General Terms and Conditions for the WTO Werkzeug-Einrichtungen GmbH web page
Welcome to WTO web page (the “Web Page”).
These general terms and conditions apply between WTO Werkzeug-Einrichtungen GmbH (“WTO”), Auf der oberen Au 45, 77797 Ohlsbach, Germany and users of the Web Page as set out below.
2. Access to the Web Page and information on the Web Page
WTO aims to have the Web Page accessible without disruptions, and that transfers of information within or to and from the Web Page shall be error free. However, WTO provides no guarantee in this respect. Thus, from time to time the Web Page may be unavailable or subject to limited access due to planned or unplanned downtime, repairs, maintenance, updates or in connection with launches of new functionality, services or the like. WTO aims to limit downtime as well as restrictions of access to the Web Page.
It is the ambition of WTO to keep the information on the Web Page accurate and up-to-date, but WTO cannot guarantee that the information is complete, accurate and up-to-date. The User is aware that the information on the Web Page, such as prices and availability of products for delivery, is subject to continuous changes. Thus, WTO accepts no liability for the Web Page not working satisfactorily or for the information on the Web Page not being complete, accurate or up-to-date. Further, WTO is not liable for any damage or disruption arising out of or caused by viruses, worms or other harmful software that is transferred through the use of the Web Page. This shall not apply if the damage is caused by wilful misconduct or gross negligence or a slightly negligent breach of material contractual duties where such a breach of contract would endanger the contractual purpose. In such a case, the liability will be capped, however, to an amount of EUR 100.000,00.
On the Web Page, there may be links to other web pages and sources of information that are located outside the Web Page. WTO is not responsible for the availability of these external web pages or sources of information, and WTO neither supports nor approves, and assumes no responsibility for, information and other material on or from these web pages or sources of information.
4. Unauthorized use
If the Web Page and/or the User’s password is/are used in violation of these General Conditions, WTO is authorized to immediately terminate the User’s access to the Web Page and, with respect to customers, immediately stop delivery of placed orders.
Any information made available by WTO on the Web Page or otherwise in accordance with these General Conditions is “WTO Confidential Information”. The User undertakes to use the WTO Confidential Information only in connection with the use of the Web Page, and not to transfer or otherwise disclose WTO Confidential Information to third parties.
7. Intellectual property rights
All intellectual property rights relating to the design and structure of the Web Page, as well as to information and content on the Web Page, are the property of WTO (or of a third party). Nothing in these General Conditions shall be construed as being a transfer of, or grant of license to, any copyright, trademark, design, know-how or other registered or unregistered intellectual property.
8. Severability clause
Should any provision of this Agreement, or any provision incorporated into this Agreement in the future, be or become invalid or unenforceable, the validity or enforceability of the other provisions of this Agreement shall not be affected thereby. The invalid or unenforceable provision shall be deemed to be substituted by a suitable and equitable provision which, to the extent legally permissible, comes as close as possible to the economic intent and purpose of the invalid or unenforceable provision.
WTO reserves the right at any time to amend the information and content on the Web Page including these General Conditions. If WTO amends these General Conditions, the User must accept the amended General Conditions in order to gain access to continued use of the Web Page.
Terms of Sale
GENERAL TERMS AND CONDITIONS OF SALE OF WTO Werkzeug-Einrichtungen GmbH
Version: May 2018
1.0. Conclusion and contents of contract
1.1. These General Terms and Conditions of Sale shall apply to all present and future contracts with companies, public corporations and special bodies or funds under public law in regard to deliveries and other services. Any conflicting purchase conditions of the Customer shall not be binding even if we do not expressly object to them again after their receipt.
1.2. Our offers shall be subject to change without notice. Oral agreements, promises, representations and guarantees made or given by our sales staff shall not be binding unless confirmed by us in writing. The written form requirement shall also be deemed complied with by the transmission of letters identified by name, faxes and e-mails.
1.3. Any trade terms shall, in cases of doubt, be interpreted according to the Incoterms as amended from time to time.
1.4. The documents provided to us by the Customer, particularly drawings, gauges, samples, and other information on the nature and performance of our contractual obligations are binding. The Customer solely shall be responsible for their accuracy.
2.1. Our obligation to deliver shall be subject to the condition precedent that we have been supplied correctly and in due time by our suppliers; in the case of import transactions, the additional condition precedent of our timely receipt of the required import documentation, in particular surveillance documents and import licences, shall apply.
2.2. Information on delivery times is approximate. Delivery periods agreed shall commence at the date of our order confirmation and only on the condition that all details of the order have been agreed on in due time.
2.3. Delivery times shall be considered to be met if and in so far as the goods have left the works or our warehouse at such time or date. If, for reasons for which we are not responsible, the goods cannot be dispatched on time, the delivery of the goods shall be deemed to have taken place as soon as we have given notice that the goods are ready for dispatch.
2.4. The delivery period will be extended if the Customer has fallen into arrears with us. In cases of force majeure or unforeseen events that are beyond our control, the agreed delivery period may be reasonably extended; this also applies if we are given or have to obtain additional instructions pertaining to carrying out the order.
2.5. We shall be entitled to make partial deliveries with reasonable quantities. We are also entitled to exceed or go below the agreed quantity to be delivered within a reasonable margin of up to 10%.
3.0. Prices and payment
3.1. Our prices are quoted in Euros ex our warehouse (in the case of deliveries made directly by our suppliers, ex the supplying works), plus VAT and excluding packaging.
3.2. We may transmit invoices also electronically in compliance with the statutory requirements.
3.3. Payment shall be made without cash discounts within the agreed payment period, at the latest within 30 days after the invoice date, regardless of the receipt of any inspection documents (e.g. works certifications), in such a way that we can dispose of the amount on due date. The Customer may retain or set off any counterclaims only in so far as its claims are undisputed or have become legally binding.
3.4. Should the Customer not meet the payment deadline, it will be liable to pay interest at 8 percentage points above the basic interest rate, unless higher rates have been agreed upon. The right to claim further default damages remains reserved.
3.5. Should it become evident after the conclusion of the contract that payment is jeopardised by the Customer's lack in financial means, or should the Customer be in default with a considerable portion of the amount due, or should other circumstances arise which show a material deterioration in the Customer's financial position after the conclusion of the contract, we shall be authorised to make use of our statutory rights to refuse performance. We shall then also be entitled to fix a due date for all claims not yet due under any current business transaction that may exist with the Customer.
4.0. Shipping and passing of risk
4.1. Unless otherwise agreed, the forwarder or carrier will be chosen by us. The Customer must bear the costs of delivery, including unloading. We shall obtain insurance only upon the Customer's express instruction.
4.2. When the goods are handed over to a forwarding agent or a carrier, at the latest, however, when the goods leave the works or warehouse, the risk is transferred to the Customer in all cases including a seizure, even where deliveries are to be made fob, cif, prepaid or free Customer’s address or free place of destination.
4.3. The Customer shall immediately request delivery of those goods which have been notified to it as ready for dispatch. Otherwise we are entitled to store them at our discretion and to invoice the costs thus incurred to the Customer at a minimum of 0.7% per month of the invoice price. The Customer may prove lower damage. We reserve the right to claim additional damages resulting from default of acceptance.
4.4. The Customer must report transport damage immediately in writing to the carrier or other person commissioned with the carriage. The damage on arrival notification shall be indicated on the waybill, the forwarder’s order or the delivery note and be signed by the delivery driver; alternatively, a damage report is to be drawn up.
4.5. Should the goods not be called according to the contract, we shall be authorised to invoice them as having been delivered after a reasonable additional period of time.
4.6. If and in so far as the goods fail to be dispatched at the agreed time for reasons attributable to the Customer, the risk shall pass to the Customer at the day on which the goods are notified to be ready for dispatch.
5.0. Retention of title
5.1. All goods delivered to the Customer shall remain our property (Reserved Goods) until all of the Customer's accounts resulting from the business relationship with it, in particular any account balances, have been settled. This shall also apply to future and qualified claims, e.g. acceptor's bills, and in case payments are made related to specifically indicated claims.
5.2. The treatment and processing of the Reserved Goods shall be deemed made for us as manufacturer within the meaning of Section 950 of the Civil Code (BGB), without any obligation on our part deriving therefrom. The processed or manufactured goods shall be regarded as Reserved Goods within the meaning of Section 5.1 hereof. If the Customer processes, combines or mixes the Reserved Goods with other goods, we shall obtain pro-rated co-ownership in the new goods in proportion to the invoiced price of the Reserved Goods to the invoiced price of the other goods used. If our ownership ceases to exist as a result of combination or mixture, the Customer shall transfer already now its ownership rights in the new holding or object in the amount of the invoice value of the Reserved Goods and shall keep them in custody for us free of costs. Our co-ownership rights shall be regarded as Reserved Goods within the meaning of Section 5.1 above.
5.3. The Customer may resell the Reserved Goods only within the normal course of its business in accordance with its normal business terms and provided it is not in default of payment and provided also that any rights resulting from such resale will be transferred to us in accordance with Sections 5.4 through 5.6 below. The Customer shall not be entitled to dispose of the Reserved Goods in any other way.
5.4. The Customer's claims from the resale of the Reserved Goods are hereby assigned to us. Such claims shall serve as our security to the same extent as the Reserved Goods themselves. If the Reserved Goods are resold by the Customer together with other goods not purchased from us, then any receivables resulting from such resale shall be assigned to us pro-rated on the basis of the invoiced value of the other goods sold by the Customer. In the case of resale of goods in which we have co-ownership rights according to Section 5.2 above, the assignment shall be limited to the part that corresponds to our co-ownership rights.
5.5. The Customer shall be entitled to collect any receivables resulting from the resale of the Reserved Goods. This collection right shall expire if withdrawn by us, at the latest if the Customer defaults in payment, fails to honour a bill of exchange, or files for insolvency. We also shall be entitled to take the Reserved Goods back and to prohibit their resale, processing and removal. Taking back the goods shall not be deemed a rescission of the contract. The provisions of the German Bankruptcy Act (InsO) shall remain unaffected.
5.6. The Customer shall, upon our request, immediately inform its customers of such assignment to us – unless we do so ourselves – and to forward to us any information and documents necessary for collection. The Customer shall immediately inform us of any seizure or any other impairment of the Reserved Goods by a third party.
5.7. Should the total invoiced value of our collateral exceed the amount of the secured receivables by more than 50%, we shall, upon the Customer's request, release pro tanto collateral at our discretion.
6.0. Acceptance, test certificates, and weight
6.1. The nature, content and scope of any agreed tests and test certificates shall be subject to the standard DIN EN 10204 and the other relevant standards. The acceptance cost shall be subject to the price list of the supplying works. Any other cost incurred for tests shall be invoiced on a time and material basis.
6.2. Special acceptances shall be carried out immediately, at the latest 12 business days after the goods’ readiness for acceptance has been notified. After said period, the goods will be shipped without acceptance or stored at the Customer's cost and risk.
7.0. Copyright and confidentiality
7.1. We reserve the ownership right and copyright in and to cost estimates, designs, drawings and other documents; they may be copied only for the purposes of this Agreement; they may be disseminated, published or otherwise disclosed to third parties only with our consent. Any drawings and other documentation belonging to offers as well as copies thereof shall be returned upon request; any digital copies, e.g. on computers, shall be deleted with permanent effect.
7.2. Insofar as nothing to the contrary is expressly agreed in writing, the information provided by us in connection with orders shall not be deemed confidential.
8.0. Complaints and warranty for defects
8.1. The interior and exterior properties of the goods, in particular their grades of quality, types and dimensions, shall be determined by the criteria agreed in the contract, in the absence of an agreement by DIN/EN standards valid at the time of the conclusion of contract, and in absence of such standards according to custom and business practice. The reference to standards and similar sets of rules, works test certificates and similar certifications, as well as information about grades of quality, types, dimensions, weights and the usability of the goods shall not be considered as warranties or guarantees; the same applies to declarations of conformity and pertinent marks like CE and GS. The Customer shall bear any risks regarding suitability and usability.
8.2. To the inspection of the goods and the notification of defects, the statutory regulations shall apply, with the proviso that the duty to inspect the goods after delivery shall also include only test certificates in accordance with or corresponding to DIN EN 10204 and that any defects of the goods and test certificates shall be notified to us in writing.
8.3. If and in so far as the Customer's complaint as to defects is justified and has been made in time, we may, upon our discretion, remedy the defect or deliver non-defective goods (subsequent performance). In the case of unsuccessful subsequent performance, the Customer may, upon the lapse of an adequate additional period of time set by it, rescind the contract or reduce the purchase price. In cases where the defect is minor or where the goods have already been resold, processed or transformed, it may only reduce the purchase price.
8.4. We shall bear costs arisen in connection with subsequent performance only if they are reasonable with regard to the individual case, especially in proportion to the purchase price of the goods. We shall not bear any costs which arise because goods sold have been transferred to a location other than the agreed place of performance, unless this would correspond to their contractual use.
8.5. After the goods have been subject to testing and inspection by the Customer, such testing and inspection shall bar any claims for such defects that might have been determined by the agreed type of testing and inspection.
8.6. If the Customer fails to immediately give to us the opportunity to inspect the defect, especially if, upon our request, it fails to immediately make the goods or samples thereof available to us for testing purposes, it will lose all of its warranty rights.
8.7. Our further liability is subject to Section 9.0 hereof.
9.0. General Liability/Statute of Limitations
9.1. We are liable for breaches of contractual and non-contractual duties, especially those due to impossibility, delay, culpa in contrahendo and tortuous acts – also those committed by our senior staff and other vicarious agents – only in cases of wrongful intent or gross negligence. Our liability shall be limited to the typical loss foreseeable at the time of the conclusion of the contract. In other respects, our liability is excluded, also in relation to damage and consequential damage caused by defects.
9.2. The aforesaid restriction shall not apply to such cases where we breach our fundamental contractual obligations and where such a breach of contract will endanger the contractual purpose, or with regard to culpably caused damage to life, to the body or to health, or where we have assumed a guarantee for the quality of the goods sold, or in cases where our liability is compulsory under the German Product Liability Act (Produkthaftungsgesetz). The rules on the burden of proof shall remain unaffected hereby.
9.3. Unless otherwise agreed, any contractual claims which the Customer may have against us due to and in connection with the delivery of the goods or our other services shall fall under the statute of limitations within a period of one year after the goods have been delivered to the Customer. This limitation period shall also apply to such goods and services which, according to their normal purpose of use, have been used for constructional work related to real estate property and which have caused the defectiveness of such construction, unless this purpose of use has been agreed upon in writing. This limitation period shall not apply to our liability resulting from breaches of duty caused by our wrongful intent or by our gross negligence; neither shall it apply with regard to culpably caused damage to life, to the body or to health, and to any of the Customer's statutory rights of redress under Sections 478, 479 of the Civil Code (BGB).
10.1. In case the goods are manufactured in accordance with the Customer's drawings, samples and other instructions or specifications of the Customer, the Customer shall indemnify us against any third-party claims against us, including product liability claims, in respect of damage caused by the goods, unless such damage has been caused by us.
10.2. The Customer shall be liable for the production and delivery of the goods manufactured according to its instructions or specifications not infringing any intellectual property rights of third parties. The Customer shall compensate us for any damage caused by the assertion of such intellectual property rights. Sentences 1 and 2 shall not apply where the Customer is not responsible for such damage; this shall be evidenced by the Customer.
10.3. If such intellectual property rights are asserted by third parties, we shall be entitled to rescind the contract after the Customer has been heard without the need for any legal assessment of the potential third-party claims. This right of rescission shall not apply if the third party claimant notifies us in writing within 8 days from the assertion of the claim that it is withdrawing the claim. Any work rendered by us shall be remunerated in the event of rescission. This shall be without prejudice to any further statutory provisions.
11.0. Place of performance, jurisdiction and applicable law
11.1. The place of performance for our deliveries shall be our works. The place of jurisdiction shall be, in our discretion, either the court having jurisdiction for us or the Customer’s place of jurisdiction.
11.2. All legal relationships between us and the Customer 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).