Article I: General provisions
1. these GTC shall apply exclusively to the legal relationships between Wälischmiller Engineering GmbH (hereinafter „Supplier“) and the Purchaser in connection with the deliveries and/or services of the Supplier (hereinafter „Deliveries“). The GTC of the Buyer shall only apply insofar as the Supplier has expressly agreed to them in writing. The scope of the Deliveries shall be determined by the mutually agreed written declarations.
2. the Supplier reserves its unrestricted rights of use and exploitation under property and copyright law to cost estimates, drawings and other documents (hereinafter “Documents“). The Documents may only be made accessible to third parties with the prior consent of the Supplier and must be returned to the Supplier immediately upon request if the order is not placed with the Supplier. Sentences 1 and 2 shall apply accordingly to the Purchaser's documents; however, these may be made accessible to third parties to whom the Supplier has permissibly transferred deliveries.
3. the Purchaser shall have the non-exclusive right to use the standard software and firmware with the agreed performance features in unchanged form on the agreed devices. The Purchaser may make a backup copy of the standard software without express agreement; with regard to the other software, this shall only apply with the consent of the Supplier.
4. partial deliveries are permissible unless they are unreasonable for the customer.
5. the term „claims for damages“ in these GTC also includes claims for reimbursement of futile expenses.
Article II: Prices, terms of payment, offsetting and retention
1. prices are ex works including packaging plus the applicable statutory value added tax.
2. if the supplier has taken over the installation or assembly and unless otherwise agreed, the customer shall bear all necessary ancillary costs such as travel and transportation costs as well as allowances in addition to the agreed remuneration.
3. the purchase price is due for payment net within 30 days of invoicing, or due according to the offer. After the due date, default interest shall be charged in the amount of the current regulation in the German Civil Code (BGB). The supplier reserves the right to claim further damages caused by default.
4. the customer shall only be entitled to offset and exercise the right of retention insofar as his counterclaims are undisputed or have been legally established. In addition, the customer is limited to asserting rights of retention on counterclaims arising from the same contractual relationship.
Article III: Retention of title
1. the items of the deliveries (reserved goods) shall remain the property of the Supplier until all claims to which the Supplier is entitled against the Purchaser arising from the business relationship have been fulfilled. If the value of all security interests to which the Supplier is entitled exceeds the amount of all secured claims by more than 10 %, the Supplier shall release a corresponding part of the security interests at the request of the Purchaser; the Supplier shall be entitled to choose between different security interests for the release.
2. during the existence of the retention of title, the purchaser is prohibited from pledging or transferring ownership by way of security and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from its customer or makes the reservation that ownership is only transferred to the customer when the customer has fulfilled its payment obligations.
3. if the purchaser resells goods subject to retention of title, it hereby assigns its future claims from the resale against its customers with all ancillary rights - including any balance claims - to the supplier by way of security, without the need for any further special declarations. If the goods subject to retention of title are resold together with other items without an individual price having been agreed for the goods subject to retention of title, the Customer shall assign to the Supplier that part of the total price claim which corresponds to the price of the goods subject to retention of title invoiced by the Supplier.
4.1 The purchaser is permitted to process the reserved goods or to mix or combine them with other items. The processing is carried out for the supplier. The Purchaser shall store the resulting new item for the Supplier with the care of a prudent businessman. The new item is deemed to be reserved goods.
4.2 The Supplier and the Purchaser hereby agree that in the event of combination or mixing with other items not belonging to the Supplier, the Supplier shall in any case be entitled to co-ownership of the new item in the amount of the share resulting from the ratio of the value of the combined or mixed reserved goods to the value of the other goods at the time of combination or mixing. In this respect, the new item is deemed to be reserved goods.
4.3 The provision on the assignment of claims under clause 3 shall also apply to the new item. However, the assignment shall only apply up to the amount corresponding to the value of the processed, combined or mixed reserved goods invoiced by the supplier.
4.4 If the customer combines the goods subject to retention of title with real estate or movable property, he shall also assign to the supplier, without any further special declarations being required, his claim to which he is entitled as remuneration for the combination, together with all ancillary rights, by way of security in the amount of the ratio of the value of the combined goods subject to retention of title to the other combined goods at the time of combination.
5. until revoked, the customer is authorized to collect assigned claims from the resale. In the event of good cause, in particular default of payment, suspension of payment, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the Purchaser, the Supplier shall be entitled to revoke the Purchaser's authorization to collect. In addition, the Supplier may, after prior warning and subject to a reasonable period of notice, disclose the assignment by way of security, realize the assigned claims and demand disclosure of the assignment by way of security by the Purchaser to the Customer.
6. in the event of seizure, confiscation or other dispositions or interventions by third parties, the customer must inform the supplier immediately. If a legitimate interest is substantiated, the purchaser must immediately provide the supplier with the information required to assert its rights against the customer and hand over the necessary documents.
7. in the event of breaches of duty by the customer, in particular default in payment, the supplier shall be entitled, after the unsuccessful expiry of a reasonable deadline set for the customer to perform, to withdraw from the contract in addition to taking back the goods; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The purchaser is obliged to surrender the goods. The taking back or assertion of the retention of title or the seizure of the reserved goods by the Supplier shall not constitute a withdrawal from the contract, unless the Supplier has expressly declared this.
Article IV: Time limits for deliveries; delay
1. compliance with deadlines for deliveries requires the timely receipt of all documents to be supplied by the customer, necessary approvals and releases, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the customer. The defense of non-performance of the contract remains reserved. If these conditions are not fulfilled in good time, the deadlines shall be extended accordingly; this shall not apply if the Supplier is responsible for the delay.
2. if the failure to meet the deadlines is due to
2.1. obstacles due to German, EU, US or other applicable international regulations of foreign trade and export control law such as official delays in the processing of export license applications or due to other circumstances for which the supplier is not responsible, or
2.2. if the supplier is not supplied on time or properly, the deadlines shall be extended accordingly.
3. both claims for damages by the customer due to delayed delivery and claims for damages in lieu of performance are excluded in all cases of delayed delivery, even after expiry of any deadline set to the supplier for delivery. This shall not apply in cases of liability based on intent, gross negligence or injury to life, body or health. The Purchaser may only withdraw from the contract within the framework of the statutory provisions if the Supplier is responsible for the delay in delivery.
4. at the request of the supplier, the purchaser is obliged to declare within a reasonable period of time whether it is withdrawing from the contract due to the delay in delivery or insisting on delivery.
5. if dispatch or delivery is delayed at the request of the customer by more than one month after notification of readiness for dispatch, the customer may be charged storage costs of 0.1 % of the price of the items of the deliveries for each additional month or part thereof, up to a maximum total of 5 %. The contracting parties are at liberty to prove higher or lower storage costs.
Article V: Transfer of risk
1. the risk shall pass to the customer as follows, even in the case of carriage paid delivery:
1.1. in the case of delivery without installation or assembly, if it has been dispatched or collected. At the request and expense of the Purchaser, the Supplier shall insure the delivery against the usual transportation risks;
1.2. in the case of delivery with installation or assembly on the day of acceptance at the customer's own premises or, if agreed, after successful trial operation.
2. if dispatch, delivery, the start or performance of installation or assembly, acceptance at the customer's own premises or trial operation is delayed for reasons for which the customer is responsible or if the customer is in default of acceptance for other reasons, the risk shall pass to the customer.
Article VI: Installation and assembly
Unless otherwise agreed in writing, the following provisions shall apply to installation and assembly:
1. the customer must accept the goods at his own expense and provide them in good time:
1.1. all earthworks, construction work and other ancillary work outside the industry, including the necessary skilled and unskilled labor, building materials and tools;
1.2. the equipment and materials required for assembly and commissioning, such as scaffolding, lifting gear and other devices, fuels and lubricants;
1.3 Energy and water at the point of use, including connections, heating and lighting;
1.4. sufficiently large, suitable, dry and lockable rooms for the storage of machine parts, apparatus, materials, tools, etc. at the assembly site and adequate working and recreation rooms for the assembly personnel, including sanitary facilities appropriate to the circumstances; in addition, the Purchaser shall take the same measures to protect the property of the Supplier and the assembly personnel on the construction site as it would take to protect its own property;
1.5 Protective clothing and protective devices that are required due to special circumstances at the installation site.
2. before the start of the installation work, the customer must provide the necessary information on the location of concealed electricity, gas and water pipes or similar installations as well as the necessary structural data without being asked.
3. prior to the start of installation or assembly, the materials and objects required for the start of the work must be available at the installation or assembly site and all preparatory work must have progressed to such an extent that the installation or assembly can be started as agreed and carried out without interruption. Access routes and the installation or assembly site must be leveled and cleared.
4. if the installation, assembly or commissioning is delayed due to circumstances for which the supplier is not responsible, the customer shall bear the reasonable costs for waiting time and any additional travel required by the supplier or the assembly personnel.
5. the Purchaser shall immediately certify to the Supplier on a weekly basis the duration of the working time of the assembly personnel as well as the completion of the installation, assembly or commissioning.
6. if the supplier demands acceptance of the delivery after completion, the customer must carry this out within two weeks. Acceptance shall be deemed to have taken place if the Purchaser allows the two-week period to elapse or if the delivery has been put into use - if applicable after completion of an agreed test phase.
Article VII: Receipt
The customer may not refuse to accept deliveries due to insignificant defects.
Article VIII: Material defects/warranty
The Supplier shall be liable for material defects as follows:
1. the prerequisite for any warranty rights of the customer is the proper fulfillment of all inspection and complaint obligations owed according to § 377 HGB. Notification of defects by the customer must be made immediately in writing.
2. all those parts or services which have a material defect shall, at the Supplier's discretion, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.
3. claims for subsequent performance shall become time-barred 12 months after the beginning of the statutory limitation period; the same shall apply to withdrawal and reduction. This period shall not apply:
4. in the event of notices of defects with regard to the right of retention, Art. If a right of retention exists, the customer may only withhold payments to an extent that is in reasonable proportion to the material defects that have occurred. The customer shall have no right of retention if his claims for defects are time-barred. If the notice of defects is unjustified, the Supplier shall be entitled to demand reimbursement of the expenses incurred by it from the Purchaser.
5. the supplier shall be given the opportunity to provide subsequent performance within a reasonable period (at least 14 working days).
6. if the subsequent performance fails, the customer may - without prejudice to any claims for damages pursuant to clause 10 - withdraw from the contract or reduce the remuneration.
7. claims for defects shall not exist in the event of only insignificant deviation from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or which arise due to special external influences which are not assumed under the contract, as well as in the event of non-reproducible software errors. If the customer or third parties carry out improper modifications, installation/removal or repair work, no claims for defects shall exist for these and the resulting consequences.
8. claims of the customer for expenses incurred for the purpose of subsequent performance are excluded insofar as the expenses increase because the object of the delivery has subsequently been taken to a place other than the customer's branch office, unless the transfer corresponds to its intended use. This shall apply mutatis mutandis to claims for reimbursement of expenses by the Purchaser pursuant to Section 445a BGB (recourse of the Seller), provided that the last contract in the supply chain is not a sale of consumer goods.
9. recourse claims of the purchaser against the supplier in accordance with § 445a BGB (recourse of the seller) shall only exist insofar as the purchaser has not made any agreements with his customer that go beyond the statutory claims for defects.
10. claims for damages by the customer due to a material defect are excluded.
This shall not apply in the event of fraudulent concealment of the defect, non-compliance with a quality guarantee, injury to life, limb or health and in the event of an intentional or grossly negligent breach of duty by the supplier.
Further claims or claims other than those regulated in this Art. VIII due to a material defect are excluded. This applies in particular to damage - irrespective of the legal grounds - which has not occurred to the goods themselves; in particular, no liability is accepted for loss of profit or for other financial losses of the customer. In the case of special designs, liability for defects or damage based on specifications made by the customer is excluded.
The amount of liability is limited to the value of the order. Further claims are excluded to the extent permitted by law.
Insofar as contractual liability is excluded or limited, this shall also apply to the personal liability of employees, representatives and vicarious agents.
Article IX: Industrial property rights and copyrights; defects of title
1. unless otherwise agreed, the Supplier is obliged to make the delivery only in the country of the place of delivery without infringing industrial property rights and copyrights of third parties (hereinafter „Property Rights“). If a third party raises justified claims against the Purchaser due to the infringement of Property Rights by deliveries made by the Supplier and used in accordance with the contract, the Supplier shall be liable to the Purchaser within the period specified in Art. VIII clause 3 as follows:
1.1 The Supplier shall, at its own discretion and at its own expense, either obtain a right of use for the deliveries concerned, modify them in such a way that the property right is not infringed, or replace them. If this is not possible for the supplier under reasonable conditions, the purchaser shall be entitled to the statutory rights of withdrawal or reduction.
1.2 The Supplier's obligation to pay damages shall be governed by Art. XII.
1.3 The aforementioned obligations of the Supplier shall only apply insofar as the Purchaser immediately notifies the Supplier in writing of the claims asserted by the third party, does not acknowledge an infringement and all defensive measures and settlement negotiations remain reserved to the Supplier. If the Purchaser ceases to use the delivery in order to minimize damages or for other important reasons, it shall be obliged to point out to the third party that the cessation of use does not constitute an acknowledgement of an infringement of property rights.
2. claims of the customer are excluded if he is responsible for the infringement of property rights.
3. claims of the Purchaser shall also be excluded if the infringement of property rights is caused by special specifications of the Purchaser, by an application not foreseeable by the Supplier or by the fact that the delivery is modified by the Purchaser or used together with products not supplied by the Supplier.
4. in the event of infringements of property rights, the provisions of Art. VIII clauses 4, 5, 8 and 9 shall apply accordingly.
5. in the event of other defects of title, the provisions of Art. VIII shall apply accordingly.
6. further claims or claims other than those regulated in this Art. IX against the Supplier and its vicarious agents due to a defect of title are excluded.
Article X: Reservation of performance
1. the fulfillment of the contract is subject to the proviso that there are no obstacles due to German, EU, US and other applicable international regulations of foreign trade and export control law, including embargoes and sanctions (such as official refusal of necessary export licenses, statutory export bans).
2. the customer is obliged to immediately provide all information and documents required for the export, shipment or import.
Article XI: Impossibility; contract adjustment
1. if delivery is impossible, the customer shall be entitled to claim damages, unless the supplier is not responsible for the impossibility. However, the Purchaser's claim for damages shall be limited to 10 % of the value of that part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in cases of liability based on intent, gross negligence or injury to life, body or health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The right of the customer to withdraw from the contract remains unaffected.
2. if events within the meaning of Art. IV clauses 2.1 to 2.2 significantly change the economic significance or the content of the delivery or have a significant impact on the supplier's operations, the contract shall be adapted appropriately in good faith. If this is not economically justifiable, the supplier shall have the right to withdraw from the contract.
If necessary export licenses are not granted or are granted subject to conditions with the result that the deliveries are not possible to the extent provided for in the contract, the Supplier may make partial deliveries unless the Purchaser proves that partial deliveries are unreasonable for it. Unreasonableness exists if the Buyer cannot use the products that can be delivered without an export license or for which an export license exists as intended or otherwise. Notwithstanding its right to make partial deliveries, the Supplier may also withdraw from the contract. If the Supplier exercises its right of withdrawal, it may demand compensation for futile expenses in the amount of 50% of its expenses. The Supplier's futile expenses shall include, in particular, the costs of manufacturing products which the Supplier has developed and manufactured specifically for the Purchaser so that the Supplier cannot sell these products to other Purchasers or use them in any other way.
If the supplier wishes to exercise his right of withdrawal, he must declare his withdrawal from the contract to the purchaser in writing.
Article XII: Force majeure
In cases of force majeure, the supplier shall be released from the obligation to deliver for the duration and to the extent of the impact. Force majeure is understood to be an external event that has no operational connection and cannot be averted even with the utmost care that could reasonably be expected. This includes, in particular, fire damage, floods, strikes, lawful lockdowns, terrorist attacks, wars, massive violent unrest, unauthorized attacks on IT systems (hacker attacks) and epidemics (including epidemics and pandemics) insofar as a risk level of at least „moderate“ is defined by the Robert Koch Institute (RKI).
Article XIII: Other claims for damages
1. unless otherwise provided for in these GTC, claims for damages by the customer, irrespective of the legal grounds, in particular for breach of duties arising from the contractual obligation and from tort, are excluded.
2. this does not apply if liability is as follows:
2.1. in accordance with the Product Liability Act,
2.2. in the case of intent,
2.3. in the event of gross negligence on the part of owners, legal representatives or executives,
2.4. in the event of fraudulent intent,
2.5. in the event of non-compliance with an assumed guarantee,
2.6. due to culpable injury to life, limb or health, or
2.7. due to the culpable breach of material contractual obligations. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless another of the aforementioned cases applies.
3. a change in the burden of proof to the detriment of the customer is not associated with the above provisions.
Article XIV: Severability clauses
1. if the purchaser is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the supplier's registered office. However, the Supplier shall also be entitled to bring an action at the registered office of the Purchaser.
2. this contract, including its interpretation, shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
3. the contract shall remain binding in its remaining parts even if individual provisions are legally invalid. This shall not apply if adherence to the contract would represent an unreasonable hardship for one of the parties.
4. the German version of these GTC shall take precedence over the English version.