Terms and Conditions
General Terms and Conditions of Witte TUBE + PIPE SYSTEMS GmbH
1. Scope, Protective Clause
1.1 These General Terms and Conditions shall apply with respect to companies, legal entities under public law as well as special funds under public law.
1.2 Our deliveries, services and offers shall solely be subject to the General Terms and Conditions as set forth hereinafter. They shall also apply to all future business relations even if not expressly stipulated once again.
1.3 Any deviations from these General Terms and Conditions shall only be effective if confirmed by us in writing. No other conditions of purchase shall form part of the contract, even though they exclude reference to our General Terms and Conditions and/or any such conditions were not expressly contradicted.
2. Offers, Conclusion of the Contract, Condition of the Items Purchased
2.1 Our offers are basically subject to change without notice. Contracts for our services and deliveries shall be concluded on the basis of our order confirmation or, in the absence of such confirmation, on the basis of our delivery.
2.2 Material composition, quality and dimensions of the items purchased shall be determined in accordance with the DIN-/EN regulations and/or material sheets applicable at the time of conclusion of the contract or, in the absence of such, in accordance with commercial practice. Otherwise, the agreed properties and characteristics of our products shall be exclusively those stated in our order confirmation. Any statements on our part shall only be deemed to constitute a guarantee of quality if we have expressly designated them as such in writing.
2.3 We shall not be obliged to check the suitability of confirmed materials and properties of our delivery for an intended use specified to us, unless we have expressly guaranteed the corresponding quality and suitability specifications in writing.
2.4 We shall be entitled to issue weight-based bills according to the theoretical weight of recognised standards and tables. Any deviating weights determined by the buyer can only be claimed on the basis of official reweighing immediately upon delivery.
The price of the item purchased is quoted ex stock. All additional costs shall be at the buyer’s expense. These include without limitation customs duties, consular fees, freight and insurance premiums.
4. Payments and Set-Off, Cash Discount
4.1 Unless otherwise agreed in writing, our receivables shall be due immediately after delivery without discount deduction and be paid free of charge for us in such a way that we can dispose of the amount on the due date.
4.2 The buyer shall only be entitled to a right of retention and a right of set-off to the extent that the buyer’s counterclaims are undisputed or have been established by a court of law.
4.3 If the buyer is in arrears with payment obligations to us, which account for more than 15% of our due claims, for more than 10 days, we shall be entitled to declare all claims against him due immediately, even if payment periods have been agreed which have not yet expired. Even if other payment terms have been contractually agreed, we may in any such case make further deliveries and services dependent on advance payment or the provision of absolutely equivalent securities.
4.4 Any agreed cash discount shall invariably relate only to the value of the goods without incidental costs. The prerequisite for any cash discount deduction shall be that the buyer has fully settled all due liabilities with us at the time of the cash discount. Unless otherwise agreed in writing, the discount period shall be deemed to commence as of the invoice date.
5. Delivery, Delay in Delivery
5.1 Any delivery dates or delivery periods which are not expressly designated as binding in writing shall be deemed to have been agreed without obligation. Delivery periods shall begin with the dispatch of our order confirmation; they shall end with the day of dispatch of the notice of readiness for collection or the notice of readiness for dispatch.
5.2 Three weeks after exceeding a non-binding delivery date or a non-binding delivery period, the buyer may request us in writing to deliver within a reasonable period. We shall be in default upon receipt of the request. In addition to the delivery, the buyer may demand compensation for any damage caused by the delay; this claim shall be limited to a maximum of 5% of the agreed purchase price in the event of slight negligence on our part. After unsuccessful expiry of the set deadline, the buyer shall be entitled to withdraw from the contract by written declaration and to claim damages for non-performance; in the event of simple negligence on our part, this claim for damages shall be limited to the foreseeable damage typical for the contract. The claim to delivery shall be excluded in the cases of this paragraph. If, while we are in default with delivery, delivery becomes impossible for us by chance, we shall nevertheless be liable in accordance with paragraphs 1 and 2, unless the damage would also have occurred in the event of timely delivery.
5.3 If a binding delivery date or a binding delivery period is exceeded, we shall already be in default upon exceeding the delivery date or the delivery period. In any such case, the rights of the buyer shall be governed by Clause 5.2 Paragraph 1 Sentence 3, Clause 5.2 Paragraph 2 as well as Clause 5.2 Paragraph 3.
5.4 Force majeure or operational disruptions occurring at our premises or those of our suppliers, e.g. due to riots, strikes, lockouts, destruction of production facilities, which temporarily prevent us, through no fault of our own, from delivering the subject matter of the contract on the agreed date or within the agreed period, shall extend binding and non-binding delivery dates and delivery periods by the duration of the performance disruptions caused by any such circumstances.
6. Passing of Risk, Dispatch, Default in Acceptance, Immediate Notification of Defects
6.1 Goods notified as ready for dispatch or collection must be taken over by the buyer without delay. Otherwise, we are entitled, at our own discretion, to ship them at the buyer’s expense or to store them at the buyer’s expense and risk, without prejudice to our rights pursuant to Clause 6.4.
6.2 Unless otherwise agreed in writing, we shall choose the means of transport and the transport route.
6.3 The risk shall pass to the buyer upon handover to the railway, forwarding agent or carrier or to the buyer or upon commencement of storage, even if free delivery has been agreed. We shall only provide insurance if instructed to do so by the buyer and at the buyer’s expense.
6.4 If the buyer is culpably in default with the acceptance of the item purchased for longer than 8 days from receipt of the notification of readiness or if the buyer is in default of acceptance in the case of a sale by dispatch, we can set the buyer a grace period of 8 days in writing with the declaration that we will withdraw from the contract and claim damages after the expiry of this period. After unsuccessful expiry of the grace period, we are entitled to withdraw from the contract by written declaration and to claim damages for non-performance. Setting a grace period shall not be necessary if the buyer seriously and finally refuses acceptance or is obviously unable to pay the agreed remuneration even within the grace period.
6.5 Insofar as we demand compensation for damages in accordance with Clause 6.4 Paragraph 1, this shall amount to 20% of the agreed purchase price excluding VAT. The damages shall be assessed higher or lower if we prove a higher damage or the buyer proves a lower damage.
6.6 The buyer must inspect the goods upon delivery and immediately notify us of any recognisable defects and damage and, in the case of a sale by delivery, make a note of this on the delivery note. Otherwise he shall lose his warranty claims. Sections 377, 378 of the German Commercial Code [HGB] shall remain unaffected.
7. Reservation of Title
7.1 We reserve title to all goods delivered until all claims arising from the business relationship, including the balance claim from any current account relationship, have been satisfied in full. In the event of default of payment by the buyer, we shall be entitled to demand the temporary return of our reserved goods at the buyer’s expense, even without setting a grace period, and, if applicable, to demand the assignment of the buyer’s claims for surrender against its customer. The demand for return, the return, the demand for assignment and the assignment of the claims against third parties shall not be deemed to constitute a withdrawal from the contract by us. Against payment of our due claim, we shall return the reserved goods to the buyer or reassign the claims against the buyer’s customers to the buyer.
7.2 The buyer shall be entitled to sell or process any goods subject to reservation of title (reserved goods) in the ordinary course of its business. The entrepreneur shall assign to us in advance by way of security any claims arising from the resale of the reserved goods.
7.3 We revocably authorise the buyer to collect the claims assigned to us in his own name. We shall be entitled to revoke the collection authorisation if the entrepreneur defaults on his payment obligations in whole or in part or if an application for the opening of insolvency proceedings has been filed against his assets. If the entrepreneur’s aforementioned authority to collect expires, the entrepreneur shall, upon request, provide the information required to enforce the assigned claims and hand over the necessary documents.
7.4 Processing of reserved goods shall be carried out for us as manufacturer within the meaning of Section 950 of the German Civil Code [BGB] without obligating us. Any such processed goods shall be deemed to be reserved goods. If reserved goods are combined or mixed with other goods, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods. If our ownership expires as a result of combining or mixing, the buyer shall already now transfer to us the ownership rights to which it is entitled in the new item to the extent of the invoice value of the reserved goods.
7.5 If, considering the supreme court rulings, we have no security interest worthy of protection in the securities we are entitled to, we shall release these at the buyer’s request to the extent that there is (no longer) a need for security worthy of protection.
7.6 The buyer shall disclose the location of the goods subject to reservation of title. A change of location is only permissible with our prior written consent or in the case of sale in the ordinary course of business. We shall be granted access to the reserved goods at any time during normal business hours.
7.7 The buyer shall be obliged to carefully store the reserved goods and to keep them in proper condition for the duration of the reservation of title. If the reserved goods are damaged or destroyed, any resulting claims for compensation to restore the reserved goods, if such restoration is not possible, shall be used to pay our claims against the buyer. The buyer shall assign any such compensation claims to us in advance by way of security.
7.8 No pledging, transfer by way of security, leasing or other transfer of the reserved goods affecting the security shall be permitted without our prior written consent. In the event of access by third parties, including without limitation attachments of the reserved goods, the buyer must immediately notify us in writing and immediately inform the third party of our reservation of title. Any costs incurred for action to remedy the encroachment, including without limitation intervention proceedings, shall be at the buyer’s expense if they cannot be recovered from the counterparty.
8. Liability for Defects
8.1 The warranty period for new and used goods shall be 1 year from delivery of the goods.
8.2 For defects in the goods, we shall initially provide warranty at our discretion by rectification or replacement delivery (subsequent performance).
8.3 If the subsequent performance fails, the buyer may, at its discretion, demand a reduction of the remuneration (abatement) or rescission of the contract (withdrawal). The buyer’s right to withdraw from the contract shall not apply in case of a minor breach of contract, in particular in case of minor defects.
8.4 A warranty obligation shall not be given a) if the material defect or damage has arisen because – the buyer has not reported or had recorded a defect, or – the buyer has not immediately given the opportunity to rectify the defect despite being requested to do so, or – the goods have been improperly handled or overused by the buyer, or – the subject matter of the contract has been modified in a manner not approved by us; and/or b) if the buyer has not properly fulfilled his obligations to inspect and give notice of defects (Sections 377, 378 of the German Commercial Code [HGB]; Clause 6.6 of these Terms and Conditions).
8.5 Natural wear and tear shall be excluded from the warranty.
8.6 In case of used goods, the buyer shall bear the burden of proof for the defectiveness of the item at the time of its delivery.
8.7 The provisions of Section 478 of the German Civil Code [BGB] shall remain unaffected.
9. Limitation of Liability, Limitation of Claims for Damages
9.1 The following limitations of liability shall not apply to bodily injury, damage to health or loss of life of the buyer attributable to us.
9.2 In the event of a breach of essential contractual obligations (so-called cardinal obligations), we shall be liable for damages as follows: in case of intent or gross negligence generally without limitation; in case of simple negligence limited to compensation for the foreseeable damage typical for the contract.
9.3 In all other cases, claims for damages against us shall be excluded, irrespective of the legal grounds, unless there is an intentional or grossly negligent breach of duty by us, our legal representatives or our vicarious agents/assistants. Our liability shall be excluded in case of simple negligent violation of unessential contractual obligations limited to the foreseeable damage typical for the contract in case of gross negligence in our responsibility.
9.4 Insofar as our liability is excluded or limited in accordance with the above paragraphs, this shall also apply to the personal liability of our vicarious agents and assistants.
9.5 Any of the buyer’s claims for damages due to a defect in the goods shall become statute-barred after 1 year from delivery of the goods. This shall not apply if we can be blamed for gross negligence or intent and in case of bodily injury or damage to health attributable to us or in case of loss of life of the buyer.
9.6 Insofar as a buyer can derive claims from a quality guarantee, any such rights shall remain unaffected by the above limitations of liability.
9.7 Irrespective of any fault on our part, any liability under the Product Liability Act shall remain unaffected.
10. Place of Performance, Place of Jurisdiction, Applicable Law
10.1 The place of performance for the delivery of the subject matter of the contract shall be our warehouse in D-26180 Rastede.
10.2 The sole place of jurisdiction for all present and future claims arising from the business relationship with entrepreneurs, including claims arising from bills of exchange and cheques, shall be D-26180 Rastede.
10.3 If the buyer does not have a general place of jurisdiction in Germany, moves his place of residence or habitual abode out of Germany after conclusion of the contract or his place of residence or habitual abode is not known at the time the action is brought, the sole place of jurisdiction shall be D-26180 Rastede.
10.4 The contractual relations with the buyer shall be governed by German substantive law, in particular by the provisions of the German Civil Code and the German Commercial Code, even if the delivery item is to be delivered abroad or the concluded contract has any other foreign reference. German private international law, any foreign law, bilateral or multilateral international agreements, in particular the UN Convention on Contracts for the International Sale of Goods of April 11, 1980 shall not apply.