General Terms and Conditions of 1.Wenz-Mechanik GmbH

For use towards:

  1. a person who, at the time of conclusion of the contract, acts in the exercise of his commercial or independent professional activity (entrepreneur);
  2. legal entities under public law or a special fund under public law.

§ I General provisions

  1. All deliveries and services are based on these terms and conditions and separate contractual agreements. Deviating terms and conditions of purchase of the purchaser shall not become part of the contract even by acceptance of the order. A contract is concluded – in the absence of a special agreement – with the written order confirmation of 1.Wenz-Mechanik GmbH.
  2. 1.Wenz-Mechanik GmbH reserves the property rights and copyrights to samples, cost estimates, drawings and similar information. They may not be made accessible to third parties. 1.Wenz-Mechanik GmbH reserves the right of ownership and copyright to samples, cost estimates, drawings and similar information of a physical and non-physical nature – also in electronic form. 1.Wenz-Mechanik GmbH makes information and documents designated by the customer confidential and available to third parties only with the customer’s consent.

§ II Price and payment

  1. Unless otherwise agreed, prices are ex-works plus freight and packaging. Value-added tax at the respective statutory rate is added to the prices.
  2. In the absence of a special agreement, payment shall be made without any deduction within 10 days after delivery à conto of 1.Wenz-Mechanik GmbH.
  3. The purchaser shall only be entitled to withhold payments or to set off payments against counterclaims to the extent that its counterclaims are undisputed or have been finally determined by a court of law.

§ III Delivery time, delay in delivery

  1. The delivery time results from the agreements of the contracting parties. Compliance with them by 1.Wenz-Mechanik GmbH presupposes that all commercial and technical questions between the contracting parties have been clarified and that the customer has fulfilled all obligations incumbent upon him, such as providing the necessary official certificates or permits or making a down payment. If this is not the case, the delivery time shall be extended accordingly. This does not apply if 1.Wenz-Mechanik GmbH is responsible for the delay.
  2. Compliance with the delivery time is subject to correct and timely self-supply. 1.Wenz-Mechanik GmbH will inform you about emerging delays as soon as possible.
  3. The delivery period shall be deemed to have been complied with if the delivery item has left the factory of 1.Wenz-Mechanik GmbH by the expiry of the delivery period or if the customer has been notified that the delivery item is ready for dispatch. Insofar as acceptance is to take place, the acceptance date shall be decisive – except in the case of justified refusal of acceptance – alternatively, the notification of readiness for acceptance.
  4. Suppose shipment or acceptance of the delivery item is delayed for reasons for which the purchaser is responsible. In that case, the costs incurred due to the delay shall be charged to the purchaser, starting one month after notification of readiness for shipment or acceptance.
  5. Suppose non-compliance with the delivery time is due to force majeure, labor disputes or other events beyond the control of 1.Wenz-Mechanik GmbH. In that case, the delivery time shall be extended accordingly. 1.Wenz-Mechanik GmbH will inform the customer about the beginning and the end of such circumstances as soon as possible.
  6. The customer may withdraw from the contract without setting a time limit if the entire performance becomes finally impossible for 1.Wenz-Mechanik GmbH before the passing of risk. In addition, the purchaser may withdraw from the contract if, in the case of an order, the execution of a part of the delivery becomes impossible and the purchaser has a justified interest in refusing the partial delivery. If not, the purchaser shall pay the contract price attributable to the partial delivery. The same applies in the case of incapacity of 1.Wenz-Mechanik GmbH. Section VII shall apply in all other respects. 2. If the impossibility or inability occurs during the delay in acceptance or if the purchaser is solely or predominantly responsible for these circumstances, the purchaser shall remain obligated to counter-performance.
  7. If the customer sets 1.Wenz-Mechanik GmbH – taking into account the statutory exceptions – a reasonable deadline for performance after the due date and if the deadline is not met, the customer is entitled to withdraw from the contract within the framework of the statutory provisions. At the request of 1.Wenz-Mechanik GmbH, he undertakes to declare whether he will exercise his right to withdraw from the contract within a reasonable period. Further claims arising from delivery delays shall be determined exclusively following Section VII. 2 of these conditions.

§ IV Transfer of risk, acceptance

  1. The risk shall pass to the customer when the delivery item has left the factory, even if partial deliveries are made or 1.Wenz-Mechanik GmbH has assumed other services, e.g., shipping costs or delivery and installation. Insofar as an acceptance has to take place, this shall be decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively after the notification of 1.Wenz-Mechanik GmbH about the readiness for acceptance. The purchaser may not refuse acceptance in the event of a non-substantial defect.
  2. Suppose shipment or acceptance is delayed or does not occur due to circumstances not attributable to 1.Wenz-Mechanik GmbH. In that case, the risk shall pass to the customer from the day of notification of readiness for shipment or acceptance. 1.Wenz-Mechanik GmbH undertakes to take out the insurance requested by the customer at the customer’s expense.
  3. Partial deliveries are permissible insofar as they are reasonable for the customer.

§ V Retention of title

  1. 1.Wenz-Mechanik GmbH retains ownership of the delivery item until all payments – including any additional ancillary services owed – are received from the delivery contract.
  2. 1.Wenz-Mechanik GmbH is entitled to insure the delivery item against theft, breakage, fire, water and other damage at the customer’s expense unless the customer has demonstrably taken out the insurance himself.
  3. The customer may neither sell, pledge nor assign the delivery item as security. In case of seizure, confiscation, or other dispositions by third parties, the customer must inform 1.Wenz-Mechanik GmbH immediately.
  4. In the event of a breach of contract by the customer, particularly in the event of default in payment, 1.Wenz-Mechanik GmbH shall be entitled to take back the delivery item after issuing a reminder and the customer shall be obliged to surrender the delivery item.
  5. Due to the retention of title, 1.Wenz-Mechanik GmbH can only demand the return of the delivery item if it has withdrawn from the contract.
  6. The application for the opening of insolvency proceedings entitles 1.Wenz-Mechanik GmbH to withdraw from the contract and demand the immediate return of the delivery item.

§ VI Claims for defects

1.Wenz-Mechanik GmbH is liable for material defects and defects of title of the delivery under exclusion of further claims – subject to section VII – as follows:

VI.I. Material defects

  1. All parts that prove to be defective due to circumstances prior to the transfer of risk shall be repaired or replaced free of defects at the discretion of 1.Wenz-Mechanik GmbH. The detection of such defects must be reported to 1.Wenz-Mechanik GmbH in writing without delay. Replaced parts become the property of 1.Wenz-Mechanik GmbH.
  2. The customer shall give 1.Wenz-Mechanik GmbH the necessary time and opportunity to carry out all repairs and replacement deliveries that appear required to 1.Wenz-Mechanik GmbH after consultation with 1.Wenz-Mechanik GmbH; otherwise, 1.Wenz-Mechanik GmbH shall be released from liability for the consequences arising from there. Only in urgent cases of danger to operational safety or to prevent disproportionately significant damage, in which case 1.Wenz-Mechanik GmbH must be notified immediately, the customer has the right to remedy the defect himself or have it rectified by third parties and to demand reimbursement of the necessary expenses from 1.Wenz-Mechanik GmbH.
  3. Of the direct costs arising from the repair or replacement delivery, 1.Wenz-Mechanik GmbH shall bear – insofar as the complaint proves to be justified – the costs of the replacement part, including shipping. It shall also bear the costs of dismantling and installation and the costs of any necessary provision of the required fitters and assistants, including travel costs, insofar as this does not result in a disproportionate burden on 1.Wenz-Mechanik GmbH.
  4. The customer has the right to withdraw from the contract within the scope of the statutory provisions if 1.Wenz-Mechanik GmbH – taking into account the statutory exceptions – allows a reasonable period set for it for the repair or replacement delivery due to a material defect to expire fruitlessly. If the defect is insignificant, the purchaser shall only be entitled to reduce the contract price. The right to reduce the contract price shall otherwise remain excluded. Further claims shall be determined exclusively following section VII. 2 of these conditions.
  5. No liability is assumed in particular in the following cases: Unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences – insofar as they are not the responsibility of 1.Wenz-Mechanik GmbH.
  6. If the customer or a third party performs improper repairs, 1.Wenz-Mechanik GmbH shall not be liable for the resulting consequences. The same applies to changes made to the delivery item without the prior consent of 1.Wenz-Mechanik GmbH.

VI.II. Legal defects

  1. If the use of the delivery item leads to the infringement of industrial property rights or copyrights in Germany, 1.Wenz-Mechanik GmbH shall, at its own expense, generally procure for the customer the right to continue using the delivery item or modify the delivery item in a manner reasonable for the customer in such a way that the infringement of property rights no longer exists. Suppose this is impossible under economically reasonable conditions or within a reasonable period. In that case, the purchaser shall be entitled to withdraw from the contract. Under the abovementioned conditions, 1.Wenz-Mechanik GmbH also has the right to withdraw from the agreement. Furthermore, 1.Wenz-Mechanik GmbH shall indemnify the customer against undisputed or legally established claims of the owners of the property rights concerned.
  2. The information outlined in Section VI. 7 mentioned obligations of 1.Wenz-Mechanik GmbH are subject to section VII. 2 for the case of infringement of industrial property rights or copyrights. They exist only when
    • the customer informs 1.Wenz-Mechanik GmbH immediately of any asserted violations of industrial property rights or copyrights,
    • the customer supports 1.Wenz-Mechanik GmbH to a reasonable extent in the defense against the asserted claims or allows 1.Wenz-Mechanik GmbH to modify measures according to section VI. 7 enables,
    • 1.Wenz-Mechanik GmbH reserves the right to all defensive measures, including out-of-court settlements,
    • the defect of the title is not based on an instruction of the purchaser and
    • the infringement of rights has not been caused by the fact that the purchaser has modified the delivery item without authorization or has used it in a manner not following the contract.

§ VII Liability of the supplier, exclusion of liability

  1. If the customer cannot use the delivery item following the contract due to the fault of 1.Wenz-Mechanik GmbH as a result of omitted or faulty execution of suggestions and consultations made before or after the conclusion of the contract or due to the violation of other contractual collateral obligations – in particular instructions for operation and maintenance of the delivery item – the provisions of Sections VI and VII shall apply to the exclusion of further claims of the customer. 2.
  2. 1.Wenz-Mechanik GmbH shall only be liable for damage that has not occurred to the delivery item itself – for whatever legal reasons – as follows
  • a) in case of intent,
  • b) in the event of gross negligence on the part of the owner/the executive bodies or senior employees,
  • c) in case of culpable injury to life, body, health,
  • d) in the case of defects which it has fraudulently concealed,
  • e) within the framework of a guarantee commitment,
  • f) in case of defects in the delivery item, insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used items.

In case of culpable violation of essential contractual obligations, 1.Wenz-Mechanik GmbH shall also be liable in case of gross negligence of non-executive employees and slight negligence, in the latter case limited to the reasonably foreseeable damage typical for the contract.
Further claims are excluded.

§ VIII Limitation

All claims of the purchaser – for whatever legal reasons – are subject to a limitation period of 12 months. For claims for damages, according to section VII. 2 a – d and f, the statutory time limits shall apply. They shall also apply to defects of a building or to delivery items that have been used for a building following their customary use and have caused its defectiveness.

§ IX Applicable law, place of jurisdiction

  1. All legal relations between 1.Wenz-Mechanik GmbH and the Customer shall be governed exclusively by the law of the Federal Republic of Germany applicable to legal relations between domestic parties.
  2. The place of jurisdiction is the court responsible for the registered office of 1.Wenz-Mechanik GmbH. However, 1.Wenz-Mechanik GmbH is entitled to file a lawsuit at the customer’s headquarters.

Stand 3.7.2012