General Terms & Conditions of Delivery & Payments
1. Binding nature of the Terms and Conditions
1.1 All our deliveries and services, as well as any dependent or independent guarantees given to companies, legal entities under public law or special funds under public law, shall be exclusively subject to the following Terms and Conditions. They shall be deemed accepted upon conclusion of the contract, at the latest upon receipt of the goods or services.
1.2 We shall not be bound by any terms and conditions of the customer that deviate from these Terms and Conditions, even if we do not expressly object to them or do not expressly state that we will deliver or perform only on our own Terms and Conditions.
1.3 Any amendments and additions to these provisions require our written consent. Should any provision of these Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions.
1.4. These General Terms and Conditions of Delivery and Payment do not apply to consumers, Section 13 German Civil Code (BGB).
2. Subject of performance
2.1. Unless otherwise indicated, our offers are subject to alteration and are not binding. They are invitations to place orders. A legally binding contractual relationship with the customer shall not be formed until we have confirmed the order in writing, which can also be done by fax, e-mail or a computer-written document without a signature, provided that it is certain that we are its authors. The same applies to amendments or additions to the contract. Our order acknowledgement shall determine the scope, type and time of delivery or performance.
2.2. Information provided by the seller regarding delivery or performance (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data), as well as representations of the same (e.g. drawings and illustrations), are only approximate, unless its usability for the purpose intended under the contract requires exact compliance. It does not constitute guaranteed characteristics but rather descriptions or designations of the delivery or service. Variations that are customary in the trade and variations that occur due to legal requirements or represent technical improvements, as well as the replacement of components with equivalent parts, shall be permissible insofar as they do not impair usability for the purpose intended under the contract.
2.3. We reserve the right to make design changes. Our catalogues and the information published on the Internet are constantly being edited. The descriptions, illustrations and drawings they contain are not binding and represent neither an indication of quality nor a statement of guarantee. We shall only be deemed to have guaranteed certain characteristics of our goods if we have expressly confirmed this in writing. We shall only be deemed to have given a guarantee if we have stated in writing that a certain characteristic is guaranteed
2.4. Call orders must be called off and accepted in good time and in agreed partial quantities. In the event of call orders with no agreement concerning duration, production batch sizes and acceptance dates, we may demand a binding statement of acceptance no later than 3 months after order confirmation. Should the customer fail to fulfil its obligation to accept delivery within 3 weeks, we shall have the right to set a final two-week period of grace and also to withdraw from the contract after this period has expired to no avail or to refuse to execute delivery and to claim damages if the other legal requirements are met.
2.5. The characteristics of sample specimens or models produced shall only become part of the contract if this has been expressly agreed in writing. The customer shall not have the right to use or pass on sample copies and models.
2.6. Force majeure, labour disputes, unrest, official measures, non-delivery by our suppliers and other unforeseeable, unavoidable and serious events shall release the contractual partners from their contractual obligations for the duration of the disruption and to the extent of its effect. This shall also apply if these events occur at a time when the contractual partner affected is in default, unless this party has caused the default intentionally or through gross negligence. The contractual partners shall be obliged to provide the necessary information without delay within the scope of reasonable expectations and to adapt their obligations to the changed circumstances, acting in good faith.
2.7. Information on order processing, including the creation of the locking plan, shall be recorded, processed and stored using EDP.
3. Guarantees
3.1. All guarantees that we give prior to the conclusion of the contract concerning the object of the delivery or performance shall become invalid upon conclusion of the contract, unless they have been expressly confirmed in the contract itself.
3.2. The validity of any contractual guarantees given by us shall relate exclusively to the condition of the item at the time of delivery.
3.3. Any improper modifications or repair work carried out on our products by the customer or third parties, as well as the use of third-party duplicate keys invalidates the guarantee.
4. Prices and terms of payment / defence of uncertainty
4.1. All prices are always quoted in euros ex works or warehouse, excluding packaging, freight and any minimum quantity surcharge. All list or catalogue prices are subject to alteration and are not binding. The applicable price shall be the price stated in our order acknowledgement. Prices are always quoted "net" and apply to delivery ex works, excluding the costs of packaging, transport and insurance (delivery costs). The applicable statutory VAT and the delivery costs incurred shall be charged additionally and shown separately. For delivery times of more than 4 months, we will charge the prices applicable on the date of delivery or performance (less any agreed percentage or fixed discount).
4.2. Bills of exchange and cheques will be accepted only by agreement and only on account of performance and on condition that they are discountable. Discount charges will be calculated from the due date of the invoice amount. No guarantee is given for the timely presentation of bills of exchange and cheques and for the protesting of bills of exchange.
4.3. Our invoices are payable upon receipt without any deductions, unless otherwise agreed or provided for in our order acknowledgement.
4.4. If the customer fails to pay by the due date, the outstanding amounts shall bear interest at 5% p.a. as from the due date; this shall not affect the right to claim higher interest and further damages in the event of default.
Furthermore, after written notification to the customer, we can also suspend the fulfilment of our obligations from other orders until receipt of the payments.
4.5. If we have indisputably delivered partially faulty goods, the customer shall nevertheless be obliged to pay for the fault-free part unless the partial delivery is of no interest to the customer.
4.6. Should payment terms not be complied with or circumstances become known or recognisable which, according to our prudent commercial judgement, give rise to justified doubts concerning the customer's creditworthiness, including facts already present at the time of the conclusion of the contract, but which were not known to us or should have been known to us, we shall be entitled, without prejudice to further legal rights in such cases, to suspend further work on current orders or deliveries, to demand advance payments or the provision of adequate collateral for outstanding deliveries and to withdraw from the contract after a reasonable grace period for the provision of such collateral has expired to no avail - without prejudice to further statutory rights. The customer shall be obliged to compensate us for all damage resulting from the non-execution of the contract.
4.7. The customer shall only have a right of retention or right of set-off in respect of counterclaims that are undisputed or that have been recognised by a final court judgment, unless the counterclaim is based on a breach of material contractual obligations on our part. The customer may only exercise a right of retention if its counterclaim is based on the same contractual relationship.
5. Access to e-mails; obligations in electronic business transactions
We shall be obliged to check incoming e-mails only once on a working day. E-mails that we receive between 9:00 and 17:00 hours shall be deemed to have been received at 17:00 hours, unless earlier receipt can be proven. E-mails that we receive outside of these times shall be deemed received on the next working day at 17:00 hours, unless earlier receipt can be proven.
6. Shipping and insurance
6.1. Unless otherwise agreed in writing, we shall ship the goods uninsured at the customer's risk and expense. We reserve the right to select the transport route and the means of transport. If the customer so wishes, we will take out transport insurance to cover the delivery (as long as the customer bears the risk of damage to the goods); the costs thus incurred shall be borne by the customer. This shall require a separate written order from the customer.
6.2. Goods notified as ready for dispatch must be accepted by the customer without delay. Otherwise, we shall have the right to ship them at our own discretion or to store them at the customer's expense and risk.
6.3. In the absence of a special agreement, we shall choose the means and route of transport.
6.4. The risk shall pass to the customer when the goods are handed over to the railway, the forwarding agent or the carrier or when storage begins, but at the latest when the goods leave the factory or warehouse, even if we have assumed responsibility for delivery.
7. Packaging
Boxes and crates shall be credited within 2 months of being returned in proper condition (carriage paid) at the value previously calculated upon delivery. Postal cartons shall be billed but not taken back.
8. Delivery, delivery period, obstacles to delivery
8.1. The agreed delivery period for our deliveries shall be deemed complied with if dispatch or collection takes place within this period. Should delivery be delayed for reasons for which the customer is responsible, the deadline shall be deemed complied with if notification of readiness for dispatch is given within the agreed deadline. The delivery period shall commence with the dispatch of our order acknowledgement and shall be extended by a reasonable time under the conditions set out in clause 8.5. (force majeure).
8.2. Partial deliveries shall be permissible if
- the partial delivery can be used by the customer within the framework of the intended contractual purpose,
- the delivery of the remaining ordered goods is ensured and
- the client does not incur a considerable amount of additional work or additional costs as a result (unless the seller agrees to bear these costs).
Partial deliveries shall be invoiced separately.
8.3 Should we be unable to meet binding delivery dates for reasons for which we are not responsible (unavailability of the service), we will inform the buyer of this immediately, at the same time indicating the probable new delivery date. Should the service not be available even within the new delivery period, we shall have the right to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the buyer. The service will be deemed unavailable, for instance, in the event of late delivery by our own supplier, if we have concluded a congruent hedging transaction, in the event of other disruptions in the supply chain (such as due to force majeure) or if we are not obliged to procure in individual cases.
8.4. Deadlines or dates for deliveries and services envisaged by us are always only approximate unless a fixed period or fixed date has been expressly promised or agreed. The deadline shall be deemed complied with if the goods have left the factory at the agreed time or, if shipment is impossible, if the buyer has been notified that the goods are ready for dispatch. In the event of a delay in delivery, a reasonable grace period must be set. In the event of subsequent amendments to the contract by the buyer that affect the delivery period, the delivery period may be extended by a reasonable time. Should orders be based on customised products, the buyer must generally accept the ordered quantity and also excess or short deliveries of a maximum of 10 %. Cancellation shall be excluded at all events.
8.5. If, for reasons beyond our control, we do not receive deliveries or services from our subcontractors, either at all, not correctly or not on time, or in the event of force majeure, we will inform our customer in writing in good time. The following shall be deemed events of force majeure: strikes, lawful lockouts, official interventions, difficulties in obtaining the necessary official permits, pandemics or epidemics, labour shortages and shortages of energy and raw materials, transport bottlenecks through no fault of our own, operational hindrances through no fault of our own (e.g. due to damage caused by fire and water and machine damage), and all other hindrances which, from an objective point of view, have not been culpably caused by us.
With regard to the part of the contract not yet performed, we may withdraw from the contract in whole or in part on the following conditions:
if any of the above-mentioned events make delivery or performance substantially more difficult or impossible for us, and the hindrance is not only of a temporary nature,
we have fulfilled our aforementioned duty to inform, and
we have not assumed the procurement risk.
In the case of temporary hindrances we shall have the right to postpone delivery for the duration of the hindrance.
8.6. If a delivery date or a delivery period has been bindingly agreed and the agreed delivery date or the agreed delivery period is exceeded due to events of the type set out in clause 8.5, the customer shall also have the right to withdraw from the contract due to the part not yet performed, after the fruitless expiry of a reasonable grace period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, the customer may withdraw from the contract by way of an immediate written declaration to us.
9. Complaints, claims for defects
9.1. Obvious defects must be reported in writing by the customer without delay but no later than 12 days after the provision of the service – even with regard to a part of the service that the customer can use –, hidden defects must be reported in writing without delay but only within the warranty period specified in clause 13. Defects recognisable upon delivery must also be reported to the transport company, and the latter must arrange for the defects to be recorded. In the case of building materials and other goods intended for installation or other further processing, an inspection must always be carried out immediately before processing. Notices of defects must contain a detailed description of the defect. Failure to give notice of defects in due time shall exclude any warranty claim by the customer. Insofar as quantity and weight defects were already recognisable upon delivery in accordance with the above inspection obligations, the customer must issue a complaint about these defects to the transport company upon receipt of the goods and have the complaint certified. Failure to give notice of defects in due time shall exclude any warranty claim by the customer. In the case of goods intended for assembly, mounting or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of the breach of any of these obligations; in this case, in particular, the buyer shall have no claims to the reimbursement of the corresponding costs ("dismantling and installation costs").
9.2. The delivered goods shall be returned for inspection at our request and at our expense. If the inspection reveals that there are manufacturing defects or flaws in the material, a replacement will be provided or a credit note issued at our discretion. Should a replacement delivery not be possible and the issue of a credit note is refused, the customer may withdraw from the contract or demand a reduction in price. The warranty shall not apply if the customer modifies the delivery item or has it modified by third parties without the seller's consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the client shall bear the additional costs of remedying the defect resulting from the modification. We reserve the right to make reasonable design changes.
9.3. In the case of a defective delivery the customer may initially demand only subsequent performance to remedy the defect. We reserve the right to choose the type of subsequent performance required - rectification of the defects (repair) or a replacement delivery - and shall have the right to switch from one type to the other with each new attempt at subsequent performance. We reserve the right to make design changes that are reasonable for the customer. Subsequent performance shall not include the dismantling, removal or deinstallation of the defective item nor the assembly, fitting or installation of an item free of defects if we were not originally obliged to perform these services; this shall not affect the buyer's claims to the reimbursement of the corresponding costs ("dismantling and installation costs").
9.4. The customer shall only have the right to withdraw from the contract or to reduce the purchase price if subsequent performance fails or if we allow a reasonable grace period set by the customer in writing for subsequent performance to elapse without remedying the defect. The customer shall also have the aforementioned rights if we allow a reasonable grace period set by the customer in writing with threat to refuse further subsequent performance to elapse without supplying a replacement or rectifying the defect or if subsequent performance is impossible or is refused by us. However, there shall be no right of withdrawal in the case of a minor defect.
9.5. In the case of the rectification of defects, we shall be obliged to bear all necessary costs incurred in rectifying the defects. Reimbursement of costs shall be excluded insofar as higher costs are incurred due to the goods having been moved to another location after our delivery, unless this is in accordance with the intended use of the goods.
9.6. Our warranty shall be excluded in the event of improper modifications or repair work carried out on our products by the customer or third parties and also in the case of the use of third-party duplicate keys.
9.7. Claims for defects cannot be based on unsuitable or improper use, natural wear and tear, or on damage resulting from faulty or negligent handling, excessive strain, unsuitable processing, faulty combination of parts not intended for this purpose etc. or on such influences that are not assumed under the contract unless the damage is attributable to a fault on our part. Here we refer to the contents of the relevant standards.
9.8. Claims for defects may not be assigned to third parties without our consent.
9.9. We shall not be liable for any defects or damage resulting from improper modifications or repair work carried out by the customer or third parties.
10. Return of goods
Should the customer wish to withdraw from the contract without legal grounds and we consent to this, we shall nevertheless charge cancellation costs; even if we give our consent, we reserve the right to claim compensation for lost profits. Goods must be returned to the previous place of dispatch in their original packaging and free of freight charges and expenses for us. A deduction of 20% shall be made on the issuing of a credit note for resellable items in perfect packaging. The return of customised products (not in-stock items!) will not be accepted.
11. Software
Wilka software is supplied as a single licence; in the relationship with the customer, we are the author within the meaning of Sections 69a - 69g of the German Copyright Act (UrhG). The software is exclusively for the customer's own use.
12. Limitation of liability
12.1. We shall only be liable for fault-based claims for damages, irrespective of the legal grounds, insofar as the breach of duty giving rise to the claim results from an intentional act or gross negligence. This restriction shall not apply to claims for damages arising from injury to a person's life, limb or health or the breach of a material contractual obligation.
12.2. Insofar as our liability for damages is excluded or limited, this shall also apply to the personal liability of our employees and vicarious agents.
12.3. If we have breached a material contractual obligation through negligence, but not gross negligence, or if ordinary vicarious agents deployed by us have breached a material contractual obligation in a way that is not more serious than gross negligence, our liability shall be limited to compensation for the typical, foreseeable damage. The same shall apply to liability due to initial inability, but not to damage resulting from injury to a person's life, limb or health or claims under the Product Liability Act (ProdHaftG).
12.4. Damage shall particularly be deemed unforeseeable if the customer becomes liable for damages or the reimbursement of expenses towards third parties and has not excluded its own liability through a contract with the third party in compliance with the law governing standard terms and conditions.
12.5. Damages in the form of lost profits shall only include profits that the customer would have made with our delivered goods, but not additional profits that the customer has lost in the case of a hedging transaction because the customer could have profitably used the payment for the hedging transaction for other purposes.
12.6. If third parties should assert claims against the customer for which the customer could take recourse against us, the customer must inform us immediately and comprehensively, involve us in the negotiations regarding the claim and give us the opportunity to actively defend against the claims or to satisfy them for the customer. If the customer fails to fulfil these obligations, in the event of recourse the customer shall bear the burden of proof that its performance towards the third party would not have been less even without our cooperation and that it has fully complied with its duty to mitigate the damage. This shall also apply to expenses that the customer incurs in order to satisfy or avert such third-party claims.
12.7. The partner shall only have statutory rights of recourse against us as long as the partner has not reached any agreements with its customer that go beyond the statutory claims for defects.
13. Limitation period
13.1. Claims for defects in accordance with clause 9 shall lapse within 12 months of the passage of risk. Should the defect relate to a delivery of goods that have been used for a building structure in accordance with their normal use and have caused its defectiveness, the limitation period shall be two years as from the passage of risk. Sentences 1 and 2 shall not apply if the defect has been fraudulently concealed or if the last intended user of the goods is a consumer.
13.2. The limitation period for claims asserted against us shall only be suspended through negotiations regarding the claim if our contractual obligation in question is undisputed, recognised in writing or established through a final court judgment.
14. Retention of title
14.1. We reserve title to all equipment and goods supplied by us (hereinafter collectively referred to as "goods under retention of title") until the settlement of all our claims arising from the business relationship with the customer, including future claims arising from contracts concluded at a later date. This shall also apply to a balance in our favour if individual claims or all of our claims are included in a current account and the balance is drawn.
14.2. The customer must adequately insure the goods under retention of title, in particular against fire and theft. Claims against the insurance company arising from a claim relating to the goods under retention of title are hereby assigned to us in the amount of the value of the goods under retention of title.
14.3. The customer shall have the right to resell the delivered goods in the ordinary course of business. Other dispositions, in particular pledges or the transfer of title by way of security, shall not be permitted. If the goods under retention of title are not paid for immediately by the third-party purchaser on resale, the customer shall be obliged to resell them only subject to retention of title. The right to resell the reserved goods shall lapse without further ado if the customer ceases payments or is in default of payment to us.
14.4. The customer hereby assigns to us all claims against the final purchaser or third parties that accrue to the customer from or in connection with the resale of goods under retention of title, including collateral and ancillary rights, The customer may not enter into any agreement with its own customers that in any way excludes or is detrimental to our rights or that cancels the advance assignment of the claim. Should goods under retention of title be sold together with other items, the claim against the third-party purchaser shall be deemed assigned in the amount of the delivery price agreed between us and the customer insofar as the amounts attributable to the individual goods cannot be ascertained from the invoice.
14.5. The customer shall retain the right to collect the claim assigned to us in respect of the sold goods under retention of title until our revocation, which shall be permissible at any time. At our request, the customer shall be obliged to provide us with the information and documents necessary for the collection of assigned claims and, if we do not do so ourselves, to immediately inform its customers of the assignment to us.
14.6. Should the customer include claims from the resale of goods under retention of title in a current account relationship with its own customers, the customer hereby assigns to us any recognised final balance in the customer's favour in the amount corresponding to the total amount of the claim from the resale of our goods under retention of title included in the current account relationship.
14.7. If the customer has already assigned to third parties claims from the resale of the goods delivered or to be delivered by us, in particular on the basis of real or recourse factoring, or has made any other agreements which could be detrimental to our present or future collateral rights under clause 14, the customer must notify us of this immediately. In the event of recourse factoring, we shall be entitled to withdraw from the contract and demand the return of goods already delivered; the same shall apply in the event of real factoring if the customer cannot freely dispose of the purchase price of the claim under the contract with the factor.
14.8. In the case of acts constituting a breach of contract, particularly default of payment, we shall have the right to take back all goods under retention of title without first having to withdraw from the contract; in this case, the customer shall be obliged to surrender the goods without further ado, unless the customer has committed only an insignificant breach of duty. We may enter the customer's business premises at any time during ordinary business hours to determine stocks of the goods delivered by us. Taking back goods under retention of title shall only rescind the contract if we expressly declare so in writing or if this is provided for by mandatory statutory provisions. The customer must immediately inform us in writing of all access by third parties to goods under retention of title or claims assigned to us.
14.9. If the value of the collateral to which we are entitled in accordance with the above provisions exceeds the value of the secured claims by more than 10% in total, we shall be obliged to release collateral of our choice at the customer's request.
15. Secrecy
15.1. All business or technical information of any kind made accessible by us, including features that can be gleaned from any objects and documents handed over, and other knowledge or experience must be kept secret from third parties and in the customer's own company may be made available only to such persons who must necessarily be involved for the purpose of delivery to the customer and who are also obliged to maintain secrecy; this information shall remain our exclusive property. Such information may not be reproduced or used for commercial purposes without our prior written consent.
15.2. No obligation to maintain secrecy shall apply to information that demonstrably
was already openly known at the time of its disclosure,
has become public knowledge after its disclosure without the customer being at fault,
has been lawfully made accessible to the customer by a third party after its disclosure, with no restrictions concerning confidentiality or use.
The obligation to maintain secrecy shall end two years after the termination of the contractual relationship between us and the customer.
15.3. At our request, all information originating from us (including any copies or records made) and items provided on loan must be immediately returned to us in full or destroyed. The destruction must be confirmed to us in writing. We reserve all rights to such information (including copyrights and the right to use industrial property rights such as patents, utility models, trademark protection, etc.). Insofar as these have been made accessible to us by third parties, this reservation of rights shall also apply in favour of these third parties. 15.4. Drawings, models, templates, samples and similar objects may not be handed over or otherwise made accessible to unauthorised third parties. The reproduction of such items is only permitted within the framework of operational requirements and copyright law.
15.5. The contracting parties may only use their business relationship for advertising purposes with prior written consent.
16. Opening of insolvency or composition proceedings; cessation of payments
16.1. An application for the opening of insolvency or composition proceedings by the customer or the cessation of payments on the customer's part which is not based on legitimate rights of retention or other rights shall entitle us to withdraw from the contract at any time or to make the delivery of the purchased item dependent on the prior fulfilment of the payment obligation. Should the goods have already been delivered, the purchase price shall be due for immediate payment in the aforementioned cases. We shall also have the right to reclaim the purchased item in the aforementioned cases and to retain it until the purchase price has been paid in full.
16.2. The provisions of clause 16.1. shall also apply if we have accepted cheques or bills of exchange on account of payment and the drawee or issuer files an application for the opening of insolvency or composition proceedings or ceases payments.
17. Samples and production equipment
17.1. Unless otherwise agreed, the manufacturing costs for samples and production equipment (tools, moulds, templates, etc.) shall be invoiced separately from the goods to be delivered. This shall also apply to production equipment that has to be replaced due to wear and tear.
17.2. The costs for maintenance and proper storage, as well as the risk of damage to or the destruction of the production equipment shall be borne by us.
17.3. Should the partner suspend or terminate the co-operation during the production period of the samples or production equipment, all production costs incurred up to that point shall be borne by the partner.
17.4. The buyer shall not acquire any claim to tools by paying for part of the costs for tools; they shall remain our property and in our possession. We undertake to store the tools for the buyer for 1 year after the last delivery. If, after the expiry of this period, the buyer informs us that orders will be placed within a further year, the storage period shall be extended by an additional year. After the expiry of the deadline, we may freely dispose of the tools. For orders that are cancelled in the development stage or in the start-up period, we reserve the right to invoice the costs incurred as follows: the costs incurred for the initial tool set before the release of samples and, after the release of samples, the costs incurred for the entire scope of the series tools, special equipment and gauges, depending on the amount of the planned monthly requirement. The partially worn tools that have been invoiced will be available for inspection for 4 weeks and scrapped at the end of this period. Completed sequence of operations drawings and design drawings of the tools shall not be subject to disclosure in order to protect the processes used. However, the buyer can purchase the tools by paying the full costs.
18. Miscellaneous
18.1. Unless otherwise agreed, the law of the Federal Republic of Germany shall apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods (CSIG) is excluded. 18.2. The place of performance is the place where we have our registered office.
18.3. The place of jurisdiction shall be Düsseldorf, but we shall also have the right to bring an action against the supplier in its general place of jurisdiction.
18.4. The invalidity of individual clauses shall not affect the validity of the remaining clauses. The contractual partners shall be obliged to replace ineffective provisions by provisions that are equivalent in terms of the commercial outcome. The same shall apply in the event of a gap.
18.5. The company does not agree to participate in dispute resolution proceedings before consumer arbitration boards within the meaning of Section 36 Para. 1 of the German Consumer Dispute Resolution Act (VSBG). This does not affect the possibility of dispute resolution by a consumer arbitration board in the context of a specific dispute, with the consent of both contractual parties (Section 37 VSBG).