General Terms and Conditions of Business
- As of 1 January 2014 -
1. In relation to the legal relationships between WEIDINGER GmbH, Ringstraße 17, 82223 Eichenau, Germany (hereinafter: "Supplier") and purchasers in the context of the deliveries and/or services of the Supplier (hereinafter: "Delivery" or "Deliveries") these general terms and conditions of business shall apply exclusively (hereinafter: "Terms and Conditions"). General terms and conditions of business of the purchaser shall apply to the extent that the Supplier has expressly consented to them in writing. With regard to the scope of the Deliveries, the mutually agreed upon written declarations shall prevail.
2. The Supplier reserves his unrestricted ownership-related and copyright-related exploitation rights in relation to cost quotations, drawings and other documents (hereinafter: "Documents"). Documents may only be disclosed to third parties with the Supplier's prior consent, and, upon the Supplier's request, they shall be immediately returned to the Supplier in the event that the order is not placed with him. Sentences 1 and 2 shall apply mutatis mutandis in relation to Documents of the purchaser; these may, however, be disclosed to such third parties who have been rightfully authorized by the Supplier to make Deliveries.
3. With regard to standard software and firmware the purchaser shall have the non-exclusive right of use subject to the agreed performance features in unchanged form on the agreed devices. The purchaser shall be entitled to produce a backup copy of the standard software without express agreement.
4. Part deliveries shall be permissible insofar as they are reasonable for the purchaser.
5. The term "claims for damages" in these Terms and Conditions shall include claims for reimbursement of expenses incurred in vain.
1. Prices shall apply ex works excluding packaging plus value added tax from time to time in force.
2. If the Supplier has taken over installation or assembly and provided nothing else has been agreed, in addition to the agreed remuneration the purchaser shall bear all required incidental costs such as cost of travel and transport as well as accommodation allowances.
3. Payments shall be made free paying agent of the Supplier.
4. The purchaser may only offset payment claims that are undisputed or have legal force.
1. The items delivered (items subject to retention of title) shall remain property of the Supplier until all claims due to him against the purchaser under the business relationship have been fulfilled. Insofar as the value of all security interests due to the Supplier exceeds the value of all secured claims by more than 10% the Supplier shall, upon request by the purchaser, release a corresponding amount of the security interest; the Supplier shall have the right to choose which of various security interests to release.
2. While the retention of title continues, the purchaser shall not be entitled to pledge the goods or transfer title for security purposes, and he shall only be entitled to sell the goods on to resellers in the ordinary course of business and only subject to the condition that the reseller receives payment from his customer or reserves the right that title shall only pass to the customer once he has fulfilled his payment obligations.
3. If the purchaser resells items subject to retention of title, he hereby assigns his future claims against his customers arising from such resale together with all ancillary rights – including any balance claims – to the Supplier as security, without the need for any further declarations to this effect. If the items subject to retention of title are resold together with other items in the absence of an agreement regarding an individual price for the items subject to retention of title, the purchaser shall assign that part of the total purchase price claim to the Supplier which corresponds to the price charged by the Supplier for the items subject to retention of title.
4. a) The purchaser shall be entitled to process the items subject to retention of title or to combine or mix them with other items. Processing shall be deemed to be performed for the Supplier. The purchaser shall hold the new item, which results from such activities, for the Supplier with the diligence of a prudent businessman. The new item shall be deemed to be subject to retention of title.
b) Supplier and purchaser hereby agree that, in the case of combination or mixing with other items not owned by the Supplier, the Supplier shall in any case be entitled to joint title in the new item equivalent to the ratio of the value of the combined or mixed item subject to retention of title in relation to the value of the other items at the time of combination or mixing. To this extent, the new item shall be deemed to be subject to retention of title.
c) The provision regarding the assignment of claim pursuant to no. 3 shall also apply to the new item. The assignment shall, however, only apply up to that amount which equates to the amount charged by the Supplier for the processed, combined or mixed goods subject to retention of title.
d) If the purchaser combines the items subject to retention of title with real estate or movable property, he shall, without the need for any further declarations to this effect, also assign to the Supplier as security the claim that he is entitled to by way of remuneration for the combination, together with all ancillary rights equivalent to the ratio of the value of the combined items at the time of combination.
5. The purchaser shall be authorized to collect assigned claims from resale until such authorization is revoked. If there is an important reason, in particular in the event of default of payment, termination of payment, institution of insolvency proceedings, protest of a bill or substantiated signs of overindebtedness or impending insolvency of the purchaser, the Supplier shall be entitled to revoke the purchaser's debit mandate. In addition, upon prior warning and following a reasonable notice period, the Supplier may disclose the assignment of security, exploit the assigned claims and demand the disclosure of the assignment of security by the purchaser vis-à-vis the customer.
6. In the event of attachments, seizures or other dispositions or interferences by third parties, the purchaser shall notify the Supplier without delay. In the event of provision of prima facie evidence of a legitimate interest, the purchaser shall immediately furnish the Supplier with the information required for the exercise of his rights vis-à-vis the customer and hand over the necessary documents.
7. In the event of breaches of obligations by the purchaser, in particular in the event of default of payment, after unsuccessful expiry of a reasonable time limit for performance granted to the purchaser the Supplier shall in addition to the right to take back the goods or services be entitled to withdraw from the contract; the statutory provisions regarding cases where setting a time limit can be dispensed with shall not be affected. The purchaser shall be obliged to hand over the item. The taking back and/or exercise of the retention right or the pledge of the items subject to retention of title by the Supplier shall not constitute a withdrawal from the contract unless the purchaser has expressly declared this.
1. The time limits for Deliveries and/or Delivery times shall be as per the agreements between the Supplier and the purchaser. Meeting the time limits for Deliveries requires the timely receipt of all documents, necessary approvals and clearances to be provided by the purchaser, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the purchaser. If these requirements are not fulfilled in a timely manner, the time limits shall increase by a reasonable amount; this shall not apply if the Supplier is responsible for the delay.
2. If the failure to comply with the time limits is due to
a) force majeure, e.g. mobilization, war, acts of terrorism, insurgency or similar events (e.g. strike, lockout),
b) viruses or other third party attacks on the Supplier's IT system, to the extent that these have occurred despite the observation of due care and attention with respect to protective measures,
c) obstacles as a result of German, US or other applicable national, EU or international regulations of foreign trade legislation or due to other circumstances for which the Supplier is not responsible, or
d) late or incorrect Delivery to the Supplier,
then time limits shall be reasonably extended. If possible, the Supplier shall inform the purchaser of the commencement and the end of such circumstances without delay. Provided that the duration of an event pursuant to no. 2(a) – (d) exceeds a period of six months, the Supplier shall be entitled to terminate the contract. Any consideration provided by the purchaser shall be reimbursed immediately.
3. If the Supplier is in default – provided the purchaser can produce evidence that he has suffered damage as a result of this – the purchaser shall be entitled to receive 0.5% compensation for each completed week of default, though no more than 5% of the price of that part of the Deliveries which could not be used for its intended purposes due to the default.
4. Claims for damages of the purchaser due to delays in delivery as well as claims for damages in lieu of performance that exceed the limits provided for in no. 3 shall be excluded in all instances of delayed delivery, including after expiry of any deadline for delivery that may have been set vis-à-vis the Supplier. This shall not apply in cases of liability for intent, gross negligence or injury to life, body or health. The purchaser shall only be entitled to withdraw from the contract within the scope of the statutory provisions to the extent that the Supplier is responsible for the delayed delivery. The aforementioned provisions shall not entail any change of the burden of proof to the purchaser’s detriment.
5. The purchaser shall be under an obligation, upon request by the Supplier, to declare within a reasonable time whether he withdraws from the contract due to the Delivery delays or whether he insists on Delivery.
6. If, at the request of the purchaser, dispatch or Delivery is delayed by more than one month after notification that the goods are ready for dispatch, then the purchaser may be charged a storage fee of 0.5% of the price of the Delivery items for each additional month or part thereof, though no more than 5% in total. The parties to the contract shall be entitled to provide evidence of higher or lower storage costs.
1. Insofar as no other, individual agreement has been reached between the parties, the risk shall pass to the purchaser with the start of loading of the Delivery parts at the Supplier's works, including in the event that part deliveries are made or the purchaser has taken on additional obligations, e.g. shipment costs, or Delivery and installation.
Insofar as acceptance of performance has been agreed, this must take place without delay at the agreed time or, alternatively, after the Supplier's announcement that the goods are ready for acceptance. The purchaser may only refuse acceptance of performance in the event of a material defect.
2. If the dispatch, the Delivery, the commencement, the implementation of the installation or assembly, the handover on the purchaser's own premises or the trial operation is delayed for reasons that the purchaser is responsible for, or if the purchaser is in default of acceptance for any other reasons, then the risk shall pass to the purchaser.
Unless otherwise agreed in writing, the following shall apply in relation to installation and assembly:
1. The purchaser shall, at his expense, take on and provide the following in good time:
a) all earth work, construction work and other ancillary work including the skilled and support staff, construction materials and tools necessary in this regard;
b) the commodities and materials necessary for assembly and commissioning, such as scaffolds, lifting equipment and other devices, fuels and lubricants;
c) energy and water at the point of use including connections, heating and lighting;
d) at the assembly location, for the storage of machine parts, apparatus, materials, tools etc., sufficiently large, adequate, dry and lockable premises, and for the assembly staff adequate workspaces and common rooms including sanitary facilities adequate in the circumstances; moreover, in order to protect the possessions of the Supplier and the assembly staff on the assembly site, the purchaser shall take the measures he would take in order to protect his own possessions;
e) protective clothing and protective devices that are necessary due to the prevailing circumstances at the assembly site.
2. Prior to commencement of the assembly work, the purchaser shall make available, of his own accord, the necessary information regarding the location of concealed electric power lines, gas and water pipes or similar installations as well as the necessary structural data.
3. Prior to commencement of the installation or assembly, the provisions and equipment necessary for the commencement of the work must be available at the installation or assembly site and all preparatory work must have advanced to such a degree as to allow the installation or assembly to commence as agreed and be carried out without interruption. Access roads and the installation or assembly site must have been levelled and cleared.
4. If the installation, assembly or commissioning is delayed due to circumstances for which the Supplier is not responsible, the purchaser shall bear the reasonable costs for waiting time and necessary additional journeys by the Supplier or assembly staff.
5. The purchaser shall notify the Supplier without delay on a weekly basis of the hours worked by the assembly staff as well as the completion of installation, assembly or commissioning.
6. If, upon completion, the Supplier requests acceptance of Delivery, the purchaser shall undertake this within two weeks. If the purchaser allows a period of two weeks to elapse or if the Delivery item has been put to use – if applicable, after an agreed test phase has been completed – acceptance shall be deemed to have occurred.
The purchaser must not refuse to take Delivery due to minor defects.
The Supplier shall be liable for defects of quality as follows:
1. All parts or services that display a defect of quality shall, at the choice of the Supplier, be repaired, replaced or provided again free of charge, provided that the reason for the defect of quality was already present at the time the risk passed.
2. Claims for supplementary performance shall expire in 12 months from the commencement of the statutory limitation period; the same shall apply in relation to withdrawal and payment reduction. This time limit shall not apply to the extent that statute prescribes longer time limits pursuant to sections 438(1) no. 2 (buildings and items used for buildings), 479(1) (recourse claim) and 634a(1) no. 2 (construction defects) German Civil Code (Bürgerliches Gesetzbuch – BGB), in the event of intent, fraudulent concealment of the defect as well as non-compliance with a guarantee of quality. The statutory provisions regarding suspension of expiry, interruption and recommencement of time limits shall remain unaffected.
3. Notifications of defect by the purchaser shall be made in writing without delay.
4. In the event of a notification of defects the purchaser may only withhold payments in an amount that is in reasonable proportion to the defects of quality that have occurred. The purchaser may withhold payments only if a notification of defects has been asserted whose justification is beyond doubt. The purchaser has no retention right if his claims for defect have become time-barred. If the notification of defect has occurred wrongly, the Supplier shall be entitled to claim compensation from the purchaser for any expenses the Supplier has incurred.
5. The Supplier shall be granted the opportunity for supplementary performance within a reasonable time limit.
6. If such supplementary performance fails, then the purchaser may – notwithstanding possible claims for damages pursuant to no. 10 – withdraw from the contract or reduce payment.
7. Claims for defects shall not apply in relation to merely insignificant deviations from the agreed quality, only minor impairments of usefulness, or natural wear and tear or damage that occurs after the risk has passed as a result of faulty or negligent handling, excessive load, unsuitable operating materials, deficient construction work, unsuitable building ground or due to specific external influences that are not provided for in the contract, as well as in the event of non-reproducible software errors. If improper changes or repairs are made by the purchaser or third parties, then the changes or repairs and the resulting consequences shall not provide grounds for claims for defect either.
8. Claims by the purchaser for expenses necessary for the purpose of supplementary performance, in particular costs of transport, travel, labour and material, shall be excluded insofar as the expenses increase because the Delivery item has subsequently been taken to a location other than the purchaser's premises, unless the transfer is in accordance with the agreed use of the item.
9. There shall only be recourse claims by the purchaser against the Supplier pursuant to section 478 German Civil Code (recourse of the entrepreneur) to the extent that the purchaser has not entered into any agreements with his customer over and above statutory claims for defects. Moreover, no. 8 above shall apply mutatis mutandis to the scope of the right of recourse of the purchaser against the Supplier pursuant to section 478(2) German Civil Code.
10. Claims for damages by the purchaser due to a defect in quality shall be excluded. This shall not apply in the event of fraudulent concealment of the defect, non-compliance with a guarantee of quality, injury to life, body or health and in the event of an intentional or grossly negligent breach of duty on the part of the Supplier. The aforementioned provisions shall not entail any change of the burden of proof to the purchaser’s detriment. More extensive or different claims of the purchaser for a defect in quality than those provided for in this clause VIII shall be excluded.
1. Unless otherwise agreed, the Supplier shall be under an obligation to effect Delivery only in the country of Delivery, free from any industrial property rights and third party copyrights (hereinafter: "Intellectual Property Rights"). If a third party asserts legitimate claims against the purchaser for the breach of Intellectual Property Rights by Deliveries made by the Supplier and used in accordance with the contract, the Supplier shall be liable vis-à-vis the purchaser within the time limit stipulated in clause VIII no. 2 as follows:
a) The Supplier shall, at his discretion and expense, either secure a right of use for the Deliveries in question, amend these so that the Intellectual Property Right is not breached, or exchange them. If this would be impossible for the Supplier under reasonable conditions, the purchaser shall have statutory rights of withdrawal or payment reduction;
b) The obligation of the Supplier to pay damages shall be governed by clause XII;
c) The aforementioned obligations of the Supplier shall only exist insofar as the purchaser notifies the Supplier of the claims asserted by the third party in writing without delay, the purchaser does not concede the breach and the Supplier retains the right to undertake all protective measures and settlement negotiations. If the purchaser ceases to use the Delivery for reasons of damage reduction or other important reasons, he shall be under an obligation to notify the third party of the fact that the discontinuation of use does not constitute an acknowledgement of a breach of Intellectual Property Rights.
2. Claims of the purchaser shall be excluded to the extent that he is responsible for the breach of Intellectual Property Rights.
3. Furthermore, claims of the purchaser shall be excluded insofar as the breach of Intellectual Property Rights is caused by specifications of the purchaser, by a use not foreseeable by the Supplier or by the fact that the Delivery is used by the purchaser in a modified way or together with products not provided by the Supplier.
4. In the event of breaches of Intellectual Property Rights, the claims of the purchaser set out in no. 1a) as well as the provisions in clause VIII no. 4, 5 and 9 shall apply mutatis mutandis.
5. In the event of other defects in title the provisions in clause VIII shall apply mutatis mutandis.
6. More extensive or different claims of the purchaser against the Supplier or his vicarious agent because of a defect in title, other than those set out in this clause IX, shall be excluded.
1. The performance of the contract shall be subject to the reservation that there are no impediments as a result of German, US or other applicable national EU or international provisions of foreign trade legislation as well as no embargoes or other sanctions.
2. The purchaser shall be under an obligation to procure all information and documents necessary for the export, shipment and/or import.
1. Insofar as Delivery is impossible, the purchaser shall be entitled to claim damages unless the Supplier is not responsible for the impossibility. The purchaser's claim for damages, however, shall be limited to 10% of the value of that part of the Delivery which cannot be put to the intended use due to the impossibility. This restriction shall not be applicable in cases of liability for intent, gross negligence, or injury to life, body or health; this shall not lead to a change in the burden of proof to the detriment of the purchaser. The purchaser's right to withdrawal from the contract shall remain unaffected.
2. Where events within the meaning of clause IV no. 2 a) to c) substantially change the economic importance or the content of the Delivery or considerably affect the Supplier's operations, the contract shall be suitably revised in compliance with the principle of good faith. Insofar as this is not economically justifiable, the Supplier shall have the right to withdraw from the contract. The same shall apply if any required export licenses are not granted or not usable. Should he wish to use this right of withdrawal, he shall immediately inform the purchaser as soon as he realises the consequences of the event, even if an extension of the Delivery period was agreed with the purchaser.
1. Unless otherwise provided for in these Terms and Conditions, damages claims of the purchaser, on whatever legal ground, in particular claims for breach of contractual obligations and tort, shall be excluded.
2. This shall not apply to instances of liability as follows:
a) under the German Product Liability Act (Produkthaftungsgesetz);
b) in cases of intent;
c) in cases of gross negligence of owners, legal representatives or managerial staff;
d) in cases of bad faith;
e) in cases of failure to comply with a guarantee provided;
f) due to the culpable injury to life, body or health; or
g) due to culpable breach of material contractual obligations;
The claim for damages for the breach of material contractual obligations shall, however, be limited to foreseeable damage typical of the contract unless another of the aforementioned cases has occurred.
3. The aforementioned provisions shall not entail any change of the burden of proof to the purchaser’s detriment.
1. If the purchaser is a merchant, sole place of jurisdiction in relation to all disputes arising directly or indirectly from the contractual relationship shall be the place of business of the Supplier. The Supplier shall, however, also be entitled to bring an action at the purchaser's place of business.
2. This contract, including its interpretation, shall be subject to German law with the exclusion of the United Nations Convention on Contracts for the International Sales of Goods (CISG). If an agreement has been concluded with the consumer, the choice of such governing law does not infringe the absolutely binding provisions of the consumer protection law which normally applies in a situation where that governing law is not chosen.
1. The contract shall remain binding in its remaining parts even in the event of legal invalidity of individual provisions. This shall not apply if adherence to the contract would constitute an undue hardship for one of the parties.
2. The following additional provisions shall apply:
a) Declarations that serve to establish, maintain or exercise rights must be made in writing.
b) The purchaser must not transfer his rights under the contractual relationship to third parties without written consent of the Supplier.