General delivery terms of wekomm engineering GmbH
§ 1 Validity
(1) All deliveries, services and offers of
wekomm engineering GmbH (hereinafter called "vendor") shall be
provided exclusively on the basis of these general delivery terms. These
are an integral part of all contracts, which the vendor concludes with
the contracting parties (hereinafter called "clients") regarding the
deliveries or services offered. They also apply to all future
deliveries, services or offers to the client, even if they are not
separately agreed upon again.
(2) Trading conditions of the client or of a third
party do not apply, even if the vendor does not separately contradict
their validity in specific cases. Even if the vendor refers to a letter,
which contains or refers to trading conditions of the client or a third
party, this does not suggest any agreement to the validity of such
terms and conditions.
§ 2 Offer and conclusion of a contract
(1) All offers of the vendor are non-binding and
noncommittal, if they are not expressly marked as binding or contain a
specific term of acceptance. The vendor can accept purchase orders or
work orders within 4 weeks of receipt.
(2) The sole relevant factor for the legal relations
between vendor and client is the sales agreement concluded in writing,
including these general delivery terms. This specifies in full all
agreements between the contracting parties concerning the subject matter
of the contract. Verbal consents of the vendor expressed prior to
conclusion of the present contract are legally noncommittal and verbal
agreements of the contracting parties shall be replaced by the written
contract, unless it is expressly stated therein that they will continue
to be binding in each case.
(3) Additions and alterations of the agreements met
including these general terms of delivery shall only be effective in
writing. With exception of the managing directors or proxy holders, the
employees of the vendor are not authorised to meet verbal agreements
that deviate from this contract. To comply with the written form,
transmission by telecommunications is sufficient, in particular by
telefax or by e-mail, if the copy of the signed declaration is
(4) Information provided by the vendor concerning the
object of the delivery or service (e.g. weights, measurements, values in
use, load capacity, tolerances and technical data) as well as our
illustrations of the same (e.g. drawings and pictures) shall be deemed
approximate, unless the usability requires precise conformity for a
contractually envisaged purpose. They are not guaranteed
characteristics, but merely descriptions or identifications of the
delivery or service. Deviations usual in trade, and deviations which
occur due to legal regulations or which represent technical
improvements, as well as the replacement of components by equivalent
parts, are permissible, as far as they do not impair the usability for
the contractually intended purpose.
(5) The vendor reserves the right of property or
copyright on all and any quotations and estimates of cost and of all
drawings, illustrations, calculations, brochures, catalogues, models,
tools and other documents and aids made available to the client. The
client is not permitted to make these available to third parties,
publicise them or exploit them or allow them to be exploited by third
parties in their original form or in terms of their content or reproduce
or store them in any form without the express consent of the vendor. On
first request by the vendor, the client shall return all these objects
in full to the vendor and destroy any copies in his or her possession as
long as they are no longer required in the normal course of business or
if the negotiations do not end in conclusion of a contract.
§ 3 Prices and payment
(1) Prices apply to the deliveries and services given
in the confirmation of order. Additional or special services shall be
charged separately. Prices are quoted in euros ex works excluding
packaging and the statutory VAT and, for export orders, customs duties
and any other fees or charges charged by the authorities.
(2) Where the agreed prices are based on the vendor's
list prices and the delivery is not to take place until more than four
months after conclusion of the contract of sale, the vendor's list
prices valid on the date of delivery are deemed to apply (less any
agreed percentage or fixed discount).
(3) Invoiced amounts are payable without deduction
within thirty days unless otherwise agreed in writing. The date of
receipt by the vendor shall be deemed to be decisive as the date of
payment. Cheques are not deemed to constitute payment until honoured.
Where the client does not make payment by the due date, all and any
outstanding amounts become subject to interest of 8% p.a. from the due
date; the right to apply higher rates of interest and to claim
additional damages in the event of default remains unaffected.
(4) It is only permitted to offset or retain
outstanding amounts against counterclaims by the client if those
counterclaims are non-contentious or legally enforceable.
(5) The vendor reserves the right not to perform
deliveries or services until prepayment or collateral has been provided
if, after conclusion of the contract, circumstances come to his notice
which might seriously impair the creditworthiness of the client and
which may endanger payment by the client of open claims by the vendor
resulting from the current contractual agreement (including claims from
other individual orders placed under the same master agreement).
(6) If the client withdraws from the contract after conclusion of the contract or circumstances
come to the note of the vendor which might seriously impair the full acceptance of the services or might
seriously impair the creditworthiness of the client the seller may in accordance
with the manufacturing or development status of the order interrupt or halt the
production and demand a compensation of 80% of the contract sum.
§ 4 Delivery and delivery time
(1) Deliveries are made ex works.
(2) Time periods and deadlines communicated by the
vendor for deliveries and services are deemed as approximate unless a
firm period or date has been specified or agreed and they shall be
subject to the provision that the vendor himself receives deliveries
correctly and punctually. Where dispatch has been agreed, the delivery
periods and delivery dates apply to the date of hand-over to the
forwarding company, driver or third party commissioned to organise the
(3) The vendor can – without prejudice to his rights
resulting from the default of the client – demand that the client accept
an extension or postponement of the delivery periods by that period of
time in which the client has failed to meet his/her contractual
obligations towards the vendor, in particular with regard to the
provision of products, production accessories and testing stations.
(4) The vendor shall not be liable for non-delivery or
non-supply or late delivery or supply of goods or services where this
is as a result of force majeure or other events not foreseeable at the
time the contract was concluded and for which the vendor is not
responsible (e.g. interruptions to production of any kind, difficulties
procuring materials and power, delays in transport, strikes, legal
lockouts, insufficient supplies of skilled workers, power or raw
materials, difficulties obtaining the necessary permissions from the
authorities, measures imposed by regulatory bodies, wrong or late
delivery or non-delivery by our suppliers). Where these events make it
difficult or impossible for the vendor to supply the goods or services
and the delay is not only of a transient nature, the vendor reserves the
right to withdraw from the contract. If the delay is perceived to be of
a transient nature, the delivery or supply period is deemed to be put
back by the same period as the delay plus an appropriate period for
adjustment to the changed circumstances. If the client cannot, as a
result of the delay, be expected to take delivery of the products or
services, he/she is entitled to withdraw from the contract by means of
an immediate declaration in writing to the vendor.
(5) The vendor is entitled to make partial deliveries, if
- the partial delivery is usable for the client within the scope of the contractually intended purpose,
- the delivery of the remaining ordered goods is ensured
(6) If the vendor should be in default with a
delivery or service or if a delivery or service should become impossible
to deliver for whatever reason, the liability of the vendor for damages
is restricted as defined in § 8 of these general delivery terms.
§ 5 Place of performance, shipping, packaging, transfer of risk, acceptance
(1) Place of performance for all obligations arising
from this contractual agreement is Planegg unless otherwise agreed.
If the vendor is also required to install the goods, the place of
performance shall be the place where the goods are to be installed.
(2) The method of dispatch and packaging are at the due discretion of the vendor.
(3) The risk is deemed to be transferred to the client
at the latest with hand-over to the forwarding agent, driver or other
person engaged to organise the shipment of the goods to be delivered to
the client (whereby the commencement of the loading process is the
determining factor). This shall also apply to partial deliveries and
cases where the vendor has agreed to supply additional services (e.g.
shipping or installation). If dispatch or hand-over is delayed for
reasons for which the client is responsible, risk is transferred to the
client on the day on which the delivery is ready for dispatch and the
vendor has communicated this fact to the client.
(4) All and any warehousing costs incurred after
transfer of risk are to be borne by the client. If warehousing is
arranged by the vendor, the costs shall be [0.25]% of the invoice amount
per full week of storage of the goods. We retain the right to claim
additional or lower storage charges on the basis of appropriate
(5) Shipments are only insured against theft,
breakage, transport damage, fire and water damage and other insurable
risks if the client expressly requests this and agrees to pay the
(6) If an acceptance has to take place, the purchased item is considered as accepted, if
- the delivery and, if the vendor is also responsible for the installation, the installation has been completed,
- the vendor has indicated this to the
client with reference to notional acceptance as per § 5 (6) and has
asked the client for acceptance,
- [twelve] working days have passed
since delivery or installation or the client has started using the
purchased item (e.g. commissioning of the delivered machine) and, in
this case, [six] working days have passed since delivery or installation
- the client refrains from accepting
the purchased item within this period for a different reason than a
shortcoming indicated to the vendor, which makes the use of the
purchased item impossible or substantially impairs it.
§ 6 Guarantee, material defects
(1) The warranty period is one year starting
from the date of delivery or, where acceptance testing is required, from
the date of the successful acceptance test.
(2) The products supplied shall be carefully inspected
without delay on receipt by the client or the third party named by the
client. They are deemed as having been approved by the client with
regard to obvious shortcomings or other defects, which would have been
recognisable during an immediate, careful inspection, if the vendor does
not receive a written notice of defects within seven working days after
delivery. With regard to other defects the delivered items are deemed
as approved by the client if the notice of defects does not reach to the
vendor within seven working days after the point in time, when the
defect was discovered; if the defect was however recognisable for the
client at an earlier point in time during normal use, then this earlier
point in time is relevant for the beginning of the period allowed for
examination and sending notice of a defect or deficiency. If the vendor
so requests, the goods which are subject of the complaint shall be
returned to the vendor carriage paid. Where complaints are justified,
the vendor shall reimburse the costs for the cheapest method of
dispatch; however this shall not apply if these charges increase simply
because the goods are at an address which differs from the location
given for the intended use.
(3) Where the goods delivered have material
defects, the vendor is obliged and entitled to choose either to repair
or rework the goods or to replace them at his discretion, whereby the
decision is to be taken within a reasonable time period. In the event of
complete failure, i.e. if it is impossible for the vendor to repair or
replace the goods, or if it is unreasonable for him to do so, or if he
refuses to do so or if there are unacceptable delays in the repair or
replacement, the client may withdraw from the contract or make a
reasonable reduction in the price paid.
(4) If a defect is attributable to the vendor, the client may claim damages under certain circumstances as defined in § 8.
(5) If the defects are in components supplied by a
different manufacturer and the vendor is not permitted for licensing
reasons or is not able to remedy them, the vendor shall at his
discretion either make a claim under warranty against the manufacturer
and supplier on behalf of and for the account of the client or assign
that right to the client. Warranty claims against the vendor with regard
to defects of this type under the conditions as defined in these
general delivery terms shall only apply if it has not been possible to
enforce the claims against the manufacturer and supplier through court
action or where there is no reasonable hope of enforcing the claims,
e.g. due to bankruptcy. For the duration of litigation, the statute of
limitations for the client’s warranty claims against the vendor is
(6) The guarantee lapses if the client modifies the
goods delivered or has them modified by a third party without the
consent of the vendor and remedy of the defect is either impossible or
unreasonable as a result of this modification. In any case, the client
shall bear those additional costs for the remedy that are attributable
to the modification.
(7) Delivery of used products as agreed in individual
cases with the client shall exclude all and any guarantee for material
(8) The guarantee lapses, if the client operates the
products or components delivered by the vendor outside of the
specifications designated by the vendor or the manufacturer, in
particular if it exposes the products or components to temperatures or
mechanical loads that are different to the intended ones.
§ 7 Proprietary rights
(1) The vendor guarantees for the purposes of this § 7
that the goods delivered are free from proprietary rights or copyright
of third parties. Each party shall notify the other contractual party
immediately in writing if any claim is made against him/her regarding
violation of such rights.
(2) If the goods delivered should in fact violate the
proprietary rights or copyright of a third party, the vendor shall at
his discretion and at his own expense modify goods delivered or replace
them in such a way that no violation of the rights of third parties
occurs but that the goods delivered still provide the functions
contractually agreed or, after concluding a Licence Agreement, the
vendor shall provide the client with the rights to use the products. If
he does not manage to do this within a reasonable period of time, the
client shall be entitled to withdraw from the contract or make a
reasonable reduction to the purchase price. Any claims for damages by
the client are subject to the restrictions defined in § 8 of these
general delivery terms.
(3) If products manufactured by other manufacturers
and supplied by the vendor violate any third party rights, the vendor
shall at his discretion claim against the manufacturer and its suppliers
on behalf of and for the account of the client or assign his rights to
the client. Claims against the vendor with regard to such cases under
the conditions as defined in § 7 shall only apply if it has not been
possible to enforce the claims against the manufacturer and supplier
through court action or where there is no reasonable hope of enforcing
the claims, e.g. due to bankruptcy.
§ 8 Liability for culpable damages
(1) The liability of the vendor for damages, for
whatever legal reason, in particular resulting from impossibility,
delay, non-conform or incorrect delivery, breach of contract, violation
of obligations during contractual negotiations and unlawful acts where
the vendor is culpable, is restricted by this § 8.
(2) The vendor shall not be liable in the event of
simple negligence by the executive bodies and/or officers of the
company, employees or other agents unless a violation of obligations
under the contract is involved. Key elements of the contract are the
obligation to deliver in a timely manner and install the goods delivered
free of any major defects that would have any significant impact on the
operational capability or usability and the obligations applying to
consultancy services, protection and care, which are intended to enable
the client to use the goods delivered in accordance with the contract or
protect life and limb of the client's staff or to prevent major damage
or injury to his property.
(3) Where the vendor is liable for damages in
principle in accordance with § 8 (2), this liability is restricted to
damage that the vendor considered as possible consequences of a breach
of contract at the time of signing or which he should have predicted had
he applied normal care and attention. Indirect damage and consequential
damages as a result of defects in the goods delivered are only eligible
for replacemnt if the damage or injury could normally be foreseen when
the goods delivered are used in accordance with the intended purpose.
(4) In the event of liability for simple negligence,
the vendor's duty of replacement for damage to property and any
consequential intangible damage is restricted to 10,000,000.- euros per
case, even if it is a violation of obligations under the contract.
(5) The above-mentioned disclaimers and restrictions
apply to the same extent to the executive bodies, legal agents of the
company, employees and other agents of the vendor.
(6) Where the vendor provides technical information or
acts as a consultant, and this information or advice is not part of the
contractually agreed services or one which he is duty bound to provide,
it is provided free of charge and no liability at all is accepted
(7) The restrictions in this § 8 do not apply to the
vendor's liability for intentional actions, guaranteed quality features,
injury to life and limb or health generally or under product liability
§ 9 Retention of title
(1) The retention of title agreed upon in the
following serves to safeguard all existing present and future demands of
the vendor against the client arising from the supply relationship
existing between the contracting parties (including any balance claims
related to the limited current account of the supply relationship).
(2) The goods delivered by the vendor to the client
remain the property of the vendor until the client has paid the complete
purchase price. The goods supplied and any goods that replace these and
that are subject to this retention of title are referred to as the
"goods subject to retention of title".
(3) The client keeps the goods subject to retention of title free of charge for the vendor.
(4) The client is entitled to process and resell the
goods subject to retention in normal business transactions until such
time as a claim is made against them (enforcement of retention of title,
section 9). It is not permitted to mortgage the goods or use them as
(5) If the goods subject to retention are processed by
the client, it is deemed to be on behalf of and for the account of the
vendor as the manufacturer and the vendor directly acquires property or –
if the processing involves materials provided by a number of owners or
the value of the processed goods exceeds that of the goods subject to
retention – partial property in the items thus created and at a ratio of
the value of the goods subject to retention to the value of the new
items. In the event that the vendor should not be able to acquire
property rights as described herein, the client agrees now to transfer
his/her future property or partial property in the new items, as
described above, to the vendor as collateral. If the goods subject to
retention become an integral part of another item and if that item is
considered to be the main item, the client becomes joint owner of the
main item to an extent which is proportionate to the value of the
vendor's property in the new item as defined in sentence 1 in so far as
the vendor is the owner of the main item.
(6) In the event that the goods subject to retention
are resold, the client hereby assigns to the vendor as collateral any
claims he may in future have against the buyer in an amount
proportionate to the vendor's property in the goods delivered. The same
applies to other claims, which take the place of the goods subject to
retention or otherwise regarding the goods subject to retention, such as
e.g., insurance claims or tort claims resulting from loss or
destruction. The vendor grants the client revocable authorisation to
collect the claims assigned to the vendor in his own name. The vendor
may only revoke this power to collect in the event a claim is made.
(7) If third parties attempt to seize the goods
subject to retention, in particular through distraint orders, the client
shall without delay notify those third parties that the vendor has
property / partial property in those items, and notify the vendor of
this fact to enable him to take steps to secure his property rights. If
the third parties are not in a position to reimburse the vendor for the
costs incurred in this connection whether in court or out of court, the
client shall be liable to the vendor.
(8) The vendor shall release the goods subject to
retention and items or claims that have replaced them at his own
discretion on request to the extent that their value exceeds the claims
secured by them by more than 50%. It rests with the vendor to decide
which items can be released thereafter.
(9) If the vendor withdraws from the contract
(enforcement) due to a violation of the contract by the client – in
particular delay of payment – he shall be entitled to require return of
the goods subject to retention.
§ 10 Final clauses
(1) If the client is a merchant, a legal entity under
public law or public law special assets or does not have a place of
general jurisdiction in the Federal Republic of Germany, then the place
of jurisdiction for all disputes arising from the business relation
between the vendor and the client is, according to the choice of the
vendor, either Munich (München) or the place of business of the client. In the
event of legal action against the vendor, however, the exclusive place
of jurisdiction is Munich (München). Binding legal provisions relating to
exclusive courts of jurisdiction shall remain unaffected by this
(2) All relationships between the vendor and the
client are subject exclusively to the laws of the Federal Republic of
Germany. The application of the United Nations Convention on Contracts
for the International Sale of Goods (CISG) dated 11 April 1980 is
(3) If the contract or these general delivery terms
are found to contain gaps or ineffective clauses, the parties agree to
find a provision or fill the offending gap with a provision which is
enforceable and comes closest to the original commercial intentions of
the parties when the unenforceable clause in the contract or general
delivery terms were written if they had considered the unenforceability
or incompleteness at the time.
The client is aware that the vendor stores certain
data relating to the contractual agreement in accordance with § 28 of
the German Data Protection legislation for the purpose of data
processing and reserves the right to transmit these data to third
parties (e.g. insurance companies) provided this is necessary for
fulfilment of the contract.
The client is aware, that this translation is meant for informational purposes only. In any case of doubt or legal relevance the german original found here is and will only be valid !