there is nothing more constant than changethere is nothing more constant than change1. General considerations
(1) We deliver products and services exclusively in accordance with our General Terms and Conditions of Sale unless otherwise agreed in writing. These terms and conditions of sale generally apply after a transaction is complete and for subsequent transactions with the client as well, even if no special reference is made to the terms and conditions in any following bids or agreements with the client.
(2) This hereby expressly invalidates any differing terms and conditions from the client. Silence on our part regarding differing terms and conditions from the client is not to be regarded as a declaration of consent, even if we deliver products and/or services without reservation. Such terms and conditions are valid only if we expressly endorse them.
(3) The following terms and conditions do not apply to consumers in the sense of Article 13 of the German Civil Code (BGB).
2. Quote validity and contract conclusion
(1) Our quotes in their entirety and the corresponding documents are non-binding. Quotes do not oblige us to accept an order.
(2) Orders shall only be regarded as accepted if we have confirmed the client’s corresponding commission, either in writing or via fax. Documents supplied to the client, such as illustrations, plans and drawings, as well as size, weight, consumption and performance data, are only approximate, as technical changes affecting the confirmed order and/or the contract are permissible if legal requirements, government regulations or improvements in technology necessitate such changes in order to fulfill the purpose of the contract, or if such changes neither affect the agreed-upon quality nor impair the suitability of the product or service for its contractually stipulated use.
(3) All verbal agreements made directly or indirectly by our employees or vicarious agents require our written confirmation.
3. Rights to quote/contract documents, rights of use
(1) We reserve our rights of ownership and use of drawings, cost estimates and other documents transmitted to the client. These must not be made available to third parties. In the event that the contract does not come to fruition, the documents provided (in any form) must be destroyed/deleted immediately or promptly returned on request.
(2) Insofar as our services include granting rights of use for work materials (e.g., software) protected by copyright or in any other way (e.g., patent, utility model), the rights granted to the client are non-exclusive and in keeping with the purpose at hand.
4. Prices
(1) All prices are valid “ex works”, i.e., without packaging and shipping costs, which are charged separately. If we are to provide other additional services, in particular installation of the object of delivery, these services must be agreed upon separately and remunerated. The special conditions listed under item 12 shall also apply to installation services.
(2) Our prices do not include statutory VAT, which is listed separately on the invoice in the amount required by law on the day of invoicing.
(3) If more than four months elapse between the conclusion of the contract and the delivery of the product or service and there is no delay for which we are responsible, we shall be entitled to change the agreed-upon prices to compensate for cost increases. These increases may occur, in particular, as a result of increased labor costs or changes in material prices. As soon as and to the extent that such cost increases occur and provided we request a corresponding price adjustment, we will provide the client with evidence if desired.
(4) In the event of price discrepancies of more than 10%, the client shall be entitled to withdraw from the contract within a period of 10 days after notification of the price change, provided the contract has not yet been fulfilled. After that time, the new prices are considered approved.
5. Partial delivery, delivery time, delivery delays
(1) Unless the client has explicitly stated that partial deliveries are not acceptable, we reserve the right to deliver the product or service in stages, prior agreements to the contrary notwithstanding.
(2) Information on delivery timing is not binding unless we have agreed to a fixed delivery date and confirmed this in writing.
(3) The client must fulfill his or her contractual cooperation requirements and obligations so that we can execute the contract properly, in particular so that we can meet delivery times and dates. For this reason, the delivery period begins on the date we confirm the order at the earliest but not before the client has submitted the necessary documents, details or permits or has performed any other acts of cooperation required for delivery and also made the agreed-upon down payment. Delays on the part of the client will result in the corresponding postponement of delivery dates.
(4) If the original scope of products and/or services is changed or extended after conclusion of the contract, the original delivery terms or dates or service periods shall be extended or postponed accordingly.
(5) To the extent that circumstances for which we are not responsible hinder, delay or render impossible the execution of accepted orders, we reserve the right to postpone delivery of the product or service for the duration of the disruption or to withdraw from the contract in whole or in part in the event that the disruption is not simply temporary unless we are at fault for the delay.
(7) In the event that we withdraw from the contract, we are obliged to inform the client of our unavailability without delay and promptly compensate the client for services rendered. A partial withdrawal can only take place if partial service is of interest to the client.
(8) Examples of disruptions for which we are not responsible in the sense of section 6 include government intervention, operational disruptions, strikes, lockouts, work disruptions caused by political or economic situations, lack of necessary operating and raw materials, shipping delays due to transportation network disruptions and unavoidable events that occur (i) at our sites, (ii) at our suppliers’ sites or (iii) at sites operated by third parties on which we depend to keep our business operational.
(9) If the necessary operating and raw materials are unavailable, we reserve the right to extend the delivery term and to withdraw only if we have concluded a specific hedging agreement with our suppliers prior to the conclusion of the contract and are not responsible for the non-delivery.
(10) If the client requests that we delay or postpone delivery or provision of the product or service, a flat-rate warehousing fee to the amount of 1% of the order value can be invoiced to the client for each month of delay commenced, starting with the first month after we have indicated that we are ready to deliver. This fee shall not exceed 5% of the order value unless higher costs have been incurred and can be proven. For partial deliveries, the fee shall be based on the order value of the partial delivery.
6. Packaging
Any packaging will be invoiced at cost and cannot be returned unless mandated by the Packaging Ordinance or other legal requirements.
7. Shipment, transfer of risk
(1) Risk passes to the client when the delivery item has left the factory, i.e., when the goods have been delivered to the freight forwarder, carrier or other person or institution designated to ship the item. This applies even if the parties to the contract have agreed on prepaid freight.
(2) If shipping is delayed due to circumstances for which we are not responsible, risk passes to the client from the date on which the goods are ready for shipping. This applies to permissible partial deliveries and agreements on other services, such as prepaid freight.
(3) Upon the request of the client, we will provide shipping insurance to cover the delivery where the client shall bear the costs incurred.
8. Terms of payment
(1) Unless otherwise stated in the order confirmation, the agreed-upon net prices/remuneration (no deductions) are due for payment within 14 days from the date of invoice. This shall apply accordingly to partial invoices in the case of partial deliveries. Application of an early payment discount requires a separate written agreement.
(2) All outstanding invoices – even in the event of deferment – shall be due immediately as soon as the client defaults on other obligations to us, stops making payments, accrues too much debt, has filed for bankruptcy, opened bankruptcy proceedings or is ineligible due to insufficient assets, or if we learn of circumstances that cast serious doubt on the client’s creditworthiness in a way that would appear to put payments owed to us in jeopardy. In such cases we reserve the right, at our discretion, to demand the return of the delivered goods, to make further deliveries of products and services dependent on advance payments or security guarantees or to withdraw from the contract. We are then entitled to cancel rebates, special discounts, etc. that have been granted.
(3) Bills of exchange and checks will only be accepted upon special prior agreement and only as a conditional payment, less any discount and collection expenses.
9. Setoff, retention
The client shall only be entitled to setoff rights if his or her counterclaims are undisputed, acknowledged by us, have been legally established or are poised for a decision in a legal dispute. Furthermore, the client is only entitled to exercise a right of retention to the extent that a counterclaim is based on the same contractual relationship.
10. Extended retention of title
(1) We retain the title to the delivery item until all claims arising from the business relationship with the client have been fulfilled. We reserve the right to repossess the purchased goods in the event that the client acts in breach of the contract, in particular in default of payment. Repossession does not constitute a withdrawal from the contract unless we have previously expressly declared this in writing. We reserve the right to make use of reserved goods. The proceeds from doing so will be credited toward the client’s liabilities less any costs. Any surplus must be paid to the client.
(2) The client is obliged to treat the purchased goods with care; this especially involves insuring them sufficiently (at replacement value) at the client’s expense against damage due to fire, water and theft.
(3) In order to secure our rights pursuant to Section 1, the client shall assign any and all claims in the amount indicated on our final invoice (including VAT) that accrue to him or her from resale against buyers or third parties, regardless of whether the object of purchase has been resold with or without processing. The client remains authorized to collect this claim even after its assignment. This does not impact our right to collect the claim ourselves. However, we agree not to collect the claim as long as the client meets his or her payment obligations from the collected proceeds and has neither fallen into arrears, filed for bankruptcy or stopped payment. If this is the case, however, we can request that the client notify us of the assigned claims and their borrowers, provide all information necessary for collection, submit the relevant documents and inform borrowers (third parties) of the assignment.
(4) In the event of seizures and other interventions by third parties affecting the reserved property, the client must inform us immediately so that legal action can be filed in accordance with Article 771 of the German Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse us for the judicial or extra-judicial costs of such a lawsuit, the client is liable for losses that we incur.
(5) The client is entitled to resell or process the purchased goods in the ordinary course of business unless the client has already effectively assigned the claim against his contractual partner to a third party in advance or has agreed to a prohibition of assignment.
(6) Processing or altering the purchased goods by the client shall always be carried out for us. If the purchased goods are processed together with other items that do not belong to us, we shall acquire co-ownership of the new item at a value in keeping with the value of the purchased goods (final invoice amount, including VAT) as a proportion of the value of the other processed items at the time of processing. The same shall apply to the goods resulting from processing as applies to the goods delivered subject to reservation.
(7) We undertake to release the securities to which we are entitled at the request of the client to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%. The choice of the securities to be released is incumbent upon us.
(8) The client may neither assign nor pledge his or her claims against subsequent purchasers to third parties, nor agree to a prohibition of assignment with subsequent purchasers.
(9) Until the transfer of title, the client is obliged to insure the goods sufficiently against theft and damage from breakage, fire, water and other causes. These kinds of insurance claims shall be assigned to us by the client upon conclusion of the contract. We accept the assignment.
11. Warranty
(1) We shall not be liable for flaws or defects in the delivery item, insofar as these result from the client’s plans, instructions or other specifications regarding the quality or manufacture of the delivery item or its installation. We are not subject to any audit obligations with respect to these requirements.
(2) The client must immediately put any complaints in writing concerning obvious defects of the delivery item, but no later than within 10 working days after receipt of the delivery item. Complaints concerning any defects that are not obvious must be submitted as soon as the defect becomes apparent. Submitting a complaint in a timely manner will satisfy this time constraint. If no timely complaint is received, the delivery item shall be deemed to have been approved in view of the defect. Article 377 Sec. 5 of the German Commercial Code (HGB) remains unaffected.
(3) General product changes that we have made to the delivered goods do not constitute defects subject to complaint, provided such changes are not associated with any significant visual alterations, are not necessary to achieve the purpose of the contract and/or do not affect the agreed-upon quality nor impair the suitability of the delivered goods for their contractually assumed use and do not represent any decline in technical quality.
(4) If there is a defect in the delivered goods for which we are responsible, we reserve the right to either remedy the defect or to supply a replacement at our discretion. If subsequent performance fails more than twice, the client is entitled to withdraw from the contract or to request a reduction of the price at his or her discretion.
(5) Damages or errors due to natural wear and tear, to transport damage for which we are not responsible or to failure to follow operating and assembly instructions are not covered by the warranty. If the client or third parties make improper changes to the delivered item, they shall likewise be unable to make any warranty claims. The same applies if the delivered goods are used or installed by the client for a purpose other than the agreed-upon or assumed purpose.
(6) In the event that the client has justified complaints of defects, he or she may withhold payment in an amount three times the value of the costs to remedy the defect. If such a complaint is not justified, we reserve the right to demand compensation from the client for any expenses that we incur.
(7) The limitation period for warranty claims is – except in cases of Article 438, Sec. 1, No. 2, Clause b of the German Civil Code (BGB) – one year from delivery of the goods. The limitation period in the event of a delivery recourse as stipulated in Articles 445 a f of the BGB remains unaffected. The warranty period for contractual services is one year after acceptance. Legal statute of limitation periods shall remain unaffected if we have fraudulently concealed a defect, if claims for damages rest on culpable injury to health, life and limb or if we, our legal representatives, employees or vicarious agents are guilty of other intentional and grossly negligent breaches of duty.
(8) A guarantee for which we wish to assume responsibility – in addition to the agreed-upon warranty – that ensures the quality of the delivered goods is valid only if we expressly designate it as a guarantee and accept or agree to it in writing. Pure quality information on parameters such as suitability, properties and performance does not constitute a warranty statement.
12. Special conditions for assembly work
(1) If we are to provide installation services subject to remuneration, the work involved shall be billed at the agreed-upon hourly rates, otherwise at our usual hourly rates, unless a flat rate has been expressly agreed upon.
(2) Invoices for the work involved shall be issued at the end of each month along with summaries of the hours worked.
(3) The client is obliged to provide and/or deploy – on time and in full –the necessary cooperation and support services and/or materials stipulated in the agreement and required for our services. This includes, in particular, the completion of on-site work, unrestricted access to and movement at the installation site, coordination with other tradespeople and suppliers, availability of the technical infrastructure (connections, electricity, water, etc.) and auxiliary equipment and availability of the objects to be installed if applicable. The client must ensure that we can perform our services uninterrupted and without delays. In the event of delays for which the client is responsible, we reserve the right to bill separately for any expenses and costs incurred, in particular maintenance, accommodation and travel expenses.
(4) We reserve the right to have a subcontractor perform installation services as our vicarious agent without the client’s separate consent.
(5) The clients shall accept installation services if we have indicated that these are complete and have tested the delivered goods as agreed upon. No written or other formal acceptance is required. Services shall also be deemed to have been accepted if the client uses our services or the delivered goods as installed. Article 640, Sec. 1, S. 1 of the BGB remains unaffected.
13. Liability
(1) We shall be liable for damage that we have caused in the event of intent and gross negligence as defined by law. The same shall apply in the case of negligent damage resulting from injury to health, life or limb as well as in the case of claims pursuant to Articles 1 and 4 of the Product Liability Act.
(2) In the case of material damage and financial loss caused by negligence, we shall be liable only in the event of a breach of an essential contractual obligation. The amount shall be limited, however, to the foreseeable and typical damages at the time when the contract was concluded (essential contractual obligations are those whose fulfillment is critical to the contract and on which the client may rely). In this case, our liability is limited to a maximum of 5 million euros.
(3) Any further liability for damages is excluded. This applies in particular to claims for damages due to fault at the time when the contract was concluded, due to other breaches of duty or due to tort claims for compensation for property damage as defined in Article 823 of the BGB.
(4) Insofar as liability for damages toward us is excluded or limited, this also applies with regard to personal liability for damages to our institutions, employees, workers, representatives and vicarious agents.
14. Written form
Amendments and supplements to the contract must be made in writing. The same applies to revocation of this written form requirement.
15. Place of performance and place of jurisdiction
The place of jurisdiction is the location of our company headquarters. However, we expressly reserve the right to make claims against the client at any other permissible place of jurisdiction. Unless otherwise agreed upon, the place of performance shall be the location of our company headquarters; for installation services, this shall be the installation location.
16. Applicable law
The legal relationships between us and the client are subject exclusively to German law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) do not apply.
17. Severability clause
Invalidity of any one provision shall not affect the validity of the remaining provisions.
Ahaus, March 1, 2018
Wenker GmbH & Co. KG,Boschstrasse 14,48683 Ahaus, Germany, Tel.: +49 (0) 2561 44939-0
1. General considerations
(1) Our General Terms and Conditions of Purchase (AEB) shall apply exclusively. In the event that the supplier maintains general terms and conditions of purchase that contradict or deviate from our AEB, we shall only accept these terms insofar as we have expressly agreed to them in writing. Any standard but differing conditions on the part of the supplier are expressly rejected.
(2) Even after the conclusion of a transaction, our AEB shall generally apply to subsequent transactions with the supplier, even if this is not made expressly clear for later orders.
2. Order, conclusion of contract
(1) Orders and other contractual declarations as well as their amendments and supplements must be made in writing.
(2) Only orders issued or confirmed in writing by us are valid. Changes or additions require our express written consent. The supplier shall confirm our orders promptly. If we do not receive confirmation from the supplier within 8 days, we reserve the right to cancel the order free of charge. Modified acceptance (order confirmation) from the supplier shall be considered a new quote and must be expressly confirmed by Wenker in writing.
(3) The supplier must deliver the quantity, quality and design ordered and, in the event of any discrepancies, must address this explicitly in writing. We reserve the right to accept deliveries that exceed or fall short of specifications.
(4) The supplier shall review all technical documents provided by us as well as by our client (e.g., planning and design documents, client specifications, internal specifications) as well as information on the delivery of the products or services immediately after receipt to ensure completeness, identify contradictions and obvious errors, and assess feasibility and suitability for the agreed-upon purpose. The supplier shall inform us without delay of any errors, defects and risks as well as any potential improvements identified. The same shall apply if the supplier becomes aware of errors, defects, risks or improvements during the performance of the contract.
(5) Quotes, bids, plans and other pre-contractual services on the part of the supplier are free of charge for us unless we have expressly agreed to pay for them in writing.
3. Scope of products and services
(1) The products and services that the supplier is contractually obligated to deliver shall be determined according to the following contract components and in the following order: (a) our order, along with the documents and appendices referred to therein, in the order specified, (b) if available: technical and organizational descriptions (e.g., client specifications, internal specifications, technical planning documents, quality assurance regulations), (c) this AEB.
(2) All services required for error-free delivery and/or error-free production and installation processes are part of the scope of services of the supplier, even if these are not expressly stated in the contract.
(3) Supplier claims for compensation for modified or additional services, regardless of the legal reason, are excluded if the supplier does not give notice of his or her additional claims for compensation prior to execution and we have not confirmed said claims. This can be waived in individual cases due to urgency.
(4) In the event of modified/extended services, additional or reduced services must be taken into account for any compensation claim. In addition, any supplementary claims for compensation shall be determined according to the base price for the contractual service.
(5) If we supply or make available the material that the supplier requires for carrying out installation, assembly and maintenance work, supplier services shall also include unloading trucks and transporting system components from interim storage to the installation location.
(6) For installation, assembly and maintenance work, services also include submitting industry-standard documentation unprompted and without delay.
(7) If the scope of services includes research, design, development, drafts, planning, programming or similar services, the supplier is obliged to submit all results, in particular design and production drawings along with documentation, user manuals etc. If these services encompass copyright and/or industrial property rights or other protected performance outcomes, the supplier shall grant us such rights of use as necessary for appropriate application, also on the part of the client. If this service has been customized for us, the rights of use granted to us are to be exclusive, irrevocable, unlimited with respect to time, space and content, transferable and included in the cost of the service. These rights include, in particular, the right to copy, edit, distribute and license the product to third parties.
4. Delivery dates, contractual penalties
(1) The deadlines stated in our order are binding delivery receipt/performance deadlines. Partial deliveries of products/services are permissible only with our consent.
(2) If the supplier is in default with his or her performance, we shall have the right to demand a contractual penalty of 0.2% of the order value per working day, but no more than 5% of the order value, without prejudice to further claims for compensation and unless otherwise agreed upon. The supplier has the right to demonstrate lesser damages. We can still assert the reservation of the claim to the forfeited contractual penalty until the final payment is made.
(3) If the supplier’s product/service also includes assembly and installation work, acceptance is required and included in the agreement. Making use of the delivered goods does not constitute acceptance in a legal sense. Acceptance requires a written acceptance report that we have signed. Article 640, Sec. 1, S. 3 of the BGB remains unaffected.
(4) The acceptance and/or approval of a delayed product or service does not constitute a waiver of the corresponding warranty and compensation claims.
5. Shipment
(1) Notice of shipments must be provided by the time the goods leave the factory at the latest. Shipping notices, consignment papers and package addresses must include the shipping address and order/consignment number. Our orders will generally be delivered DDP – Delivered Duty Paid in accordance with Incoterms® 2010. In unusual cases, we shall cover freight costs, either in whole or in part, in which case goods are to be shipped at the most favorable freight rates and/or according to the client’s shipping specifications. We will not pay carriage fees for incoming goods.
(2) The supplier shall provide shipping insurance.
(3) In order to avoid damage due to unsecured or poorly secured cargo during transport, the supplier must have the cargo secured by the carrier collecting the goods.
(4) The supplier shall be liable for all damages and costs arising from culpable failure to observe or comply with our shipping regulations or specifications.
6. Prices, invoicing, payment terms
(1) Barring agreements to the contrary, the prices stated in the order are binding and are considered carriage-paid to the delivery location we have specified, including all transport, insurance, packaging and other ancillary costs and fees up to the point of delivery/installation in working condition at the receiving/installation location indicated to us.
(2) The price indicated in the agreement includes the operation and maintenance documentation, instructions and records required for starting up and using the delivered goods.
(3) If remuneration on a time and material basis has been agreed upon, a detailed overview of the costs which we have signed must be attached to the corresponding invoice.
(4) Prices do not include statutory VAT. This also applies if VAT is not shown separately.
(5) We can only process invoices when these – in accordance with our order specifications – indicate the order and/or commission number shown in our order. We do not accept collective invoices. One invoice must be issued per delivery.
(6) Unless otherwise agreed upon in writing and calculated from the date the invoice is received, our payments will include a 3% early payment discount if made within 14 days and the net amount will be paid after 30 days.
(7) Interest on maturity is excluded. The default interest rate is five percentage points above the respective base interest rate.
(8) Advance payments or other prepayment amounts due do not constitute recognition or acceptance of the (partial) services already rendered.
(9) The supplier shall not be entitled to any rights of retention insofar as they stem from counterclaims arising from other legal transactions with us.
(10) The supplier may only set off against such claims that we do not dispute or that have been legally established.
7. Warranty, complaints
(1) Unless stipulated otherwise in the following, legal regulations apply to our claims arising from defects of quality and title as well as to other breaches of the supplier’s obligations.
(2) The supplier guarantees that all services – as far as applicable to the actual delivered goods and particularly regarding material selection, processing and function – correspond to state-of-the-art technology, to relevant legal provisions and to the regulations and guidelines of government agencies and employers’ liability insurance associations. The supplier must obtain our written consent if it is necessary to deviate from regulations in individual cases. Acceptance of this provision does not limit the supplier’s liability for defects. If the supplier has any doubts as to how we wish services to be performed, then this must be addressed in writing without delay.
(3) The supplier shall ensure that the goods, samples and/or other services supplied do not infringe upon third-party rights of any kind and do not violate third-party industrial property rights, in particular patents, utility models, registered designs, trademarks and copyrights. The supplier shall indemnify us and/or our clients against all costs and claims for damages from third parties in the event of infringement of third-party property rights, private rights or public law regulations.
(4) We shall inspect incoming deliveries immediately for transport damage and obvious defects. In the case of large deliveries, we reserve the right to perform only spot checks. We shall promptly, i.e., within a reasonable period of time at least two weeks from the date of delivery, issue a complaint regarding any defects discovered.
(5) We shall promptly, i.e., within a reasonable period of time at least two weeks from the date of discovery, issue a complaint regarding any hidden defects, in particular those that become apparent during installation, processing and other enhancements. Payments that we make shall not be deemed to be a waiver of any claims for compensation.
(6) We shall, at our discretion, consider the supplier to have retroactively fulfilled his or her obligations by eliminating the defect (subsequent repair) or by delivering a defect-free item (replacement goods) within what we have determined to be a reasonable period of time. If the supplier fails to retroactively fulfill his or her obligations or if we consider said fulfillment to be unacceptable, particularly in urgent cases where plant safety is at risk and/or it does not satisfactorily serve the purpose of preventing or reducing damage, we reserve the right to rectify the defect ourselves or have it rectified at the supplier’s expense.
(7) If the supplier has retroactively fulfilled his or her obligations by means of a replacement, the statute of limitations period shall restart beginning with the date on which the replacement goods were delivered or the newly delivered parts were approved, unless the supplier has expressly and justifiably reserved the right to make the replacement delivery only out of goodwill or to avoid conflict.
8. Compliance, quality assurance, environmental protection, energy efficiency, code of conduct
(1) The supplier is obliged to provide products and services in compliance with the legal and official regulations, stipulations, guidelines, ordinances and other legal standards applicable at the place of use that we have specified, in particular with regard to quality, environmental protection, occupational safety, transport safety and product safety. The supplier guarantees that all services – insofar as applicable to the specific delivered goods – correspond to state-of-the-art technology, especially with regard to energy efficiency, since energy efficiency (ISO 50001) is a criterion for awarding the contract.
(2) Insofar as required in the order or specification, the supplier must set up, apply and continue developing a suitable, industry-standard management system. If agreed upon, the supplier shall undertake to deliver his or her products and services in keeping with the principles of a quality assurance, energy and environmental management system as described in ISO 9001, ISO 14001 and ISO 50001. The supplier shall conclude a separate quality assurance agreement with us upon our request.
(3) Upon submitting a quote and when delivering products and services, the supplier shall send us management system certifications (e.g., ISO 9001, VDA 6.4, ISO 14001, ISO 50001) unprompted. The supplier shall also send us any updates to these certificates, likewise unprompted.
(4) The supplier must document quality testing and make this information available to us promptly and free of charge upon request.
(5) We may – given a reasonable period of notice – perform audits at the supplier’s site of the product and/or service, which may involve representatives of our client and/or external auditors who are obliged to maintain confidentiality. Over the course of the audit, the supplier shall grant us access to the manufacturing process, production facilities, quality assurance systems and the corresponding documentation and shall provide relevant information in full. The supplier shall not, however, be obliged to disclose company or business secrets unless we agree in writing to maintain strict confidentiality.
(6) Upon acceptance of the order, the supplier shall accept the “Code of Conduct for Suppliers” of Wenker GmbH & Co. KG. This can be found atwww.wenker.de. The supplier is responsible for ensuring that its suppliers, in turn, accept and meet the obligations of the “Code of Conduct for Suppliers” of Wenker GmbH & Co. KG.
9. Product liability
If a product liability claim is made against us due to the supplier’s products/services, the supplier shall indemnify us against such claims in full if and to the extent that the damage was due to a supplier error. In the case of liability based on fault, this shall apply only if the supplier is at fault. The supplier must demonstrate that it is not at fault if the cause of the damage originates from the supplier’s area of responsibility.
10. Retention of title, deployment
(1) The transfer of unrestricted title to the goods delivered by the supplier shall take place upon delivery to us or acceptance by us. The same applies to the documents supplied by the supplier. By transferring ownership, the supplier declares full rights of disposition over the goods and the absence of conflicting third-party rights.
(2) If we accept the supplier’s retention of title in individual cases, this shall expire upon payment of the purchase price. An extended or expanded retention of title by the supplier is excluded.
(3) If we provide parts to the supplier, we reserve the right of ownership. Processing or alteration by the supplier shall be carried out on our behalf. If our retained goods are processed together with other items that do not belong to us, we shall acquire co-ownership of the new item at a value correlating to the value of our goods as a proportion of the value of the other processed items at the time of processing.
If the goods we provide are inseparably mixed together with other items that do not belong to us, we shall acquire co-ownership of the new item at a value correlating to the value of the retained goods as a proportion of the value of the other mixed items at the time that they were mixed.
11. Confidentiality and data privacy
(1) For all information, records, drawings, sketches, specifications, data etc. received within the framework of the contractual relationship, the supplier undertakes to maintain confidentiality and shall not make these items accessible to third parties nor use them outside of the contractual relationship and in particular not for the supplier’s own competitive purposes, unless we expressly give our consent to this in writing.
(2) We reserve the right of ownership and comprehensive rights of use to drawings, specifications, documents, models, etc. that we have provided. Copies may only be made to the extent that this is necessary for manufacturing the products that we have ordered or to provide the services agreed upon. At any time that we request, the supplier shall undertake to return documents received, to destroy any copies made or to delete digital reproductions irrevocably. The supplier has no right of retention in this respect.
(3) In the event of breaches of confidentiality and of restrictions on use, we shall reserve the right to demand non-disclosure, elimination of the information and/or compensation for damages. We reserve the right to instigate criminal prosecution.
12. Subcontractors
(1) The supplier must notify us in advance and obtain our consent to use subcontractors (or their employees) to fulfill its performance obligations.
(2) The supplier shall ensure that the supplier’s company and its subcontractors comply with the legal provisions stipulated in the Act to Combat Undeclared Work and Unlawful Employment (SchwarzArbG), the Act on Mandatory Working Conditions for Workers Posted Across Borders and for Workers Regularly Employed in Germany (AentG), the Act Regulating a General Minimum Wage (MiLoG) and the Act on Temporary Agency Work (AÜG). If claims are made against us as a client within the framework of the aforementioned regulations, the supplier must indemnify us in full from all ensuing costs, fines and damages.
(3) Upon our first request, the supplier shall undertake to provide written confirmation that a subcontractor of the supplier is in compliance with regulations governing minimum workplace conditions and/or the minimum wage. The same shall apply to other obligations toward authorities and social security funds, insofar as these can become a liability for our company as an employer.
(4) We reserve the right to monitor compliance and/or to have an outside party monitor compliance with the aforementioned legal requirements, insofar as these can result in a liability for our company as an employer. The supplier shall oblige his or her subcontractor to permit us or a third party whom we have commissioned to carry out appropriate monitoring and/or to submit appropriate control documents to us upon our first request.
(5) If the supplier violates the aforementioned obligations, we reserve the right to withdraw from the contract and/or to terminate the contract without notice for good cause.
(6) Neither working with a subcontractor nor obtaining our consent to do so affects or limits the obligations, warranties, guarantees and liability on the part of the supplier.
13. Written form
(1) Amendments and supplements to the contract must be made in writing; the same applies to revocation of this written form requirement.
(2) Insofar as written form is required in these terms and conditions, this requirement can also be met via fax or electronic formats as indicated in Article 126a of the BGB.
14. Place of performance, place of jurisdiction, applicable law
(1) In business transactions with merchants in the sense of the German Commercial Code as well as with legal entities under public law and with special funds under public law, the place of performance and the place of jurisdiction for all disputes arising from and in connection with this contract shall be the location of our company headquarters. In the event of legal disputes, however, we expressly reserve the right to seek recourse to the client’s generally competent court, whether in Germany or abroad.
(2) The legal relationships between us and our suppliers are subject exclusively to German law. The provisions of Contracts Act for the United Nations Convention on Contracts for the International Sale of Goods (CISG) do not apply.
15. Severability clause
(1) Should individual provisions of these terms and conditions be or become ineffective, this shall not affect the validity of the remaining provisions.
(2) In place of the invalid provision, the contracting parties shall agree to a provision that comes closest in economic or legal terms to the purposes served by the contract and to the understanding of the contracting parties in a legally permissible manner.
Valid from: February 2017
Wenker GmbH & Co. KG| Boschstrasse 14 |48683 Ahaus, Germany