General terms and conditions of Günther Wensing GmbH und Co KG
As of 25.01.2019
General delivery and sales conditions
for products and services of
Günther Wensing GmbH & Co. KG
in line with the neutral conditions recommended by ZVEI e.V. (Central Association of the German Electrical Industry).
I. General provisions
1. For the scope of the deliveries or services (hereinafter referred to as deliveries), the written declarations of both parties shall be decisive. However, the general terms and conditions of the purchaser apply only to the extent that the supplier or provider (hereinafter referred to as supplier) has expressly agreed to them in writing.
2. The supplier reserves the unrestricted exploitation rights in terms of ownership and copyright for cost estimates, drawings and other documents (hereinafter referred to as documents). The documents may only be made accessible to third parties with the prior consent of the supplier and must, upon request, be returned to the supplier immediately if the contract is not awarded to the supplier. Sentences 1 and 2 respectively apply to the purchaser’s documents; these may, however, be made accessible to third parties who have been authorized by the supplier to make deliveries.
3. The purchaser has the non-exclusive right to use standard software with the agreed performance characteristics in unchanged form on the agreed equipment. The purchaser may not make a back-up copy without express agreement.
4. Partial deliveries are permitted, provided they are reasonable for the purchaser.
II. Prices and terms of payment
1. The prices are in EUR. Value added tax will be added at the statutory rate applicable on the day of performance (for down payments: on the day of payment).
The prices do not include customs duties or other import duties; they must be borne by the purchaser. If, in exceptional cases, the supplier has assumed these costs at fixed rates, any increases, e.g. due to legislative changes, shall be borne by the purchaser.
The costs of packaging will be invoiced separately. Special packaging remains the property of the supplier and will be charged at rental rates based on cost price; it must be returned to the supplier immediately, freight paid.
2. If the supplier is responsible for assembly or installation and unless otherwise agreed, the purchaser bears in addition to the agreed remuneration all necessary incidental expenses such as travel expenses, costs for the transport of tools and personal luggage as well as allowances.
3. Payments shall be made in EURO without any deductions, free of charges to the supplier's paying office, as follows:
a.) Payment terms within the European Union:
40% down payment due 14 days after receipt of the order confirmation
20% payment due 14 days after presentation of the layout or the assembly plan of the system to be delivered
30% payment due 14 days after delivery of the system
10% payment due 14 days after acceptance of the system, but not later than 60 days after delivery
Payment terms outside of the European Union (in this case only transactions with LC coverage or with advance payment):
30% down payment due 14 days after receipt of the order confirmation
60% payment due 14 days after "Bill of Lading" of the system to be delivered
10% payment due 14 days after acceptance of the system, but not later than 60 days after delivery.
b.) In the case of deliveries and work for which no provisional final sum can be determined when placing the order, the supplier reserves the right, depending on the circumstances, to request a down payment when placing the order and partial payments during the execution of the work in accordance with the costs incurred. Down payments and partial payments are not subject to interest.
c.) The delivery period begins on the day the down payment is received, provided that the other contractual conditions applicable to this have been fulfilled.
d.) For payments of all kinds, the settlement date is the date on which the amount is freely at the disposal of the supplier.
e.) If the payment dates are exceeded, the consequences of default arise without the need for a special reminder. Notwithstanding any other or further rights and claims, default interest is due annually at a rate of 8 percentage points above the base interest rate.
f.) If the purchaser is in default of payment of the price, the supplier is entitled to demand the return of the goods and compensation for non-performance (see also Art. III "Retention of title"). In the event of default, in particular suspension of payments, request for a settlement or moratorium, all claims of the supplier become due immediately.
g.) The supplier is entitled to offset all claims against the purchaser it or the companies in which Günther Wensing GmbH & Co. KG is directly or indirectly holding a majority interest is entitled to against all claims the purchaser has against the supplier or one of the aforementioned companies. On request, the supplier will send the purchaser a list of the companies.
The purchaser may offset claims of the supplier only with undisputed or legally established claims.
III Retention of title
1. The items of delivery (reserved goods) remain the property of the supplier until all claims from the business relationship to which the supplier is entitled against the purchaser are fulfilled.
2. Handling and processing of the delivery item are carried out for the supplier without placing it under any obligation. In the event of processing, combining or mixing (together referred to as “processing”, respectively “processed”) of the delivery item with other items not belonging to the supplier, the purchaser and the supplier hereby agree that the supplier - unless the supplier has further rights - acquires co-ownership of the processed items (hereinafter together referred to as "new goods") in the amount of the portion resulting from the ratio of the value of the processed delivery item to the value of the other processed goods at the time of processing. The purchaser stores the new goods for the supplier with the care of a prudent businessman.
3. If the purchaser sells the delivery item or the new goods, the purchaser hereby assigns to the supplier already now his claims from the resale against the purchaser with all ancillary rights - including any balance claims. However, the assignment applies only to the amount corresponding to the value of the processed delivery item invoiced by the supplier. The portion of the claim assigned to the supplier is to be satisfied with priority.
Until revoked, the purchaser is authorised to collect the assigned claims from the resale. At the request of the supplier, the purchaser is obliged to inform its customers immediately of the assignment and to provide the supplier with the information and documents required to assert the rights against the customer.
4. If the realisable value of all security rights to which the supplier is entitled exceeds the amount of all secured claims by more than 20%, the supplier will release a corresponding part of the security rights at the request of the purchaser; the supplier is entitled to choose between different security rights for release.
5. The purchaser must inform the supplier without delay in the event of seizure, confiscation or other dispositions or interventions by third parties.
6. If the purchaser is in breach of his obligations, in particular if it is in default of payment, the supplier is entitled to withdraw from the contract and take back the retained goods after the expiry of a reasonable period of grace granted to the purchaser for performance; the statutory provisions on the dispensability of setting deadlines remain unaffected. The purchaser is obliged to surrender the goods.
7. Any costs of collection are borne by the purchaser. The purchaser must take all necessary measures at its own expense to prevent impairment or loss of the rights to which the supplier is entitled in the delivery item or the new goods. The supplier is entitled to compensation in the event of non-compliance with the obligations of the purchaser under Article III.
IV. Deadlines for deliveries; delay
1. The observance of deadlines for deliveries presupposes the legal receipt of all documents, necessary permits and releases, in particular of plans, to be supplied by the purchaser as well as the observance of the agreed terms of payment and other obligations by the purchaser.
If these conditions are not fulfilled in time, the deadlines shall be extended accordingly; this shall not apply if the supplier is responsible for the delay.
2. This is subject to correct and timely self-delivery. The supplier will inform the purchaser immediately of the non-availability of the delivery item and, in case of withdrawal, immediately refund the purchaser with an equivalent service.
Circumstances for which the supplier is not responsible also include difficulties in procuring the supplies (including raw materials) and services required for the delivery.
The supplier does not guarantee the quality or durability of the delivery. The supplier is not responsible for defects in the delivery procured from third parties and forwarded to purchaser unchanged.
3. If non-compliance with the deadlines is due to force majeure, e.g. mobilisation, war, riot or similar events, e.g. strike, lockout, the deadlines are extended accordingly.
4. If the supplier is responsible for the delay and the purchaser has suffered any damage as a result, the purchaser can demand compensation for each completed week of delay of 0.5% in total, but not more than 5% of the price of that part of the delivery which could not be put into appropriate operation due to the delay.
5. Purchaser's claims for damages due to delayed delivery as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above shall be excluded in all cases of delayed delivery, even upon expiry of a deadline set to the supplier to effect the delivery. This does not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body or health.
The purchaser may only withdraw from the contract within the framework of the statutory provisions if the supplier is responsible for the delay in delivery.
The above provisions do not imply a change in the burden of proof to the disadvantage of the purchaser.
6. At the supplier's request, the purchaser is obliged to declare within a reasonable period of time whether it will withdraws from the contract due to the delayed delivery or insists on the delivery to be carried out.
7. If dispatch or delivery is delayed at the purchaser's request by more than one month after notification of readiness for dispatch, the purchaser may be charged storage costs of 0.5 % of the price of the items of the deliveries for each new months, but no more than a total of 5 %.
The parties to the contract shall be free to prove higher or lower storage costs.
V. Transfer of risk
1. The risk is transferred to the purchaser as follows, even in the case of freight-paid delivery:
a.) For deliveries without assembly or installation, when they have been dispatched or collected. At the request and expense of the purchaser, the supplier insures the deliveries against the usual risks of transport.
b.) In the case of deliveries with assembly or installation on the day of acceptance in facility or, in as far as agreed, after proper trial operation.
2. If dispatch, delivery, start, performance of installation assembly, acceptance in own facility or trial run is delayed for reasons for which the purchaser is responsible or if the purchaser has otherwise failed to accept the deliveries, the risk passes to the purchaser.
VI. Assembly and installation
Unless otherwise agreed in writing, the following provisions apply to assembly and installation:
1. The purchaser must bear the costs for and provide in a timely manner:
a.) All earthwork, construction work and other secondary work outside the industry, including the necessary skilled and unskilled labour, building materials and tools,
b.) The commodities and materials required for installation and commissioning, such as scaffolding, lifting gear and other devices, fuels and lubricants,
c.) Energy and water at the point of use, including connections, heating and lighting,
d.) At the assembly site, sufficiently large, suitable, dry and lockable rooms for the storage of machine parts, equipment, materials, tools, etc. and adequate working and recreation rooms for the installation staff, including sanitary facilities according to the circumstances; in addition, the purchaser must take the same measures to protect the possessions of the supplier and the installation staff at the site as it would take to protect its own possessions.
e.) Protective clothing and protective devices which are necessary due to special circumstances at the installation site.
2. Prior to the start of the installation work, the purchaser must provide the necessary information on the location of hidden power, gas and water lines or similar installations as well as the necessary structural data without being asked.
3. Prior to assembly or installation, the materials and equipment necessary for the work to start must be available at the installation or assembly site and any preparatory work must have advanced to such a degree that assembly or installation can be started as agreed and carried out without interruption. Access roads and the assembly or installation site must be level and clear.
4. If assembly, installation or commissioning is delayed due to circumstances for which the supplier is not responsible, the purchaser must bear the costs incurred for idle times and any additional travelling of the supplier or the installation staff to a reasonable extent.
5. The purchaser must provide the supplier with a weekly certificate of the hours worked by the installation staff and immediately confirm the completion of the assembly, installation or commissioning to the supplier.
6. If the supplier demands acceptance of the delivery after completion, the purchaser must carry this out within two weeks. If this is not done, acceptance is deemed to have taken place. Acceptance is also deemed to have taken place when the delivery has been put to use, if necessary after completion of an agreed test phase.
The purchaser may not refuse to accept deliveries due to minor defects.
VIII. Material defects
The supplier is liable for material defects as follows
1. All parts or services which show a material defect within the limitation period - irrespective of the operating time - must, at the discretion of the supplier, be repaired, replaced or delivered again free of charge, provided that the cause of the defect already existed at the time of risk transfer.
2. Claims for material defects expire after 12 months. This does not apply where longer periods are specified by law according to sections 438 para. 1 No. 2 (buildings and things used for a building), 479 para. 1 (recourse claim) and 634a para. 1 No. 2 (defects of a building) of the German Civil Code (BGB) as well as in cases of injury to life, body or health, or where the supplier intentionally or grossly negligently fails to fulfil its obligation or fraudulently conceals a defect. The statutory provisions on suspension of expiry, suspension and recommencement of the deadlines remain unaffected.
The purchaser must notify the supplier immediately in writing of any material defects.
4. In the event of notices of defects, payments by the purchaser
may be withheld to an extent which is in reasonable proportion to the material defects that have occurred. The purchaser may withhold payments only if a notice of defect is claimed, the justification of which is beyond doubt.
If the notice of defects is unjustified, the supplier is entitled to ask the purchaser for reimbursement of the expenses incurred.
5. First of all, the supplier must be given the opportunity for subsequent performance within a reasonable period.
6. If the subsequent performance fails, the purchaser may - without prejudice to any claims for damages under Art. XI - withdraw from the contract or reduce the remuneration.
7. There will be no claims for defects for only slight deviations from the agreed quality, for only minor impairment of usefulness, for normal wear and tear or damage arising after the transfer of risk as a result of faulty or negligent handling, excessive strain, unsuitable operating equipment, defective workmanship, unsuitable subsoil or as a result of special external influences not specified in the contract, or for non-reproducible software errors. If improper modifications or repairs are made by the purchaser or third parties, no claims for defects exist for these and the resulting consequences.
8. Claims by the purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded to the extent that expenditures increase because the object of the delivery was later transferred to a location other than the purchaser's branch office, unless the transfer was necessary to fulfil its intended use.
9. Recourse claims by the purchaser against the supplier according to sec. 478 BGB ("recourse of the entrepreneur") are limited to cases where the purchaser has not concluded any agreements with its client exceeding the scope of the statutory provisions governing claims for defects. Furthermore, No. 8 applies to the scope of the purchaser’s recourse right against the supplier according to sec. 478 para. 2 BGB.
10. Art. XI (Other claims for damages) applies to claims for damages.
11. Any further or other claims than those covered in this Art. VIII by the purchaser against the supplier and its agents for material defect are excluded.
IX. Industrial property rights and copyrights; defects of title
1. If not otherwise agreed upon, the supplier is obliged to render the delivery free of any third party industrial property rights and copyrights (hereinafter referred to as property rights) solely in the country of the place of delivery.
If a third party makes justified claims against the purchaser due to an infringement of property rights through deliveries provided by the supplier and used in conformity with the contract, the supplier is liable to the purchaser within the time period stipulated in Art. VIII No. 2 as follows:
The supplier shall, at its own option and expense, either obtain a right of use for the deliveries concerned, modify them so that the property right is not infringed, or replace them. If this is not possible for the supplier under reasonable conditions, the purchaser is entitled to the statutory rights of withdrawal or reduction.
The supplier's obligation to pay damages is governed by Art. XI
The above obligations of the supplier apply only if the purchaser immediately notifies the supplier of any such claim asserted by the third party in writing, does not concede the existence of an infringement and leaves any protective measures and settlement negotiations to the discretion of the supplier.
If the purchaser suspends the use of the delivery in order to reduce the damage or for other important reasons, it undertakes to inform the third party that the suspension of use does not involve any acknowledgement of an infringement of a property right.
2. Claims of the purchaser are excluded insofar as it is responsible for the infringement of the property right.
3. Claims of the purchaser are further excluded insofar as the
infringement of property right is caused by special stipulations of the purchaser, by an application which was not foreseeable by the supplier or due to the fact that the delivery is changed by the purchaser or used together with products which were not delivered by the supplier.
4. In the event of any infringement of property rights, the claims of the purchaser covered in No. 1 a) apply; otherwise, the provisions of Art. VIII No. 4, 5 and 9 apply accordingly.
5. In case of other defects of title, the provisions of Art. VIII apply accordingly.
6. Any further or other claims than those covered in this Art. IX by the purchaser against the supplier and its agents for defect of title are excluded.
X. Impossibility; contract adjustment
1. If delivery is impossible, the purchaser is entitled to claim damages unless the supplier is not responsible for the impossibility. However, the purchaser's claim for damages is limited to 10% of the value of that part of the delivery which cannot be taken into operation because of the impossibility. This limitation does not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body or health; this does not imply a change in the burden of proof to the disadvantage of the purchaser.
The right of the purchaser to withdraw from the contract remains unaffected.
2. If unforeseeable events within the meaning of Art. IV No. 3 substantially change the economic importance or the contents of the delivery or considerably affect the supplier's business, the contract will be adapted appropriately in good faith. If this is not economically justifiable, the supplier is entitled to withdraw from the contract. If the supplier intends to exercise its right to withdraw from the contract, it must notify the purchaser thereof without undue delay after having realized the repercussions of the event; this also applies even where an extension of the delivery period has previously been agreed with the purchaser.
XI. Other claims for damages
1. Claims for damages and reimbursement of expenses of the purchaser (hereinafter referred to as claims for damages), regardless of the legal grounds, in particular those based on the breach of duties arising from the debtor relationship or from illegal acts, are excluded.
2. This does not apply in cases of mandatory liability, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, body or health, or breach of essential contractual duties. However, the claim for damages for the breach of essential contractual duties is limited to the contract-typical, foreseeable damage, as far as there is no intent or gross negligence or liability for injury to life, body or health.
The above provisions do not imply a change in the burden of proof to the disadvantage of the purchaser.
3. Insofar as the purchaser is entitled to claim damages under this Art. XI., such claims will become time-barred upon expiration of the limitation period applicable to claims for material defects according to Art. VIII No. 2. In the case of claims for damages under the Product Liability Act, the statutory limitation provisions apply.
XII. Place of jurisdiction and applicable law
1. If the purchaser is a merchant, the general place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of the supplier. However, the supplier is also entitled to bring an action at the purchaser’s place of business.
2. The legal relations in connection with this contract is governed by German substantive law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIII. Binding nature of the contract
Even if individual provisions are legally ineffective, the remaining parts of the contract remain binding. This shall not apply if adherence to the contract would constitute unreasonable hardship for one of the parties.