GTC

1.    Conclusion of contract

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1.1  Our terms and conditions of sale apply exclusively; the purchaser's general terms and conditions do not apply.
1.2  Our terms and conditions of sale also apply if we carry out the delivery to the purchaser without reservation, despite being aware of terms and conditions of the purchaser that conflict with or deviate from our terms and conditions of sale.
1.3  All agreements and subsidiary agreements between the supplier and the customer prior to the conclusion of the contract must be made in writing.
1.4  Our terms and conditions of sale shall also apply to all future transactions with the customer without the need for further notice.
1.5  Our terms and conditions of sale shall only apply to entrepreneurs within the meaning of Section 310 (1) sentence 1 of the German Civil Code (BGB).
 

 

2.    Offer and acceptance

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2.1  If an order is placed in accordance with §145 BGB (German Civil Code), the supplier may accept it within one week.
2.2  The supplier's offers are subject to change without notice, unless otherwise stated in the offer letter or order confirmation.
2.3  The goods offered by the supplier are limited to the quantity available in Germany.

 

3.    Prices

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3.1  Prices are ex works unless otherwise stated in our offer or order confirmation. All prices quoted exclude sales tax, which the customer must pay in addition at the applicable statutory rate. The costs of packaging, postage, and freight, as well as customs duties or other official fees, will be invoiced separately.
3.2  The supplier reserves the right to adjust prices in the event of increases in production costs and procurement costs from upstream suppliers. In this case, the prices applicable at the time of delivery shall apply.
3.3  The deduction of discounts requires a written agreement.
 

 

4.    Terms of payment

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4.1  The purchase price is payable without deduction 30 days after the invoice date, unless otherwise stated in the order confirmation. If payments are made late, we are entitled to charge interest at a rate of 5% p.a. above the base rate of the European Central Bank. If we can prove higher damages caused by default, we shall be entitled to claim these.
4.2  The supplier is not obliged to accept non-cash means of payment. If it does so, acceptance shall only be on account of payment. In this case, the customer shall bear any costs incurred, in particular for collection and discounting.
 

 

5.    Packaging

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5.1  We deliver our goods in sales packaging. This will only be taken back if there is an obligation under the currently valid Packaging Act (VerpackG).
5.2  If these conditions are met, the customer must clean the packaging, label it with the original labels, separate it from foreign materials, empty it completely, and transport it back to the supplier at their own expense. If the customer violates this obligation, the supplier may charge them for the costs incurred.
5.3  Section 5.2 applies accordingly in cases where ownership of the packaging remains with the supplier (loan containers).
 

 

6.    Delivery time, delay, damage caused by delay

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6.1  The start of the delivery period specified by the supplier in the offer is subject to the clear clarification of all technical questions and agreement on the details of the transaction, as well as the timely and proper fulfillment of the purchaser's contractual obligations.
The delivery period shall be deemed to have been met if the delivery item has left the factory or readiness for shipment has been notified in writing.
6.2  The supplier is entitled to make partial deliveries within the delivery period.
6.3  The delivery period shall be extended appropriately in the event of circumstances for which the supplier is not responsible. This applies in particular to labor disputes (strikes), lockouts, force majeure, natural disasters, raw material shortages, war, riots, pandemics, machine damage, official measures, and all cases that we cannot influence even with careful action.
6.4  If the supplier is in default of delivery, the customer may, provided it can prove that it has suffered damage as a result, demand compensation of 0.5% for each completed week of delay in delivery, up to a maximum of 10% of the delivery value.

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Any further claims for damages due to the delay in performance or in lieu of performance shall be excluded even after expiry of a reasonable grace period set by the customer for delivery with a threat of rejection, except in cases of intent, gross negligence, and in other cases where liability is mandatory by law.
In cases of mandatory liability, the supplier reserves the right to prove to the customer that the delay in delivery did not cause any damage or only minor damage. The customer is only entitled to withdraw from the contract if the supplier is responsible for the delay.
 

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7.   Self-supply, force majeure 

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If, for reasons beyond its control, the supplier does not receive delivery from its upstream supplier or does not receive delivery on time, or if other impediments to performance due to force majeure occur, the supplier may suspend performance for the duration of the impediment or withdraw from further performance of the contract or withdraw from it in part. Clause 6.4 applies accordingly.
Definition: Force majeure shall be deemed to exist if an external event occurs which is not related to the business and cannot be averted even with the utmost care that can reasonably be expected. This applies in particular to the following events:
Government regulations, war or national emergency, protests, riots, civil unrest, fire, explosions, floods, epidemics, pandemics, strikes and other labor disputes, import or export restrictions or embargoes, power failures or other incidents beyond the control of WILKE Kühlschmiertechnik GmbH.
By placing your order, you accept our terms and conditions and thereby assure us that you will not deliver to countries that are subject to embargoes due to legal regulations.
 

 

8.    Transfer of risk and shipping

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8.1 Unless otherwise agreed, delivery ex works is agreed, even if delivery is carriage paid. The point in time of transfer of risk is the dispatch of the goods from the supplier's premises or the handover of the goods to the first person entrusted with transport from the respective point of dispatch.               
8.2  The supplier shall cover the delivery with transport insurance. However, the costs for this shall be borne by the customer.
 

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9.    Liability for material defects

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9.1  The purchaser's claims for material defects presuppose that the purchaser has duly fulfilled its obligations to inspect and give notice of defects in accordance with §377 HGB (German Commercial Code). Obvious defects must be reported in writing within 7 days of delivery or handover at the latest, and non-obvious defects within 7 days of their discovery. Liability shall not be considered if the complaint period is not observed.

9.2  In the event of complaints, payments by the customer may be withheld to an extent that is reasonable in relation to the material defects that have occurred. The customer may only withhold payments if a complaint is made whose justification is beyond doubt. If the complaint is unjustified, the supplier is entitled to demand reimbursement of the expenses incurred from the customer.

9.3  In the event of defects in the purchased item, the supplier may, at its discretion, repair, replace, or re-perform the service free of charge within a reasonable period of time. In such cases, reimbursement of the necessary expenses, in particular transport, travel, labor, and material costs, shall be excluded to the extent that they arise or have arisen as a result of transporting the purchased item from the customer's place of business to another location.
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Unless the purchased item has been transported there within the scope of its intended use. Multiple repairs or replacements are permissible. The customer may, at his discretion – without prejudice to claims for damages in lieu of performance – either demand a reduction in price or withdraw from the contract if either the repair has failed or the replacement, subsequent delivery or new delivery is no longer reasonable for the customer for other reasons.

9.4  Unless otherwise specified below, further claims by the customer are excluded. We are not liable for damage that has not occurred to the delivery item itself. In particular, liability for lost profits or other financial losses is not considered.

9.5  In the event of complaints, the supplier shall be given sufficient opportunity to inspect the goods and determine the defects. To this end, the customer shall leave the goods in the transport container and return them to the supplier upon request. If the customer violates this obligation or makes changes to the goods or mixes them, they shall lose their claims for material defects.

9.6  Claims for material defects shall not exist in the case of only insignificant deviations from the agreed quality or only insignificant impairment of usability. Furthermore, the supplier shall not be liable for natural wear and tear or for damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive or incorrect use, or unsuitable use of the purchased item. In such cases, the supplier shall also not be liable for any consequential damage.
 

 

10.    Liability
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10.1  The supplier shall not be liable for claims for damages or compensation, regardless of the legal basis. This shall not apply if liability is mandatory by law, in particular in cases of intent, gross negligence, or injury to life, limb, or health caused by the supplier itself, a senior executive, or a vicarious agent.

In the event of a slightly negligent breach of contract, the supplier shall only be liable if it concerns an obligation that is essential for the performance of the contract (cardinal obligation) or if the customer demands compensation instead of performance. In the event of a breach of a cardinal obligation, liability shall be limited to the foreseeable damage typical for this type of contract.

10.2  The above exclusions and limitations of liability shall also apply in favor of the supplier's employees and representatives.
10.3  The limitations of liability do not affect liability for claims under the Product Liability Act.

10.4  In the event of the supplier being responsible for the impossibility of performance, the purchaser's claim for damages shall be limited to 10% of the value of the delivery.
10.5  We would like to point out that private label customers must submit a PCN (Poison Centers Notification) for the products in the respective EU countries of their distribution area under their own trade name and UFI (Unique Formula Identifier) in order to comply with the requirements of Annex VIII of the CLP Regulation (EU Regulation 2017/542)  . WILKE Kühlschmiertechnik GmbH is not liable for violations of this reporting obligation for mixtures subject to labeling requirements by its private label customers. 
10.6  If the customer makes changes to the safety data sheet, we do not assume any liability for the content of the amended data sheet. In the event of a change in the product name and the supplier or manufacturer, the customer is obliged to provide their own emergency telephone number, with the result that the telephone number provided by us must be changed by them. 
 

 

11.    Retention of title

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11.1  The supplier retains ownership of all goods delivered by him until payment of his total claims arising from the business relationship with the customer. This also applies if the purchase price for certain goods deliveries specified by the customer has been paid, as the retained ownership serves as security for his balance claim. Upon conclusion of the purchase contract between the purchaser and the supplier, the purchaser assigns to the supplier, by way of security, all claims against its customers arising from the sale or any other legal grounds, together with all ancillary rights, in full.
11.2 If the value of the item delivered under retention of title and serving as security for the supplier exceeds the supplier's total claim by more than 10%, the supplier shall be obliged to retransfer the item to the extent of the excess value at the purchaser's request.
 

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12.   Right of withdrawal

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If, after conclusion of the purchase contract, the purchaser finds itself in an unfavorable financial situation, the supplier may demand that the purchaser provide security for the consideration within a reasonable period of time. If this period expires without result, the supplier shall be entitled to withdraw from the contract.

 

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13.   Tolerances

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Quantity, weight, and quality tolerances in the delivery are permissible within the scope of customary commercial practice.

 

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14.    Brochures and samples

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14.1  Information about the Supplier's products in brochures and other printed materials, including illustrations, drawings, technical data, performance descriptions, and measurements and weights of any kind, do not constitute warranted characteristics, but rather represent descriptions and identifications of the products. Certain characteristics of goods shall only be deemed warranted if this is expressly stated in a separate letter from the Supplier.
14.2  Samples and specimens of the deliverable goods provided by the supplier to the purchaser merely give an indication of the quality of the goods within the meaning of §243 (1) BGB (German Civil Code). However, a warranted characteristic shall only be deemed to exist if a corresponding special written declaration by the supplier is submitted.
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15.    Place of jurisdiction and place of performance

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15.1  If the purchaser is a registered trader, the place of jurisdiction shall be Radolfzell.
15.2  However, the supplier reserves the right to sue the purchaser at the purchaser's general place of jurisdiction.
15.3  Unless otherwise agreed, the place of performance for all contractual obligations shall be the supplier's place of business.

 

As of: September 2023