Terms of Trade of WiCHMANN E GmbH

§ 1     Scope of Validity

1. The present General Business Terms are the basis for all goods and services concluded between the contractual parties – WiCHMANN E GmbH as Contractor (hereinafter: “Supplier”) and the customer (hereinafter: “Purchaser “).
2. They will apply exclusively in business relations with companies, legal entities under Public Law or Public Law estates as defined by § 310 Sect. 1 BGB.
3. In the case of deviations from the present delivery terms the Supplier’s written consent will be required. Unless otherwise agreed the business terms being referred to by the Purchaser are being objected to. Ancillary agreements must be in writing.
4. The updated version of our sales terms can always be found under the following link: https://www.woelfer-motoren.com/general-terms-and-conditions/ 

§ 2     Conclusion of the Contract, Offer

1. The contract will be concluded with our written order confirmation or delivery. Contractual amendments and addenda will require our written confirmation. Verbal ancillary agreements are excluded.
2. The binding nature of prices is based on the Supplier’s offer.

§ 3     Prices, Payment Terms

1. Unless otherwise agreed the prices are net cash for international and inclusive of taxes for domestic deliveries. Shipping, postage and insurance as well as packaging costs will be charged separately. In the case of domestic deliveries statutory value added tax at the respective applicable rate will be specified.
2. The purchase price must be paid exclusively to the account specified in the contract. A deduction of discount is only possible with a written agreement. Orders for which no fixed prices were explicitly agreed will be charged at our applicable contractual price at the date of delivery.
3. Where partial deliveries were agreed adequate price changes are reserved due to wage, materials and distribution costs for deliveries made 3 months or later after conclusion of the contract.
4. Unless otherwise agreed the Purchaser must pay an installment of 30% of the contractual price and 70% net cash by the invoice date. Where the payment deadline is exceeded and payment reminders by the Supplier are unsuccessful, we reserve the right to declare the purchaser in arrears with payment and to charge default interest of 9 percentage points above the respective basic interest rate without any further warning.
5. Where it is proven that the Purchaser is in arrears with payment by more than 45 days the Supplier will have the right to retain the goods already manufactured and to suspend production.
6. The Purchaser will only have the right to set-off where his claims are res judicata or uncontested. The Purchaser will also be entitled to set-off against our claims where counterclaims are based on the same contractual relationship.

§ 4     Delivery, Passing of Risk

1. The delivery time is 18 weeks. Unless otherwise agreed the delivery period will commence 1 week after sending the order confirmation and receipt of the installment. If no installment is agreed the delivery period begins 1 week after sending the order confirmation.
2. Where the Purchaser is in arrears with acceptance or he culpably breaches any other cooperation duties we will have the right to demand compensation of the damage thereby incurred to us, including any additional expenses. The Supplier reserves the right to further-reaching claims.
3. Unless otherwise agreed, delivery is FCA according to current version of Incoterms.
4. In the case of a change of or addition to the order after the order has already been placed the Supplier has the right to adjust the delivery time.
5. The Supplier has the right at any time to make partial deliveries and provide partial services.

§ 5     Force Majeure

1. Where the onset of force majeure entails a suspension of work, wholly or partially delaying the good or service, the Supplier will have the right to extend the delivery deadline by the duration of the delay or to wholly or partially rescind the contract. Force majeure includes the following events in particular: war, sovereign decrees, sabotage, strikes and lock-outs, transport bottlenecks, water damage, natural disasters, geological changes and impact.
2. Where the events in Sect. 1 last longer than 12 weeks the Supplier will be entitled to rescind the contract.
3. Either party to the contract will be obligated immediately inform the other party in detail of the onset of an incident of force majeure.

§ 6     Retention of Title

1. We reserve ownership of the delivered item up until complete payment of all claims from the delivery contract. This will also apply to all future deliveries even if we do not explicitly refer to them. We have the right to take back the purchase item where the customer breaches the contract.
2. Until the title has passed to him the Purchaser will be obligated to treat the delivered item with care and to perform maintenance and inspection work at his own expense.
3. The Purchaser is obligated to immediately inform the Supplier in writing where the delivered item is pledged or otherwise subject to third-party interference. Where the third party is not able to compensate the legal and out-of-court fees of a lawsuit as set out in § 771 ZPO (Civil Proceedings Ordinance) the Purchaser will be liable for the loss incurred to us.
4. Processing or transformation of the purchase item by the Purchaser will at all times be on our behalf and at our order but without the corresponding obligations. In this case the Purchaser’s right to ownership of the purchase item will continue in the transformed item. Where the purchase item is processed together with other items not belonging to us, we will acquire co-ownership in the new item on the basis of the ratio of the objective value of our purchase item to the other processed items at the time of processing. The same will apply in the case of mixing. Where mixing is carried out in such a way that the Purchaser’s item is regarded as the main item it is agreed that the Purchaser will assign the proportional co-ownership to us and will preserve the exclusive ownership or co-ownership created for us. In order to secure our claims against the Purchaser the Purchaser will also assign to us such claims arising for him against third parties from the connection of the goods subject to retention of title with a property. We hereby accept this assignment.
5. Where the realizable value of the security exceeds our claims by more than 20%, we will release securities at the request of the Purchaser.

§ 7     Maintenance and Assembly Work

Within the scope of maintenance and assembly work the Purchaser guarantees that all necessary assembly parts and aids are available at the respective site, necessary preliminary work was performed and assembly may start without delay.

§ 8     Guarantee

1. The Purchaser is entitled to guarantee rights to the extent that he duly complies with the inspection and complaint obligations set out in § 377 HGB (Commercial Code).
2. Claims based on defects will expire within 12 months after the contractual handover of the goods to the Purchaser. Where the law prescribes longer periods, these will take precedence.
3. Where defects of the delivered goods arise, we will opt for either rectification or replacement subject to the proviso of the timely lodging of a complaint. In the case of rectification, the Purchaser guarantees the Seller his support and access to essential information. The Supplier must render the make-up performance within an adequate period.
4. Final inspection and acceptance will be deemed to have been completed where the Purchaser fails to report major defects or uses one of the services within 7 work days after readiness for inspection.
5. The Purchaser is obligated to report claims based on defects within 7 work days as from the receipt of the consignment in writing.
6. Claims based on defects are excluded
   1. in the case of only minor deviation from the agreed features 
   2. in the case of only minor impairment of usability 
   3. in the case of abrasion or wear and tear as well as in the case of damage caused after passing of the risk due to erroneous or negligent treatment, overuse, inappropriate equipment, defective construction work, on the basis of special external influences which are not prescribed in the contract.
      
      Where improper maintenance work or alterations are performed by the Purchaser or third parties there will be no claims based on defects for them or for the consequences from them. 
7. Claims by the Purchaser for expenditure required for the purpose of make-up performance are excluded where the expenditure increases because the goods delivered by us are subsequently delivered to a site other than the agreed delivery address.

§ 9     Restriction of Liability

1. Damage compensation claims are excluded against the Supplier where there is no willful or gross negligent act/omission. The amount of liability for negligent acts or omissions is limited to typical, foreseeable damage.
2. Liability for personal injury, for damage to life, limb or health will remain unaffected.

§ 10   Documents Provided

1. We reserve the right of ownership and copyright to all documents and data carriers provided to the purchaser in connection with the assignment.
2. These documents may not be made accessible to third parties unless we give the purchaser our explicit written consent. Where no purchase agreement is concluded, all documents in this connection are to be destroyed and to be returned at our request.

§ 11   Final Provisions

1. Where payment is suspended or the purchaser files for insolvency, we will reserve the right to wholly or partially rescind the contract.
2. Where the Purchaser transfers his assignment to a subcontractor, he must inform the supplier of this in writing.
3. Should individual terms of the present sales terms or the contract be or become wholly or partially invalid this will not affect the remaining terms.

§ 12   Choice of Law, Place of Jurisdiction

1. The exclusive as well as international place of jurisdiction for all disputes arising from the present contract is Osnabrück/Germany. However, we also reserve the right to file suit at the customer’s general place of jurisdiction.
2. The laws of the Federal Republic of Germany will apply exclusively, excluding the UN Sales Convention (CISG).

Article 1     General Provisions

1. The following Terms of Purchase are an integral part of the contract formed by the contracting parties. Contracting parties include Wölfer as buyer and the other contracting party as seller and supplier.
2. Our Terms of Purchase as amended from time to time apply exclusively; terms and conditions of business of the other contracting party that conflict with or deviate from these Terms of Purchase are only recognized to the extent in which we have expressly agreed to them in writing. The acceptance of goods and/or deliveries from the contractor or payment for such does not constitute in any way approval, even if the acceptance or payment takes place while cognizant of contrary or supplementing contractual provisions of the other contracting party.
3. These Terms of Purchase are also applicable to all future business relations with our sup-pliers, even if the parties have not expressly agreed upon them again.
4. The updated version of our sales terms can always be founded under the following link: https://www.woelfer-motoren.com/general-terms-and-conditions/

Article 2     Formation of Contract, Contractual Amendment

1. A contract is legally binding if either one of us sends a written order to the other contracting party; an order confirmation is submitted to us by the contracting party within the period set by us; or the contracting party delivers to Wölfer.
2. Orders as well as changes and amendments thereto only take effect if made in writing. Verbal ancillary arrangements are excluded.
3. If the order confirmation from the other contracting party deviates from the original order, this constitutes a new offer. Our written confirmation is required for any arrangements to take effect.
4. Wölfer is entitled to make changes to the delivery even after confirmation of the order by the other contracting party. The contracting party must inform Wölfer in this regard about the effects of the change. If necessary, the contract shall be suitably adapted in the interest of both parties.

Article 3     Prices, Terms of Payment

1. The price indicated in the order is binding. Unless agreed otherwise, the price includes the statutory sales tax, freight, customs duties, transport and insurance. The contracting party must take back packaging materials at the request of Wölfer.
2. An original copy of the invoice with the corresponding mandatory information according to German law shall be prepared for every order. Each invoice must have our order number, the name of the ordering party and our product number as well as the date of the order.
3. Unless agreed otherwise, payment shall be made at our discretion either within 14 days after receipt of invoice with a 3 % discount; within 30 days after receipt of invoice with a 2 % discount or net within 60 days after receipt of invoice. Payments will be made subject to review of invoice. The payment period commences with the contractual receipt of the goods, including proper delivery notes and invoice.
4. Wölfer will not be considered in default of payment without a reminder from the supplier. The assignment of claims by the contracting party to a third party requires our written approval.
5. We are entitled to the right to set-off and retention to the extent permitted by law. Unless agreed otherwise, counterclaims of the contracting party shall only be offset if they have become final or are uncontested. The Seller may only assert a right of retention if its counterclaim is based on the same contractual relationship.

Article 4     Delivery, Delay in Delivery, Transfer of Risk

1. The delivery period set forth in the order is binding. Satisfactory delivery of goods, free of faults, to us during our regular business hours with the necessary shipping documents at the place of performance is decisive. Place of performance shall be the registered office of Wölfer.
2. The contracting party shall deliver the goods carriage free, duty paid, including packaging and transport insurance. Delivery shall be made based on DDP in accordance with the valid version of Incoterms, unless the contracting parties agree on a different pricing. If a different pricing is agreed upon, Wölfer shall decide on the type of transport, transport company and forwarding agent.
3. If deliveries or individual parts are covered by official import and export regulations, the contracting party shall be responsible for the respective permits and their costs and must obtain these in good time.
4. Unless agreed upon otherwise, early deliveries or partial deliveries are not permitted. Such require our prior written authorization.
5. The contracting party is obligated to inform us immediately in writing if circumstances arise or if it becomes obvious that the agreed delivery period cannot be fulfilled. The contracting party must inform us about the reason and the expected duration of the delay.
6. If the delivery is not possible due to force majeure and the contracting party fails to meet the delivery date, Wölfer is entitled to withdraw from the contract entirely or in part without compensation.
7. In case of delay in delivery, Wölfer is entitled to demand a minimum amount as damage amounting to 1 % of the order value of the delayed delivery for each full week, but not more than 10 % of the total order value of the delivery. We are able to assert the contract penalty until the date of the final payment. Any further claims for damage compensation remain unaffected.

Article 5     Defects, Warranty

1. Unless agreed otherwise, the statutory provisions on material deficiencies and defects in title are relevant.
2. Acceptance of delivery is always subject to a quantity and quality check. Wölfer checks the delivery on a random basis. Wölfer shall report any deficiencies and in particular deviations in quantity to the contracting party in due time, with a notice period of seven (7) work days in case of identifiable deficiencies and with a notice period of seven (7) work days after the deficiency is discovered.
3. In case of a deficiency, Wölfer shall decide on replacement or rectification of deficiency. The contracting party shall bear the costs arising in connection with rectifying the deficiency, in particular transport, labor and material costs.
4. Wölfer may withdraw from the contract without setting a deadline if the subsequent improvement is not reasonable; the subsequent improvement fails; the contracting party fails to promptly begin the subsequent improvement. In case of withdrawal, the contracting par-ty shall bear the risk and costs for deliveries and exchange shipments. Wölfer is entitled to withhold a proportional part of the payments until fulfillment in accordance with the con-tract.
5. Claims for defects become time-barred in thirty-six (36) months, starting with the transfer of risk for the delivery. For replacement deliveries the period of limitation starts anew after delivery. This in no way affects the statutory periods of limitation.
6. Damage claims against the Buyer are excluded, unless such claims are based on intent or gross negligence or failure to perform. In case of culpable violation of significant contractual obligations, the Seller is also liable for gross negligence and slight negligence, in the latter case limited to the reasonably foreseeable damages that are typical for such con-tracts. For damages, which did not occur to the contractual object itself, the Seller assumes liability for intent, gross negligence and culpable loss of life, bodily injury or adverse effects to health.

Article 6     Product Liability, Damages

1. As far as the contracting party is responsible for product damage, the said party is obligated to release Wölfer from any third party damage claims at first request if the cause lies within its control and organization and it is liable itself in legal relationships with third parties.
2. Moreover, the contracting party is obligated to reimburse any related expenses arising from or in connection with a recall carried out by Wölfer. If possible, Wölfer shall inform the contracting party about the content and scope of the recall measures to be implemented. Other legal claims remain unaffected.
3. The contracting party ensures that a sufficient liability insurance has been taken out and will be maintained during the term of the contract, including statutory periods of limitation. On request, the contracting party shall present Wölfer with a copy of the valid insurance policy.

Article 7     Confidentiality

1. The contracting party agrees to keep information received orally or in writing in strict confidence during the course of this contract. This also applies to third parties. Information and documents shall be used exclusively for the performance of the contract and shall be either returned to us or destroyed after fulfilment of the service owed.
2. This confidentiality obligation shall continue to exist for a period of five (5) years even after fulfilment of the service owed.
3. The contracting party is obligated to have its subcontractors undertake corresponding confidentiality obligations.

Article 8     Property Rights and Copyrights

1. We retain ownership to orders and contracts placed as well as to drawings, figures, calculations, descriptions and other documents provided by us to the supplier.
2. The contracting party shall refrain from disclosing or making such documents available to third parties without our express consent either as such or in terms of content nor may the documents be used or duplicated by the contracting party or third parties. At our request, the contracting party must return these documents to us in full or destroy them if they are no longer required by it during the ordinary course of business or if negotiations fail to result in the formation of a contract.
3. If Wölfer provides the contracting party with any tools, equipment and models, these do remain our property. The contracting party shall mark such objects as our property, keep them safe and protected against any damage and may only use them for purposes set out in the contract. If damage does occur, the contracting party shall inform us immediately and shall make good the damage.
4. Retention of title on part of the supplier only applies if it relates to our obligation to pay for the respective products to which the supplier retains ownership. Unless agreed otherwise, extended or expanded rights of title are excluded.

Article 9     Third Party Property Rights

1. The contracting party is responsible for ensuring that no third party rights are violated in connection with its delivery. The contracting party is aware that Wölfer distributes the end products worldwide.
2. Insofar as the contracting party is responsible for the violation of property rights, the contracting party will strive to fend off at its own expense third party claims that third parties assert vis-a-vis Wölfer for violation of property rights resulting from the delivery or service. Provided that the contracting party is responsible, it shall indemnify Wölfer of all third party claims arising in this context.

Article 10   Final Provisions

1. In case of suspension of payment or filing for insolvency on part of the contracting party, we reserve the right to withdraw from the contract in full or in part.
2. If the contracting party transfers its order to a subcontractor, it must inform Wölfer in writing in this regard. The contracting party must make sure that Wölfer has access to all production facilities of the subcontractors.
3. Should any individual provision or any part of any provision of these General Terms of Purchase or the contract be or become unenforceable entirely or in part, the validity of the remaining provisions shall in no way be affected.

Article 11   Choice of Law, Jurisdiction

1. The exclusive, even international, place of jurisdiction for all disputes arising from or in connection with this contractual relationship is Osnabrück, Germany. We also reserve the right to take action at the customer’s general place of jurisdiction.
2. The contractual relationship is governed exclusively by the laws of the Federal Republic of Germany while excluding the UN Convention on International Sale of Goods (CISG).