GENERAL TERMS AND CONDITIONS OF DELIVERY
WEISS GMBH AND AFFILIATED COMPANIES: GENERAL TERMS AND CONDITIONS OF DELIVERY
– valid as of 4/1/2020 –
1. Scope of application
1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) apply to all—including future—contracts, deliveries and other services (hereinafter collectively referred to as “Delivery”) between WEISS GmbH (hereinafter referred to as “WEISS”) and its customers (hereinafter referred to as “Customer”).
1.2 These GTC only apply if the Customer is an entrepreneur (Section 14 BGB), a legal entity under public law or a special fund under public law.
1.3 These GTC apply exclusively. Contradictory, supplementary or deviating conditions of the Customer shall not become part of the contract unless WEISS has expressly agreed to their validity in writing. These GTC apply even if WEISS carries out the delivery or service to the Customer without reservation while being aware of contradictory conditions of the Customer or conditions of the Customer that deviate from these GTC.
1.4 In individual cases, individual agreements made with the Customer (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or written confirmation from WEISS is decisive for the content of such agreements.
2. Offer and Conclusion of Contract
2.1 All offers from WEISS are subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period.
2.2 The ordering of the goods by the Customer is considered a binding contractual offer. Unless otherwise stated in the order, WEISS is entitled to accept this contractual offer within 14 days of its receipt.
2.3 The contract is concluded with the written order confirmation from WEISS. If WEISS does not provide a separate confirmation, the delivery or the invoice shall be considered as order confirmation.
2.4 The content of the contract is determined by the order confirmation from WEISS, including these GTC. Oral promises made by WEISS prior to the conclusion of the contract are legally non-binding and oral agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they continue to be binding.
3. Prices and terms of payment
3.1 Our prices are stated in EUR (Euro) and are understood ex works (EXW Incoterms 2020), excluding packaging, insurance, transport, and plus the applicable statutory value added tax.
3.2 If more than four months elapse between the conclusion of the contract and delivery without WEISS being responsible for a delay in delivery, WEISS may reasonably increase the price, taking into account the labor, material and other costs incurred. If the price increase exceeds 5%, the Customer is entitled to withdraw from the contract.
3.3 Unless otherwise agreed, our invoices are due for payment within 30 days of the invoice date without any deduction.
3.4 If the Customer fails to pay by the due date, he shall be in default without further warning. In the event of default, WEISS is entitled to charge default interest at the rate of 9 percentage points above the respective base interest rate. The assertion of higher damage caused by default remains reserved.
3.5 WEISS is entitled to carry out outstanding deliveries or services only against advance payment or security if, after the conclusion of the contract, circumstances become known which are likely to significantly reduce the creditworthiness of the Customer and through which the payment of the outstanding claims of WEISS by the Customer from the respective contractual relationship is jeopardized.
3.6 If the Customer does not pay due invoices, or a period of payment granted has expired, or if the Customer’s financial situation deteriorates after the conclusion of the contract, or if WEISS receives unfavorable information about the Customer after the conclusion of the contract which calls into question the Customer’s ability to pay or creditworthiness, WEISS is entitled to make the entire remaining debt of the Customer due and, by amending the agreements made, to demand advance payment or security or, after delivery has taken place, immediate payment of all claims based on the same legal relationship.
4. Offset and Right of Retention
4.1 The Customer is only entitled to offset if his counterclaims have been legally established, are undisputed or have been recognized by WEISS in writing.
4.2 The Customer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
5. Delivery period and delay in delivery
5.1 Delivery periods and delivery dates are only binding if they are confirmed by us in writing. The delivery period begins with the dispatch of the order confirmation, however not before the provision of the documents, permits and releases to be obtained by the Customer and before the receipt of an agreed down payment.
5.2 The delivery period is met if the delivery item has left our factory or the notification of readiness for dispatch has been given by the end of the period.
5.3 In the event of force majeure or other unforeseeable, extraordinary circumstances for which we are not responsible (e.g. strike, lockout, operational disruptions, raw material shortages, etc.), the delivery period shall be extended by a reasonable amount. This also applies if these circumstances occur with our suppliers.
5.4 If the delivery is delayed at the request of the Customer or for reasons for which the Customer is responsible, WEISS is entitled to charge the costs incurred by storage, at least 0.5% of the invoice amount for each month, starting one month after notification of readiness for dispatch.
5.5 Compliance with the delivery period presupposes the fulfillment of the Customer’s contractual obligations.
5.6 If WEISS is in default of delivery, the Customer’s compensation for default is limited to 0.5% of the value of the delivery for each completed week of delay, but in total to a maximum of 5% of the value of the delivery.
5.7 Further claims of the Customer for delay are excluded, unless the delay is due to intent or gross negligence on the part of WEISS.
5.8 We are entitled to make partial deliveries to a reasonable extent.
5.9 The Customer is obliged to accept the goods within 8 days after notification of readiness for dispatch or receipt of the invoice.
5.10 If the Customer is in default of acceptance, WEISS is entitled to demand compensation for the damage incurred.
5.11 We reserve the right to deliver up to 10% more or less than the quantity ordered.
6. Transfer of risks and shipment
6.1 Delivery is “ex works” (EXW Incoterms 2020).
6.2 The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer at the latest when the goods are handed over.
6.3 In the case of sale by delivery to a place other than the place of performance, the risk passes to the Customer as soon as the goods have been handed over to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment.
6.4 If the shipment is delayed for reasons for which the Customer is responsible, the risk passes to the Customer from the day the goods are ready for shipment.
6.5 Packaging is done with the best possible care; shipping is at our discretion but without guarantee for the cheapest and fastest transport.
6.6 Insurance against transport damage is only taken out at the express request and expense of the Customer.
7. Retention of title
7.1 WEISS retains title to the delivered goods until all current and future claims of WEISS arising from the purchase contract and the ongoing business relationship (secured claims) have been paid in full.
7.2 The goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The Customer must notify WEISS immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties seize the goods belonging to WEISS.
7.3 In the event of breach of contract by the Customer, in particular non-payment of the purchase price due, WEISS is entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and the withdrawal.
7.4 The Customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall also apply.
7.5 The retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby WEISS is deemed the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, WEISS shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods.
7.6 The Customer hereby assigns the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share to WEISS as security. WEISS accepts the assignment.
7.7 The Customer remains authorized to collect the claim alongside WEISS. WEISS undertakes not to collect the claim as long as the Customer meets his payment obligations to WEISS, there is no lack of performance and WEISS does not assert the retention of title.
7.8 If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the Customer’s request.
8. Warranty and notice of defects
8.1 The Customer’s claims for defects presuppose that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB).
8.2 In the event of a defect, WEISS is entitled, at its discretion, to provide supplementary performance by repairing the defect (rectification) or by delivering a defect-free item (replacement).
8.3 The supplementary performance does not include the removal of the defective item or the re-installation if WEISS was not originally obliged to install it.
8.4 The expenses required for the purpose of inspection and supplementary performance, in particular transport, travel, labor and material costs, shall be borne by WEISS if a defect actually exists. Otherwise, WEISS may demand reimbursement from the Customer for the costs incurred as a result of the unjustified request for removal of defects.
8.5 If the supplementary performance has failed or a reasonable period of time to be set by the Customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Customer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
8.6 Claims of the Customer for damages or reimbursement of futile expenses shall only exist in accordance with Section 9 and are otherwise excluded.
8.7 We do not accept any warranty for damage caused by improper use, faulty assembly or commissioning by the Customer or third parties, natural wear and tear, faulty or negligent handling, unsuitable operating materials or replacement materials.
8.8 The limitation period for claims for defects is 12 months from the transfer of risk.
8.9 If the repair or replacement is carried out, the warranty period for these parts is 6 months, but at least until the expiry of the original warranty period for the delivery item.
8.10 Any modification or repair work carried out improperly by the Customer or third parties without the prior consent of WEISS shall cancel the liability for the resulting consequences.
8.11 For used goods, the warranty is excluded unless otherwise agreed.
8.12 The Customer must give WEISS the necessary time and opportunity to carry out the supplementary performance.
9. Liability and damage compensation
9.1 Unless otherwise stated in these GTC, WEISS shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
9.2 WEISS is liable for damages—for whatever legal reason—within the scope of fault liability in the event of intent and gross negligence.
9.3 In the event of simple negligence, WEISS is only liable for damages resulting from injury to life, limb or health, and for damages resulting from the breach of a material contractual obligation (obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may rely); in this case, however, the liability of WEISS is limited to the compensation of the foreseeable, typically occurring damage.
9.4 The limitations of liability resulting from Section 9.3 do not apply if WEISS has maliciously concealed a defect or has assumed a guarantee for the quality of the goods. The same applies to claims of the Customer under the Product Liability Act.
9.5 Due to a breach of duty that does not consist of a defect, the Customer may only withdraw or terminate if WEISS is responsible for the breach of duty.
9.6 WEISS is not liable for indirect damages, consequential damages, loss of profit or other financial losses of the Customer.
9.7 Insofar as the liability of WEISS is excluded or limited, this also applies to the personal liability of employees, workers, representatives and vicarious agents of WEISS.1
9.8 The Customer is obliged to take all necessary and reasonable measures to prevent or minimize damage.2
9.9 In the event of the los3s of data, WEISS is only liable for the expenditure required to restore the data if the Customer has carried out a proper data backup.
10. Termination and rescission
10.1 WEISS is entitled to withdraw from the contract if the Customer’s financial situation has deteriorated significantly, an application for the opening of insolvency proceedings has been filed or the opening has been refused for lack of assets.
10.2 If the Customer terminates the contract without a reason for which WEISS is responsible, WEISS is entitled to demand the agreed remuneration minus saved expenses. WEISS is entitled to charge a lump sum of 10% of the net order value, unless the Customer proves that the actual damage is lower.
10.3 The right to terminate for good cause remains unaffected.
10.4 Termination or withdrawal must be made in writing.
11. Right of use and software
11.1 Insofar as software is included in the scope of delivery, the Customer is granted a non-exclusive right to use the delivered software including its documentation.
11.2 The software is provided solely for use on the delivery item for which it is intended. Use of the software on more than one system is prohibited.
11.3 The Customer may only reproduce, revise, translate or convert the software from the object code to the source code to the extent permitted by law.
12. Industrial property rights and copyrights
12.1 WEISS reserves the property rights and copyrights to all illustrations, drawings, calculations and other documents.
12.2 If the delivery is made according to drawings, models or other information provided by the Customer, the Customer guarantees that no third-party property rights are infringed. The Customer shall indemnify WEISS against all claims by third parties in this respect.
12.3 Insofar as the delivery item infringes a third-party industrial property right or copyright, WEISS will, at its discretion and at its expense, modify or replace the delivery item in such a way that no third-party rights are infringed anymore.
12.4 Any further claims for infringement of property rights are excluded, unless WEISS acted with intent or gross negligence.
13. Technical documents and confidentiality
13.1 All technical documents, such as drawings, descriptions and illustrations, remain the property of WEISS and may not be made available to third parties without our prior written consent.
13.2 The Customer undertakes to treat as trade secrets all commercial and technical details which are not public knowledge and which become known to him through the business relationship.
13.3 This obligation also applies after the termination of the contractual relationship.
14. Data protection and information
14.1 WEISS processes the personal data of the Customer necessary for the fulfillment of the contract in compliance with the statutory provisions, in particular the GDPR.
14.2 The Customer is informed that his personal data will be stored and processed by WEISS as part of the business relationship.
15. Force Majeure
15.1 Events of force majeure which make the delivery or service significantly more difficult or impossible for WEISS entitle WEISS to postpone the delivery or service for the duration of the hindrance plus a reasonable starting period.
15.2 If the hindrance lasts longer than three months, both parties are entitled to withdraw from the contract with regard to the part not yet fulfilled.
16. Export control
16.1 The delivery and performance of the contract is subject to the condition that there are no obstacles due to national or international export control regulations, in particular embargos or other sanctions.
16.2 The Customer undertakes to provide all information and documents required for the export or shipment.
16.3 Delays due to export inspections or permit procedures shall invalidate periods and delivery dates.
17. Final Provisions
17.1 The law of the Federal Republic of Germany shall apply exclusively, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
17.2 The exclusive place of jurisdiction for all disputes arising from or in connection with the contract is the registered office of WEISS in Buchen, Germany. WEISS is however also entitled to sue the Customer at his general place of jurisdiction.
17.3 Place of performance for all obligations arising from the contract is the registered office of WEISS in Buchen, Germany.
17.4 Should individual provisions of these GTC be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions.
17.5 Amendments and supplements to the contract or these GTC must be made in writing to be effective.
17.6 The language of the contract is German. In the event of deviations between the German and the English version of these GTC, the German version shall prevail.
17.7 All notifications and declarations to be made by the Customer must be in writing.
17.8 Arbitration proceedings are excluded for all disputes arising from or in the context of the contractual relationship as well as these conditions. Normal recourse at the courts of orderly jurisdiction is solely dispositive.