Terms and Conditions of Sale and Delivery

Terms & Conditions download

Clause 1 Applicability

(1) Our terms and conditions of sale and delivery shall apply exclusively; we will not

recognize terms and conditions of the ordering party that conflict with, or diverge from, our

terms and conditions of sale and delivery unless we have given our express written consent

to their applicability. Our terms and conditions of sale and delivery shall also apply in cases

in which we, aware of terms and conditions of the ordering party that conflict with, or diverge

from, our terms and conditions of sale and delivery, carry out delivery to the ordering party

without reservation.

(2) All agreements that are made between us and the ordering party for the purpose of

executing this contract shall have been laid down in writing in this contract.

(3) Our terms and conditions of sale shall apply in relation to merchants and companies only.

(4) These terms and conditions of sale shall also apply to all future business transactions

with the ordering party.

 

 

Clause 2 Offer and Acceptance

(1) Offers shall be subject to change and non-binding. We reserve the right to cancel an

article, deny delivery and change prices. Our order confirmation or offer shall determine the

scope of our delivery obligation. Any agreements entered into orally or by telephone shall take effect only when confirmed in writing.

(2) If the order qualifies as an offer in accordance with Section 145 of the B├╝rgerliches

Gesetzbuch (German Civil Code - BGB), we may accept it within 4 weeks. The contract shall be formed at the latest when the ordered goods are dispatched and, in the case of partial delivery, when the first delivery is dispatched.

(3) The documents, drawings, weight and measurement specifications, samples etc.

contained in the offers shall be approximate specifications only and shall not constitute

quality features. We shall be entitled to diverge from the descriptions in the offer, providing

said divergences are not fundamental or essential in nature and the contractual intent is not

thereby restricted.

(4) The ordering party itself shall be responsible for the application and use of the ordered

products, as this is beyond our control. Any application-related advice that we provide shall

be deemed to be no more than a non-binding indication and shall not exempt the ordering

party from its own checks in respect of the suitability of the products supplied by us for the

purpose intended by the ordering party.

(5) Where parts are manufactured by us in accordance with customer drawings, the drawings prepared by us and approved by the ordering party shall be decisive. Divergences from approved drawings shall require special agreements and any additional costs incurred thereby shall be remunerated.

 

 

Clause 3 Property Rights

(1) We shall retain the right of ownership and copyright to all representations, drawings,

costings and other documents. This shall apply, in particular, to such written documents as

are designated "confidential". They may be made accessible to third parties only with our

prior written consent.

(2) All representations, drawings, costings and other documents shall, where the offer is not

accepted by us or the contractual relationship is otherwise terminated, be returned to us

upon first demand. This shall also apply to the offer documents themselves.

(3) If deliveries are made in accordance with drawings or other specifications of the ordering

party and if third-party property rights are infringed thereby, the ordering party shall indemnify

us against all claims within our internal relationship.

 

Clause 4 Prices Terms of Payment

(1) In the absence of a special agreement, the prices shall always apply ex works including

loading in the plant, but excluding packaging, which shall be charged separately.

(2) The cited prices shall be net; statutory value added tax at the prevailing rate shall be

added.

(3) Unless otherwise stated in the order confirmation, the purchase price shall be due for

payment net (without deductions) within 14 days of the date of invoice. The statutory

regulations shall apply in relation to the consequences of payment default.

(4) We shall be entitled to credit a payment by the ordering party initially to the oldest liability

that is not legally enforceable. If costs or interest have already been incurred, we shall be

entitled to credit payments first to the costs, then to the interest and finally to the principal

claim.

(5) The buyer shall, even if notices of defects and counterclaims are asserted, be entitled to

set-off, retention or reduction in price only if the counterclaims have been legally established

or recognized by us.

 

 

Clause 5 Delivery / Delivery Period / Default on Acceptance

(1) Delivery periods and delivery deadlines shall be deemed to have been agreed with

binding effect only if the offer contains an express written commitment to them. We shall not

be bound by the delivery date or delivery period if the ordering party fails to fulfil its

obligations in good time (payment of instalments, provision of the required documents etc.).

We reserve the right to claim the defence of non-performance of contract.

(2) Delivery periods shall commence no earlier than on the day on which the contract was

formed in writing. Commencement shall be contingent upon clarification of all technical

issues.

(3) In the event of subsequent change requests by the ordering party, we shall be released

from adherence to the delivery date or delivery period.

(4) The delivery period shall be deemed to have been adhered to if, by the time of its expiry,

the delivery item has left our plant or we have provided notice of readiness for dispatch.

(5) The ordering party may not assert any claims on account of delays in delivery that are not

due to wilful intent or gross negligence on our part. This shall apply, in particular, to delays in

delivery due to force majeure. The agreed delivery date or delivery period shall be postponed

in such cases in accordance with the duration of the impediment to delivery.

(6) Returns may be made only with our prior, expressly declared consent. The originally

packaged parts from the current product programme, accordingly returned, must be in

perfect saleable condition. The return must be carried out carriage paid and at the risk of the

sender, with deduction of a 15% take-back fee. Processing fees shall be deducted on the

basis of time spent. This may include recoding, cleaning and repackaging.

(7) If the ordering party defaults on acceptance or if it is in culpable breach of its other

obligations to cooperate, we, Witosa GmbH, shall be entitled, at our option, to demand

compensation for any damage or loss incurred in this respect, including additional expenses.

We shall also be entitled to set the ordering party a reasonable acceptance period and,

following its expiry without success, rescind the contract and demand damages in lieu of

performance. We shall be entitled to demand flat-rate damages of 8% of the order price

without deductions. Alternatively, we shall be entitled to make a precise calculation of the

damages and to furnish proof of higher damages. The ordering party shall be permitted to

provide proof that no damages, or not in the flat-rate amount, have been incurred.

 

 

Clause 6 Transfer of Risk Packaging Costs

(1) Risk shall pass to the ordering party at the latest on shipment of the goods, including

those cases in which partial deliveries are made, which shall be expressly admissible.

(2) Deliveries shall be made "ex works". Only at the express written request of the ordering

party shall we be obliged to insure the goods, at the latter's expense, against insurable risks.

We shall be entitled to insure the goods accordingly at any time at the ordering party's

expense.

(3) No transport and any other packaging in accordance with the Verpackungsverordnung

(Ordinance on the Avoidance of Packaging Waste) shall be taken back, with the exception of

pallets. The ordering party shall be obliged to arrange for disposal of the packaging at its own

expense.

 

 

Clause 7 Liability for Defects

(1) We shall not be liable for any damage that occurs due to improper handling, wear and

tear, storage or other actions by the ordering party or third parties. Liability on account of

negligible defects in quality, wear and tear caused by processing of filled plastomers and

chemical influences of the plastomer to be processed shall be excluded.

(2) We shall not be liable for improper operation during installation, conversion, dismantling

and in the event of unauthorized opening of the distributors, controllers and jets. We shall be liable for damages in accordance with the statutory regulations if a breach of duty imputable to us is due to wilful intent or gross negligence. Where a breach of duty imputable to us is due to slight negligence and a material contractual obligation has been culpably violated, liability for damages shall be limited to the foreseeable damage that typically occurs in comparable cases. Our liability on account of injury to life, limb and health and pursuant to the provisions of the Produkthaftungsgesetz (Product Liability Act) shall also remain unaffected. In other respects, our liability shall be excluded.

(3) Statutory claims arising from liability for defects in quality shall become time-barred within

one year from delivery of the goods. This shall not constitute a warranty as to durability.

(4) The ordering party shall, even in the event of onward sale of the goods, be obliged to

comply with its inspection duty, as laid down in Section 377 of the Handelsgesetzbuch

(German Commercial Code - HGB).

(5) In the context of subsequent performance, we shall be entitled to choose between cure

and a new delivery. This shall not affect further statutory rights.

(6) The expenses required for the purpose of subsequent performance shall not be borne by

us to the extent that said expenses are increased by the goods being transported, after

delivery, to a location other than the ordering party's commercial place of business. This shall not apply if said transportation is in line with the intended use of the object. We shall be liable for the costs of subsequent performance only to the extent of our obligation in terms of performance in accordance with the contract. Further claims in this respect shall also be excluded in the context of claims for damages.

(7) The ordering party's right to recourse against us on account of such claims arising from

liability for defects in quality that are raised against the ordering party by its customers shall

be excluded if the customer has failed to comply with its inspection and notification duty or if

the goods have been modified by processing.

(8) Our liability for damages in accordance with the statutory provisions shall be unlimited if a

breach of duty imputable to us is due to wilful intent or gross negligence. Where the breach

of duty imputable to us is due to slight negligence and a material contractual obligation has

been culpably violated, liability for damages shall be limited to the foreseeable damage that

typically occurs in comparable cases. In other respects, liability shall be excluded.

(9) Liability in accordance with the provisions of the Produkthaftungsgesetz shall remain

unaffected. Liability on account of injury to life, limb and health shall also remain unaffected.

 

 

Clause 8 Security for Retention of Title

(1) We shall retain ownership of the object of sale until all payments arising from the supply

agreement have been made. If the ordering party behaves in a manner that is in breach of

the contract, in particular if it defaults on payment, we shall be entitled to take back the object

of sale.

(2) The ordering party shall be obliged to handle the supplied parts with care and to insure

them, at its own expense, at replacement value against any and all forms of destruction for

the duration of the retention of title.

(3) Costs of maintenance inspection work shall also be borne by the ordering party during the retention of title even if said work is carried out by us.

(4) In the event of seizure or other third-party interventions, the ordering party must notify us

in writing without delay to enable us to bring a third-party action. Where the third party is

unable to reimburse us for the judicial and extrajudicial costs of said action, the ordering

party shall be liable therefor.

(5) The ordering party shall be entitled to sell on the object of sale in its ordinary course of

business; however, it shall already assign to us all claims in the amount of the final invoice

(including VAT) of our receivable arising to it, against its customers or third parties, from the

onward sale, irrespective of whether the object of sale has been sold on without or after

processing. The ordering party shall continue to be authorized to collect this receivable even

after delivery. This shall not affect our authority to collect the receivable ourselves. We shall,

however, undertake not to collect the receivable for as long as the ordering party complies

with its payment obligations arising from the proceeds collected, does not default on payment and, in particular, no petition to institute insolvency proceedings has been filed and there is no cessation of payments.

(6) If the supplied goods are inseparably mixed or combined with objects that do not belong

to us, we shall acquire co-ownership of the new or combined object in proportion to the value

of the supplied goods (final invoice amount, including VAT) in relation to the other object(s) at

the time of the mixing or combination. The ordering party shall hold the sole property or joint

property thus created in safe custody for us.

(7) Remuneration of cost portions for moulds shall not give the ordering party a right to said

moulds; they shall remain our sole property.

 

 

Clause 9 Prohibition of Assignment

The ordering party shall not be entitled to assign any claims against us arising from the

contractual relationship.

 

 

Clause 10 Product Liability

(1) The ordering party may use the goods only as intended and must ensure that said goods

are sold on only to persons familiar with the product hazards and risks.

(2) The ordering party shall, in the event of the goods being used as a base material and

subproduct for its own products, be obliged to comply with its warning obligation also in

respect of the goods supplied by us when the end product is placed on the market. The

ordering party shall, upon first demand, indemnify us, within our internal relationship, against

the assertion of any claims in the event of breach of this obligation.

 

 

Clause 11 Dimensions, Weights and Deliveries

(1) Dimensions and weights mentioned in our offers and order confirmations shall apply only

approximately; we reserve the right to make subsequent changes.

(2) Compliance with the dimensions shall be governed by DIN standards; additional or

reduced weights caused by casting technology shall not entitle the ordering party to raise

objections.

(3) An overdelivery or underdelivery of up to 2% compared with the order quantity shall be

admissible.

(4) Settlement shall be governed by the weights and delivery quantities specified in our

delivery notes and invoices. Objections to the delivery weight or the delivery quantity shall be

submitted in writing no later than within one week of receipt of the goods at the destination.

 

 

Clause 12 Models and Moulds

(1) Where the ordering party provides us with models, tools and other mould devices, they

shall be sent to us free of charge. If, within one year, no castings have been made from

models or moulds, a reasonable storage fee shall be charged. If the ordering party fails to

comply with a request to retrieve its moulds or if three years have elapsed since delivery, we

shall not be obliged to continue to store said moulds. The ordering party shall bear the costs

of maintaining, modifying and replacing the ordering party's models and moulds to which we

have no right of retention. The ordering party shall be liable for the technically correct design

and the execution of the models and moulds in a manner that ensures the intended use;

however, we shall be entitled to make modifications. We shall not be obliged to check that

the moulds provided are consistent with the attached drawings.

(2) The models, moulds, electrodes, drawings and CAD files shall be used solely for

deliveries to the ordering party, providing said ordering party fulfils its obligations to us. If

three years have elapsed since the last delivery, we shall not be obliged to continue storage.

(3) We shall store models, tools and other mould devices with due care. We shall not be

obliged to take out insurance cover. We shall not accept liability for destruction. Claims for

consequential damages cannot be asserted.

(4) If deliveries are made in accordance with drawings or other specifications of the ordering

party and if third-party property rights are infringed thereby, the ordering party shall indemnify

us against all claims.

(5) The drawings and documents submitted to the ordering party, as well as proposals for the advantageous design and fabrication of parts, must not be forwarded to third parties and may be reclaimed by us at any time.

(6) The ordering party may only assert claims arising from copyright or industrial property

rights in relation to models and moulds that have been submitted or fabricated or procured

on its behalf if it has drawn our attention to the existence of such rights and has expressly

reserved them.

 

 

Clause 13 Confidentiality

Unless otherwise expressly agreed in writing, information that has been conveyed to us by

the ordering party or has become known to us in any other way in the course of the business

relationship between the Parties shall not be confidential.

 

 

Clause 14 Total Liability

(1) Any further liability for damages than is provided for in Clause 7 shall be excluded,

irrespective of the legal nature of the claim asserted. This shall apply, in particular, to claims

for damages on account of fault at the time the contract is formed, on account of other

breaches of duty or on account of claims in tort for compensation of material damage

pursuant to Section 823 of the BGB.

(2) The limitation in accordance with paragraph (1) shall also apply if the ordering party,

rather than claiming compensation for damage, demands compensation for futile expenses

in lieu of performance. Where our liability for damages is excluded or limited, this shall also

apply with regard to the personal liability for damages on the part of our salaried and waged

employees, as well as representatives and performing agents.

 

 

Clause 15 Miscellaneous/Final Provisions

(1) Frankenberg/Eder shall be the place of performance.

(2) The place of jurisdiction for all disputes arising from the contract shall be

Frankenberg/Eder. We shall, however, be entitled to sue the ordering party at the court at

whose seat the ordering party has its general place of jurisdiction or at whose seat the

ordering party has a place of business.

(3) German law shall apply exclusively to the exclusion of the UN Convention on Contracts

for the Sale of International Goods.

(4) If individual provisions of the contractual relationship are invalid, this shall not affect the

validity of the remaining provisions. The Parties shall endeavour to replace the invalid

provision by a valid provision, which comes closest to the economic intent of the contract.

 

 

As at May 2014