General terms of business
Witzel VACUPRESS e.K., Inh. Hendrik Witzel (updated 01.05.2012)
The following General Terms and Conditions of Business (Conditions of Sale and Delivery) shall apply to all present agreements, offers and orders vis-à-vis companies as defined in § 310 clause 1 BGB [German Civil Code] (hereinafter: customers). Deviating, conflicting or supplementary General Terms and Conditions of Business of the customer shall not become parts of the contract, even if we not expressly object to them, unless we expressly approve of their validity. Apart from this, our Terms and Conditions of Sale and Delivery shall exclusively apply.
1. Offers, orders, order acceptance and formation of contracts
(1) Unless expressly otherwise agreed upon, our offers are non-binding and subject to confirmation (this means that they are revocable until acceptance).
(2) We reserve the right to make technical changes as well as changes in shape, colour and/or weight within reasonable limits. Excess or short deliveries of up to 10% are admissible. In addition, excess or short deliveries of our suppliers which are admissible according to their General Terms and Conditions of Business authorise us to make excess or short deliveries to the same extent. The order will be executed within the technically required material and process-related tolerances. Deviations of the material quality according to our suppliers’ terms of delivery shall be reserved.
(3) By ordering goods from one of our catalogues in text form (e.g. by letter, fax, e-mail) or online, the customer declares his binding intent to purchase the ordered goods. The contract with us is concluded as soon as we accept the offer to enter into the contract in the order by order confirmation. We shall be entitled to submit this declaration of acceptance within two weeks after receipt of the order. The acceptance may be declared either in writing or by delivering the goods to the customer.
(4) Our individual offers expire 20 working days after the date of the offer. By placing an order on the basis of this offer and within this period, the customer declares the binding acceptance of our offer.
(5) The contract is concluded with the provision of correct and timely supply by our contract partners, subcontractors and suppliers. The customer will immediately, should certain supplies not be available. If we are not responsible for the non-delivery, in particular when effecting congruent hedging transactions with our suppliers, we shall be released from our performance obligation to the extent that such performance is hindered or delayed.
(6) We shall not be bound by any details in offers and/or order confirmations which are obviously based on mistakes, i.e. a typing errors or miscalculation. Instead of this, the obviously intended declaration shall apply.
(7) Offer documents, drawings, descriptions, samples and cost estimates may not be forwarded, published, reproduced or disclosed to third parties in any way whatsoever. Upon request, the documents shall be returned without keeping any copies of them.
2. Delivery and delivery period
(1) The agreed delivery periods are approximate periods. The arrangement of fixed delivery dates shall only be effective if expressly confirmed by us in written form.
(2) The agreed delivery periods commence on the date of the order confirmation at the earliest; however, the delivery period commences not before we have been provided with all documents required to execute the order. Our delivery obligation is suspended as long as the customer is in default of a (advance) performance obligation. In the event that we culpably fail to meet an agreed delivery period, the default in delivery shall only be deemed to have occurred following the expiration of an adequate grace period.
(3) Cases of force majeure - these are understood to be circumstances and incidents that cannot be prevented with the due diligence of prudent business management - shall result in the contractual obligations of the contract parties being suspended for the duration of the hindrance and to the extent of its effects. In case the resulting delay exceeds a period of ten weeks, both contract parties shall be entitled to withdraw from the contract with regards to the respective scope of performance. Any other claims shall be excluded.
3. Prices, terms of payment
(1) All prices are fixed prices excluding statutory value-added tax. In the absence of another agreement, our delivery is made excluding packaging, transport insurance, freight and assembly. Our prices are based on the labour and material costs/production costs as well as the value-added tax applicable at the time the contract is concluded. In the event that changes in the bases of calculation occur after the contract has been concluded as a result of higher labour and material costs/production costs, value-added tax or other circumstances, in particular technical changes in calculation, we shall be entitled to change the price in adequate relation to the change of the basis of calculation occurred. Alternatively, we shall be entitled to withdraw from the contract. This also applies to blanket or call-off orders, unless expressly otherwise agreed upon conclusion of the contract.
(2) The agreed prices are binding. They shall be payable within 30 days after receipt of the goods or services (we grant a discount of 2% upon full payment within 10 calendar days); however, we reserve the right to demand advance payment from the customer (only a partial amount can be demanded as advance payment).
(3) The customer falls in arrears after the 30-day period stipulated in § 3 clause 2 has expired. After this period, the customer shall pay interests amounting to 8 % above the base interest rate on the amount owed. We reserve the right to prove evidence of and enforce higher damages caused by default.
(4) In the event of default in payment and justified doubts in the customer’s solvency or creditworthiness, we shall be entitled - without prejudice to our other rights - to demand securities or advance payments for outstanding deliveries, to ship the goods COD, even if another payment method has been arranged, and accelerate the maturity of all rights arising from the business relationship. Only undisputed or legally determined claims entitle the customer to set off or retain payments. The customer may only exercise his right of retention if his counterclaim is based on the same contractual relationship.
4. Place of performance, shipping, bearing of risk, transfer of risk
(1) The place of performance is our place of business.
(2) If the goods are shipped to a place other than the place of performance upon request of the customer, he shall bear the packaging and transport costs. The risk of accidental loss or deterioration of the goods is transferred to the customer upon handover, or in case of destination purchase upon delivery of the goods, to the forwarder, the carrier or any other person or institution commissioned with the shipping, even if such persons are our own employees. The handover of the goods shall be deemed to have been effected even if the customer is in default of acceptance.
5. Customer specifications, further processing, instructions, assumption of liability, permissions
(1) If we are to manufacture systems, products or other works and structures on the basis of the customer’s specifications, the latter shall provide faultless, proper and complete specifications in due time. If it becomes evident that - from our point of view - modifications are necessary, we reserve the right to withdraw from an already concluded contract.
(2) If we are to further process components, structures or materials, the customer shall be obliged to check them for faultlessness from the very beginning of our activity. This above all applies to partial works in an overall project so that damage or defectiveness of the end product is prevented.
(3)If the cooperation of the customer is required within the scope of such contracts, he shall strictly observe our instructions and appropriately inform and instruct the respective operating staff.
(4)In the event that a damage occurs resulting from the infringement of an obligation as stipulated in 5. clause 1 and/or clause 2, the customer shall be fully liable to the aggrieved party. In the event that third parties assert claims against us due to such damage, the customer shall indemnify us from the liability to full extent.
(5) All permissions required to implement the contract shall be obtained by the customer.
(1) We provide warranty for defects at our discretion either by rectification or substitute delivery. In case the subsequent performance fails, the customer may demand the reduction of the purchase price (reduction) or withdraw from the contract (withdrawal). The customer shall, however, not be entitled to withdraw from the contract in case of only minor lack of conformity with the contract, in particular minor defects or nonconformities.
(2) The customer shall indicate patent defects in written from within a period of two weeks after receipt of the goods; otherwise, the enforcement of warranty claims shall be excluded. The full burden of proof regarding all prerequisites of claims, in particular relating to the defect itself, the time of the detection of the defect and the timeliness of the notice of defect, lies with the customer.
(3) In the event that the customers prefers to withdraw from the contract due to a defective title or material defect after the subsequent performance has failed, he shall not be entitled to assert further claims for damages based on the defect. In the event that the customer prefers to assert claims for damages after the subsequent performance has failed, the goods shall, where reasonable, remain in the possession of the customer. Claims for damages shall be limited to the difference between the purchase price and the value of the defective goods, unless the breach of contract has been caused fraudulently.
(4) The warranty period is 24 month from the delivery of the goods. As a matter of principle, only the details indicated by us as well as in the manufacturer’s product description shall be considered as the agreed physical characteristics. Public statements, promotions or advertisements by the manufacturer shall not be deemed to constitute additional contractual physical characteristics of the goods. We disclaim all legal warranties to the customer. The procurement risk shall be excluded.
(5) Insofar as legally admissible, our obligation to provide compensation, no matter for what legal reason, shall be limited to the invoice value of those goods which are directly involved in the event causing the damage. In case of slight negligence of non-essential contractual obligations, any claims for compensation shall be excluded.
(6) Insignificant, reasonable deviations in size and design - in particular in case of repeat orders - shall not justify any complaints, unless absolute adherence has been expressly agreed upon. Technical improvements as well as necessary technical modifications shall also be regarded as in accordance with the contract, unless they impair the usability of the goods.
(7) If the operating and maintenance instructions are not observed, the products are modified, components are exchanged or consumption parts are used, the warranty shall expire, unless the ordering party is able to refute the appropriately substantiated assertion that the defect has been caused by one of these factors.
(8) The liability for normal wear and tear shall be excluded. Wear out parts are also excluded from liability.
7. Reservation of title
(1) We reserve the title to the goods until all claims (including ancillary claims and claims for damages) arising from the ongoing business relationship with the customer have been fully paid for. Payment by cheque shall not terminate the reservation of title before its irrevocable value date.
(2) The customer undertakes to immediately inform us of any seizure of the goods, e.g. in case of pledging, as well as possible damage or destruction of the goods. The customer shall immediately notify us of any changes of ownership of the goods as well as the change of his own place of residence. The customer shall immediately inform us of pledging as well as seizure of the goods by third parties. We shall be immediately notified in written form and provided with all information we need to bring action against enforcement in accordance with § 771 ZPO [German Code of Civil Procedure]. The customer shall be liable if we suffer loss due to a third party’s inability to reimburse us the judicial and extra-judicial costs of an action in accordance with § 771 ZPO. The customer may neither pledge nor transfer the contract item by way of security without or prior consent.
(3) In the event of breach of contract on part of the customer, in particular default of payment or infringement of an obligation as defined in 7. clause 2 and/or clause 4, we shall be entitled to withdraw from the contract and reclaim the goods.
(4) The customer shall be entitled to resell the goods in the course of ordinary business transactions; however, he hereby assigns to us all claims accrued against his purchasers or third parties from the resale of the goods equal in value to the outstanding invoice amount (including value-added tax), irrespective of whether the goods have been sold unprocessed or after the processing. This advance assignment also applies to possible substitute claims of the outstanding purchase price from the resale (such as e.g. claims for compensation for the simple reservation of title, alternative preferential rights, rights of separation for substitutes, etc.).The customer is herby authorised to collect such claims against the purchasers or third parties. Our authority to collect the claims ourselves shall remain untouched; however, we undertake not to collect the claims as long as the customer properly fulfils his payment obligation and is not in default of payment. If this is the case, however, we may demand that the customer disclose the claims assigned to us and the name of the debtors, provide us with all details required to collect the claims, hand over the associated documents and inform the purchasers of the assignment. Furthermore, the direct debit authorisation of the customer shall expire in this case.
(5) Any processing or transformation of the goods by the customer shall be done solely in our name and on our behalf. In case the goods are processed or transformed together with other items that do not belong to us, we shall acquire the shared ownership of the new product in proportion of the value of the goods to the other processed items at the time of the processing or transformation. Apart from this, the same applies to the product created by processing or transformation as to the goods subject to reservation of title (concerning the legal consequences of the simple, extended as well as prolonged reservation of title). The same applies in case the goods are combined as stipulated in § 947 BGB and mixed as stipulated in § 948 BGB with movables. The legal consequences stipulated in §§ 947 clause 2 BGB, 948 in connection with 947 clause 2 BGB as well as § 950 clause 1 sentence 1 BGB are settled by these processing clauses.
(6) The customer shall adequately insure the goods subject to reservation of title, in particular against fire and theft.
8. Applicable law, place of jurisdiction, written form clause, severability clauses
(1) The law of the Federal Republic of Germany shall exclusively apply to these General Terms and Conditions of Business and all legal relationships between us and the customer, irrespective of the customer’s place of business. This contract is subject to the non-unified German law, namely BGB/HGB [German Civil Code/German Commercial Code]. The provisions of CISG (United Nations Convention on Contracts for the International Sale of Goods) shall not be applicable.
(2) The place of jurisdiction is Essen. We shall, however, be entitled to take legal action against the customer at his place of residence or business.
(3) Modifications and supplements of a concluded contract must be made in written form/alternatively: text form (e.g. by letter, fax, e-mail). This also applies to the written form agreement itself. Oral side agreements shall be ineffective.
(4) In the event of individual provisions of these General Terms and Conditions of Sale and Delivery being or becoming ineffective or impracticable in whole or in part, the legal effectiveness of the remaining contractual provisions shall not be affected. The ineffective or impracticable provisions shall be replaced by an effective regulation that is as close as possible to the economic purpose of the ineffective provision. In case of doubts or disputes, the statutory regulations shall apply, if no supplementary interpretation in the aforementioned sense is possible or offered to fill the loophole.
The same applies in the event of contractual gaps.