General terms and conditions
General terms and conditions
Wartenfelser GmbH & Co. KG, Erlangen
Edition: October 2022
Scope of validity
The following conditions apply toward entrepreneurs, legal entities under public law and special authorities under public law.
1. Orders become binding only after the order has been confirmed by Wartenfelser GmbH & Co. KG, hereinafter referred to as "Wartenfelser". Amendments and additions must be made in writing. All offers, bids and quotations are subject to confirmation unless they are explicitly designated as a firm offer. Quantitative and dimensional data are non-binding approximate values unless they are explicitly designated as binding.
2. In the case of continuing business relations, these conditions also apply to future business, even when they are not explicitly referred to, provided that the General Terms and Conditions as a downloadable pdf file on the website at www.wartenfelser.de were pointed out to the ordering party on the occasion of an order previously confirmed by Wartenfelser.
3. Terms and conditions of the ordering party do not apply even if Wartenfelser has not expressly rejected them, unless they have been expressly acknowledged in writing by Wartenfelser. The regulations governing distance selling in transactions with consumers do not apply to business-to-business relationships, not even analogously.
4. If individual provisions are or become invalid, the remaining provisions remain unaffected.
1. Prices apply ex works, excluding carriage, customs duties, import or export duties and packaging, plus value-added tax at the statutory rate, where no individual, written provision has been made.
2. If the relevant cost factors change by more than 5% and therefore substantially after submission of an offer or after order acknowledgment until delivery, in particular for material, energy or personnel, each party is entitled to demand a price adjustment. This price adjustment shall be commensurate with the extent to which the relevant cost factor changes the total price.
3. If dependence of the price on part weight has been agreed, the final price is derived from the weight of the released type sample.
4. Wartenfelser is not bound to previous prices in new orders.
III. Obligation to deliver and accept delivery, force majeure
1. Delivery periods start after receipt of all documents required to execute the order, the advance payment, and the punctual provisions of material, where these have been agreed. The delivery date is deemed to have been met upon issue of the ready-to-ship notification if shipment is delayed or impossible at no fault of Wartenfelser.
2. If an agreed delivery date is not met due to a fault by Wartenfelser, the ordering party is obligated in any case to set a reasonable grace period.
3. Appropriate partial deliveries and reasonable deviations from the order quantities of up to plus/minus 10% are permissible.
4. In call-off orders for which no validity period, no production batch sizes and no acceptance dates have been agreed, Wartenfelser can demand binding definition of these no later than three months after the order acknowledgment. If the ordering party does not meet this demand within three weeks, Wartenfelser is entitled to set a two-week grace period and, after the expiration thereof, to terminate the contract and/or claim compensation for damages.
5. If the ordering party does not meet its obligation to accept delivery, Wartenfelser is, without prejudice to other rights, not bound by the regulations governing sale of non-accepted items, but can privately sell the delivered item after prior notification of the ordering party.
6. Events of force majeure entitle Wartenfelser to delay delivery by the duration of the hindrance and a reasonable lead time, or to terminate the as yet unperformed part of the contract wholly or partially. Force majeure includes strike, lockout or unforeseeable, unavoidable circumstances, e.g. breakdowns, transport delays or interruptions, involuntary shortage of raw materials or energy, that make punctual delivery impossible for Wartenfelser despite reasonable efforts. Wartenfelser must provide proof of such circumstances. This also applies if said hindrances occur during a delay or at a subsupplier. The ordering party can request Wartenfelser to declare within two weeks whether it will terminate the contract or deliver within an appropriate grace period. If Wartenfelser fails to make such a declaration, the ordering party is entitled to terminate the as yet unperformed part of the contract. Wartenfelser will notify the ordering party immediately if a case of force majeure, as defined in paragraph 1, occurs. Wartenfelser must minimize inconvenience to the ordering party as far as possible, if necessary, by ceding the molds for the duration of the hindrance.
IV. Packaging, shipment, transfer of risk and default in acceptance
1. Unless otherwise agreed, Wartenfelser chooses the packaging, type of transport and transport route. Wartenfelser is entitled to place the order with a carrier that it usually chooses for its business involving shipment, on the usual conditions agreed with said carrier.
2. The risk is transferred to the ordering party upon departure from the delivering factory, even in the case of carriage-paid delivery. In the case of delivery delays attributable to the ordering party, the risk is already transferred when the ready-to-ship notification is issued.
3. If requested in writing by the ordering party, the goods are insured at the expense of the ordering party for risks that are stated by the ordering party.
4. If the ordering party delays acceptance of delivery, Wartenfelser is entitled to store the goods at the expense of the customer. Where the supplier itself stores the goods, it is entitled to storage costs amounting to 0.5% of the invoice value for the stored goods per started calendar week. This does not prejudice claims for higher storage costs where proof of these is provided.
V. Retention of title
1. The supplies remain the property of Wartenfelser until all claims by the latter against the ordering party have been met, even if the purchase price has been paid for specially designated claims. In the case of a current account, the retained title to the deliveries (reserved goods) are security for the balance for Wartenfelser. If liability on a bill of exchange is established by Wartenfelser for payment of the purchase price, the retention of title shall remain until the bill of exchange is paid by the purchaser as the drawee.
2. Processing or treatment by the ordering party is performed on behalf of Wartenfelser excluding the acquisition of property under § 950 BGB (German Civil Code). The latter becomes co-owner of the resulting item in the ratio of the net invoice value of its goods to the net invoice value of the goods to be processed or treated, the resulting item being reserved goods serving as security for claims of Wartenfelser under Section 1.
3. For processing (combination/mixing) by the ordering party with other goods not belonging to Wartenfelser, the provisions of §§ 947, 948 BGB (German Civil Code) apply with the consequence that the co-ownership share of Wartenfelser of the new item is now deemed reserved goods for the purpose of these conditions.
4. Resale of the reserved goods is permitted to the ordering party only in usual business and on the condition that the ordering party also agrees a retention of title with its customers in accordance with Sections 1 to 3. The ordering party is not permitted to dispose of the reserved goods in any other way, in particular pledging and assignment as security.
5. In the case of resale, the ordering party hereby already assigns to Wartenfelser the claims arising from the resale and other justified claims against its customers with all subsidiary rights until all claims of Wartenfelser have been met. At the request of Wartenfelser, the ordering party is obligated immediately to provide all information and hand over documents that are necessary to enforce the rights of the supplier against the customers of the ordering party.
6. If the reserved goods are resold by the ordering party after processing in accordance with Section 2 and/or 3 together with other goods not belonging to Wartenfelser, the assignment of the purchase price claim under Section 5 only applies up to the invoice value of the reserved goods of Wartenfelser.
7. If the value of the security available to Wartenfelser exceeds its total claims by more the 10%, Wartenfelser is obligated proportionately to release securities as chosen by Wartenfelser at the request of the ordering party.
8. Pledging or confiscation of the reserved goods by a third party must be communicated to Wartenfelser without delay. The resulting costs for intervention shall in any case be borne by the ordering party, wherever such costs are not borne by third parties.
9. If Wartenfelser makes use of its retention of title to repossess reserved goods under the provisions stated above, Wartenfelser is entitled to sell the goods privately or have them auctioned. The reserved goods are repossessed in accordance with the revenue achieved, but maximally up to the agreed delivery prices. This is without prejudice to further claims for compensation for damage, in particular for loss of profits.
10. Goods outside Germany.
If the delivered item is located outside Germany and if the delivered item was delivered before payment of all amounts owed under the contract, it remains the property of the supplier until full payment, wherever this is permissible according to the law of the area in which the delivered item is located. If said law does not enable retention of title, but does enable retention of other rights to the delivered item, the supplier is entitled to exercise all rights of this nature, for example, the supplier may be entitled to a pledge. The customer is obligated to support the supplier, where necessary, in enforcing rights of the nature stated in this clause immediately when requested to do so. The customer must also collaborate when registrations or other measures are required to ensure the validity of the retention of title.
VI. Liability for defects as to quality
1. The basis for determining quality and workmanship of the products are the product description or, where production thereof is agreed, the type samples, which are submitted to the ordering party by Wartenfelser on request for inspection. Moreover, Clause XIV Sec. 1 must also be observed. The reference to the technical standards are to be understood as a description of performance and not as a quality guarantee. The tolerances usual in the industry apply. Without special written agreement, production is effected with materials that are usual in the industry and in accordance with the agreed or, where no such agreement is made, known production methods.
Slight deviations from the original for color production or reproductions are not deemed defects; the same applies to usual deviations between proofs and production runs due to the production process.
2. If Wartenfelser has advised the ordering party beyond its contractual obligation, Wartenfelser is liable for the ability to function and suitability of the delivered item only after an express prior warranty.
3. Notifications of defects must be made in writing without delay. In the case of latent defects, the notification must be made immediately as soon as the defect is found. In either case, claims based on defects expire twelve months after transfer of risk, unless otherwise agreed. Where the law prescribes a longer period in accordance with § 438 Sec. 1 No. 2 BGB (German Civil Code), 479 Sec. 1 BGB and § 634a Sec. 1 No. 2 BGB, this longer period applies.
4. In the case of a justified notification of defect, where the type sample released in writing by the ordering party determines the quality and workmanship to be expected, Wartenfelser is obligated to perform defect rectification. If Wartenfelser does not meet this obligation within an appropriate period or if defect rectification fails despite a repeated attempt, the ordering party it entitled to reduce the purchase price or terminate the contract. Further claims, in particular claims for compensation for expenditure or damages due to defects or consequential damage therefrom only arise within the scope of the provisions of VII. Replaced parts must be returned carriage forward to Wartenfelser on request.
5. Unauthorized reworking and improper treatment result in the loss of all claims for defects. Only to prevent disproportionately great damage or if Wartenfelser fails to rectify the defect is the ordering party entitled to rectify defects after prior agreement with Wartenfelser and to demand reimbursement of the appropriate costs.
6. Normal wear and tear do not result in the right to make warranty claims.
7. Recourse claims in accordance with §§ 478, 479 BGB (German Civil Code) only exist where the claim by the consumer was justified and only within the statutory scope, not however for goodwill measures taken without agreement with Wartenfelser, and they are conditional upon compliance by the party entitled to recourse with its own obligations, in particular observance of the obligation to notify.
VII. General limitations of liability
1. The supplier is liable for compensation for damage or expenditure only where the supplier or its managerial employees or agents are guilty of malice, gross negligence, or injury to life, limb or health.
2. This is without prejudice to the no-fault liability under the Product Liability Act and liability to honor a quality guarantee.
3. This is also without prejudice to liability for culpable breach of material contractual obligations; liability is however limited to foreseeable damage typical of contracts except in the cases addressed in Sec. 1. Material contractual obligations are to be understood as the basic, elementary obligations of the contractual relation that are especially important for proper execution or performance of the contract or that substantially influence the relationship of trust between the parties, in particular fulfillment of obligations to deliver and important obligations to notify.
4. The foregoing provisions do not imply a change in the burden of proof to the detriment of the customer.
VIII. Payment conditions
1. All payments must be made exclusively to Wartenfelser in € (EURO).
2. Unless otherwise agreed, the purchase price for supplies or other services is payable with a 2% discount within 14 days and net within 30 days of the invoice date. A discount is only granted if all prior due, undisputed invoices have been settled. No discount is granted for any payments with a bill of exchange.
3. If the agreed payment date is exceeded, interest at the statutory rate of interest of 9 percent above the base rate of interest of the ECB in accordance with §247 BGB (German Civil Code) shall be charged, where Wartenfelser does not provide proof of higher damage.
4. Wartenfelser reserves the right to reject checks or bills of exchange. Checks and rediscountable bills of exchange are only accepted by way of formal performance, all associated costs shall be borne by the ordering party.
5. The ordering party can only offset or assert a right of retention if its claims are undisputed or recognized by declaratory judgment.
6. Sustained non-compliance with payment dates or circumstances that raise serious doubts as to the creditworthiness of the ordering party result in all claims for payments to Wartenfelser becoming due immediately. Moreover, Wartenfelser is in this case entitled to demand advance payments for outstanding deliveries and to terminate the contract after unsuccessful expiration of a reasonable period of notice.
1. The price for molds also includes the costs for one sample, but not the costs for inspection and processing fixtures nor for modifications initiated by the ordering party. Costs for further samples that are attributable to Wartenfelser shall be borne by Wartenfelser.
2. Unless otherwise agreed, Wartenfelser is and remains the owner of the molds produced for the ordering party by Wartenfelser itself or by a third party contracted by Wartenfelser. Molds are only used for orders of the ordering party provided that the ordering party meets its payment obligations and obligations to accept delivery. Wartenfelser is obligated to replace these molds free of charge only if they are necessary to fulfill an output quantity agreed with the ordering party. The obligation by Wartenfelser to retain molds expires two years after the last delivery of parts from the molds and prior notification to the ordering party.
3. If a contract ends, but the cost of the molds has not been recuperated, the supplier is entitled to invoice for the remaining amortization amount in full immediately.
4. If the ordering party is to remain the owner of the molds according to the agreement, ownership is transferred to the ordering party after full payment of the purchase price for the molds. Transfer of the molds to the ordering party is replaced by retention of the molds for the benefit of ordering party. Notwithstanding the legal claim of the ordering party for surrender and irrespective of the service life of the molds, Wartenfelser is entitled to exclusive possession of the molds until the end of the contract. Wartenfelser must mark the molds as property owned by another party and must insure them if requested to do so by the ordering party at the expense of the latter.
5. In the case of molds belonging to the ordering party in accordance with Section 4 and/or molds on loan from the ordering party, the liability of Wartenfelser for storage and maintenance is limited to due care as in the latter's own affairs. Costs for maintenance and insurance are borne by the ordering party. The obligations of Wartenfelser expire if the ordering party does not collect the molds within a reasonable period after completion of the order and a request to do so. Until the ordering party has met its contractual obligations to the full, Wartenfelser retains a right of retention of the molds in any case.
X. Designs/printing blocks/documents
1. The supplier retains the sole ownership and copyright to designs, documents, illustrations, drawings and other documents of the supplier. Where the customer provides patterns and ideas, the supplier acquires a co-copyright to the extent that the pattern or design was fashioned by the supplier.
2. Where no order comes about, the customer is obligated to return to the supplier all documents provided by the supplier, including any copies made, immediately. Digital copies must be permanently destroyed.
3. In the provision of patterns and ideas, the customer exempts the supplier from any claims by third parties that may assert rights thereto.
4. The drafts, final drawings, printing blocks and similar produced by the supplier remain its property, even if the production costs were charged to the customer.
5. The customer only acquires the right to use the designs of the supplier if special payment for this has been made. In case of doubt, only a simple right of use is granted unless expressly agreed otherwise.
XI. Provision of materials
1. If materials are supplied by the ordering party, they must be supplied at its own cost and risk with an appropriate quantity allowance of at least 5% and delivered punctually and with defect-free quality.
2. If these preconditions are not met, the delivery time is extended by an appropriate period. Except in cases of force majeure, the ordering party bears the additional costs, including for production breaks.
XII. Industrial property rights and defects of title
1. If Wartenfelser has to supply according to drawings, models, samples, or using parts provided by the ordering party, the ordering party is responsible for ensuring that industrial property rights of third parties in the country of destination of the goods are not infringed by these. Wartenfelser will indicate to the ordering party any rights known to the former. The ordering party must exempt Wartenfelser from claims by third parties and pay compensation for the damage caused. If the production or delivery is prohibited by a third party invoking its industrial property right, Wartenfelser is entitled - without examination of the legal situation - to cease work until the legal situation has been examined by the ordering party and the third party. If Wartenfelser can no longer be reasonably expected to continue with the order due to the delay, it is entitled to terminate the contract.
2. Drawings and samples that have not resulted in an order are returned on request, otherwise Wartenfelser is entitled to destroy them three months after submission of the bid or quotation. This obligation applies analogously to the ordering party. The party entitled to destroy said drawings and samples must inform the other party to the contract of its intention to destroy them in advance and in good time.
3. Wartenfelser is entitled to the copyrights and any industrial property rights, in particular all use and economic rights to the models, molds, fixtures, designs and drawings designed by it or third parties acting on its behalf. On request, the customer must return the documents, molds, samples or models including all reproductions made thereof to the supplier immediately.
4. If other title defects exist, Clause VII applies to these analogously.
XIII. Food safety and recycling materials
1. If a product is to be used for contact with food, the suitability of the material for the specific food must be examined in advance by the ordering party on its own responsibility.
2. Recycled materials are chosen carefully by Wartenfelser. However, regenerated plastics can be subject to large fluctuations from batch to batch in surface quality, color, purity, odor and physical or chemical properties; this does not entitle the customer to defect notifications toward the supplier. However, the supplier will assign any claims against subsuppliers to the customer on request; the supplier does not guarantee the validity of these claims.
XIV. Place of performance and place of jurisdiction
1. The place of performance is the location of the delivering factory.
2. As the place of jurisdiction, the ordering party may choose its registered office or that of the customer.
3. German law shall apply exclusively and the United Nations Convention on Contracts for the International Sale of Goods shall be excluded.
There shall be no possibility of recourse to the United Nations Convention on Contracts for the national sale of goods of April 11, 1980 (BGB (German Civil Code) 1989 p. 586) for the Federal Republic of Germany (BGB 1990 p. 1477).