VERKAUFS- UND LIEFERBEDINGUNGEN
Sec. 1 Scope
(1) Solely our Terms and Conditions of Sale and Delivery apply; we do not accept contravening terms and conditions, or the Purchaser’s terms and conditions of sale and delivery that differ from our Terms and Conditions of Sale and Delivery, unless we explicitly agreed in writing to their validity. Our Terms and Conditions of Sale and Delivery also apply if we carry out the delivery to the Purchaser without reservation while being aware of the Purchaser’s contravening or differing terms and conditions.
(2) All agreements that are made between us and the Purchaser for the purpose of carrying out this contract have been written down in this contract.
(3) Our Terms and Conditions of Sale only apply to merchants and companies.
(4) These Terms and Conditions of Sale also apply to all future commercial transactions with the Purchaser.
Sec. 2 Bid and acceptance
(1) Bids are subject to change and non-binding. Deletion of an item, exclusion from delivery and price change are reserved. Our order confirmation or bid governs the scope of the delivery commitment. Oral agreements and agreements by telephone are only valid upon written confirmation.
(2) If the order is to be classified as a bid according to Sec. 145 BGB [German Civil Code], we can accept it within 4 weeks. The contract arises at the latest with shipment of the ordered goods, in case of partial delivery with shipment of the first delivery.
(3) The documents, drawings, weight and measurement information, samples, etc., are only approximate information and are not procurement features. We are entitled to differ from the descriptions in the bid, if these differences are not fundamental or significant, and if the purpose according to the contract is not restricted.
(4) The Purchaser itself is responsible for application and use of the ordered products, because such application and use is beyond our control. Our advice on usage is considered non-binding information and does not release the Purchaser from its own inspection of the products we delivered for their fitness for the purpose intended by the Purchaser.
(5) If we manufacture parts according to customer’s drawings, the drawings we created and that the Purchaser approved prevail. Deviations from approved drawings must be agreed upon separately and possible associated additional costs must be reimbursed.
Sec. 3 Intellectual property rights
(1) We reserve ownership and copyright to all figures, drawings, calculations and other documents. This applies especially to written documents that are marked “confidential”. The Purchaser can grant third-party access to these only after our prior written consent.
(2) Any and all figures, drawings, calculations and other documents must be returned to us on first request, if we do not accept the bid or the contractual relationship is terminated in any other way. This also applies to the bid documents themselves.
(3) If delivery occurs according to drawings or other information from the Purchaser and if third parties’ intellectual property rights are infringed upon as a result, the Purchaser indemnifies us against any and all claims in internal arrangements.
Sec. 4 Prices – payment conditions
(1) Unless agreed upon otherwise, prices are always ex factory, including loading at the factory, but without packaging, which is invoiced separately.
(2) Prices listed are always net; statutory sales tax in the then-applicable amount is added.
(3) Unless stated otherwise in the order confirmation, payment of the purchase price is due net (without discount) within 14 days of invoice date. Legal provisions about the consequences of late payment apply.
(4) We are entitled to credit the Purchaser’s payment first to the then-oldest, not specifically defined debt. If expenses or interest have already accrued, we are entitled to credit payments first to expenses, then to interest and finally to the principal claim.
(5) The Purchaser is only entitled to offsetting, withholding or reduction if the counterclaims have been recognized by declaratory judgment or have been accepted by us, even if notices of defect and counterclaims are asserted.
Sec. 5 Delivery/delivery term/delay in acceptance
(1) Delivery terms and delivery dates are only deemed to be agreed upon as binding, if they have been explicitly promised in writing in the bid. We are not bound to the delivery date or delivery term if the Purchaser does not discharge its obligations (payment of advances, submission of required documents, etc.) in a timely manner. The defense of lack of performance remains reserved.
(2) Delivery terms start at the earliest on the day the contract has been signed in writing. The start is contingent upon clarification of all technical questions.
(3) If the Purchaser requests changes later, we are released from adhering to the delivery date or delivery term.
(4) The delivery term has been met if the delivery item has left our factory or we have communicated our readiness to deliver by the expiration of that term.
(5) The Purchaser cannot assert any claims due to late delivery, if such delay is not caused by our premeditation or gross negligence. This applies in particular to delivery delays due to acts of God. In such cases, the agreed-upon delivery date or delivery term is postponed corresponding to the duration of the condition that prevents delivery.
(6) Items can only be returned after our prior explicit consent. The parts in original packaging from our current scope of delivery that are returned in accordance with above must be in perfect, salable condition. The return must be freight paid and at sender’s risk, after deducting a return fee of 15 %. Processing fees are deducted based on time and expenses. Fees can include, e.g., recoding, cleaning and re-packaging.
(7) If the Purchaser is late in accepting delivery or culpably breaches its other duties of cooperation, we – Witosa GmbH – are entitled, at our discretion, to demand reimbursement for the damage we suffered, including possible additional expenses. Furthermore, we are entitled to set an appropriate approval deadline for the Purchaser and, if that deadline expires in vain, to withdraw from the contract and to demand damages instead of the service. We are entitled to demand as damages flat-fee damages in the amount of 8 % of the order price without discounts. Alternatively, we are entitled to calculate the specific damage and document greater damage. It is up to the Purchaser to document that no damage arose or that it did not arise in the amount of the flat fee.
Sec. 6 Transfer of risk – cost of packaging
(1) Risk is transferred to the Purchaser at the latest on shipment of the goods, even if there are partial deliveries, which are explicitly allowed.
(2) Deliveries are “ex factory”. We are only required to insure the goods against risks that can be insured on the Purchaser’s explicit written request and at the Purchaser’s expense. We are entitled to properly insure the goods at any time at the Purchaser's expense.
(3) Transport and all other packaging in accordance with the packaging ordinance is not accepted for return, except for pallets. The Purchaser is required to dispose of packaging at its own expense.
Sec. 7 Liability for defects
(1) We are not liable for damage that occurs due to improper handling, wear, storage or other actions by Purchaser or third parties. Liability for insignificant material defects, wear due to processing of filled thermoplastics, as well as chemical effects of the thermoplastic to be processed is excluded.
(2) We are not liable for improper operation during installation, conversion and separation, or in case of unauthorized opening of manifolds, regulators and jets. We are liable for damages according to legal provisions if a breach of duty for which we are responsible is due to premeditation or gross negligence. If a breach of duty for which we are responsible is due to simple negligence and a significant contractual duty has been culpably breached, liability for damages is limited to foreseeable damage that typically occurs in similar instances. Our liability for loss of life, physical injury and damage to health, and according to the provisions of product liability law, is also unaffected. Otherwise, our liability is excluded.
(3) Statutory claims based on liability for material defects lapse after one year from transfer of goods. The foregoing does not constitute a guarantee of durability.
(4) The Purchaser is required to meet his duty to inspect pursuant to Sec. 377 HGB [German Commercial Code] also if it is reselling the goods.
(5) In the context of supplemental performance, we have the right to choose between remediation of the defect or new delivery. Further statutory rights are unaffected by this.
(6) We do not assume the necessary expenditures for remedying the defect, if the expenditures are higher because the goods have been moved after delivery to a location other than the Purchaser’s commercial premises. This does not apply, if the movement complies with the item’s proper use. We are only liable for the cost of remedying the defect to the extent to which we would have been obligated to fulfillment under the contract. Further-reaching claims in this respect, including in the context of a claim for damages, are excluded.
(7) The Purchaser’s right of recourse against us due to such claims from liability for material defects that are asserted against the Purchaser by its customers is excluded, if the customer did not discharge its duty to inspection and notification of defects, or if the goods have been changed by processing.
(8) Our liability for damages according to legal provisions is unlimited, if a breach of duty for which we are responsible is due to premeditation or gross negligence. If the breach of duty for which we are responsible is due to simple negligence and a significant contractual duty has been culpably breached, liability for damages is limited to foreseeable damage that typically occurs in similar instances. Otherwise, liability is excluded.
(9) Liability according to the provisions of product liability law is unaffected. Liability for loss of life, physical injury and damage to health is also unaffected.
Sec. 8 Securing reservation of ownership
(1) We reserve ownership in the purchased item until receipt of all payments under the delivery contract. If the Purchaser’s conduct constitutes a breach of contract, in particular if it is late in paying, we are entitled to take back the purchased item.
(2) The Purchaser is required to handle the delivered parts with care and to insure them at its own expense for the original value against any type of destruction for the duration of reservation of ownership.
(3) The cost of maintenance and inspection work must be assumed by the Purchaser also for the period of reservation of ownership, even if we perform that work.
(4) In case of seizure or other third-party interventions, the Purchaser must notify us promptly in writing so that we can file a third party objection. If the third party is unable to reimburse us for the court and out-of-court costs of such a lawsuit, the Purchaser is liable for same.
(5) The Purchaser is entitled to sell the purchased item during regular business operations; however, it already now assigns all claims in the amount of the final invoice (including sales tax) of our accounts receivable that arise against its buyer or third parties from the resale; it does so whether or not the purchased item was resold without processing or after processing. The Purchaser is entitled to collect this claim even after delivery. Our authority to collect the claim ourselves remains unaffected by this. However, we pledge not to collect the claim as long as the Purchaser meets its payment obligations from the proceeds received, does not pay late, and, in particular, no application for opening bankruptcy proceedings has been filed or there is no suspension of payment.
(6) If the delivered goods are inseparably mixed with or connected to items that we do not own, we gain co-ownership rights to the new or connected object proportionate to the value of the goods delivered (final invoice amount, including sales tax) in the other object(s) at the time of mixing or connection. The Purchaser keeps safe our resulting sole or co-owned property.
(7) Remuneration for a portion of the cost of tools does not provide the Purchaser with a right to these tools; they remain our sole property.
Sec. 9 Prohibition against assignment
Any and all claims by the Purchaser against us that arise under the contract cannot be assigned.
Sec. 10 Product liability
(1) The Purchaser can only use the goods according to their intended use and must ensure that the goods are only resold to persons who are familiar with the product hazards and risks.
(2) When placing the final product on the market, the Purchaser is required to fulfill its duty to warn also for the goods that we delivered, if it uses these goods as a raw material and component for its own products. In internal arrangements, the Purchaser indemnifies us on first request against assertion of claims if it violates this obligation.
Sec. 11 Measurements, weights and deliveries
(1) Measurements and weights in our bids and order confirmations only apply approximately; later changes are reserved.
(2) DIN standards apply to compliance with the measurements; excess or short weights due to foundry practice do not entitle the Purchaser to complaints.
(3) Excess or short delivery of up to 2 % of ordered quantity is permitted.
(4) The weights and delivered quantities listed in our packing lists and invoices prevail for billing purposes. Complaints about the delivery weight or delivered quantity must be asserted in writing at the latest within one week from receipt of the goods at the destination.
Sec. 12 Models and tools
(1) If the Purchaser provides models, tools and other molding devices, they must be sent to use free of charge. If no castings have been purchased from models, molds or forms after a year has elapsed, an appropriate storage fee is charged. If the Purchaser does not comply with the request to pick up its tools or if three years have passed since delivery, we are not required to continue to store them. The Purchaser assumes the cost of maintenance, change and replacement of the Purchaser’s models and tools for which we do not have a lien. The Purchaser is liable for the technically correct structure and the design of the models and tools that secures their purpose; however, we are entitled to changes. We are not required to verify that the tools provided match the enclosed drawings.
(2) The models, tools, electrodes, drawings and CAD files are used solely for deliveries to the Purchaser, as long as the latter meets its obligations to us. If three years have elapsed since the last delivery, we are not required to continue to store them.
(3) We store models, tools and other molding devices with the necessary care. We are not required to insure them. We do not assume liability for destruction. Claims for consequential damages cannot be asserted.
(4) If deliveries occur according to drawings or other information from the Purchaser and third parties’ intellectual property rights are infringed upon as a result, the Purchaser indemnifies us against any and all claims.
(5) The drawings and documents submitted to the Purchaser, as well as proposals for beneficial design and manufacturing of the parts cannot be passed on to third parties, and we can request their return at any time.
(6) The Purchaser can only assert claims under copyright or industrial property rights against us with regard to models and tools that were mailed, or manufactured or purchased on its behalf, if it indicated such rights and explicitly reserved these for itself.
Sec. 13 Confidentiality
Unless explicitly agreed upon differently in writing, information provided by the Purchaser or otherwise becoming known to us in the context of the parties’ business relationship is not confidential.
Sec. 14 Overall liability
(1) Liability for damages beyond that provided in Sec. 7 – without regard to the legal status of the claim that is asserted – is excluded. This applies, in particular, to claims for damages due to fault on signing the contract, due to other breaches of duty, or due to tort actions for compensation because of material defects according to Sec. 823 BGB [German Civil Code].
(2) The limitation according to Para. (1) also applies if the Purchaser, instead of claiming compensation for the damage, demands compensation for useless expenditures in lieu of the service. If our liability for damages is excluded or limited, such exclusion or limitation also applies to our salaried employees’, workers’, staff members’, representatives’ and agents’ personal liability for damages.
Sec. 15 Miscellaneous/final clause
(1) The place of performance is Frankenberg/Eder.
(2) Jurisdiction for any and all disputes under the contract is Frankenberg/Eder. However, we are entitled to sue the Purchaser also in the court in whose location the Purchaser has its general jurisdiction or in whose location the Purchaser has a branch.
(3) Solely German law applies under exclusion of UN sales law.
(4) If individual provisions in the contractual relationship are invalid, the validity of the other provisions is not affected by this. The Parties will try to replace the invalid provision with a valid one that most closely conforms to the economic purpose of the contract.
Version: May 2014