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).

(Status: November 2024)

§ 1 General provisions

(1) The following Terms and Conditions of Purchase shall form an integral part of the contract concluded between the contracting parties. The contracting parties are Wichmann E as buyer and the contractual partner as seller and supplier.

(2) Our Terms and Conditions of Purchase - in their latest version - shall apply exclusively; we shall only recognize terms and conditions of the Contractual Partner that conflict with or deviate from these Terms and Conditions of Purchase insofar as we have expressly agreed to them in writing. The acceptance of goods or deliveries of the contractor or their payment does not constitute consent, even if the acceptance or payment is made in the knowledge of conflicting or supplementary contractual conditions of the contractual partner.

(3) These Terms and Conditions of Purchase shall also apply to all future business relationships with our suppliers, even if they are not expressly agreed again.

(4) The current version of our Terms and Conditions of Sale can always be found at the following link: https://www.woelfer-motoren.com/de/agb/

§ 2 Conclusion of contract, amendment of contract

(1) Our orders are non-binding if they are not accepted by the supplier. Verbal or telephone orders must be confirmed by us in writing for evidence purposes.

(2) Orders and their amendments and supplements shall only become effective in writing. Verbal side agreements are excluded.

(3) If the order confirmation of the contractual partner deviates from the original order, a new offer shall be deemed to exist. Our written confirmation shall be required for this to be effective.

(4) Wichmann E shall have the right to make changes to the delivery even after confirmation of the order by the Contractual Partner. In this respect, the Contractual Partner shall inform Wichmann E of the effects of the change. If necessary, an appropriate adjustment to the contract shall be agreed in the interests of both parties.

(5) The Supplier shall not be entitled to pass on its obligations under the order or significant parts of the order to third parties without our prior consent.

§ 3 Prices, terms of payment

(1) The price stated in the order is binding. Unless otherwise agreed, the price shall include the statutory value added tax, freight, customs duties, transportation and insurance. The Contractual Partner shall take back packaging material at the request of Wichmann E.

(2) An invoice shall be issued for each order in [1-copy] form, with the corresponding mandatory information in accordance with German law. Each invoice must contain our order number, the name of the Customer and our article number as well as the date of the order.

(3) Unless otherwise agreed, payment shall be made according to our choice within 14 days of receipt of the invoice with a 3% discount; within 30 days of receipt of the invoice with a 2% discount; within 60 days of receipt of the invoice net. Payments shall be made subject to invoice verification. The payment period shall commence at the time of receipt of the goods in accordance with the contract, including proper delivery note and invoice.

(4) Wichmann E shall not be in default of payment without a reminder from the Supplier. The assignment of claims by the Contractual Partner to third parties shall require our written consent.

(5) We shall be entitled to rights of set-off and retention to the extent permitted by law. Unless otherwise agreed, counterclaims of the contractual partner may only be count up if they have been legally established or are undisputed. The Seller may only assert a right of retention if its counterclaim is based on the same contractual relationship.

§ 4 Delivery, delay in delivery, transfer of risk

(1) The delivery time stated in the order is binding. The delivery of the goods to us free of defects during our normal business business hours with the required shipping parties to the place of performance is decisive. The place of performance shall be the registered office of Wichmann E.

(2) The Contractual Partner shall deliver the goods free domicile, duty paid, including packaging and transport insurance. Delivery shall be made DDP in accordance with the valid version of the Incoterms unless the contracting parties agree a different pricing. If a different pricing is agreed, Wichmann E shall decide on the mode of transportation, transport company and forwarding agent.

(3) If deliveries or individual parts of deliveries are covered by state import and export regulations, the Contractual Partner shall be responsible for the authorization and their costs and to procure these in time.

(4) Unless otherwise agreed, early deliveries or partial deliveries are excluded. These require our prior written consent.

(5) The contractual partner is obliged to inform us immediately in writing if circumstances arise or become apparent that the agreed delivery time cannot be met. The contractual partner must inform us of the reason and the expected duration of the delay.

(6) If delivery is impossible due to force majeure and the Contractual Partner exceeds the delivery date, Wichmann E may withdraw from the contract in whole or in part without compensation.

(7) In the event of a delay in delivery, Wichmann E shall be entitled to demand a minimum amount as compensation in the amount of 1% of the order value of the delayed delivery for each completed week, but not more than 10% of the total order value of the delivery. We may claim the contractual penalty until up to the time of final payment. Further claims for damages remain unaffected.

§ 5 Defects, warranty

(1) Unless otherwise agreed, the statutory provisions on material defects and defects of title shall apply.

(2) Acceptance of delivery shall always be subject to a quantity and quality check. Wichmann E shall inspect the delivery on a random basis. Regarding defects and deviations in quantity, Wichmann E shall notify the Contractual Partner on time, within a period of 7 working days in the case of recognizable defects and within a period of 7 working days after discovery of the defect.

(3) In the event of a defect, Wichmann E shall decide on replacement delivery or rectification of the defect. The costs incurred while remedying the defect costs, in particular transport, labor and material costs, shall be borne by the Contractual Partner.

(4) Wichmann E may withdraw from the contract without setting a deadline if the supplementary performance is unreasonable; the supplementary performance fails; the Contractual Partner fails to commence supplementary performance without delay. In the event of withdrawal, the Contractual Partner shall bear the risk and costs for deliveries and replacement shipments. Wichmann E shall have the right to withhold proportionate payments until contractual fulfillment.

(5) Claims for defects shall lapse thirty-six (36) months after the transfer of risk of the delivery. For replacement deliveries, the limitation period begins anew after delivery. Statutory limitation periods shall remain unaffected by this.

§ 6 Limitations of liability

(1) Claims of the supplier against us for damages, irrespective of the legal grounds, are excluded. Excluded from this are damages from injury to life, body or health which are based on culpable obligations committed by us or by our auxiliary persons and other damages which are based on an intentional or grossly negligent breach of duty committed by us or our auxiliary persons.

(2) If damage, which is not damage resulting from injury to life, body or health, is based on the simple negligent breach of a material contractual obligation or on the simple negligent breach of an obligation, which enables the proper execution of the contract and which the supplier may regularly rely on, we shall also be liable for such damage. The liability is, however, limited also in these cases to the foreseeable and typically occurring damage.

(3) Insofar as we have excluded or limited our liability, this shall apply to the same extent to the personal liability of our employees, workers, staff, vicarious agents or other auxiliary persons.

§ 7 Product liability, compensation for damages

(1) If the Contractual Partner is responsible for product damage, it shall be obliged to indemnify Wichmann E against claims for damages by third parties on first demand if the cause lies within its sphere of control and organization and it is liable itself. First request if the cause lies within its sphere of control and organization and it is liable itself in relation to third parties. Our statutory rights of recourse within a supply chain (supplier recourse pursuant to §§ 478, 479 BGB) shall be available to us without restriction in addition to the claims for defects. We are entitled to demand exactly the type of subsequent performance (rectification or replacement delivery) from the supplier that we owe our customer in the individual case. Our statutory right of choice (§ 439 para. 1 BGB) is not restricted by this.

(2) Furthermore, the Contractual Partner shall be obliged to reimburse any related expenses arising from or in connection with a recall campaign carried out by Wichmann E. As far as possible, Wichmann E shall inform the Contractual Partner about the content and scope of the recall measures to be carried out. Other statutory claims shall remain unaffected.

(3) The Contractual Partner warrants that a sufficient liability insurance has been taken out and is maintained during the term of the contract, including limitation periods. Upon request, the Contractual Partner shall provide Wichmann E with a copy of the valid insurance contract.

§ 8 Confidentiality

(1) The contractual partner undertakes to keep confidential any information received verbally or in writing within the scope of this contract. This applies also to third parties. Information and documents shall be used exclusively for the performance of the contract and shall either be returned to us or destroyed after performance of the service owed.

(2) This confidentiality shall continue to apply for a period of five (5) years after the performance of the service owed.

(3) The contractual partner shall oblige its subcontractors to maintain confidentiality accordingly.

§ 9 Property rights and copyrights

(1) We reserve the right of ownership to orders placed by us, orders as well as drawings, illustrations, calculations, descriptions and other documents provided to the supplier.

(2) The contractual partner may not make such documents accessible to third parties, disclose them, use them himself or through third parties or reproduce them without our expressed consent. The Contractual Partner shall return these documents to us in full at our request or destroy them if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

(3) If Wichmann E provides the Contractual Partner with any tools, devices and models, these shall remain our property. The Contractual Partner shall mark these as our property, store them carefully, protect them against damage of any kind and only use them for the purposes of the contract. If damage occurs, the contractual partner shall inform us immediately and compensate us for the damage.

(4) Retention of title by the supplier shall only apply if it relates to our payment obligation for the respective products to which the supplier retains title. Unless otherwise agreed, extended or prolonged reservations of title are excluded.

§ 10 Third-party property rights

(1) The contractual partner shall be liable for ensuring that no third-party rights are infringed in connection with its delivery. The Contractual Partner is aware that Wichmann E sells the end products worldwide.

(2) Insofar as the Contractual Partner is responsible for the infringement of industrial property rights, the Contractual Partner shall defend itself at its own expense against any third-party claims which third parties assert against Wichmann E on account of the infringement of industrial property rights due to the delivery or service. The Contractual Partner shall, provided he is responsible for this, indemnify Wichmann E against all third-party claims arising from this.

§ 11 Environmental protection, human rights

(1) The Supplier undertakes to comply with the relevant statutory regulations on the treatment of employees, environmental protection and occupational safety and to work to reduce the adverse effects of its activities on people and the environment. Furthermore, the supplier shall observe the principles of the UN Global Compact Initiative. These essentially concern the protection of international human rights, the abolition of forced labor and child labor, the elimination of discrimination in hiring and employment, responsibility for the environment and the prevention of corruption.

§ 12 Fair competition

(1) Compliance with the relevant legal regulations is our top priority and we also expect our business partners to comply with the applicable laws and regulations. Our employees or third parties must not be offered, given or promised any advantages (e.g. gifts, invitations to attend to sporting or other events, invitations to meals, financial benefits, other perks, discounts of any kind) so that the person concerned or another of the employees are unfairly given preferential treatment when purchasing goods or services.

§ 13 Final provisions

(1) If the contractual partner suspends payments or applies for insolvency proceedings, we reserve the right to withdraw from the contract in whole or in part.

(2) If the Contractual Partner transfers its order to a subcontractor, it must inform Wichmann E of this in writing. The Contractual Partner shall then ensure that Wichmann E has access to all production facilities of the subcontractor.

(3) Should individual provisions of these General Terms and Conditions of Purchase or of the contract be or become invalid in whole or in part, the remaining provisions shall remain unaffected.

§ 14 Choice of law, place of jurisdiction

(1) The exclusive and international place of jurisdiction for all disputes arising from this contractual relationship is Osnabrück/Germany. However, we also reserve the right to take legal action at the customer's general place of jurisdiction.

(2) The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).