INGRID WERNICKE Industrieservice e. K.
St. Ingberter Straße 2A
D-51375 Leverkusen
Germany
Phone +49 (0) 214 - 500 67 32
Fax +49 (0) 214 - 312 88 31
Mail wernicke@wis-industries.de
Web www.wis-industries.de
1. General provisions
1.1 We deliver subject exclusively to the following conditions, even if we do not refer to them expressly in the course of an established commercial relationship. Contrary or differing conditions on the part of the purchaser shall apply only if and insofar as we have given our written consent in this respect.
1.2 Our conditions of sale and delivery shall apply to all legal business conducted with commercial customers, private legal entities or legal entities under public law or public-law special funds, including the conditions applying to the repair of customer-specific devices from our range of products.
2. Entry into force of the agreement
2.1 Our quotations are non-binding, and are subject to correct and timely delivery by our own suppliers, unless the binding nature of this quotation is expressly stated elsewhere in this document.
2.2 The documents accompanying the quotation, such as photocopies, drawings, details of weights and dimensions and other performance specifications, are non-binding and only approximate, unless otherwise expressly stated. We retain legal title and copyright with respect to all cost estimates, drawings and other documents, which must not be divulged to any third party or parties.
2.3 Performance specifications included in brochures are likewise binding only with written confirmation to the effect. They do not constitute any guarantee under the terms of article 276, sect. 1 of the German Civil Code (BGB). If the product is manufactured or delivered on the basis of specifications (drawings, samples or other items) supplied by the purchaser, the purchaser guarantees that no third-party rights, with particular reference but not limited to patents, registered designs and other intellectual property rights, have not been infringed in the process. The purchaser undertakes to indemnify and hold us harmless from and against all and any third-party claims that might be made against us as a result of such infringement.
2.4 Special designs shall be drawn up exclusively on the basis of our own suppliers' drawings, and are to be approved by the purchaser before production begins.
2.5 The agreement shall come into force after the clarification of all technical and commercial matters, by way of our written confirmation of the corresponding written order. This provision shall also apply to orders made via our legal agents or representatives. The acceptance of an order may also be confirmed by the delivery by us of the item ordered.
2.6 Our order confirmation, including the description contained therein of the items and/or services to be supplied by us, shall define the extent of our contractual obligations and the individual details of each item or service supplied.
2.7 The purchaser undertakes to maintain the confidentiality of any and all information obtained from us in the course of the order, and shall not divulge this information, whether directly or indirectly, orally, in writing or in any other way, to any third party or parties, without first obtaining our express written consent to the effect. We reserve all rights, with respect to technical information, regarding intellectual-property registration, with particular reference but not limited to patents and registered designs. The purchaser shall proceed with the same care and due diligence as it would when conducting its own comparable affairs.
2.8 We shall save and back up, in electronic format, the information and data required to fulfil the corresponding agreements. These data shall be handled and processed in accordance with article 33 of the German federal law on data protection (BDSG) and subject to the Teleservice Data Protection Act (TDDSG).
3. Prices and payments
3.1 Our prices are quoted ex-warehouse in Germany, unless otherwise specified in the order confirmation. They are quoted in euros (EUR) and exclude value added tax (VAT) at the corresponding rate, installation, packing, despatch and transport insurance. All prices quoted in our order confirmation shall remain valid for the duration specified in that order confirmation. We shall be entitled, in the event of subsequent reductions in ordered amounts and/or agreed on-demand orders, to apply reasonable increases to the contractual unit prices, and also to any proportional tooling costs that might have been agreed. Our prices are based on current standard cost-estimate factors and underlying input prices. If these subsequently change with respect to on-demand orders or framework agreements, we shall be entitled to adjust the agreed unit prices at our discretion to take these cost changes into account.
3.2 The purchaser shall be notified on request of the expected cost of installing the contractual products supplied and/or repair work carried out by us, but these shall ultimately be based on the actual costs of such installation or repair. These expenses shall be demonstrated by presentation of the corresponding hourly logs and time sheets previously approved and signed by the purchaser. The purchaser shall likewise meet the indirect costs of installation, such as energy supplies. Billing shall be based on our corresponding, previously quoted hourly rates.
3.3 Invoices shall be payable strictly net within 30 days of the invoice date, unless otherwise agreed. Full payment in advance may be required for the initial orders of new customers. Repair invoices are to be settled without discount within two weeks of the date on the invoice.
3.4 We shall be entitled, in the event of overdue payment, to charge, from the corresponding due date, interest at 8% above the base rate of the ECB. A charge of €20 shall be levied to cover the cost of each reminder subsequently issued.
3.5 We shall only accept bills of exchange by prior arrangement and subject to them being bankable. The costs of discounting and collection shall be borne by the purchaser.
3.6 If the purchaser falls into arrears exceeding ten days and the amount due is not inconsiderable, all our collectibles shall become payable with immediate effect, regardless of any sums already received. We shall then be entitled to deliver only against advance payment or corresponding guarantee.
3.7 The purchaser shall not be entitled to withhold or settle payment on the basis of counterclaim of any kind (including outstanding warranty claims), unless the counterclaim is undisputed and legally enforceable.
3.8 If the agreement is terminated without good reason, a fixed charge of 15% of the gross sale price of the goods to be supplied shall be levied as compensation for loss and damage. We also reserve the right to demand additional compensation for proven loss and damage in individual cases.
4. Delivery
4.1 Delivery deadlines are only approximate with respect to the date of our order confirmation, and shall in any case not apply until all completion details have been clarified. We shall only fall into arrears, even in the case of agreed deadlines, if a corresponding reminder is issued. Partial deliveries are permitted. If the purchaser fails to meet contractual obligations such as the opening of letters of credit, the presentation of local or foreign certificates, the meeting of pre-payment deadlines or similar, we shall be entitled to reschedule our delivery times without prejudice to further rights arising from this delay which might affect our production run.
4.2 The delivery deadline shall be considered fulfilled if, by the corresponding date, the item or items concerned leave the supplier’s premises or are notified as being ready for despatch.
4.3 If force majeure or other delays prevent us from delivering as agreed, the delivery deadline shall be extended accordingly without default on our part. This provision shall likewise apply in the event of labour disputes and other unforeseen circumstances beyond our control (force majeure, strikes, lockouts; accidents and other situations requiring a partial or complete reorganisation of work, such as lack of material, lack of operating power, difficulties affecting transport or energy supplies and/or malfunctions of any kind), insofar as such circumstances demonstrably constitute a major cause of the situation affecting production or shipment of item or items to be delivered. This shall also apply if these circumstances affect our own suppliers. The above circumstances are likewise beyond our control if they arise in the course of an existing delay. We shall notify the purchaser as soon as possible of the existence of such circumstances, and of when they are likely to end.
4.4 If one of our own suppliers fails to deliver, we shall be entitled to transfer the order to an alternative supplier in order to guarantee final delivery, even if this results in a considerable delay.
4.5 The purchaser shall, in the event of delayed delivery on our part, issue us with written warning of rejection, granting a minimum period of grace of fifteen working days (eight to ten weeks for special or customised items). The purchaser shall be entitled, once this period of grace has expired without result, to exercise its right to terminate the agreement or claim for loss or damage with respect to that part of the agreement which we have not yet fulfilled. The purchaser shall not be entitled to claim on the basis of loss of interest.
4.6 If the financial position of the purchaser substantially worsens after conclusion of the agreement, or if we subsequently become aware of such circumstances, we shall be entitled to refuse delivery or to demand that the resulting contractual risk be covered by advance payment or the provision of sufficient guarantees on the part of the purchaser. If the purchaser fails to meet our demand for guarantees within the deadline set by us, we shall be entitled to terminate the agreement and/or demand compensation for loss and damage.
4.7 Visible damage to the packing or item supplied is to be reported immediately upon delivery. Concealed transport damage must be reported within seven days. The purchaser must arrange, in the event of any other more extensive transport damage, for a factual report to be issued by the competent authorities (independent claims agent).
4.8 The items shall be delivered in a standard commercial format. We shall be entitled to carry out partial deliveries. Partial deliveries are considered a business transaction in their own right. They are to be invoiced, and likewise paid for, separately. Deliveries exceeding or falling short of the contractual amount by up to 10% shall be considered acceptable.
4.9 The route and means of transport, including the engaging of carriers or freight forwarders, shall be at our discretion unless otherwise agreed. Items designated as being ready for despatch must be accepted by the purchaser with immediate effect. We shall otherwise be entitled, at our discretion, to despatch them or store them at the purchaser's expense.
5. Transfer of risk and acceptance
5.1 It is agreed that delivery is ex-works in Germany, unless otherwise established in the order confirmation. Risk shall be transferred to the purchaser upon handover of the shipment to the carrier or freight-forwarder, and in any case by no later than the moment in which the shipment concerned leaves our works or warehouse. Incoterms 2000 shall apply to the interpretation of trade terms.
6. Reservation of title
6.1 We shall retain legal title to the delivered items until all our claims arising from the corresponding business relationship have been fulfilled. Ingrid Wernicke Industrieservice e. K. shall retain title to the goods until payment has been settled in full.
6.2 The purchaser may only sell or dispose of the goods in the normal course of business and provided it is not in arrears with payment, subject in any case to reservation of title. The purchaser hereby assigns to us, with immediate effect, all and any claims arising from the resale of goods subject to reservation of title. We accept this assignment. All and any other disposal of goods subject to reservation of title is prohibited. The terms "resale" and "disposal" shall also apply to the use, in the completion of works contracts and delivery agreements, of goods supplied by us. These items shall not be pledged or transferred as collateral.
6.3 We shall be deemed to be the manufacturer, with respect to the processing and manufacturing of goods subject to reservation of title within the meaning of article 950 of the German Civil Code (BGB), but without this implying any liability on our part. These processed and manufactured items shall be considered goods subject to reservation of title. If the items subject to reservation of title are processed, combined or mixed with other items by the purchaser, we shall retain title over the resulting product on a basis proportional to the invoiced value of the material subject to title being present in the final product. If our title should expire due to combining, mixing or processing, the purchaser shall transfer to us, with immediate effect, its ownership and/or expectant rights to the new product or item to the extent of its invoiced value and, in the case of processing proportional to the invoiced value of the goods, the invoiced value of the part subject reservation of title. The purchaser shall retain these goods on our behalf and without charge. Our co-ownership rights shall likewise be regarded as goods subject reservation of title.
6.4 The purchaser's claims arising from the resale of items subject to retention of title are transferred to us from the outset. They count as security for our claims to the same extent as goods subject to reservation of title. We hereby accept this assignment. If goods subject to reservation of title are resold by the purchaser together with other goods, the purchaser hereby assigns to us, with immediate effect, its claims arising from such resale in a proportion corresponding to the invoiced value of our goods with respect to the invoiced value of the other goods. If goods to which we have co-ownership rights are resold in accordance with the above provisions, the corresponding proportion of our joint claim is hereby assigned to us with immediate effect. We accept the corresponding assignment.
6.5 The purchaser shall be entitled to collect on claims resulting from resale, unless we should revoke the direct debit arrangement with the purchaser due to payment arrears or deterioration of assets. The purchaser undertakes to inform its own customers immediately and at our request of the transfer to us – unless we ourselves do so – and to supply us with the information and documents required for collection.
6.6 The purchaser shall not be entitled, under any circumstances, to reassign claims originally assigned to us for guarantee purposes. This also applies to factoring transactions, which the purchaser is likewise prohibited from conducting in relation to our direct debit arrangement.
6.7 The purchaser must inform us immediately of any seizure or other third-party action affecting our goods subject to reservation of title.
6.8 If the value of existing securities exceeds the value of secured claims by more than 20%, we undertake at the purchaser's request to release securities selected at our discretion.
7. Obligation to submit claims; warranty and liability
7.1 Our warranty does not cover bought-in parts from other manufacturers installed in our products or used in combination with our products, or consumable items such as ball/plain bearings, seals, oil or other lubricants. The warranty likewise excludes services not supplied by our employees or our expressly nominated legal agents or representatives. Subsequent technical modifications, the use of spare parts not expressly approved and/or failure to carry out required maintenance tasks shall likewise void all warranty obligations on our part.
7.2 Loss and damage due to improper use, whether obvious or concealed, is not covered by the warranty.
7.3 We shall not be liable, for any use for purposes not previously tested, of items and materials recommended by us, as our warranty is based exclusively on our own specifications and findings obtained from many years of experience, expressed in good faith. If any factors regarding our products are unclear, we recommend that preliminary tests are carried out.
Subject to an understanding that none of our statements constitutes a guarantee within the meaning of article 276, sect. 1 of the German Civil Code (BGB), we assume a warranty commitment and liability for our deliveries and services according to the following provisions, which are in addition to the existing legal regulations:
7.4 Our products are properly installed and used correctly and according to purpose.
7.5 The purchaser undertakes to ensure - even if samples or specimens have been supplied previously - that products supplied by us are inspected by careful random sampling immediately upon arrival on its premises for completeness and the absence of damage, and to verify that they fulfil contractual requirements. The delivery shall be considered accepted if the purchaser fails to submit a corresponding written claim within ten days of receipt. The claim presupposes that the items supplied are still in the condition in which they were delivered. Defect claims must be accompanied by a precisely detailed report.
7.6 If the defect is not detectable in the course of normal inspection, it is to be notified to us in writing within no more than seven days of its discovery. The purchaser undertakes to verify the material parameters specified for the envisaged process, before using the materials concerned for production purposes. The materials concerned are to be kept separate from comparable products from other manufacturers, so that it can be clearly established that the item subject to complaint was supplied by us.
7.7 We must be given the opportunity to assess the notified defect by our own means. The item subject to complaint is to be returned to us immediately upon demand. We shall assume the costs of transport if the claim is justified. They shall otherwise be met by the purchaser. All corresponding warranty claims shall be voided if the purchaser fails to return an item subject to complaint to us, or attempts to modify it without our consent. If there is a justified claim, we undertake to repair the item concerned or, at our discretion and after consultation with our own suppliers, to supply a defect-free replacement.
7.8 We shall meet the costs of repair, provided they have not increased by the fact that items supplied by us have meanwhile been transported to a place other than the place of delivery originally specified by the purchaser. If we fail to meet our obligations in this respect, or fail to do so in a timely manner, the purchaser may issue a final written warning specifying the deadline by which our obligations must be fulfilled. If this period then expires without result, the purchaser may demand a reduction in price, terminate the agreement or make its own arrangements to have the necessary repairs carried out by itself or a third party at our expense and risk. If the purchaser receives a claim based on the resale of items supplied by us, our liability in this respect shall exist only to the extent that the end-user has not entered into any agreement the goes beyond the statutory warranty provisions.
7.9 If the installation work is not to be carried out by us, we shall supply corresponding installation and dismantling instructions along with the operating manual. Our liability for defects shall be voided if the contractual items delivered are used improperly or are not installed and/or dismantled in accordance with the instructions supplied. The same shall apply in the event of incorrect initial start-up by the purchaser or a third party, repairs, servicing and/or modifications carried out without our previous written consent and/or premature wear and tear resulting from the use of consumables not recommended by us.
7.10 We shall be liable for loss and damage - including claims that might result on whatever legal grounds - only in the following circumstances
- in the event of intent,
- in the event of gross negligence on our part, including gross negligence on the part of senior management or the representative bodies of our company,
- in the event of damage culpably caused to a person’s life, body or health,
- in the event of wilfully concealed defects or defects whose absence has been guaranteed by us in writing,
- in the event of defects affecting items or services supplied by us, insofar as product liability law specifies liability for personal injury or material loss arising from privately-used items.
We shall also be liable, in the event of negligent breach of substantial contractual obligations, for gross negligence by non-management employees and minor negligence. Our liability in this latter case shall however be limited to the loss and damage reasonably considered typical for a contractual arrangement of this type.
7.11 All the above-mentioned warranty, damage-compensation and/or provisions for the reimbursement of expenses claims shall expire after handover or, in the case of customised goods, upon acceptance of the contract items concerned, subject to the corresponding catalogue conditions and in accordance with the following terms:
- 24 month after delivery, in the case of mechanical components
8. Rights in case of imminent or actual failure on the part of the purchaser to fulfil its contractual obligations
8.1 If the purchaser falls into payment arrears, whether wholly or in part, or if a bill of exchange or cheque issued by the purchaser is not redeemed, or if we become aware of facts implying a likely deterioration in the financial circumstances of the purchaser, or if an application is submitted for the institution of judicial insolvency proceedings, or if the purchaser approaches a creditor to propose an out-of-court settlement, we shall be entitled to demand the immediate settlement of all outstanding and not yet due payments and deferred invoice amounts, and to demand advance payment for any and all outstanding deliveries or, without prejudice to our other legal claims arising from the agreement in respect of some or all deliveries, to withdraw from the agreement, with no obligation, in any of the above cases, to grant an extended deadline a period of grace. The purchaser may provide suitable guarantees in order to avert this obligation to settle with immediate effect or to avoid termination of the agreement on our part. We shall likewise be entitled to exercise the above rights if the purchaser's company is dissolved or liquidated, or if its business activities are suspended, or if a considerable part of the company is sold or disposed of, or if its assets become subject to seizure or enforcement measures.
8.2 The purchaser shall have no entitlement to claim for loss or damage resulting from termination on any of the above grounds.
9. Place of performance, legal jurisdiction and applicable law
9.1 The place of performance and legal jurisdiction for both parties is Leverkusen (Germany). We shall however also be entitled to bring legal action in the jurisdiction corresponding to the purchaser’s registered place of business.
9.2 The laws of Germany shall apply exclusively to the items and goods delivered. Application of the United Nations agreement of 11.04.1980 on international contracts to purchase is included.
9.3 The purchaser shall not without our express consent assign or pledge to any third party or parties, whether in whole or in part, its claims against us arising from this agreement or agreements yet to be entered into. Verbal agreements shall only apply if they are expressly confirmed by us in writing.
10. Safeguard clause
If any individual clause or clauses in this agreement should prove to be invalid or subsequently become so, this shall have no effect on the legality of the agreement as a whole. An agreed alternative wording shall then be found, which retains, as far as possible, the original spirit and economic purpose of the invalid clause.
Leverkusen (Germany), 1st January 2016