General Conditions of Sale of WITTE STAINLESS B.V.
I. Application, Offers
1. These General Conditions of Sale (Conditions) shall apply to all present and future contracts with commercial buyers, with public legal entities as well as public trusts in regard to deliveries and other services, including contracts for work and services, contracts for the delivery of fungible and non-fungible goods to be manufactured or produced. The buyer’s purchase conditions shall not be binding even if we do not expressly object to them again after their receipt.
2. Our offers are non-binding to us. Oral agreements, promises, assurances, guaranties and statements about the designated use of our products made or given by our sales staff shall not be binding unless confirmed by us in text form.
3. The provision with test certificates according to EN 10204 requires consent in text form. We are entitled to forward copies of such certificates and to make anonymous our supplier and the issuer in such copies.
4. Any trade terms shall, in cases of doubt, be interpreted according to the Incoterms as amended from time to time.
Unless otherwise agreed, the prices are understood EXW. All additional costs shall be at the buyer’s expense. These include without limitation customs duties, consular fees, freight and insurance premiums. The merchandise will be invoiced “gross for net”. Short of an agreement thereto, the fees for agreed test certificates according to EN 10204 amount to 15 € per certificate.
III. Payment and Set-Off
1. Payment shall be made immediately without cash discounts so that we can dispose of the sum on the due date. This also applies if the test certificates according to EN 10204 are not part of the delivery or arrive late. Any payment transfer costs shall be borne by the Buyer. The Buyer may retain or set off any counterclaims only in so far as such claims are undisputed or have become legally binding and as they are based on the same contractual relation with the Buyer and/or as they would entitle him to refuse the fulfilment of his contractual duties under section 320 BGB.
2. Unless otherwise agreed, our invoices are due immediately upon delivery. Should the Buyer default in payment or exceed the term of payment, we will charge default interest at the statutory rates (Sect. 288 BGB), unless higher rates have been agreed upon. Additionally, we charge a default allowance of EUR 40.00. We reserve the right to claim further damages resulting from late payment.
3. If, after conclusion of the contract, it becomes apparent that our payment claim is endangered by the buyer’s lack of ability to pay or if the buyer is in default of payment with a considerable amount, or if other circumstances arise which indicate a significant deterioration in the buyer’s ability to pay after conclusion of the contract, we may refuse agreed advance performance and exercise the rights under § 321 BGB. This also applies insofar as our obligation to perform is not yet due. We shall then also be entitled to demand payment of all claims not yet due from the current business relationship with the buyer. A lack of ability to pay on the part of the buyer is also deemed to exist if the buyer is at least three weeks in arrears with a substantial amount (from 10% due), furthermore the substantial downgrading of the limit existing for him with our trade credit insurance.
4. Any agreed upon cash discount always relates to the invoiced value excluding freight and will only be granted if and in so far as the Buyer has completely paid all payables due at the time of the discount. Unless otherwise agreed to discount periods shall begin with the date of the invoice.
IV. Delivery Times
1. Our commitment to deliver is subject to our correct, timely and contractual self-delivery and in case of imported material additionally under provision of receipt of monitoring documents and import licenses, unless we are responsible for the incorrect or delayed self-delivery. In particular, we are entitled to withdraw from the contract if we have concluded a proper covering transaction, but are not supplied by our supplier for reasons for which we are not responsible, e.g. if our supplier is insolvent. The same shall apply insofar as the purchaser has specified the supplier to us but the latter does not fulfil its delivery obligations or fails to do so in a timely manner.
2. Any confirmation as to delivery times shall only be approximate and non-binding. Delivery times shall commence with the date of our order confirmation and are subject to the timely clarification of any details of the order as well as of the fulfilment of any of the Buyer’s obligations, e.g. to produce official certifications, to provide letters of credit and payment guarantees, to pay agreed instalments or to return approved drawings.
3. Any agreed delivery time shall be considered to be met if and in so far the goods have left the works or our warehouse at such time or date. If and in so far the goods fail to be despatched at the agreed time for reasons not attributable to us, the agreed delivery time shall be considered to have been met at the day on which the goods are notified to be ready for dispatch.
4. The Buyer has to ensure an undisturbed delivery of the goods and shall refer timely to difficult delivery conditions. The Buyer shall unload properly and without delay. If we or third parties assist in unloading, no legal obligation is incurred and the risk is entirely with the Buyer.
5. Force majeure events entitle us to postpone the deliveries for the period of the hold-up and an appropriate start-up time. This also applies if such events occur during a present default. Force majeure is the equivalent of monetary or trade measures or other acts of sovereignty, strikes, lockouts, breakdowns not caused by us (e.g. Fire, machinery or roller breakdown, shortage of raw materials and lack of energy), pandemics and their effects, obstruction of transport routes, delays in clearing the goods for import and in customs clearance, insolvency of our supplier as well as of all other circumstances, that essentially impede or render the deliveries and performances impossible, without being caused by us. Thereby, it is irrelevant if the circumstances occur with us or with one of our suppliers. If performance becomes unacceptable for one of the parties due to the abovementioned events, the party shall be able to withdraw from the contract by instant declaration in text form.
V. Retention of Title
1. The goods delivered to the Buyer shall remain our property until the full purchase price is paid. The Buyer shall take all measures required to preserve the retention of title – or of an equivalent security in the country of his branch or in a different country of destination -, and to provide the corresponding evidence upon our request.
2. To the extent permitted by the laws of the country, in which the goods are located, the following additional regulations apply:
a. All goods delivered to the Buyer shall remain our property (Reserved Property) until all of the Buyer’s accounts resulting from the business relationship with him, in particular, any account balances have been settled (current account reservation). This condition shall apply to any future as well as any conditional claims and such cases where the Buyer will affect payments on specifically designated claims. As soon as the Buyer has settled his accounts with us in full, he shall obtain title to those goods which were delivered to him before such payment was effected. The current account reservation applies not in in prepayment or delivery vs payment cases.
b. With regard to processing or manufacturing of the Reserved Property, we shall be deemed to be manufacturer within the meaning of section 950 BGB (German Civil Code) without committing us in any way. The processed or manufactured goods shall be regarded as Reserved Property within the meaning of clause 2 a of these Conditions. If the Buyer manufactures, combines or mixes the Reserved Property with other goods we shall obtain co-ownership in the new goods in proportion to the invoiced price of the Reserved Property to the invoiced price of the other goods. If, by such combining or mixing, our ownership expires, the Buyer herewith transfers to us any rights which the Buyer will have in the new stock or goods in proportion to the invoiced price of the Reserved Property, and he will keep them in safe custody free of charge. Our co-ownership rights shall be regarded as Reserved Property within the meaning of clause 2 a of these Conditions.
c. The Buyer may resell the reserved property only within the normal course of his business in accordance with his normal business terms and provided he is not in default of payment and provided also that any rights resulting from such resale will be transferred to us in accordance with clause 2 d – e of these conditions. The Buyer shall not be entitled to dispose of the Reserved Property in any other way.
d. The Buyer hereby assigns to us any claims resulting from the resale of the Reserved Property. We hereby accept the assignment. Such claims shall serve as our security to the same extent as the Reserved Property itself. If the Reserved Property is resold by the Buyer together with other goods not purchased from us, then any receivables resulting from such resale shall be assigned to us in the ratio of the invoiced value of the other goods sold by the Buyer. In the case of resale of goods in which we have co-ownership rights pursuant to clause 2 b, the assignment shall be limited to the part which corresponds to our co-ownership rights.
e. The Buyer shall be entitled to collect any receivables resulting from the resale of the Reserved Property. This right shall expire if withdrawn by us, at the latest if the Buyer defaults in payment; fails to honour a bill of exchange; or files for bankruptcy. We shall exert our right of revocation only if and in so far as it becomes evident after the conclusion of the contract that payment resulting from this contract or from other contracts is jeopardised by the lack of Buyer’s ability to pay. The Buyer shall – upon our request – immediately inform his customers of such assignment and to forward to us any information and documents necessary for collection.
f. The Buyer shall immediately inform us of any seizure or any other attachment of the Reserved Property by a third party. He shall bear any costs necessary to suspend such seizure or attachment, to separate or to remove the Reserved Property, if and in so far as such costs are not borne by a third party.
g. Should the total invoiced value of our collateral exceed the amount of the secured receivables including additional claims for interest, costs etc. by more than 50 %, we shall – upon the Buyer’s request – release pro tanto collateral at our discretion.
1. For the weight of the goods the weight determined by our or our suppliers’ scales shall be decisive. The weight shall be evidenced by presentation of the pertinent weight check. We may also determine the weight without weighing according to length and/or theoretically on the basis of the statistical measures. We are entitled to increase the theoretical weight by 2 ½ % (commercial weight) to compensate rolling- tolerances resp. tolerances in thickness and to bill our products based on a commercial weight of 8 kp/dm³.
2. Any indications given in the delivery notes as to the number of pieces, bundles etc. are not binding, if and in so far as the goods are invoiced by weight. Unless individual weighing has been agreed, the total weight of the delivery shall prevail. Any difference with regard to the calculated weight of the single pieces shall be proportionally allocated to them.
VII. Testing and Inspection
1. Where testing and inspection of the goods has been agreed upon or where corresponding material standards provide for such testing and inspection, it can only take place in the supplying plant or in our warehouse immediately after notification of readiness. The buyer shall ensure that we can commission the desired accepting company on his behalf and for his account or for his customer´s. Unless otherwise agreed, this authorisation shall be deemed to have been granted if an accepting company is named in the order.
2. The buyer shall bear his personal inspection costs, whereas the costs of inspection will be invoiced to him in accordance with our price list.
3. Should, through no fault of ours, an inspection of the goods fail or be delayed or be incomplete, we shall be authorised to dispatch the goods without prior inspection or to store them at the buyer’s expense and risk and to invoice the goods to him.
4. Any testing and inspection of goods with regard to parameters beyond the standards agreed upon is at the risk and expense of the buyer.
VIII. Callable and Continuous Deliveries
1. Where the contract provides for continuous deliveries, the Buyer shall divide the quantities and grades of the goods into approximately equal monthly shipments. Otherwise we shall be entitled to specify them at our own fair and just discretion.
2. Where the single calls for delivery exceed the total contractual quantity, we shall be entitled, yet not committed, to deliver the surplus quantity and invoice it at the prices applicable at the time of the call or the delivery.
3. Unless otherwise agreed, call-off orders are to be processed within 365 days of conclusion of the contract. After expiry of this period, we shall be entitled to store the goods not called off at the expense and risk of the buyer and to charge him for them.
IX. Dispatch, Passing of Risk, Packaging, Partial Delivery
1. We shall be entitled to choose the route and mode of dispatch as well as the forwarding agent and the carrier.
2. The Buyer shall immediately request delivery of those goods which have been notified to him as ready for dispatch. Otherwise we are entitled, upon reminder, to ship such goods at the Buyer’s cost and risk or to store them at our discretion and to invoice them to the Buyer.
3. Can, by reasons not attributable to us, the goods not be shipped or will it become significantly difficult to ship the goods via the designated route or to the designated place within the designated time, we reserve the right to ship them via a different route or to a different place. Any additional costs will be borne by the Buyer. In such cases we will ask the Buyer for his prior comments.
4. In the case of call-off orders, the risk shall be transferred to the buyer at the time of the provision of the goods for collection. Otherwise, the risk, including the risk of confiscation of the goods, shall pass to the buyer upon transfer of the goods to a forwarding agent or carrier, at the latest, however, upon leaving the warehouse or the supplying plant, in all transactions, including pre-paid and free deliveries. We shall only provide insurance at the buyer’s instruction and expense. Unloading and its costs shall be borne by the buyer.
5. Any package, protection and/or transport device will be supplied according to our experience and at the Buyer’s cost. We will take back such devices only at our warehouse. We will not bear any costs for their re-transport or disposal.
6. We shall be entitled to make partial deliveries at reasonable quantities. We may also exceed or reduce the agreed quantities as appropriate. Where quantities are indicated as “circa”, we may exceed or fall below the agreed quantity up to 10 %.
X. Warranty Provisions
1. The inner and outer properties of the goods, especially their quality, grade and measures are to be determined with priority by the agreed quality, namely by the standards or materials sheets agreed upon. References to standards and other sets of regulations, to test certificates according to EN 10204 and other attestations as well as particulars of qualities, grades, measures and use of the goods are no warranties or guaranties, just as little declarations of conformity and corresponding markings such as CE and GS.
2. Insofar as the quality has not been agreed, the goods shall be free from defects if they are suitable for the use presumed under the contract. A use is contractually presumed only if we were informed of this use by the Buyer in text form at the latest upon conclusion of the purchase contract and have expressly agreed to this use in text form.
3. Insofar as the goods have the agreed quality in accordance with clause X.1 or are suitable for the use stipulated in the contract in accordance with clause X.2, the Buyer may not invoke the fact that the goods are not suitable for normal use or do not have a quality which is usual for goods of this type and which the Buyer has expected. In this respect, our liability is excluded in accordance with Section XI of these Terms and Conditions.
4. For the inspection of the goods and the indication of defects the statutory provisions apply, it being understood that the duty to inspect the delivered goods includes the inspection of eventual test certificates according to or correlating to EN 10204 and any defects of the goods and test certificates are notified to us in writing no later than 7 days after delivery. Any transport damage can only be taken into account if it is noted on the delivery note. Defects that cannot be discovered immediately after delivery, even with the most careful inspection, must be reported to us in text form immediately after discovery.
5. In case the Buyer intends to install the goods into another object or attach the goods to another object, prior to installation resp. attachment, the Buyer has the obligation to inspect at least randomly the goods with regard to properties relevant for the application in question and to notify us of defects without delay. In case the Buyer, in the event of an installation of the goods into another object or attachment of the goods to another object, fails to inspect the properties of the goods relevant for the designated end use at least at random prior to installation resp. attachment, this represents a particularly grave disregard of the care required in the ordinary course of business (gross negligence) in relation to us. In such a case, the Buyer may assert rights in relation to these properties only if the defect had been deliberately concealed or in case of a guarantee for the respective quality of the goods.
6. If and in so far the Buyer’s claim for defects is justified and has been made in time, we may, upon our discretion, remedy the defect (rectification) or deliver non-defective goods (subsequent delivery). Should we fail or decline the supplementary performance, the Buyer may resort to his statutory rights. In cases where the defect is only minor or where the goods have already been resold, processed or transformed, he may only reduce the purchase price.
7. In case the Buyer has installed the goods, in accordance with the goods’ type and designated use, into another object or attached the goods to another object, he may claim reimbursement of his necessary costs for the dismantling of the defective goods and the installation or attachment of goods free from defects (“dismantling and installation costs”) only in accordance with the following provisions:
- Necessary dismantling and installation costs are only those, which directly result from the dismantling resp. removal of the defective goods and the installation resp. attachment of identical goods, have accrued on the basis of competitive market prices and have been proven by the Buyer by appropriate documents in text form.
- Additional costs of the Buyer for consequential damages such as e.g. loss of profit, down time costs or additional costs for cover purchases are no dismantling and installation costs and therefore not recoverable under Sect. 439 para. 3 of the German Civil Code. The same applies for sorting costs and for supplementary costs resulting from the fact that the sold and delivered goods are at a place other than the agreed place of delivery.
- The Buyer is not entitled to request advance payments for dismantling and installations cost or other expenses required for the remedy of the defective delivery.
8. We will reimburse the Buyer for his expenditures in connection with the supplementary performance only in so far as such expenditures are reasonable and not disproportionate in relation to the value of the goods. Disproportionate expenditures are especially given in case the expenditures requested by the Buyer, in particular dismantling and installation costs, exceed 150 % of the purchase price of the goods invoiced by us or 200 % of the value of the defective merchandise. If the last contract in the supply chain is a consumer sale, the reimbursement of expenses shall be limited to the appropriate amount. Costs of the Buyer related to the self-remedy of defects without the legal requirements being fulfilled, are excluded, the same applies for costs for disassembly of the defective and assembly of replacement goods, in case due to a transformation of the buyer before the assembly, the assembled goods provide substantially different features than the original goods delivered by us. Expenditures accrued by delivery of goods to another place than that of the agreed performance, will not be accepted.
9. If and in so far the goods are subject to contractually agreed testing and inspection by the Buyer, such testing and inspection shall bar any claims for such defects which might have been determined by the agreed type of testing and inspection. Has the Buyer, by his own negligence, not learned of the defect, and then he may claim only such defects which we have knowingly not disclosed to him or which are subject to a guarantee.
10. If the buyer does not immediately give us the opportunity to convince ourselves of the defect, in particular if he does not immediately make the rejected goods or samples available for testing purposes upon request, all rights due to the material defect shall lapse.
11. No warranty shall be given to goods sold as declassified material with regard to such defects either specified in the contract or to those normally to be expected. Goods classified as “IIa-Ware” (“secondaries”) are not subject to any warranty, subject to XI no. 2 of these terms.
12. Our further liability is subject to Section XI of these Conditions. Any of the buyer’s rights of recourse according to section 445a BGB (German Civil Code) are excluded, unless the last contract in the supply chain is a consumer sale. Section 478 BGB (German Civil Code) shall remain unaffected.
XI. General Limitation of Liability and Limitation Periods
1. Our liability for breach of contractual or extra-contractual obligations, in particular for non-performed or deferred deliveries, for breach of duties prior to the contract (“Verschulden bei Vertragsanbahnung”) as well as for tortuous acts – including our responsibility for our managerial staff and any other person employed in performing our obligations – shall be restricted to damages caused by our wrongful intent or by our gross negligence and shall in in case of gross negligence not exceed the foreseeable losses and damages characteristic for the type of contract in question. In all other respects, our liability, also for damages caused by defects and consequential damages, is excluded.
2. The aforesaid restriction shall not apply to such cases where we breach our fundamental contractual obligations and therefore the accomplishment of the purpose of the contract is at risk or where the non-fulfilment of the obligations the contracting party relies on renders the proper completion of the contract impossible. It shall neither pertain to damages to life, to the body or to health caused by our fault nor to any cases where we have guaranteed certain characteristics of the goods. Nor shall such clause affect our statutory liability laid down in the Product Liability Act (Produkthaftungsgesetz) of 15/12/89. Any statutory rules regarding the burden of proof shall remain unaffected by the aforesaid.
3. Unless otherwise agreed, any contractual claims which the Buyer is entitled to in connection with the delivery of the goods, including claims for damages for defective goods, shall fall under the statute of limitations within a period of one year after the goods have been delivered to the Buyer. In case of a supplementary performance, the period of limitation shall not start anew but rather is suspended until the end of a three month’s period after the supplementary performance. This restriction shall not apply to our liability and to the limitation of claims in connection with the delivery of goods which have been used for a building in accordance with their customary manner of use and which have caused its defectiveness and claims resulting from breaches of contract caused by our wrongful intent or by our gross negligence; neither to damages to life, to the body and to health caused by our fault, in cases of mandatory liability under the Product Liability Act, and to the limitation of statutory recourse claims. In these cases, the statutory limitation periods shall apply.
XII. Import conditions / Safeguard Measures
1. Insofar as we import the goods intended for the Buyer into the territory of the European Union, pursuant to the Implementing Regulation (EU) 2019/159 of 31.01.2019, as amended, tariff-rate quotas are applicable for certain categories of goods, which, if exhausted, will be subject to an additional 25% duty.
2. Our obligation to import the goods into the European Union as well as the agreed delivery date is therefore subject to the proviso that at the time of the intended import the relevant tariff-rate quota is not exhausted or critical and that therefore no additional duty and no security is charged. Otherwise, we are entitled to postpone the delivery date by up to 3 months until the import is possible again without levying the additional duty, e.g. because new tariff-rate quotas are opened.
3. If we import the goods and the tariff-rate quotas are already exhausted, critical or overbooked on the day of import without this being recognisable to us on the day of import by inspection of publicly accessible documents, the customer shall bear the resulting additional customs duty (if applicable, the proportion attributable to him) or the corresponding security deposit. We are entitled to charge him the resulting additional costs in addition to the agreed purchase price.
4. The customer may at any time demand delivery against payment of any additional customs duty incurred.
XIII. Place of Performance, Jurisdiction and Applicable Law, Data protection
1. The place of performance for our deliveries shall be our place of business. The place of jurisdiction shall be the court having subject-matter jurisdiction at our seat or, at our discretion, the place of jurisdiction at the Buyer’s seat.
2. All legal relationships between us and the Buyer shall be governed by the laws of the Federal Republic of Germany, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
3. The data of our customers are stored and processed by us in accordance with the requirements of the DSGVO.
XIV. Applicable Version
In cases of doubt, the German version of these General Conditions of Sale shall apply.