I. Validity of our terms and conditions
All goods and services to companies and public authorities are subject to our Terms and Conditions below. Opposing or deviating General Terms and Conditions of the Purchaser (abbr. A4L) shall always be excluded for business with us, unless we have agreed to their validity in writing. This also applies to special agreements with our sales representatives on delivery or payment in commercial transactions because they are not authorised to enter into such agreements. Our terms and conditions also apply to future transactions.
II. Offers/Order Acceptance
Our offers are subject to change and will be accepted only with our written confirmation. We can accept orders within 4 weeks after receipt. Until written acceptance or order confirmation, no obligations are created for us.
III. Scope of delivery/goods description
We are entitled to produce up to 10% more or less of the ordered/confirmed goods, if this is necessary for operational or organisational reasons. The customer is obliged to accept such excess or short delivery and to pay the agreed compensation for it. Subject to other agreements, we are entitled to make partial deliveries. Descriptions of the products are only binding if they are expressly confirmed by us in writing. The guarantee of the properties must be explicit, and it must be in writing. Design changes that we consider appropriate are reserved to us at our sole discretion. Minor, and in particular standard commercial deviations in quality, colour, design, equipment and processing do not affect the contractual quality of the product.
The copyright and the right of reproduction with own designs, originals and so forth remain with us subject to any express provisions to the contrary. Artwork, films, plates and cutting also remain our property even if the purchaser has billed costs for this.
V. Delivery time
Any notices on delivery and service times are not binding and are only approximate. The customer can request us in writing after excess of a non-binding delivery date to deliver within a reasonable period. The period must be at least 10 working days. After this period, the customer may set a further reasonable grace period with notice that he refuses to purchase after this period. The assertion of claims for damages presupposes their announcement ahead of this deadline. The buyer only has claims for damages for delayed delivery, if we have caused the delay deliberately or through gross negligence, unless timely delivery is obviously of considerable importance for the customer. They are also limited to the value of the delivery. In the case of force majeure, labour disputes, governmental actions and fault-free malfunctions, the delivery period shall be extended by the duration of the disability, but for a maximum of two months.
Shipping is at the risk and expense of the customer from Witzhave. Irrespective of the question of the place of performance the risk passes no later than the shipment of the goods to the customer. If delivery is delayed due to circumstances for which the customer is responsible, the risk shall pass at the time of readiness for shipment to the customer. The goods will be sent uninsured by us, if the customer has not specifically requested insurance. As an AEO certified company, we expressly point out that for security reasons the release of tracking numbers to third parties for package tracking is not permitted.
VII. Prices and Payments
All prices are quoted exclusive of VAT. We shall be entitled in the event of changes in the price structure up to delivery at our discretion to adjust our prices accordingly if more than 2 months have elapsed from contract to delivery. Unless otherwise agreed, invoices are payable within 8 days from the date of invoice with 2% discount or within 30 days from the date of issue of the invoice net of initial cost calculations and net in cash. Thereafter, the customer is in default even without due warning. A set-off or right of retention is only permitted if the counterclaims are undisputed or legal. In the event of concrete evidence of a significant deterioration in the credit quality of the customer we can make further deliveries dependent on the prepayment or guarantee of the purchase price.
VIII. Retention of title
The delivery of the goods is always under reservation. Therefore the goods remain the property of the seller until full payment of all liabilities – even after delivery – arising from the transaction, including an existing account balance. The customer has a revocable right to resell the reserved goods as part of his regular business operations. He is hereby assigns rights from the resale of receivables as security to A4L. The assignment shall be accepted. The customer retains a revocable right to collect debts. The processing or transformation of the goods by the customer is always reserved to us. If the goods are processed, combined or mixed with other objects not belonging to us, we shall acquire co-ownership of the new item in the proportion of the value of the goods to the other processed items at the time of processing. If they are combined or integrated in such a way that the object of the customer is to be regarded as the main item, the customer assigns to us pro rata co-ownership. The customer shall preserve the sole ownership or co-ownership for us. For anything created by processing, combining or mixing the same applies as for the reserved goods. In particular, the customer assigns his claim in part from the resale of the goods to us. At the request of the customer A4L releases securities of his choice if their value exceeds the secured claims by 20%. If there are reasonable doubts about the creditworthiness of the customer, especially in the event of suspension of payments or insolvency proceedings, A4L is entitled to suspend deliveries immediately and to refuse the fulfilment of current contracts, as long as the customer does not pay in advance. At the same time the right of the customer to resell the reserved goods and to collect the receivables assigned to us lapses.
The customer shall inspect the goods immediately on delivery and fully notify any defect. The notification of defects must be received by us in writing and without delay, no later than 8 days after delivery of the goods. Samples of the rejected goods shall be returned immediately to check the legitimacy of the complaint. After receiving samples of the defective goods, we must, at our discretion, either repair or supply replacement goods free of defects within a reasonable time, but regularly within 4 weeks. If we do not meet this deadline or fail to perform the repair, the customer is entitled at his option, with a written grace period of two weeks to withdraw from the contract or demand a reduction of the purchase price. If we repair or replace it, the entire rejected goods shall be returned. We do not assume any guarantee or liability for the suitability of the products for the intended use by the customer, unless we have expressly guaranteed suitability. The customer is obliged to check the suitability of the material for his particular use by himself. Our limitations of liability shall not apply to damages resulting from injury to life, body or health of a person and in case of liability under the provisions of the Product Liability Act. Our liability for damages, regardless of the legal reason (including tort claims), is otherwise governed by the statutory provisions, if the damage is based on intent or gross negligence by us, our representatives or vicarious agents. The liability for simple negligence is excluded, unless there is a culpable breach of an essential contractual obligation or if we have accepted a guarantee or a quality risk. Claims for damages against us shall be limited to typical, foreseeable damage. This does not apply to claims which are based on intentional or gross negligence by us, our representatives or agents. Final drawings and proofs are submitted only on express request. If corrections arise due to subsequent changes, they will be charged to the customer additionally. After obtaining the printing release we are not liable for printing errors that were overlooked by the client in the correction.
For sales contracts, work performance contracts and service contracts, the claims of the customer and the customer against us shall expire in the following deadlines: warranty claims of the customer § 437 BGB expire in the cases of § 438. 1 No. 3 BGB in a period of one year from delivery of the goods. Claims by the customer for damages for breach of duty (§ 280 BGB), not covered by Article (1) and (2), expire within a period of one year from the statutory limitation period. Sentences 1-3 do not apply in the case of warranty claims of the customer under § 438 para.1 No. 1 and 2 of the Civil Code, §§ 478, 479 BGB. § 634 BGB become time-barred in the case of § 634 a para. 1 No.1 BGB in a period of one year after acceptance of the work. In the case of § 634 a para. 1 No. 2 BGB the warranty claims of the customer expire in analogy with the provisions of the VOB in a period of two years from the acceptance of the work. In the case of § 634 a para. No. 3 BGB there is a limitation period of one year from the statutory limitation period. This period shall apply accordingly to claims by the customer for damages for breach of duty (§ 280 BGB), which are not covered above. The shortening of the statute of limitations under the above paragraph shall not apply to claims for damages resulting from injury to life, body or health of a person as well as in cases where there is intent or gross negligence by us, our legal representatives or vicarious agents.
XI. Verbal ancillary agreements
Verbal ancillary agreements are only effective if they are confirmed in writing by us. This also applies to any amendment to them.
In the event that one or more provisions of these terms and conditions are or become invalid, the remaining provisions shall remain unaffected. The parties are, however, obliged to replace the invalid provision by a provision that comes closest to the intention expressed in these terms and conditions.
XII. Place of performance, legal venue and applicable law
The place of performance is Witzhave, the legal venue for all present and future claims from the business relationship with us, including for bills and cheques, is agreed to be Hamburg as the seat of the territorially nearest Regional and Higher Regional Court. German law is applicable excluding the UN Sales Convention.