there is nothing more constant than changethere is nothing more constant than changeGeneral Terms and Conditions of Sale and Delivery of the company Wenker GmbH & Co. KG
I. Scope of application, information, general
[1] Corporate clients
Customers within the meaning of these General Terms and Conditions of Sale and Delivery (hereinafter referred to as GTCS) are entrepreneurs.
[2] Exclusivity
These General Terms and Conditions of Sale and Delivery shall apply exclusively between us and our customers. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example, even if we carry out the delivery to the customer without reservation in the knowledge of the general terms and conditions of the customer.
[3] Definition
An entrepreneur within the meaning of these General Terms and Conditions of Sale and Delivery (GTCS) is, in accordance with Section 14 German Civil Code (BGB), any natural or legal person or a partnership with legal capacity (e.g. public limited company, limited liability company) who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity. A partnership with legal capacity is a partnership endowed with the capacity to acquire rights and incur liabilities.
[4] Framework agreement
These GTCS apply in the version valid at the time of the customer's order as a framework agreement also for similar future contracts without us having to refer to them again in each individual case.
[5] Individual agreement
Individual agreements made with the customer in individual cases, including ancillary agreements, supplements and amendments, shall in all cases take precedence over these GTCS. Subject to proof to the contrary, a written contract or the written order confirmation shall be authoritative for the content of such agreements.
[6] HGB
All pertinent commercial regulations shall apply.
II. Conclusion of contract, cost estimate, payment
[1] Offer, cost estimate
At the customer's request, we arrange an appointment with the customer – also on site – to plan the individual order. This does not mean that a contract has been concluded.
Illustrations, information or drawings contained in our brochures, advertisements and other offer documents are only approximately authoritative unless the information contained therein has been expressly designated by us as binding.
[2] Conclusion of contract, content
We shall be bound by a cost estimate prepared by us for 14 days. For the conclusion of the contract it is sufficient if the customer accepts the offer made in the form of the cost estimate.
If the order suggested and set out in the cost estimate is not placed by the customer, we are at liberty to charge a reasonable and customary fee for the preparation of the cost estimate. However, this fee will be agreed with the client before the estimate is drawn up.
Otherwise, orders shall only be deemed to have been accepted by us when corresponding orders from the customer have been confirmed by us in writing or by fax.
We reserve the right to make technical improvements and design changes due to further development if these should be necessary to achieve the purpose of the contract due to legal regulations, official requirements or according to the latest technological standards, or if this does not affect the agreed quality or impair the suitability of the delivery item for the contractually stipulated use. Insofar as such take place during the acceptance period of an offer submitted by us, the contract shall also be deemed to have been fulfilled by us insofar as we deliver the product in the technically modified form. We are not obliged to make design changes and technical improvements to products already delivered, provided that the products already delivered are not defective.
[3] Due date, default
Our (partial) invoices are due within 14 days of receipt without any deduction. Default of payment shall occur at the latest 30 days after receipt of the invoice. Timely payment shall only be deemed to have been made if the invoice amount has been received within this period in one of our business accounts at its final free disposal.
From the time of default, the outstanding receivable shall bear interest at 9 percentage points above the respective base interest rate. However, if a higher interest rate is proven by taking out bank loans etc., we are entitled to claim the higher interest rate.
All our receivables – even in the case of deferment – shall become due immediately as soon as the customer defaults on the fulfilment of other obligations towards us, ceases payments, is over-indebted, insolvency proceedings are applied for or opened against his assets or the opening of insolvency proceedings is rejected for lack of assets or we become aware of facts which decisively call into question the creditworthiness of the customer so that our receivable to payment appears to be at risk. We are then entitled, at our discretion, to demand the return of the delivered goods, to make further deliveries and services dependent on advance payments or securities or to withdraw from the contract. We are also entitled to cancel any discounts, special benefits, etc. that may have been granted.
III. Rights to offer/contract documents
Drawings, illustrations, calculations, technical documents and other descriptions prepared by us shall remain our property and we shall retain the rights of use and exploitation. They may only be disclosed to third parties in conjunction with our consent. Furthermore, we reserve all property rights and copyrights to the use of all drawings and company documents.
IV. Set-off, right of retention
The customer is only entitled to offset against our receivables if his receivables have been legally established, we have acknowledged them or the receivables are undisputed.
As a customer, the entrepreneur is only authorised to exercise a right of retention insofar as the counterclaim is based on the same contractual relationship.
V. Prices, terms of payment
[1] Price definition
The prices quoted by us are for delivery (within Germany) exclusive of the applicable value added tax, currently 19 %, ex warehouse in euros without assembly, unless this has been agreed separately.
Any packaging will be charged extra and will not be taken back, unless this is prescribed by the Packaging Ordinance (Verpackungsverordnung) or other statutory provisions.
[2] Price adjustment
If there are more than four months between the conclusion of the contract and the delivery or performance of the service and if there is no delay for which we are responsible, we are entitled to change the agreed prices to compensate for cost increases. These increases may occur, in particular, due to increased labour costs or changes in the price of materials. We shall prove the cost increases to the customer on request as soon as and insofar as they have occurred and we demand a corresponding price adjustment.
In the event of price deviations of more than 10%, the customer shall be entitled to withdraw from the contract, insofar as it has not yet been fulfilled, within a period of 10 days from notification of the price change. Thereafter, the new prices shall be deemed approved.
[3] Insurance before transfer of ownership
Until the transfer of ownership, the customer is obliged to sufficiently insure the goods against breakage, fire, water and other damage as well as theft. Claims to such insurance benefits shall be assigned to us by the customer upon conclusion of the contract. We hereby accept the assignment.
[4] Receivables against subsequent purchasers
The customer may neither assign his receivables against subsequent purchasers to third parties, nor pledge them, nor agree a prohibition of assignment with subsequent purchasers.
VI Delivery, transfer of risk, non-performance
[1] Place
Delivery is always made from our warehouses.
[2] Delays
The respective customer shall be obliged to notify us immediately in writing if circumstances occur or become apparent to him which indicate that the agreed dates and deadlines cannot be met.
If the goods are not accepted by the customer at the agreed time, we are entitled to set a reasonable acceptance period. After expiry of this period, we shall be entitled to withdraw from the contract and to claim any damage incurred.
Unless a fixed delivery date has been expressly agreed and confirmed by us in writing, delivery time details are not binding.
After the delivery date has been exceeded, the customer is obliged to request us in writing, setting a deadline, to effect our performance. If we allow this period of grace to expire fruitlessly, the customer shall be entitled to withdraw from the purchase contract.
The customer shall fulfil its contractual duties to cooperate and obligations in order to enable us to properly fulfil the contract, in particular to comply with the delivery times and delivery dates. The delivery periods shall commence at the earliest with our order confirmation, but not before the customer has provided the documents, information, approvals or other acts of cooperation necessary for delivery and also not before receipt of an agreed down payment. The delivery dates shall be postponed in accordance with the periods of delay of the customer.
If the shipping or delivery of the delivery item is delayed or postponed at the request of the customer, the customer may be charged – starting from the first month after notification of readiness for shipping – a flat-rate storage fee amounting to 1% of the order value for each month or part thereof of the delay, but not exceeding 5% of the order value, unless higher costs have been incurred and are proven. In the case of partial deliveries, the order value of the partial delivery shall be decisive.
[3] Transfer of risk
The risk of accidental loss and deterioration of the goods shall pass to the customer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration shall pass to the person designated to carry out the delivery (e.g. carrier) as soon as the goods are delivered.
The risk shall pass to the customer from the day of readiness for shipping if shipping is delayed due to circumstances for which we are not responsible. This shall also apply in the case of permissible partial deliveries and agreements on other services such as carriage paid delivery.
[4] Damages for non-performance
As compensation for damages due to non-fulfilment of the purchase contract, we can demand 25% of the order price without deductions, unless the customer proves that no damage at all or not in the amount of the lump sum has occurred. In all other respects, we reserve the right to claim higher, proven damages, as in the case of custom-made products.
VII Force majeure
Events of force majeure, e.g. mobilisation, war, riot, corona, pandemics, entitle us to postpone delivery for the duration of the hindrance plus a reasonable start-up period. Force majeure shall be deemed to include strikes, lockouts or unforeseeable, unavoidable circumstances, e.g. operational disruptions through no fault of our own, or transport delays or interruptions, shortages of raw materials or energy through no fault of our own, which make it impossible for us to deliver on time despite reasonable efforts. This shall also apply if the aforementioned hindrances occur during a delay or at a sub-supplier.
We shall be liable for delays in performance in cases of intent or gross negligence on our part or on the part of a representative or vicarious agent, as well as in cases of injury to life, limb or health caused by slight negligence in accordance with the statutory provisions.
VIII. Liability
[1] Guarantee of quality
We shall also be liable within the scope of a quality and/or durability guarantee, provided that we have given such a guarantee with regard to the delivered item. If damage occurs which is based on the fact that the quality or durability guaranteed by us is missing, and if this damage does not occur directly to the goods delivered by us, we shall only be liable for this if the risk of such damage is obviously covered by our quality and durability guarantee.
[2] Compensation for damages in case of fault
We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), for
The resulting limitations of liability shall also apply to third parties and in the event of breaches of duty by persons (also in their favour) for whose fault we are responsible in accordance with statutory regulations. These do not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the purchaser under the Product Liability Act (Produkthaftungsgesetz).
[3] Tort liability, culpa in contrahendo, ...
Any further liability for damages is excluded. This applies in particular, to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for property damage pursuant to Section 823 German Civil Code (BGB).
[4] Including restriction
Insofar as liability for damages against us is excluded or limited, this shall also apply with regard to the personal liability for damages of our organs, employees, representatives and vicarious agents.
IX. Delay and defects
[1] Duty to reprimand
The customer shall check and counter-check our services and deliveries before passing them on and shall observe the legal and technical requirements, in particular, the DIN and VDE guidelines.
It is incumbent on the customer to give notice of obvious defects in writing without delay. If no complaint is made in due time, the delivery item shall be deemed approved in view of the defect. Section 377 (5) German Commercial Code (HGB) shall remain unaffected. In all other respects, the statutory provisions shall apply.
[2] Liability for delay
In cases of delay, with the exception of force majeure, our liability for damages in addition to performance shall be limited to a total of 5% and for damages in lieu of performance (including compensation for futile expenses) to a total of 5% of the value of the delivery. Further claims of the customer are excluded – even after expiry of a deadline set for us to perform.
[3] Data verification
If the customer transmits data and processing records to us, we are not obliged to check the content of the data and processing records. The data and processing records are only entered by us as part of the production process.
X. Warranty
[1] Product changes
Product modifications to the delivery item which do not involve any substantial changes, are not necessary to achieve the purpose of the contract and/or neither affect the agreed quality nor impair the suitability of the delivery item for the contractually presumed use and do not involve any technical deterioration shall not constitute a defect.
[2] Software update
We are not obliged to carry out or subsequently deliver software updates after the purchase of electronic devices, unless this has been assured by us in an individual contract. The customer expressly agrees to this.
[3] Subsequent performance
Insofar as there is a defect in the delivery item for which we are responsible, we are entitled, at our discretion, to remedy the defect or to make a replacement delivery. If the supplementary performance fails more than twice, the customer shall be entitled, at his option, to withdraw from the contract or to demand a reduction.
[4] Improper use
There is no warranty if delivered items and things are damaged by improper use or in the event of wear and tear or transport damage for which we are not responsible. The same applies in the event of improper installation of components by the customer or a third party commissioned by the customer. The same applies to defective components.
[5] Misplanning
We do not accept any liability for incorrect planning, construction errors and incorrect dimensions of the customer or a third party commissioned by the customer and are not subject to any inspection obligation in this respect.
[6] Improper modification
If the customer or third parties make improper changes to the delivered item, there shall also be no warranty claims for these and the resulting consequences.
[7] Right of retention in the event of defects
In the event of justified notices of defect, payments by the customer may be withheld in the amount of three times the value of the costs of remedying the defect. If the notification of defects is unjustified, we shall be entitled to demand compensation from the customer for the expenses incurred by us.
[8] Limitation period
The limitation period for warranty claims is – except in the cases of Section 438 (1) No. 2 Clause b. German Civil Code (BGB) – one year from delivery of the delivery item. The limitation period in the event of a delivery recourse according to Sections 445a f German Civil Code (BGB) remains unaffected. The warranty period for services under a contract for work and labour is one year after acceptance. Statutory limitation periods shall remain unaffected if we have fraudulently concealed the defect or for claims for damages due to culpable injury to body, health and life, as well as for other intentional and grossly negligent breaches of duty by us, our legal representatives, employees and vicarious agents.
[9] Guarantee of quality
A guarantee of quality must be expressly designated as such by us and agreed in writing.
XI. Special conditions for assembly services
[1] Hourly rates
Installation services by us shall be invoiced according to the agreed time and effort, otherwise according to our usual hourly rates, unless a lump sum price has been agreed.
[2] Settlement
Invoices will be issued at the end of each month and will include the corresponding time sheets.
[3] Duty to cooperate
The customer is obliged to provide the agreed and necessary cooperation and support services or resources necessary for our performance in a timely and complete manner. This includes, in particular, the completion of the on-site work, unhindered access to and movement around the installation site, coordination with other trades and suppliers, provision of the technical infrastructure (e.g. connections, electricity, water, etc.) and aids, provision of the items to be installed if necessary. The customer must ensure that our services can be carried out continuously without delays. We may charge separately for expenses and costs incurred by us, in particular, waiting, accommodation and travel costs, in the event of delays for which the customer is responsible.
[4] Subcontractor
We are entitled to have assembly services performed by a subcontractor as our vicarious agent without the customer's separate consent.
[5] Acceptance
The customer accepts the work performance when we have notified its completion and any agreed testing of the delivery item has been carried out. The services shall also be deemed to have been accepted if the customer uses our services or the assembled delivery item. Section 640 (1) Sentence 2 German Civil Code (BGB) remains unaffected.
XII. Limitation
The limitation period for claims and rights due to defects in the deliveries – irrespective of the legal grounds – is 1 year, in the case of used items and replacement parts 6 months from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
If the goods are a building or an object which has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (Section 438 [1] No. 2 German Civil Code [BGB]). Other special statutory provisions on limitation (in particular Section 438 [1] No. 1, [3], Sections 444, 445b German Civil Code [BGB]) shall also remain unaffected.
The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the customer based on a defect of the goods, unless the application of the regular statutory limitation period (Sections 195, 199 German Civil Code [BGB]) would lead to a shorter limitation period in individual cases.
XIII. Retention of title
[1] Receivables
We reserve title to the goods sold until full payment of all our present and future receivables arising from the purchase contract and an ongoing business relationship (secured receivables).
[2] Insurance
As long as ownership has not yet passed to the customer, the latter shall treat the delivered items with care, in particular, he shall be obliged to insure them adequately at his own expense against fire, water and theft damage at replacement value. We must be notified immediately if the delivered items are seized or exposed to other interventions by third parties. The customer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
[3] Conduct in breach of contract
In the event of conduct by the customer in breach of the contract , in particular, default of payment, we shall be entitled to take back the object of sale. The taking back of the item does not constitute a withdrawal from the contract unless we have expressly declared this in writing beforehand. We are entitled to realise the reserved goods. The proceeds of the realisation shall be credited to the customer's liabilities after deduction of the costs. Any surplus shall be paid to him.
[4] Assignment of receivables
In order to secure our rights according to lit. 1, the customer already now assigns all receivables in the amount of the final invoice amount (including VAT) of our receivable, which accrue to him from a resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer remains authorised to collect this receivable even after the assignment. Our authority to collect the receivable ourselves remains unaffected by this. However, we undertake not to collect the receivable as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment, no application for the opening of insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the customer informs us of the assigned receivables and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
[5] Mixing, connection
If our ownership of the reserved goods expires as a result of mixing or combining with other items (Section 947, 948 German Civil Code [BGB]), the customer's ownership or co-ownership rights to the mixed stock or the uniform item shall pass to us in the ratio of the final invoice amount of the reserved goods to the sum of the final invoice amounts of the other mixed or combined items. In this case, the customer's expectant right to the objects shall continue in the transformed object. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it shall be deemed to be agreed that the customer transfers co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created for us.
[6] Receivables from resale
The customer is entitled to resell the reserved goods in the ordinary course of business. The customer hereby assigns to us the receivables arising from the resale of the reserved goods. We hereby accept the assignment. This assignment shall apply regardless of whether the items have been resold without or after processing. The customer remains authorised to collect the receivable even after the assignment. The authority of us to collect the receivable ourselves remains unaffected by this. However, we shall not collect the receivable as long as the customer meets his payment obligations towards us, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or there is no cessation of payments.
[7] Interventions in the reserved property
In the event of seizures and other interventions by third parties in the reserved property, the customer must notify us immediately in order to be able to file a third-party action. Insofar as the third party is not in a position to reimburse us for the judicial or extrajudicial costs of such an action, the customer shall be liable for the loss incurred by us.
[8] Securities release
We undertake to release the securities to which we are entitled at the customer's request insofar as the realisable value of our securities exceeds the receivables to be secured by more than 10 %; the choice of the securities to be released is ours.
XIV. Jurisdiction, applicable law, dispute resolution
The place of jurisdiction is the registered office of our company. However, we expressly reserve the right to assert claims against the customer at any other permissible place of jurisdiction. Unless otherwise agreed, the place of performance shall be the registered office of our company; in the case of assembly services, the place of assembly. German law shall apply with regard to all rights and obligations arising from the contract concluded with us. The UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
XV. Severability clause
Should any provision of this agreement be wholly or partially invalid or subsequently lose its legal effect, this shall not affect the validity of the remaining provisions. The statutory regulations shall apply in place of the invalid provision.
Version as of: 08/2023
Wenker GmbH & Co. KG
Boschstraße 14 ∙ 48683 Ahaus ∙ Tel.: 02561 44939-0
General Terms and Conditions of Purchase (GTCP) of the company Wenker GmbH & Co. KG
I. General
[1] Exclusivity
These General Terms and Conditions of Purchase (GTCP) shall apply exclusively between us and the supplier and seller of machined and processed products, machines, equipment and used parts including accessories (hereinafter referred to as "supplier"). We do not accept any general terms and conditions of business of the supplier that conflict with or deviate from our General Terms and Conditions of Purchase (GTCP), unless we have expressly accepted the validity of the deviating general terms and conditions of business of the supplier in writing in advance.
[2] Framework agreement
Our General Terms and Conditions of Purchase (GTCP) shall generally also apply to subsequent transactions with the supplier after the execution of a transaction, even if they are no longer expressly referred to in subsequent orders.
II Order, conclusion of contract
[1] Written form
An order shall not be deemed to have been placed until it has been drawn up and signed by us in writing or in text form. Orders placed verbally or by telephone are only binding on us if we have confirmed them by subsequently sending a written order.
[2] Changes, scope of services
Deviations in quantity or quality compared to the text and content of our order, as well as subsequent amendments to the contract, shall only be deemed to have been agreed once we have confirmed them in writing or in text form.
[3] Confirmation letter
Our orders shall be confirmed by the supplier without delay. If we do not receive the supplier's confirmation within 8 days, we reserve the right to cancel the order free of charge. With the confirmation, the supplier acknowledges that he has informed himself about the type of execution and scope of the performance by inspecting the existing documents. The supplier shall immediately check the order for completeness, contradictions, obvious errors, feasibility and suitability for the agreed purpose. The supplier shall inform us immediately of any detected defects, deficiencies and risks, as well as of any possibilities for improvement. The same applies if the supplier becomes aware of errors, defects, risks or improvements during the performance of the contract.
[4] Pre-contractual costs
Cost estimates, offers, planning and other pre-contractual services of the supplier are free of charge for us, unless their remuneration has been expressly agreed in writing.
III. Scope of delivery and services
[1] Ranking
The contractual services and deliveries of the supplier are determined by the following contractual components in the following order of priority: (a) our purchase order together with the documents and appendices referred to therein in the order of priority mentioned, (b) if available: technical and organisational descriptions (e.g. specifications, performance specifications, technical planning documents, quality assurance regulations), (c) these GPC.
[2] Scope of services
All services required for a flawless delivery or for a flawless production and assembly process are also part of the supplier's scope of services if they are not expressly listed in the contract.
[3] Prerequisite for performance modification
A claim to remuneration by the supplier for changed or additional services, irrespective of the legal grounds, is excluded if the supplier does not announce his additional claim for remuneration before execution and this has been confirmed by us. This may be waived in individual cases due to extreme urgency.
[4] Remuneration for changed performance
In the event of changed services, any additional or reduced services shall be taken into account for any claim to remuneration. In all other respects, any supplementary claim to remuneration shall be determined in accordance with the price basis of the contractual service.
[5] Material supply of the purchaser
If, in the case of installations, assemblies and maintenance, the material required for the performance of the supplier's service is supplied or provided by us, the supplier's service shall also include the unloading of the trucks, as well as the transport from the intermediate storage of the plant components to the installation site.
[6] Documentation
In the case of installation, assembly and maintenance, the scope of services shall also include the documentation customary in the industry, which shall be handed over to us without request and without delay.
[7] Safety, environmental regulations
Deliveries and services of the supplier must comply with the statutory provisions, in particular, the safety and environmental protection provisions the environmental laws and regulations currently in force by law, including the Ordinance on Hazardous Substances, the Electrical and Electronic Equipment Act (ElektroG) and the safety recommendations of the competent German technical bodies or trade associations, e.g. VDE, VDI, DIN, etc.
[8] Certificates, evidence, protective devices
If the scope of services includes research, design, development, drafts, planning, programming or similar services, the supplier shall hand over all results, in particular, design and production drawings as well as documentation, user manuals, etc., to the supplier. Furthermore, relevant certificates, test certificates and evidence shall be supplied free of charge and without request. In the case of deliveries and the provision of services, the supplier is solely responsible for compliance with the accident prevention regulations. Protective devices required thereafter, as well as any instructions of the manufacturer, shall be supplied free of charge and without request. The supplier shall grant us copyright and industrial property rights or other protected performance results for appropriate use, insofar as they are necessary. If it concerns an individual performance for us, we shall receive the exclusive, irrevocable right of use, unlimited in terms of time, space and content, transferable and compensated with the remuneration. This includes, in particular, the right to duplicate, edit, distribute and license to third parties.
IV. Delivery dates, delay, contractual penalty
[1] Scheduled dates
The agreed delivery dates are binding delivery receipt/service performance dates. The delivery periods run from the date of the order. Receipt will be confirmed by a person authorised by us. The supplier is obliged to inform us immediately in writing if circumstances occur or become apparent according to which the delivery time cannot be met.
[2] Default
If the day on which the delivery must be made at the latest can be determined on the basis of the contract, the supplier shall be in default upon expiry of this day, without this requiring a reminder or notice of default on our part.
[3] Consequences of default
In the event of a delay in delivery, we shall be entitled to the statutory claims without restriction, including the right to withdraw from the contract and the claim for damages instead of performance after the fruitless expiry of a reasonable grace period. In particular, after the fruitless expiry of a reasonable period, we have the right to demand a contractual penalty of 1 per cent of the net order value per week or part thereof, but not more than 5 per cent of the net order value and/or delivery, and/or to withdraw from the contract even if the supplier is not responsible for or at fault for the delay. Any contractual penalty paid shall be offset against any claim for damages. The supplier shall be entitled to prove that we have not incurred any damage at all or only significantly less damage than the above lump sum.
[4] Acceptance of delayed performance
The acceptance of delayed deliveries or services does not imply that we waive any claims for compensation.
[5] Acceptance requirement
Insofar as the supplier's delivery/service also includes assembly and installation, acceptance is required and agreed. Taking the delivery into use does not constitute acceptance in the legal sense. Acceptance requires a written acceptance protocol signed by us. Section 640 (1) Sentence 3 German Civil Code (BGB) shall remain unaffected.
V. Shipping
[1] Incoterms, shipping advice, shipping costs
The shipping of goods shall be notified at the latest upon departure of the deliveries. Shipping notes, waybills and parcel addresses must state the shipping address and the order/ or commission number. The delivery of our order is always carried out according to Incoterms® 2020 DDP – Delivered Duty Paid. Consignments for which we have to bear the freight costs in full or in part in exceptional cases shall be transported at the most favourable freight rates or in accordance with the customer's shipping regulations. Cartage at the place of receipt is not paid.
[2] Economy, efficiency
The transport operation has to be carried out according to the latest technological standards and under aspects of freedom from damage, cost efficiency and environmental protection. We reserve the right to dispose of packaging that does not comply with the current standard or our instructions at the supplier's expense or to return it freight collect. The protection of the goods during transport and any subsequent storage must always be guaranteed. The environmental friendliness of the packaging must be ensured by the supplier. Usable packaging invoiced by way of exception may be returned to us freight collect for credit. If reusable packaging is used, the supplier shall provide it on loan. The return shall be at the expense and risk of the supplier.
[3] Packaging agreement
If, by way of exception, something else has been agreed in writing or in text form, the packaging shall be charged at the verifiable cost price.
VI. prices, invoicing, terms of payment
[1] Prices
Unless otherwise agreed in writing, the prices for deliveries and services are net plus statutory value added tax.
The prices stated in the order shall be binding unless the supplier reduces his prices and shall apply free to the place of receipt specified by us, including all ancillary costs and charges until delivery/installation in operational condition at the place of receipt/installation specified by us.
[2] Documentation, instructions, records
The documentation, instructions and documents for operation, operation and service/maintenance etc. required for commissioning and use shall be included in the agreed price.
[3] Expenses overview
Insofar as remuneration on a time and material basis has been agreed, a detailed overview of expenses signed by us must be enclosed with the corresponding invoice for settlement.
[4] Invoice form
Invoices are only to be processed if they state the order or commission number shown in our order, in accordance with the specifications in our order. Collective invoices are not accepted; one invoice must be issued per delivery.
[5] Payment, discount
Unless otherwise agreed in writing, payments due shall be made by us within 14 days less 3 % discount or after 30 days net, calculated from receipt of the invoice.
[6] Maturity interest
Interest on maturity is hereby excluded. The default interest shall be five percentage points above the respective base interest rate.
[7] Payments on account
Payments to the supplier do not, in principle, imply any acknowledgement or acceptance with regard to the contractual conformity of the delivered goods.
[8] Rights of retention
The supplier shall not be entitled to any rights of retention insofar as they are based on counterclaims from other legal transactions with us.
[9] Offsetting
The supplier may only offset such receivables which are undisputed by us or which have been legally established.
[10] Price change for long-term contracts
If, in the case of long-term contracts or framework supply contracts (contracts with a term of more than 12 months and unlimited contracts), there is a significant change in wage, material or energy costs, each party shall be entitled to demand negotiations on an appropriate adjustment of the price taking these factors into account. If the negotiations do not lead to an amicable adjustment of the contract, both sides are entitled to terminate the contract.
VII Warranty, notice of defects
[1] Legal provisions
The statutory provisions shall apply to our claims arising from material defects and defects of title, as well as for other breaches of obligations on the part of the supplier, unless otherwise stipulated below.
[2] Quality, guidelines
The supplier guarantees that all services – insofar as applicable to the specific delivery item – in particular, with regard to the selection of materials, processing and mode of operation – comply with the latest technological standards, the relevant legal provisions and the regulations and guidelines of authorities and professional associations. If deviations from the regulations are necessary in individual cases, the supplier must obtain our written consent for this. The supplier's liability for defects shall not be limited by this consent. If the supplier has reservations about the type of execution requested by us, he must inform us of this in writing without delay.
[3] Rights
The supplier warrants that the goods, samples and/or other services supplied by him are free from third party rights of any kind and that third party property rights, in particular, patents, utility models, design patents, trademarks and copyrights, are not infringed. The supplier shall indemnify us and our customers against all costs and claims for damages by third parties in the event of infringement of third party property rights, private rights or public law regulations.
[4] Commercial law
Section 377 German Commercial Code (HGB) shall apply with the following special features:
[5] Payments
Payments made by us shall not be deemed a waiver of any claims for compensation.
[6] Subsequent performance
Subsequent performance by the supplier shall be effected at our discretion by remedying the defect (rectification) or delivery of a defect-free item (replacement delivery) within a reasonable period set by us. If the supplier's subsequent performance fails or is unreasonable for us, in particular, in urgent cases, where operational safety is at risk or for the purpose of avoiding or minimising damage, we may remedy the defect ourselves or have it remedied at the supplier's expense.
[7] Limitation
Our warranty and damage compensation rights shall become statute-barred three years after the transfer of risk. Insofar as the supplier delivers new items or re-delivers individual parts of an item within the scope of liability for defects, the limitation period for the new item or the entire reworked item, insofar as the same defect continues in the reworked item, shall start anew from the handover of this new item or the individual part. The statute of limitations shall not recommence if the defect was insignificant or if the supplier expressly indicated prior to the subsequent delivery that it was not obliged to make the subsequent delivery and that it had only supplied the replacement as a gesture of goodwill or for the amicable settlement of a dispute.
VIII Compliance, quality assurance, environmental protection, energy efficiency, Code of Conduct
[1] Legal and regulatory compliance
The supplier is obliged to provide the deliveries and services in such a way that the statutory and official rules, regulations, directives, ordinances and other legal standards applicable at the place of use specified by us are complied with, in particular, with regard to quality, environmental protection, occupational health and safety, transport safety and product safety, including the Ordinance on Hazardous Substances, the Electrical and Electronic Equipment Act (ElektroG) and the safety recommendations of the competent German professional bodies or trade associations, e.g. VDE, VDI, DIN, etc.
The supplier guarantees that all services – insofar as applicable to the specific delivery item – comply with the latest technological standards, in particular, with regard to energy efficiency, as energy efficiency (ISO 50001) is an award criterion.
[2] Management system
To the extent required in the order or specification, the supplier must establish, apply and further develop a suitable management system customary in the industry. Insofar as agreed, the supplier undertakes to apply the principles of the quality assurance, energy and environmental management system in accordance with ISO 9001, ISO 14001 and ISO 50001 in the performance of its deliveries and services. If requested by us, the supplier shall conclude a separate quality assurance agreement with us.
[3] Certification
The supplier shall provide us with the relevant certificates for a certified management system operated by it (e.g. ISO 9001, VDA 6.4, ISO 14001, ISO 50001) without being requested to do so when submitting the offer and when making the deliveries. Any updates to the certificates must also be sent to us without being requested to do so.
[4] Evidence and accident prevention regulations
Further relevant certificates, test certificates and evidence shall be supplied free of charge and without request. In the case of deliveries and the provision of services, the supplier is solely responsible for compliance with the accident prevention regulations. Protective devices required thereafter, as well as any instructions of the manufacturer, shall be supplied free of charge and without request.
[5] Documentation of the quality inspection, audits
The supplier shall document its quality tests and make them available to us immediately and free of charge upon request.
We may – with reasonable notice – conduct audits at the supplier's premises with regard to the subject matter of the delivery or service, whereby representatives of our customer who are bound to secrecy or external auditors may be involved. Within the scope of the audit, we must, in particular, be granted access to the manufacturing process, the production sites and the quality assurance measures, as well as their documentation and be provided with comprehensive information. However, the supplier is not obliged to disclose company or business secrets in this context, unless we undertake in writing to maintain strict secrecy.
[6] Code of Conduct
By accepting the order, the supplier accepts the "Code of Conduct for suppliers" of Wenker GmbH & Co. KG. This is available at www.wenker.de to be viewed. The supplier is responsible for ensuring that the obligations of the "Code of Conducts for suppliers" of Wenker GmbH & Co. KG are accepted and complied with by its suppliers.
IX. Product liability
If a claim is made against us on account of the supplier's delivery on the basis of product liability, the supplier shall indemnify us comprehensively against such claims if and to the extent that the damage was caused by a defect of the supplier. In the event of fault-based liability, this shall only apply if the supplier is at fault. The supplier must prove that he is not at fault if the cause of the damage originates from his area of responsibility.
X. Retention of title, provision
[1] Transfer of ownership
The transfer of unrestricted ownership of the goods delivered by the supplier shall take place upon handover to us or acceptance by us. The same applies to the documents supplied by the supplier. The supplier warrants that all deliveries are free from third party rights and, in particular, that no patents or other industrial property rights are infringed by the delivery and use of the goods in the country of the agreed place of delivery, in the European Union, and in non-EU countries and – insofar as notified to the supplier – in the intended countries of use.
[2] Infringements of property rights
Insofar as liability towards a third party exists directly by operation of law, the supplier shall indemnify us against claims by third parties arising from any infringements of property rights and shall bear all necessary costs incurred in this connection.
[3] Retention of title
If we individually accept a retention of title by the supplier in a particular case, this shall expire at the latest upon payment of the purchase price. An extended or expanded retention of title by the supplier is excluded.
[4] Processing
The processing, conversion or installation of production components and means of production which we provide to the supplier shall be carried out for us. If this leads to inseparable mixing with the supplier's or a third party's items, we shall become co-owners of the newly created item in the ratio of the value of our item to the other processed items at the time of processing. If processing, conversion or installation takes place in such a way that our item is to be regarded as an essential component of the supplier's main item, we shall acquire co-ownership of the main item in the ratio of the value of our item to the other processed items at the time of processing. In both cases, the supplier shall keep the co-ownership for us.
XI. Secrecy and data protection
[1] Documents, knowledge
Each party shall use all documents (including samples, models, tools and data) and knowledge obtained from the business relationship only for the jointly pursued purposes and shall carefully keep them secret from third parties if the other party designates them as confidential or has an obvious interest in keeping them secret. This also applies to the price lists prepared by us. This obligation shall commence from the first receipt of the documents or knowledge and shall continue after the end of the business relationship.
[2] Rights of use to our drawings, specifications, etc.
We reserve the property rights and comprehensive rights of use to drawings, specifications, documents, models, etc. provided by us. Copies may only be made to the extent that this is indispensable for the manufacture of the products commissioned by us or the provision of the agreed services. The supplier undertakes to return the documents received at any time upon our request and to destroy any copies made or to irretrievably delete digital copies. The supplier has no right of retention in this respect.
[3] Advertising
The supplier may only advertise the joint business relationship with our prior written consent.
[4] Violations
In the event of breaches of the confidentiality obligation and restrictions on use, we shall be entitled to demand injunctive relief, removal and damages. We reserve the right to take any criminal action.
XII. Subcontractor
[1] Consent requirement
Insofar as the contractor for its part wishes to commission third parties with the performance of the service, this shall require the prior written consent of the client. This shall apply accordingly to the change or involvement of further subcontractors.
[2] Legal requirements
The supplier shall ensure that it and its subcontractors comply with the statutory requirements relating to the German Act on the Clandestine Employment of Workers (SchwarzArbG), the German Act on the Posting of Workers (Arbeitnehmerentsendegesetz), the German Minimum Wage Act (Mindestlohngesetz) and the German Personnel Leasing Act (Arbeitnehmerüberlassungsgesetz). The contractor shall indemnify us internally against all possible claims asserted against us due to a violation of the AEntG, the MiLoG and other statutory regulations imposing possible liability by the supplier or one of its subcontractors. In particular, the supplier undertakes to support us in the best possible way in the defence against alleged claims in this respect against the client and, for example, to provide it with the information required for this purpose.
[3] Acknowledgements
At our first request, the supplier is obliged to provide written confirmation from its subcontractor that it complies with the regulations on minimum conditions at the workplace or on the minimum wage. The same applies to other obligations towards authorities and social security funds, insofar as a liability of our company as client may exist here.
[4] Rights of control
We are entitled to inspect or have inspected compliance with the aforementioned legal requirements insofar as these may lead to liability on the part of our company as client. The supplier undertakes to allow his subcontractor to be inspected by us or by a third party commissioned by us or to submit the relevant documents to us for inspection at our first request.
[5] Violations
If the contractor breaches the obligation to pay the minimum wage or if the contractor fails to comply with the obligation to provide evidence within a reasonable period set by the client, the client shall be entitled to terminate the contract without notice.
The client shall be entitled to terminate the contract with the contractor without notice in the event that a subcontractor of the contractor breaches the obligation to pay the minimum wage or to provide evidence, unless the contractor itself brings about the termination of the contractual relationship with the subcontractor without notice.
In the event of justified termination without notice, the client shall be entitled to have the part of the performance not yet rendered carried out by a third party at the contractor's expense.
[6] Guarantee
The obligations, warranties, guarantees and liability of the supplier shall not be affected or limited by subcontracting or by our consent thereto.
XIII. Written form
[1] Amendments to the contract
Amendments and supplements to the contract must be made in writing; the same applies to the waiver of the written form requirement.
[2] Form
Insofar as the written form is required in these General Terms and Conditions of Purchase (GTCP), this shall also be complied with by fax or electronic form within the meaning of Section 126a German Civil Code (BGB).
XIV. Place of performance, place of jurisdiction, applicable law
[1] Jurisdiction
In business transactions with merchants within the meaning of the German Commercial Code (HGB), as well as with legal entities under public law and with special funds under public law, the place of performance and jurisdiction for all disputes arising from and in connection with the contract shall be the head office of our company. However, we expressly reserve the right, in the event of legal disputes, to take recourse to the domestic or foreign court having general jurisdiction over the customer.
[2] Applicable law
With regard to all rights and obligations arising from the contract concluded with us, the law of the Federal Republic of Germany shall apply. The UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
XV. Severability clauses
[1] Ineffective
clauses Should individual provisions of these General Terms and Conditions of Purchase (GTCP) be or become invalid, this circumstance shall not affect the validity of the remaining provisions.
[2] Agreement
In place of the invalid provision, the parties shall agree on a provision that comes as close as possible to the economically intended result and the ideas of the parties in a legally permissible manner.
Version as of: 08/2023
Wenker GmbH & Co. KG
Boschstraße 14 ∙ 48683 Ahaus ∙ Tel.: 02561 44939-0