Wilking Drucklufttechnik Herne GmbH | Terms and conditions

Terms and conditions

General Terms and Conditions of Sale, Delivery and Payment for use vis-à-vis merchants if the contract is part of the operation of a commercial business, as well as vis-à-vis legal entities under public law and special funds under public law.

I. General remarks

Our deliveries and services are exclusively subject to these Terms and Conditions of Sale, Delivery and Payment. By accepting an order confirmation, but in any case by placing an order or accepting a delivery or partial delivery, the customer acknowledges them as solely binding for the entire present and future business relations.

Conflicting or deviating terms and conditions of business of the customer are hereby expressly rejected; our silence with regard to deviating terms and conditions of business of the customer does not imply agreement with their validity. Deviating terms and conditions can only be agreed with our management and shall only become effective upon written confirmation by them.

II. Offer and conclusion, scope of services, property rights

1. Our offers are subject to change until our written order confirmation. Illustrations, drawings, weights and dimensions, information on processes, consumption and services are only approximate.

2.The content and scope of the contract shall be determined exclusively by our written order confirmation. The order confirmation shall include general product or component descriptions and specifications prepared by us and attached to the order confirmation as well as specifications of the customer expressly referred to as such in the order confirmation.

Only those properties of the subject matter of the contract which are expressly designated as warranted properties in our order confirmation shall be warranted.

We reserve the right to make modifications or improvements with regard to the design, the use of materials or the execution, insofar as this does not result in any impairment of the function and possible use and they are reasonable for the customer according to general commercial opinion.

Ancillary agreements and subsequent requests for changes or additions by the customer shall only become binding if confirmed by us in writing.

3. We reserve our property rights and copyrights to our offer documents, cost estimates, drawings and other documents. They may only be made accessible to third parties with our prior express written consent.

If the customer prescribes design and/or composition features of the delivery item, he shall be responsible for ensuring that the design and/or composition do not infringe the industrial property rights of third parties; in the event of any claims by third parties, the customer shall indemnify us against this.

III. Prices

In the absence of a special agreement, our prices are ex works excluding packaging and costs for any necessary official approvals, test certificates or test statics, plus the statutory value added tax valid at the time of delivery.

If there is a period of more than 4 months between the conclusion of the contract and the agreed delivery date, we shall be entitled to adjust the price accordingly in the event of an unforeseeable, significant increase in the prime costs. For list price items, the list price generally charged by us for such products on the day of delivery shall always apply.

IV. Payments

1. Payment shall be made either in advance by bank transfer, by invoice or by cash on delivery. We reserve the right to exclude individual payment methods. If you choose payment in advance, we will provide you with the bank details in the order confirmation.

2. The invoice amount is payable immediately without deduction.

3. In the event of overdue payments, we shall charge interest at a rate of 4% above the respective German Federal Bank discount rate, but at least 8%; the interest rate shall be higher or lower if we can prove that we have charged a higher interest rate or if the customer can prove that the interest rate is lower. If the customer is in default of payment after the due date due to our reminder, we shall be entitled - without prejudice to further rights - to the rights under § 326 BGB (German Civil Code).

4. The customer may only offset our claims against counterclaims that are undisputed, legally established or ready for decision. The customer shall have no right to refuse performance pursuant to § 320 BGB or any other right of retention.

5. If the customer ceases to make payments or if composition or bankruptcy proceedings are instituted against his assets or if other circumstances arise which justify justified doubts as to his creditworthiness, all our claims shall become immediately due and payable in cash. In addition, we shall be entitled, without prejudice to our other rights, to continue to deliver only against advance payment in cash or the provision of security, or to withdraw from the contract.

V. Delivery

1. The delivery period shall commence with the dispatch of the order confirmation, but not before the customer has provided the documents, official approvals, releases and clarification of all questions relating to the delivery, and not before receipt of any agreed advance payment.

2. The delivery period shall be deemed to have been met if the delivery item has been made available by the expiry of the delivery period. In the case of agreed dispatch, the point in time at which the delivery item has left the factory or - if the item could not be dispatched in time through no fault of our own - notification of readiness for dispatch is decisive. Delivered items are to be accepted by the customer - without prejudice to his rights under section IX - even if they have minor defects. The delivery period shall be extended appropriately in the event of measures within the scope of industrial disputes as well as the occurrence of unforeseen obstacles which lie outside our sphere of influence, insofar as such circumstances demonstrably have a considerable influence on the completion or delivery of the delivery item. This shall also apply if the circumstances occur at sub-suppliers. We shall also not be responsible for the aforementioned circumstances if they arise during an already existing delay. In important cases, we will inform the customer of the beginning and end of such obstacles as soon as possible.

3. If we are in default with our performance, the customer shall be entitled to set us a reasonable grace period of at least 3 weeks in writing with the express declaration that he will refuse acceptance of the subject matter of the contract after expiry of this period and to withdraw from the contract after its fruitless expiry; the customer's right to claim damages shall remain excluded unless there is at least gross negligence on our part or on the part of a senior employee or one of our vicarious agents has breached an essential contractual obligation through gross negligence. Our liability extends only to direct damage.

4. If the delivery is postponed at the request of the customer, he shall be charged the costs incurred by the storage, starting one month after provision or notification of readiness for dispatch, but in the case of storage in our works at least 0.5 % of the invoice amount of the stored items for each month or part thereof. However, we are entitled to dispose otherwise of the delivery item after setting and fruitless expiry of a reasonable deadline and to supply the customer with a reasonably extended deadline.

5. Partial deliveries are permissible.

6. Compliance with the delivery period shall always be subject to the customer's fulfilment of his contractual duties and obligations. If the customer remains in arrears with the acceptance of the contractual object or the fulfilment of his payment obligations for more than 4 weeks after notification of the provision, we shall be entitled, after setting a grace period of 14 days, to withdraw from the contract or to claim damages for non-performance. We do not need to set a grace period if the customer seriously and finally refuses acceptance.

7. If we claim damages for non-performance, we may claim 15% of the agreed price as compensation; the damages shall be set higher or lower if we prove higher damages or the customer proves lower damages. If we do not make use of this right, we shall be entitled - without prejudice to our other rights - to freely dispose of the subject matter of the contract and to deliver a similar subject matter at the terms of the contract in its place within a reasonable period of time.

VI. Transfer of risk

1. The risk shall pass to the customer at the latest upon dispatch of the delivery parts, even if partial deliveries are made or we have assumed other services, e.g. the shipping costs, dispatch or delivery and/or assembly or commissioning. At the customer's request, the consignment will be insured against theft, breakage, transport, fire and water damage and other insurable risks at the customer's expense.

In any case, transport damage must be confirmed by the railway, post office or transport person before acceptance of the goods and we must be notified thereof.

2. If dispatch is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer from the day of readiness for dispatch; at the customer's request, we shall be obliged to arrange the insurance cover requested by the customer at the customer's expense. 3.

3. delivered items shall be accepted by the customer - without prejudice to his rights under section IX - even if they have minor defects.

VII Assembly/Commissioning

1. If assembly or commissioning is part of the contractual scope of services, we need not begin until all preliminary services required for assembly/commissioning and to be provided by the customer have been fulfilled completely and professionally and comply with the legal requirements. If these preliminary services are not fulfilled in good time, the periods agreed for assembly and/or commissioning shall be extended accordingly.

2. The customer is obliged to accept the delivery item or our services on a date to be agreed with us, but at the latest within 14 days of our notification of completion. If acceptance fails to take place for reasons attributable to the customer, we shall be entitled to set a grace period, after the fruitless expiry of which acceptance shall be deemed to have taken place. If the customer puts the delivery item into operation without authorisation during this period, this shall also be deemed to be acceptance.

3. Assembly, any agreed trial runs and commissioning shall be carried out by us during our normal working hours; if such work is carried out outside these hours at the customer's request, the customer shall bear the additional costs incurred as a result.

4. The customer shall provide a suitable lockable storage room for the fitter's tools for the duration of the assembly/commissioning.

5. the customer shall be liable for any auxiliary persons he may have provided for the installation/commissioning.

6. if a delay or interruption in the assembly/commissioning occurs through no fault of our own, the customer shall bear all additional costs incurred as a result.

VIII. Retention of title/securities

1. The delivered items shall remain our property until full payment of all claims arising from the business relationship with us and until any bills of exchange and cheques given for this purpose have been honoured.

2. Until revoked, the customer is only entitled to process the delivery item or to combine or mix it with other items in the ordinary course of business. In the event of processing, we shall be deemed to be the manufacturer and shall directly acquire (co-)ownership in accordance with § 950 BGB (German Civil Code) of the manufactured item; in the event of combination or mixing, we shall acquire (co-)ownership in the ratio of the value of our reserved goods to the new uniform item. 3.

3. The customer shall keep the items subject to our (co-)ownership in safe custody for us free of charge with the diligence of a prudent businessman and, at our request, insure them against theft, destruction and damage at its own expense.

4. Until revoked, the customer may sell the goods delivered under retention of title or the goods produced therefrom in the ordinary course of business. The customer hereby assigns to us the claims obtained through the sale as security for our claims to the extent corresponding to our (co-)ownership share in the sold item. We hereby accept the assignment. The customer is entitled to collect the assigned claims as long as we have not revoked this authorisation. We shall only revoke the right to resell and to collect claims if our customer does not properly fulfil his contractual obligations. It shall also expire without express revocation if the customer stops his payments, in the event of a protest of a cheque to be cashed by our customer as well as in the event that a petition for the opening of composition or bankruptcy proceedings is filed against the assets of our customer. At our request, the customer shall immediately disclose to us the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors of the assignment. 5.

5. if and to the extent that our securities under the above paragraphs exceed our claims by more than 20%, we shall release securities of our choice at the request of our customer.

6. As long as our retention of title exists, the customer may neither assign nor pledge the goods subject to retention of title or the items manufactured therefrom as security. If the aforementioned items are seized or confiscated from the customer, the customer must inform us immediately in writing.

IX. Warranty/Liability

1. Complaints due to defective or incomplete delivery must be made in writing immediately in the case of obvious defects, but at the latest within 2 weeks after receipt of the goods, but in any case before installation, further processing or resale, giving a precise description of the defects. Complaints about hidden defects must be made in writing without delay, at the latest, however, within 2 weeks of discovery, giving a precise description of the defects.

2. We assume warranty for our deliveries and services only in accordance with the following provisions, to the exclusion of further claims and without costs for installation and removal, freight and other ancillary services:

a) We shall be liable for not insignificant defects, at our discretion, by repair or replacement delivery, whereby we may freely dispose of the replaced items at our discretion. We shall be released from liability for defects if and to the extent that the customer does not grant us the time and opportunity required for rectification or replacement delivery or fails to perform reasonable acts of cooperation. The customer shall only be entitled to rescind the contract or to reduce the agreed price if rectification or replacement cannot be carried out or has failed. Further claims of the customer, in particular for damages, are excluded unless, in the absence of warranted characteristics, the purpose of the warranty is precisely to protect the customer against the damage that has occurred; in this case, however, we shall only be liable for the damage foreseeable at the time of conclusion of the contract.

b) For essential third-party products, our liability is initially limited to the assignment of the liability claims to which we are entitled against the supplier of the third-party product, insofar as these can be enforced in a manner that is reasonable for the customer; in all other respects, Clause 2. a) applies.

c) No warranty shall be assumed for damage caused by the following reasons: natural wear and tear and parts subject to wear and tear which are subject to premature wear and tear due to their nature or type of use; furthermore, no warranty shall be assumed for damage resulting from the operation of the delivery item under ambient conditions which deviate from standard conditions, improper storage, handling or use, faulty assembly or commissioning, non-compliance with our operating and maintenance instructions, the installation of parts of foreign origin, excessive stress, unsuitable operating materials, chemical, electrochemical or electrical influences. The same shall apply to other circumstances arising after the transfer of risk and for which we are not responsible. Furthermore, we shall not be liable for any disadvantages arising from the fact that requirements are placed on the delivery item about which we have not been informed or have not been informed sufficiently.

d) Unless expressly agreed otherwise, the statutory limitation periods shall apply; however, if the delivery item is used in multi-shift operation, a limitation period of 4 months shall apply.

3. Without prejudice to other limitations of liability in these terms and conditions, we shall only be liable for damage which has not occurred to our delivery item and for claims for damages of all kinds, in particular also from culpa in contrahendo, positive breach of contract and tort (§§ 823 et seq. BGB), insofar as we, our employees or vicarious agents are guilty of intent or gross negligence. Our liability is in any case limited to the damage foreseeable or typically occurring according to the purpose of the contract. The above limitations of liability shall not apply in the event of a breach of material contractual obligations.

4. the liability regulation according to clause 3 also applies to our verbal and written advice and to the performance of tests and trial runs.

5. Information provided to the customer at his request during the execution of the contract, which does not directly concern our delivery item or our performance, is provided without any warranty.

6. Our liability for personal injury and property damage in accordance with the provisions of the Product Liability Act remains unaffected.

X. Place of performance and jurisdiction

1. The place of performance for deliveries and payments is our registered office.

2. The place of jurisdiction for all claims arising from the business agreement - also for actions in cheque and bill of exchange proceedings - is the place of jurisdiction of our registered office if our customer is a registered trader, a legal entity under public law or a special fund under public law, or if the customer does not have a general place of jurisdiction in Germany, relocates his place of residence or habitual abode outside Germany after conclusion of the contract or his place of residence or habitual abode is unknown at the time the action is brought. We are entitled to choose to sue the customer at the court of his place of business.

XI. Applicable law

The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and other international agreements for the unification of the law on sales.

XII. Partial Ineffectiveness

The possible invalidity of individual contractual, delivery and payment conditions shall not affect the validity of the remaining conditions. Ineffective terms and conditions shall be replaced by such provisions which, in terms of their economic result, correspond to or come as close as possible to the economic purpose pursued by the respective ineffective provision.

XIII. Data Agreement
We point out that we store and process customer data - insofar as this is necessary for business purposes - in accordance with the provisions of the EU Data Protection Regulation (DSGVO) and the Federal Data Protection Act (BDSG).

Further information on data protection can be found in our data protection declaration, which can be found at www.wilking-drucklufttechnik.de.

Date: 02.02.2021

Wilking Drucklufttechnik Herne GmbH | Friedrich der Große 42 | 44628 Herne | Fon +49 (0) 23 23 - 9 46 66-0 | Fax +49 (0) 23 23 - 9 46 66-20 | office@wilking-drucklufttechnik.de
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