provisions shall be replaced without further ado by such a regulation which shall as far as possible correspond with the framework of that which is permitted by law.
16. Returns of delivered goods
Witte Barskamp GmbH & Co. KG is generally not obligated to take delivered goods back.
The taking back of a good is only possible after coordination with the corresponding processing clerk and written consent. In order to examine the taking back of a good a copy of the delivery and invoice documents are absolutely essential. If goods are taken back then this is principally subject to the incoming goods and quality inspection. We shall charge a re-storage fee to take the goods back of 5% of the net goods value, at least however €35.
16.1.
Amendments to these business terms and condition will be announced to the customer in writing. They shall be deemed as approved by the customer if the customer does not file an obligation in writing within the deadline. We must report to these legal consequences separately with the change notification. The customer must send the objection to us within six weeks after receipt of the change notification.
16.2.
An application for opening of insolvency or settlement proceedings of the customer or his suspension of payments which are not due to rights of retention or other rights entitle us to cancel the contract at all times or to make the delivery of the purchased object dependent on the prior satisfaction of the payment obligation. If the purchased object has already been delivered then the purchase price will be due and payable immediately in the afore-mentioned cases. We are also entitled to demand that the purchased object be returned in the afore-mentioned cases and to retain them until full payment of the purchase price.
16.3.
The customer is not entitled to assign or transfer his contractual rights without our agreement.
16.4.
NB:
According to the provisions of the Federal Data Protection Act we would like to point out that our company is kept through an IT system and in this context we also save the data received based on the business relationship with the customer.