General delivery terms of wekomm engineering GmbH

§ 1 Validity

(1) All deliveries, services and offers of wekomm engineering GmbH (hereinafter called "vendor") shall be provided exclusively on the basis of these general delivery terms. These are an integral part of all contracts, which the vendor concludes with the contracting parties (hereinafter called "clients") regarding the deliveries or services offered. They also apply to all future deliveries, services or offers to the client, even if they are not separately agreed upon again.

(2) Trading conditions of the client or of a third party do not apply, even if the vendor does not separately contradict their validity in specific cases. Even if the vendor refers to a letter, which contains or refers to trading conditions of the client or a third party, this does not suggest any agreement to the validity of such terms and conditions.

§ 2 Offer and conclusion of a contract

(1) All offers of the vendor are non-binding and noncommittal, if they are not expressly marked as binding or contain a specific term of acceptance. The vendor can accept purchase orders or work orders within 4 weeks of receipt.

(2) The sole relevant factor for the legal relations between vendor and client is the sales agreement concluded in writing, including these general delivery terms. This specifies in full all agreements between the contracting parties concerning the subject matter of the contract. Verbal consents of the vendor expressed prior to conclusion of the present contract are legally noncommittal and verbal agreements of the contracting parties shall be replaced by the written contract, unless it is expressly stated therein that they will continue to be binding in each case.

(3) Additions and alterations of the agreements met including these general terms of delivery shall only be effective in writing. With exception of the managing directors or proxy holders, the employees of the vendor are not authorised to meet verbal agreements that deviate from this contract. To comply with the written form, transmission by telecommunications is sufficient, in particular by telefax or by e-mail, if the copy of the signed declaration is transmitted.

(4) Information provided by the vendor concerning the object of the delivery or service (e.g. weights, measurements, values in use, load capacity, tolerances and technical data) as well as our illustrations of the same (e.g. drawings and pictures) shall be deemed approximate, unless the usability requires precise conformity for a contractually envisaged purpose. They are not guaranteed characteristics, but merely descriptions or identifications of the delivery or service. Deviations usual in trade, and deviations which occur due to legal regulations or which represent technical improvements, as well as the replacement of components by equivalent parts, are permissible, as far as they do not impair the usability for the contractually intended purpose.

(5) The vendor reserves the right of property or copyright on all and any quotations and estimates of cost and of all drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the client. The client is not permitted to make these available to third parties, publicise them or exploit them or allow them to be exploited by third parties in their original form or in terms of their content or reproduce or store them in any form without the express consent of the vendor. On first request by the vendor, the client shall return all these objects in full to the vendor and destroy any copies in his or her possession as long as they are no longer required in the normal course of business or if the negotiations do not end in conclusion of a contract.

§ 3 Prices and payment

(1) Prices apply to the deliveries and services given in the confirmation of order. Additional or special services shall be charged separately. Prices are quoted in euros ex works excluding packaging and the statutory VAT and, for export orders, customs duties and any other fees or charges charged by the authorities.

(2) Where the agreed prices are based on the vendor's list prices and the delivery is not to take place until more than four months after conclusion of the contract of sale, the vendor's list prices valid on the date of delivery are deemed to apply (less any agreed percentage or fixed discount).

(3) Invoiced amounts are payable without deduction within thirty days unless otherwise agreed in writing. The date of receipt by the vendor shall be deemed to be decisive as the date of payment. Cheques are not deemed to constitute payment until honoured. Where the client does not make payment by the due date, all and any outstanding amounts become subject to interest of 8% p.a. from the due date; the right to apply higher rates of interest and to claim additional damages in the event of default remains unaffected.

(4) It is only permitted to offset or retain outstanding amounts against counterclaims by the client if those counterclaims are non-contentious or legally enforceable.

(5) The vendor reserves the right not to perform deliveries or services until prepayment or collateral has been provided if, after conclusion of the contract, circumstances come to his notice which might seriously impair the creditworthiness of the client and which may endanger payment by the client of open claims by the vendor resulting from the current contractual agreement (including claims from other individual orders placed under the same master agreement).

(6) If the client withdraws from the contract after conclusion of the contract or circumstances come to the note of the vendor which might seriously impair the full acceptance of the services or might seriously impair the creditworthiness of the client the seller may in accordance with the manufacturing or development status of the order interrupt or halt the production and demand a compensation of 80% of the contract sum.

§ 4 Delivery and delivery time

(1) Deliveries are made ex works.

(2) Time periods and deadlines communicated by the vendor for deliveries and services are deemed as approximate unless a firm period or date has been specified or agreed and they shall be subject to the provision that the vendor himself receives deliveries correctly and punctually. Where dispatch has been agreed, the delivery periods and delivery dates apply to the date of hand-over to the forwarding company, driver or third party commissioned to organise the transport.

(3) The vendor can – without prejudice to his rights resulting from the default of the client – demand that the client accept an extension or postponement of the delivery periods by that period of time in which the client has failed to meet his/her contractual obligations towards the vendor, in particular with regard to the provision of products, production accessories and testing stations.

(4) The vendor shall not be liable for non-delivery or non-supply or late delivery or supply of goods or services where this is as a result of force majeure or other events not foreseeable at the time the contract was concluded and for which the vendor is not responsible (e.g. interruptions to production of any kind, difficulties procuring materials and power, delays in transport, strikes, legal lockouts, insufficient supplies of skilled workers, power or raw materials, difficulties obtaining the necessary permissions from the authorities, measures imposed by regulatory bodies, wrong or late delivery or non-delivery by our suppliers). Where these events make it difficult or impossible for the vendor to supply the goods or services and the delay is not only of a transient nature, the vendor reserves the right to withdraw from the contract. If the delay is perceived to be of a transient nature, the delivery or supply period is deemed to be put back by the same period as the delay plus an appropriate period for adjustment to the changed circumstances. If the client cannot, as a result of the delay, be expected to take delivery of the products or services, he/she is entitled to withdraw from the contract by means of an immediate declaration in writing to the vendor.

(5) The vendor is entitled to make partial deliveries, if

  • the partial delivery is usable for the client within the scope of the contractually intended purpose,
  • the delivery of the remaining ordered goods is ensured

(6) If the vendor should be in default with a delivery or service or if a delivery or service should become impossible to deliver for whatever reason, the liability of the vendor for damages is restricted as defined in § 8 of these general delivery terms.

§ 5 Place of performance, shipping, packaging, transfer of risk, acceptance

(1) Place of performance for all obligations arising from this contractual agreement is Planegg unless otherwise agreed. If the vendor is also required to install the goods, the place of performance shall be the place where the goods are to be installed.

(2) The method of dispatch and packaging are at the due discretion of the vendor.

(3) The risk is deemed to be transferred to the client at the latest with hand-over to the forwarding agent, driver or other person engaged to organise the shipment of the goods to be delivered to the client (whereby the commencement of the loading process is the determining factor). This shall also apply to partial deliveries and cases where the vendor has agreed to supply additional services (e.g. shipping or installation). If dispatch or hand-over is delayed for reasons for which the client is responsible, risk is transferred to the client on the day on which the delivery is ready for dispatch and the vendor has communicated this fact to the client.

(4) All and any warehousing costs incurred after transfer of risk are to be borne by the client. If warehousing is arranged by the vendor, the costs shall be [0.25]% of the invoice amount per full week of storage of the goods. We retain the right to claim additional or lower storage charges on the basis of appropriate documentation.

(5) Shipments are only insured against theft, breakage, transport damage, fire and water damage and other insurable risks if the client expressly requests this and agrees to pay the charges.

(6) If an acceptance has to take place, the purchased item is considered as accepted, if

  • the delivery and, if the vendor is also responsible for the installation, the installation has been completed,
  • the vendor has indicated this to the client with reference to notional acceptance as per § 5 (6) and has asked the client for acceptance,
  • [twelve] working days have passed since delivery or installation or the client has started using the purchased item (e.g. commissioning of the delivered machine) and, in this case, [six] working days have passed since delivery or installation and
  • the client refrains from accepting the purchased item within this period for a different reason than a shortcoming indicated to the vendor, which makes the use of the purchased item impossible or substantially impairs it.

§ 6 Guarantee, material defects

 (1) The warranty period is one year starting from the date of delivery or, where acceptance testing is required, from the date of the successful acceptance test.

(2) The products supplied shall be carefully inspected without delay on receipt by the client or the third party named by the client. They are deemed as having been approved by the client with regard to obvious shortcomings or other defects, which would have been recognisable during an immediate, careful inspection, if the vendor does not receive a written notice of defects within seven working days after delivery. With regard to other defects the delivered items are deemed as approved by the client if the notice of defects does not reach to the vendor within seven working days after the point in time, when the defect was discovered; if the defect was however recognisable for the client at an earlier point in time during normal use, then this earlier point in time is relevant for the beginning of the period allowed for examination and sending notice of a defect or deficiency. If the vendor so requests, the goods which are subject of the complaint shall be returned to the vendor carriage paid. Where complaints are justified, the vendor shall reimburse the costs for the cheapest method of dispatch; however this shall not apply if these charges increase simply because the goods are at an address which differs from the location given for the intended use.

 (3) Where the goods delivered have material defects, the vendor is obliged and entitled to choose either to repair or rework the goods or to replace them at his discretion, whereby the decision is to be taken within a reasonable time period. In the event of complete failure, i.e. if it is impossible for the vendor to repair or replace the goods, or if it is unreasonable for him to do so, or if he refuses to do so or if there are unacceptable delays in the repair or replacement, the client may withdraw from the contract or make a reasonable reduction in the price paid.

(4) If a defect is attributable to the vendor, the client may claim damages under certain circumstances as defined in § 8.

(5) If the defects are in components supplied by a different manufacturer and the vendor is not permitted for licensing reasons or is not able to remedy them, the vendor shall at his discretion either make a claim under warranty against the manufacturer and supplier on behalf of and for the account of the client or assign that right to the client. Warranty claims against the vendor with regard to defects of this type under the conditions as defined in these general delivery terms shall only apply if it has not been possible to enforce the claims against the manufacturer and supplier through court action or where there is no reasonable hope of enforcing the claims, e.g. due to bankruptcy. For the duration of litigation, the statute of limitations for the client’s warranty claims against the vendor is suspended.

(6) The guarantee lapses if the client modifies the goods delivered or has them modified by a third party without the consent of the vendor and remedy of the defect is either impossible or unreasonable as a result of this modification. In any case, the client shall bear those additional costs for the remedy that are attributable to the modification.

(7) Delivery of used products as agreed in individual cases with the client shall exclude all and any guarantee for material defects.

(8) The guarantee lapses, if the client operates the products or components delivered by the vendor outside of the specifications designated by the vendor or the manufacturer, in particular if it exposes the products or components to temperatures or mechanical loads that are different to the intended ones.

§ 7 Proprietary rights

(1) The vendor guarantees for the purposes of this § 7 that the goods delivered are free from proprietary rights or copyright of third parties. Each party shall notify the other contractual party immediately in writing if any claim is made against him/her regarding violation of such rights.

(2) If the goods delivered should in fact violate the proprietary rights or copyright of a third party, the vendor shall at his discretion and at his own expense modify goods delivered or replace them in such a way that no violation of the rights of third parties occurs but that the goods delivered still provide the functions contractually agreed or, after concluding a Licence Agreement, the vendor shall provide the client with the rights to use the products. If he does not manage to do this within a reasonable period of time, the client shall be entitled to withdraw from the contract or make a reasonable reduction to the purchase price. Any claims for damages by the client are subject to the restrictions defined in § 8 of these general delivery terms.

(3) If products manufactured by other manufacturers and supplied by the vendor violate any third party rights, the vendor shall at his discretion claim against the manufacturer and its suppliers on behalf of and for the account of the client or assign his rights to the client. Claims against the vendor with regard to such cases under the conditions as defined in § 7 shall only apply if it has not been possible to enforce the claims against the manufacturer and supplier through court action or where there is no reasonable hope of enforcing the claims, e.g. due to bankruptcy.

§ 8 Liability for culpable damages

(1) The liability of the vendor for damages, for whatever legal reason, in particular resulting from impossibility, delay, non-conform or incorrect delivery, breach of contract, violation of obligations during contractual negotiations and unlawful acts where the vendor is culpable, is restricted by this § 8.

(2) The vendor shall not be liable in the event of simple negligence by the executive bodies and/or officers of the company, employees or other agents unless a violation of obligations under the contract is involved. Key elements of the contract are the obligation to deliver in a timely manner and install the goods delivered free of any major defects that would have any significant impact on the operational capability or usability and the obligations applying to consultancy services, protection and care, which are intended to enable the client to use the goods delivered in accordance with the contract or protect life and limb of the client's staff or to prevent major damage or injury to his property.

(3) Where the vendor is liable for damages in principle in accordance with § 8 (2), this liability is restricted to damage that the vendor considered as possible consequences of a breach of contract at the time of signing or which he should have predicted had he applied normal care and attention. Indirect damage and consequential damages as a result of defects in the goods delivered are only eligible for replacemnt if the damage or injury could normally be foreseen when the goods delivered are used in accordance with the intended purpose.

(4) In the event of liability for simple negligence, the vendor's duty of replacement for damage to property and any consequential intangible damage is restricted to 10,000,000.- euros per case, even if it is a violation of obligations under the contract.

(5) The above-mentioned disclaimers and restrictions apply to the same extent to the executive bodies, legal agents of the company, employees and other agents of the vendor.

(6) Where the vendor provides technical information or acts as a consultant, and this information or advice is not part of the contractually agreed services or one which he is duty bound to provide, it is provided free of charge and no liability at all is accepted therefor.

(7) The restrictions in this § 8 do not apply to the vendor's liability for intentional actions, guaranteed quality features, injury to life and limb or health generally or under product liability legislation.

§ 9 Retention of title

(1) The retention of title agreed upon in the following serves to safeguard all existing present and future demands of the vendor against the client arising from the supply relationship existing between the contracting parties (including any balance claims related to the limited current account of the supply relationship).

(2) The goods delivered by the vendor to the client remain the property of the vendor until the client has paid the complete purchase price. The goods supplied and any goods that replace these and that are subject to this retention of title are referred to as the "goods subject to retention of title".

(3) The client keeps the goods subject to retention of title free of charge for the vendor.

(4) The client is entitled to process and resell the goods subject to retention in normal business transactions until such time as a claim is made against them (enforcement of retention of title, section 9). It is not permitted to mortgage the goods or use them as collateral.

(5) If the goods subject to retention are processed by the client, it is deemed to be on behalf of and for the account of the vendor as the manufacturer and the vendor directly acquires property or – if the processing involves materials provided by a number of owners or the value of the processed goods exceeds that of the goods subject to retention – partial property in the items thus created and at a ratio of the value of the goods subject to retention to the value of the new items. In the event that the vendor should not be able to acquire property rights as described herein, the client agrees now to transfer his/her future property or partial property in the new items, as described above, to the vendor as collateral. If the goods subject to retention become an integral part of another item and if that item is considered to be the main item, the client becomes joint owner of the main item to an extent which is proportionate to the value of the vendor's property in the new item as defined in sentence 1 in so far as the vendor is the owner of the main item.

(6) In the event that the goods subject to retention are resold, the client hereby assigns to the vendor as collateral any claims he may in future have against the buyer in an amount proportionate to the vendor's property in the goods delivered. The same applies to other claims, which take the place of the goods subject to retention or otherwise regarding the goods subject to retention, such as e.g., insurance claims or tort claims resulting from loss or destruction. The vendor grants the client revocable authorisation to collect the claims assigned to the vendor in his own name. The vendor may only revoke this power to collect in the event a claim is made.

(7) If third parties attempt to seize the goods subject to retention, in particular through distraint orders, the client shall without delay notify those third parties that the vendor has property / partial property in those items, and notify the vendor of this fact to enable him to take steps to secure his property rights. If the third parties are not in a position to reimburse the vendor for the costs incurred in this connection whether in court or out of court, the client shall be liable to the vendor.

(8) The vendor shall release the goods subject to retention and items or claims that have replaced them at his own discretion on request to the extent that their value exceeds the claims secured by them by more than 50%. It rests with the vendor to decide which items can be released thereafter.

(9) If the vendor withdraws from the contract (enforcement) due to a violation of the contract by the client – in particular delay of payment – he shall be entitled to require return of the goods subject to retention.

 § 10 Final clauses

(1) If the client is a merchant, a legal entity under public law or public law special assets or does not have a place of general jurisdiction in the Federal Republic of Germany, then the place of jurisdiction for all disputes arising from the business relation between the vendor and the client is, according to the choice of the vendor, either Munich (München) or the place of business of the client. In the event of legal action against the vendor, however, the exclusive place of jurisdiction is Munich (München). Binding legal provisions relating to exclusive courts of jurisdiction shall remain unaffected by this provision.

(2) All relationships between the vendor and the client are subject exclusively to the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11 April 1980 is excluded.

(3) If the contract or these general delivery terms are found to contain gaps or ineffective clauses, the parties agree to find a provision or fill the offending gap with a provision which is enforceable and comes closest to the original commercial intentions of the parties when the unenforceable clause in the contract or general delivery terms were written if they had considered the unenforceability or incompleteness at the time.

Note:

The client is aware that the vendor stores certain data relating to the contractual agreement in accordance with § 28 of the German Data Protection legislation for the purpose of data processing and reserves the right to transmit these data to third parties (e.g. insurance companies) provided this is necessary for fulfilment of the contract.

The client is aware, that this translation is meant for informational purposes only. In any case of doubt or legal relevance the german original found here is and will only be valid !