General Terms and Conditions of Purchase

 of the Wilhelm Wagner GmbH & Co. KG

 

 

§ 1 General - Scope of Application

(1) Our Terms and Conditions of Purchase shall apply exclusively; we do not recognize any terms and conditions of the supplier that conflict with or deviate from our Terms and Conditions of Purchase unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Purchase shall also apply if we accept the supplier's delivery without reservation in the knowledge that the supplier's terms and conditions conflict with or deviate from our Terms and Conditions of Purchase.
(2) All agreements made between us and the supplier for the purpose of executing this contract shall be set out in writing in this contract. Our Terms and Conditions of Purchase shall apply in the version current at the time of our order also to all future transactions with the Supplier.
(3) They shall apply in particular to contracts for the purchase of movable goods, irrespective of whether the supplier manufactures them himself or purchases them from subcontractors/suppliers. However, they shall only apply if the supplier is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.

 

§ 2 Offer and offer documents

(1) Offers shall be binding and submitted free of charge.
(2) We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties without our express written consent. They are to be used exclusively for production on the basis of our order; after completion of the order they are to be returned to us without being requested. They must be kept secret from third parties.

 

§ 3 Order

(1) Orders and other declarations shall only be binding if they are placed or confirmed by us in writing.
(2) The supplier shall confirm our order to us in writing within 10 days. A confirmation received after this period shall be deemed a new binding offer.
3) With the exception of our managing directors, authorized signatories and our other employees in purchasing expressly named to the supplier as contact persons - in each case in a constellation authorized to represent us - our employees are not authorized to place orders, conclude contracts, make written or oral agreements or give promises. Any such statements (or acceptance of statements) shall be irrelevant and shall not bind us.

 

§ 4 Prices

(1) The price stated in the order shall be binding. All prices are net prices and must be shown in EURO. Unless otherwise agreed in writing, the price shall include delivery DDP Lahnau in accordance with Incoterms 2020, including packaging. The return of packaging requires special agreement.
(2) The prices are fixed prices unless a price escalation clause or a price reservation is expressly confirmed by us. An order may only be executed at prices higher than those stated by us with our written consent.

§ 5 Invoices

(1) Invoices shall not be enclosed with the consignment, but shall be submitted separately for each order after delivery, stating our order number and the order date and showing the value added tax.
(2) Unless otherwise agreed in writing, invoices shall be paid by us within 8 days with a 3% discount, within 14 days with a 2% discount, and within 30 days net, in each case calculated from receipt of the delivery and receipt of the invoice.
(3) Payment periods shall generally run from the date of receipt of the invoice by us, but not before the goods have been received by us or the services have been rendered.
(4) We generally reject payment arrangements by cash on delivery.
(5) We shall be entitled to rights of set-off and retention as well as the defense of non-performance of the contract to the extent provided by law. In particular, we shall be entitled to withhold payments due as long as we are still entitled to claims against the supplier arising from incomplete or defective performance.

 

§ 6 Delivery item

(1) Our order alone shall be authoritative for the content, type and scope of the delivery and service. We shall be entitled to demand corrections of obvious typing and calculation errors and other mistakes at any time.
(2) We shall be entitled at any time to demand changes in the type of performance, setting a reasonable deadline. We shall reimburse the Supplier for any proven and reasonable additional costs incurred as a result of the change.
(3) We shall be entitled to terminate the contract at any time by written declaration stating the reason if we can no longer use the ordered products in our business operations due to circumstances occurring after conclusion of the contract. This applies in particular if the desired change is technically not feasible. In this case, we shall compensate the Supplier for the partial performance rendered and proven by him.
(4) The drawings, descriptions etc. belonging to the order are binding for the supplier. However, he shall check them for any discrepancies and notify us immediately in writing of any errors discovered or suspected. The supplier shall remain solely responsible for documents prepared by him, in particular drawings, plans and calculations, even if these have been approved by us.
(5) Insofar as no further requirements are specified in the order, the delivery items are to be delivered in customary quality and, insofar as DIN, VDE, VDI or equivalent standards exist, in accordance with these. The delivery items shall be manufactured and equipped in such a way that they comply with the safety regulations in force on the date of delivery, in particular the accident prevention regulations, and that they comply with the findings of occupational science.
(6) The delivery item shall be accompanied (as an essential component) by detailed documentation in accordance with the CE standard. If the country of origin of the delivery item is not Germany, a certificate of origin is required.

 

§ 7 Delivery time

(1) The delivery time specified by us in the order shall be binding. The supplier is obliged to inform us in writing without delay if he is likely to be unable to meet agreed delivery times - for whatever reason. This shall not affect the occurrence of the delay in delivery.
(2) The Supplier may only plead force majeure if it is absolutely not responsible for the event in question and had also taken appropriate precautions (selection and establishment of several suitable upstream suppliers, sufficient storage, alternative production resources, fast and safe and alternative transport routes, etc.) which do not take effect for unforeseeable reasons. In case of impossibility only objective impossibility comes into consideration, disproportionate costs cannot be objected to by the supplier, unless there is force majeure in the aforementioned sense; in this case the supplier has to leave it to us to decide whether we withdraw from the contract or sue for compensation for any damages incurred by us. In the event that we are temporarily or generally prevented from accepting or taking delivery of the supplies and services and this is due to force majeure or impossibility (which may also be due to disproportionate costs on our part), we may invoke impossibility and withdraw from the contract or claim damages for any losses incurred by us. We shall then not provide any compensation.
(3) Early deliveries, as well as partial deliveries or over- and/or under-deliveries are only permissible if we agree to them. We are entitled not to accept such deliveries and to return them or to store them until the delivery date at our premises at the expense and risk of the supplier.
(4) If the supplier does not perform or does not perform within the agreed delivery time or if the supplier is in default, our rights - in particular to withdraw from the contract and to claim damages - shall be determined in accordance with the statutory provisions. In particular, we shall be entitled to claim damages for non-performance after the fruitless expiry of a reasonable grace period. The provisions in para. 3 shall remain unaffected.
(5) If the Supplier is in default, we may - in addition to further statutory claims - demand lump-sum compensation for our damage caused by default in the amount of 1% of the net price per completed calendar week, but in total not more than 5% of the net price of the goods delivered late. We reserve the right to prove that we have incurred higher damages.

 

§ 8 Transfer of risk - documents

(1) The supplier is obliged to state our order number exactly on all shipping documents and delivery bills; if he fails to do so or if the information is incomplete, delays in processing are unavoidable for which we are not responsible.
(2) The Supplier shall enclose with each delivery the technical documentation required under the relevant provisions (EC Machinery Directive, Equipment Safety Act, Product Liability Act, etc.); in particular, factory certificates, operating and repair instructions of the manufacturer's declarations or declarations of conformity.
(3) Section 5 (5) shall apply accordingly.

 

§ 9 Warranty

(1) The Supplier warrants that its deliveries and services comply with the recognized rules and state of the art and the statutory provisions (e.g. occupational safety and environmental protection), and that they have the contractually agreed properties. Furthermore, he shall vouch for the quality of the material used, the professional design and execution of the goods delivered by him as well as for the specified or agreed performance.
(2) The statutory provisions (§§ 377, 381 HGB) and the provisions in this paragraph shall apply to our commercial obligation to examine the goods and to give notice of defects. Our obligation to inspect shall be limited to defects which become apparent during our incoming goods inspection under external examination including the delivery papers (e.g. transport damage, wrong and short deliveries) [or which are recognizable during our quality control in the random sampling procedure]. Insofar as acceptance has been agreed, there shall be no obligation to inspect. Our obligation to give notice of defects discovered later shall remain unaffected. In the cases of sentence 2 (openly apparent defects [sampling procedure]), our complaint (notice of defect) shall be immediate if we send it within eight (8) working days from receipt of the goods. In the cases of sentence 4 (later discovery) this period shall be three (3) working days from discovery.
(3) In the event of a defective delivery or service, we shall be entitled to the statutory warranty claims in full. Irrespective of this, we shall be entitled to demand that the Supplier, at our discretion, rectify the defect or make a replacement delivery. In this case, the supplier shall be obliged to bear all expenses necessary for the purpose of rectifying the defect or making a replacement delivery. The right to claim damages, in particular damages for non-performance, is expressly reserved.
(4) The warranty period shall be 24 months, calculated from the transfer of risk.

 

§ 10 Withdrawal if our claim to performance is jeopardized

(1) Notwithstanding other rights of withdrawal, we shall be entitled to withdraw from the contract in whole or in part if the supplier's creditworthiness or ability to deliver deteriorates to such an extent that performance of the contract is jeopardized. Such a risk exists in particular if
a) the supplier is in default with the delivery despite two successive requests,
b) insolvency proceedings are opened against the assets of the Supplier,
c) the opening of insolvency proceedings is rejected for lack of assets,
d) an application is made for the Supplier to submit a list of assets and to declare its accuracy in lieu of an oath and the application is not withdrawn within two months.
(2) If, as a result of circumstances for which we are not responsible - in particular due to force majeure - the fulfillment of our contractual obligations becomes impossible or substantially more difficult, we may cancel the contract in whole or in part or demand performance at a later date without the supplier being entitled to any claims against us as a result.

 

§ 11 Product liability -Exemption from liability insurance coverage

(1) Insofar as the supplier is responsible for product damage, it shall be obliged to indemnify us against claims for damages by third parties upon first request insofar as the cause lies within its sphere of control and organization and it is liable itself in relation to third parties.
(2) In this context, the Supplier shall also be obliged to reimburse any expenses pursuant to Sections 683, 670 of the German Civil Code (BGB) arising from or in connection with a recall action carried out by us. We shall inform the supplier about the content and scope of the recall measures to be carried out - as far as possible and reasonable - and give him the opportunity to comment.
(3) The supplier undertakes to maintain a product liability insurance with an insured sum of 2.5 million euros per personal injury/property damage - lump sum. Proof of the conclusion and continuation of the insurance shall be provided to us upon request. If we are entitled to further claims for damages, these shall remain unaffected.#

 

§ 12 Property rights

(1) The Supplier warrants that no rights of third parties within the Federal Republic of Germany are infringed in connection with its delivery.
(2) If claims are asserted against us by a third party for this reason, the supplier shall be obliged to indemnify us against these claims upon first written request; we shall not be entitled to make any agreements with the third party - without the supplier's consent - in particular to conclude a settlement.
(3) The supplier's indemnification obligation relates to all expenses necessarily incurred by us from or in connection with the claim by a third party.

 

§ 13 Provision, Tools, Retention of Title, Damages  

(1) If we provide raw material, semi-finished parts or parts to the supplier, we shall retain title thereto. Processing or transformation by the supplier shall be carried out for us. If our goods subject to retention of title are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our item to the other processed items at the time of processing.
(2) If the item provided by us (raw material, semi-finished parts or parts) is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the item subject to retention of title to the other mixed items at the time of mixing. If the mixing takes place in such a way that the supplier's item is to be regarded as the main item, it shall be deemed agreed that the supplier transfers co-ownership to us on a pro rata basis; the supplier shall keep the sole ownership or co-ownership in these cases for us.
(3) We retain title to tools. The supplier shall be obliged to use the tools exclusively for the manufacture of the goods ordered by us. The supplier is obliged to insure the tools belonging to us at replacement value against fire, water and theft damage at his own expense. The supplier is also obliged to mark the tools and to store them properly. He is obliged to carry out any necessary maintenance and inspection work in good time at his own expense. He shall notify us immediately of any malfunctions; if he culpably fails to do so, claims for damages shall remain unaffected. If the supplier violates the provisions of this paragraph, we shall be entitled, without prejudice to further rights, to withdraw from the contract in whole or in part, to claim damages in lieu of performance or compensation for futile expenses.
(4) The supplier shall be liable for the loss of or damage to items provided. In the event of accidental loss or accidental damage of provided items, he shall not be entitled to compensation for his expenses for the treatment or processing of these items.

 

§ 14 Confidentiality

(1) The supplier is obliged to keep all illustrations, drawings, calculations and other documents and information received strictly confidential. They may only be disclosed to third parties with our express consent. The obligation to maintain secrecy shall also apply after the execution of this contract; it shall expire if and to the extent that the manufacturing method contained in the illustrations, drawings, calculations and other documents provided has become generally known.
(2) If the supplier violates the provisions of para. 1, we shall be entitled, without prejudice to further rights, to withdraw from the contract in whole or in part, to claim damages in lieu of performance or compensation for futile expenses.
(3) The supplier undertakes to deliver to us only materials from third parties which are not subject to sanctions by the Federal Republic of Germany, the European Union or the United States of America at the time our order is placed.

 

§ 15 Jurisdiction Place of performance

If the supplier is a registered trader, our place of business shall be the place of jurisdiction. However, we are also entitled to sue the purchaser at the court of his place of residence.

 

§ 16 Severability clause

Should individual provisions of this contract be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, this shall not affect the validity of the remainder of the contract. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects most closely approximate the economic objective pursued by the contracting parties with the invalid or unenforceable provision. The above provisions shall apply mutatis mutandis in the event that the contract proves to be incomplete.

 

WIWA Wilhelm Wagner GmbH & Co. KG
Gewerbestraße 1-3
D-35633 Lahnau

AG Wetzlar HRA 3223
General partner: Wagner GmbH (AG Wetzlar HRB 363)
VAT-ID-No.: / VAT-No.: DE113745802
Managing Director: Dipl.-Ing. (FH) Peter Turczak

 

Revision 08/2022