This is a translation for information purposes. In case of doubt, the German version shall prevail.
1. Conclusion of contract
We shall deliver goods solely on the basis of the following conditions. The Buyer’s purchasing conditions shall not place us under obligation, even if we have not expressly contradicted them. Our General Terms and Conditions of Sale, Delivery and Payment shall be deemed accepted at the latest upon receipt of the goods.
Our offers are subject to change without notice. Concluded contracts and agreements, in particular insofar as they amend these conditions, shall only be binding for us following our written confirmation. Oral or written orders shall be deemed accepted when the written confirmation of order is issued or the goods ordered are delivered.
Information on technical data, dimensions, quantities, colours and other properties in catalogues, data sheets, product descriptions and similar documents is subject to change in line with developments and improvements and does not therefore constitute a guarantee.
2. Prices and terms of payment
Prices are ex works, excluding packaging and shipping, plus the applicable statutory value added tax. Payments are to be made free of charge to the Supplier’s paying agent. The Buyer may only set off claims that are undisputed or have been finally established by a court. All prices shall cease to be valid upon the publication of a new price list.
3. Reservation of title
The delivery items (reserved goods) shall remain the Supplier’s property until all the Supplier’s claims against the Buyer resulting from the business relationship have been settled. Insofar as the value of all security rights to which the Supplier is entitled exceeds the amount of all secured claims by more than 20%, the Supplier shall, at the Buyer’s request, release an appropriate part of the security rights.
While the reservation of title applies, the Buyer shall be prohibited from pledging the goods or transferring ownership by way of security, and resale shall only be permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from its customer or makes the reservation that ownership shall only pass to the customer once the customer has fulfilled its payment obligations.
The Buyer shall inform the Supplier without delay in the event of seizure, confiscation or other dispositions or interventions by third parties. If the Buyer breaches its obligations, in particular in the event of default in payment, the Supplier shall be entitled to withdraw from the contract and take back the goods following the unsuccessful expiry of a reasonable period set for the Buyer to perform; the statutory provisions on cases where no deadline needs to be set remain unaffected. The Buyer shall be obliged to surrender the goods.
The Supplier shall be entitled to withhold its services or to withdraw from the contract if it becomes aware of circumstances indicating that the Buyer is at risk of becoming insolvent or is unwilling or unable for other reasons to meet its payment obligations when due.
4. Delivery
Delivery times are agreed as approximate only. The delivery period shall commence on the day on which the confirmation of order is dispatched and shall be deemed met if the goods have left our warehouse by the end of the delivery period or, where shipping is possible, notification of readiness for dispatch has been given. The delivery period shall be extended appropriately – including during a period of default in delivery – in the event of unforeseeable obstacles which the Supplier was unable to avert despite exercising the care reasonable in the circumstances of the case – irrespective of whether they occur at our premises or at our subcontractors – e.g. operational disruptions, intervention by the authorities, industrial action, war, mobilisation, unrest, delays in the delivery of essential raw materials and building materials, or force majeure.
Compliance with delivery deadlines is conditional on the timely receipt of all documents, necessary approvals and releases to be provided by the Buyer, in particular plans, as well as compliance with the agreed terms of payment and other obligations by the Buyer. If these conditions are not met in good time, the deadlines shall be extended appropriately; this shall not apply if the Supplier is responsible for the delay.
In the event that we default in delivery, the Buyer shall set an appropriate grace period. Once this grace period has expired, the Buyer shall be entitled to withdraw from the contract. Claims for damages due to non-performance or delayed performance are excluded. The Buyer may not reject partial deliveries. For special versions, we reserve the right to deliver a larger or smaller quantity.
5. Freight, shipping
Unless otherwise agreed, goods shall be shipped carriage forward. The risk shall pass to the Buyer upon handover of the goods to the forwarding agent or carrier, but at the latest when the goods leave our warehouse. Goods notified as ready for dispatch on the agreed date must be called off immediately; otherwise, or if shipping is impossible, we shall be entitled to store the goods at our own discretion at the Buyer’s expense and risk and to invoice them as delivered ex works. When exporting, the Buyer shall be obliged to observe the export control regulations applicable to the delivery items. In the event of a breach of export regulations, the Supplier shall be entitled to withdraw from the contract.
6. Warranty, liability, notification of defects
Without prejudice to any shorter obligation to give notice, defects must be notified no later than two weeks after receipt of the goods. Defects which cannot be discovered within this period even with careful inspection must be notified immediately after discovery, but no later than within the warranty period. If notice is not given in time, the delivery shall be deemed approved. The warranty period is 24 months from delivery of the goods. Insofar as notifications of defects are justified, we shall, at our discretion, provide a replacement, rectify the defect or reimburse the reduction in value. Further warranty claims are excluded.
Claims for damages arising from impossibility of performance, default, positive breach of contract, culpa in contrahendo and tort are excluded unless they are based on intent or gross negligence on our part or on the part of our executive employees. The Buyer’s claims for damages and reimbursement of expenses (hereinafter: claims for damages), irrespective of their legal basis, in particular due to breach of obligations arising from the contractual relationship and from tort, are excluded.
This shall not apply in cases of mandatory liability, e.g. under the German Product Liability Act, in cases of intent or gross negligence, injury to life, body or health, or breach of material contractual obligations. However, claims for damages for breach of material contractual obligations shall be limited to the foreseeable damage typical of the contract, unless there is intent or gross negligence or liability arises from injury to life, body or health. The above provisions do not imply a change in the burden of proof to the detriment of the Buyer.
Insofar as the Buyer is entitled to claims for damages under this article, these shall become time-barred upon expiry of the limitation period applicable to claims for material defects. The statutory limitation provisions shall apply to claims for damages under the German Product Liability Act.
7. Place of jurisdiction and applicable law
If the Buyer is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the Supplier’s registered office. However, the Supplier shall also be entitled to bring an action at the Buyer’s registered office. The legal relationships in connection with this contract shall be governed by German substantive law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
8. Binding nature of the contract
Should individual provisions be legally invalid, the remaining parts of the contract shall remain binding. This shall not apply if adherence to the contract would represent an unreasonable hardship for one of the parties.
Witt Sensoric GmbH Berlin – www.witt-sensoric.de – as of 06/2014