GENERAL TERMS AND CONDITIONS OF PURCHASING
WEISS GMBH AND AFFILIATED COMPANIES: GENERAL TERMS AND CONDITIONS OF PURCHASING
- valid as of 4/1/2020 -
1. Scope of application, conclusion of contract
1.1 Except where otherwise agreed in writing, the following General Terms and Conditions of Purchasing of WEISS GmbH and affiliated companies (hereinafter referred to as “WEISS GmbH”) are to be regarded as the contract content irrespective of whether the contractor manufactures the goods itself or sources such from suppliers. WEISS GmbH will enclose with the dispositive letter for contract conclusion and/or declaration of will of the user an offer to send out the General Terms and Conditions of Purchasing and/or refer to such being available online and provide the URL.
1.2 These General Terms and Conditions of Purchasing shall also apply to all future business relations, even if they are not expressly agreed again.
1.3 General Terms and Conditions of the contractual partner and/or supplier (hereinafter referred to as “contractor”) of WEISS GmbH shall not become part of the subject matter of the contract even if WEISS GmbH does not expressly object to them. This applies in particular if WEISS GmbH accepts the delivery from the contractor unconditionally with knowledge of the General Terms and Conditions of Purchasing. To the extent that General Terms and Conditions of the contractor do not comply with the following General Terms and Conditions of Purchasing, the contractor shall be obligated to inform WEISS GmbH explicitly and in writing in good time before signing the contract that it does not accept WEISS GmbH's General Terms and Conditions of Purchasing. If such an indication is not made, the contractor shall waive the assertion of its conflicting Terms and Conditions.
1.4 All orders and order confirmations provided by WEISS GmbH as well as these General Terms and Conditions of Purchasing are exclusively directed to companies acting as businesspeople within the meaning of the German Commercial Code, legal entities governed by public law or public special funds.
1.5 Except where otherwise agreed in writing, the contractor is obligated to accept WEISS GmbH’s order in writing, via fax or e-mail within a reasonable deadline period, at the latest, however, within a deadline period of five (5) working days. If WEISS GmbH’s order is not accepted within the specified deadline period, this later acceptance is deemed as a new offer and requires acceptance by WEISS GmbH. The receipt of acceptance at WEISS GmbH is dispositive for meeting the deadline.
1.6 Orders issued by WEISS GmbH must be made in writing, by fax or e-mail in order to be legally binding; orders issued in writing or by fax must be signed. This does not apply to orders issued automatically by WEISS GmbH that have an order value of no more than net EUR 5,000.00, which are valid without signature and can also be executed via data transmission. Orders issued verbally require written confirmation or confirmation via fax or e-mail from the contractor.
1.7 Conclusion of contracts and other agreements become binding only if WEISS GmbH accepts the contractor’s offer or if WEISS GmbH’s order is accepted unconditionally by the contractor. The seller shall draw attention to evident errors (e.g. spelling and mathematical errors) and incomplete nature of the order including the order documents to enable such to be corrected. The contract is otherwise not deemed as concluded.
1.8 References to the validity of statutory regulations are only for the purpose of clarification. Even without such clarification, the statutory provisions shall therefore apply where not directly amended or expressly excluded in these general purchasing conditions.
2. Compliance with regulations
2.1 The contractor undertakes to comply with all relevant statutory provisions, the regulations of the supervisory bodies, the employees’ insurance liability insurance associations, and the existing requirements and directives regarding implementation, occupational safety, product safety, fire and environmental protection (e.g. EC directives, ordinances on working materials and workplaces) as well as industry standards. Upon delivery, the contractor makes all information and documents regarding the delivery items available to WEISS GmbH immediately as required by WEISS GmbH to comply with statutory requirements.
2.2 The contractor will observe the relevant regulations for hazardous goods. The contractor will compile an overview for WEISS GmbH of all hazardous goods and substances that it uses in fulfilling the individual contract. It will provide the associated safety datasheets and transmit to WEISS GmbH copies thereof upon delivery.
2.3 In conjunction with these General Terms and Conditions of Purchasing, the contractor will comply with the relevant current valid guidelines of WEISS GmbH (particularly for third-party companies or visitors to the respective sites, for example). The contractor is responsible for informing itself about the applicable provisions.
2.4 The relevant current valid guidelines of WEISS GmbH can be reviewed at: www.weiss-world.com.
2.5 Delivery items not compliant with the REACH regulation must be listed separately and additionally with the SVHC components. No substances of concern according to REACH, RoHS and Conflict Minerals are generally allowed in delivery items.
2.6 Delivery items will be listed on delivery papers beginning with the order confirmation including country of origin and declarations of preferential origins. A long-term supplier declaration is supplied for each delivery item without prompting with a validity of at least 2 years.
3. Execution of the order
3.1 WEISS GmbH will specifically regulate the execution of the order. The specific features are stipulated in the service descriptions, which are an integral part of the individual contract attached as an appendix. The services ordered in the context of the order issued by WEISS GmbH (such as the delivery of goods, manufacture, delivery and assembly of works or works services as well as consulting services) are to be performed by the contractor in a flawless and professional manner in accordance with the designs, documents and instructions provided by WEISS GmbH. They will be executed conscientiously by the contractor and correspond with the most recently acknowledged developments in science and technology.
3.2 If the order is not based on a service description or other similar documentation, the performance of services by the contractor will be separately agreed upon by the parties – if applicable, also verbally.
3.3 In connection with the delivery, the contractor will provide WEISS GmbH with appropriate installation, instruction and maintenance manuals as well as relevant material safety data sheets. These documents must contain all specific warning notices and/or instructions in German and English as well as any language stipulated in the delivery agreement.
3.4 The contractor ensures that a responsible contact person is available at all times to WEISS GmbH who is authorized to make any necessary decisions for the contractor and who shall coordinate alignment between the contractor and WEISS GmbH. WEISS GmbH is entitled to obtain information at any time about the contractual execution of the service. Upon request, the contractor will appropriately inform WEISS GmbH in particular about the status of the work as well as all circumstances that could be considered significant for WEISS GmbH.
3.5 The contractor will analyze and review the specification of the delivery item before accepting the order. The contractor confirms that the specification is suitable and appropriate in order to produce the delivery item in line with the individual contract.
3.6 With regard to the manufacture of delivery items, the contractor must conduct at least a plausibility test on the measurements provided by WEISS GmbH. Upon special request from WEISS GmbH, the contractor will take measurements and provide WEISS GmbH with an illustration of the relevant measurements.
3.7 Furthermore, the contractor shall provide information in its offer about possible limitations to the product quality (particularly also about any standard wear, if applicable).
3.8 The contractor will ensure that the delivery is made to the agreed destination. In general, the contractor bears the shipping costs unless the parties have agreed in writing delivery subject to charge. The respective destination is also the place of performance for the delivery and any supplementary performance (“Bringschuld”). The risk of accidental loss or accidental deterioration of the delivery item passes to WEISS GmbH upon proper and complete delivery to the designated destination at no cost to WEISS GmbH (“Lieferung frei Haus”).
3.9 The contractor undertakes to pack, label and load the delivery items for transport in such a way that it ensures the integrity of the delivery during loading, unloading and transport. Packaging, repackaging, packaging ancillary materials and goods carriers must not contain any hazardous substances and must be recyclable unless a take-back agreement or take-back system exists. All relevant statutes and regulations regarding transport must be observed. Packaging materials shall be preferred that can be disposed of inexpensively.
3.10 The contractor will obtain immediately all documents in full and other information necessary according to customs regulations or other statutes and regulations, in particular drawback documents, evidence of origin as well as all other information referring to the origin of the goods and materials that are contained in the goods in terms of commercial or preferential law. If required for customs purposes, the contractor will issue a commercial invoice in duplicate.
Moreover, the contractor is duty bound to inform us about any approval duties or restrictions to its goods pursuant to German, European or other export and customs provisions in time before delivery.
3.11 The contractor will comply with the delivery dates agreed in the individual contract. This is essential for fulfilling the individual contract. WEISS GmbH is not duty bound to accept delivery items that are delivered before the agreed delivery date. The contractor is duty bound to inform WEISS GmbH immediately in writing if it expects not to be able to adhere to the agreed delivery dates. The contractor bears the risk of loss or damage to delivery items that are delivered before the agreed delivery date. WEISS GmbH is entitled to send back excessive deliveries at the contractor’s risk and cost, which includes all packaging, processing, sorting and transport costs.
3.12 WEISS GmbH may postpone delivery dates based on delivery calls for up to six (6) months. This does not entitle the contractor to change the prices, or to reimbursement or compensation.
3.13 The contractor transmits to WEISS GmbH an associated delivery confirmation together with the delivery, or if the delivery items are to be assembled by the contractor: immediately after delivery of the product; this delivery confirmation contains the order number and article number stated on WEISS GmbH’s order, the exact description of the delivery item, the amount and weight (gross and net). In the event of documents and information that are/is incorrect on multiple occasions, WEISS GmbH reserves the right to invoice a € 35.00 blanket processing fee for each case.
3.14 If possible based on the nature of the delivery item, the contractor will specify test intervals for the technical assessment of the delivery item’s operational safety; this will be provided to WEISS GmbH with documentation for the parts to be assessed or serviced during installation at the latest. Upon request, the contractor will provide WEISS GmbH with an offer for safety checks or maintenance work.
3.15 If the contractor becomes aware of defects related to WEISS GmbH’s items, WEISS GmbH must be informed of this immediately. This is particularly applicable if safety defects are involved. The contractor will appropriately instruct the personnel assigned by the contractor and monitor compliance with this obligation.
3.16 The specific features of the execution of the order are coordinated by the responsible contact person for the contractor and an employee of WEISS GmbH before the respective service is performed. Employees assigned by the contractor to execute the order are instructed in conjunction with the coordination conducted by the responsible contact person of the contractor.
3.17 The contractor performs its services with the corresponding use of materials under its own responsibility, with its own personnel, by its own means of occupational safety materials and machines. To fulfill the contractual services, the contractor may avail itself of subcontractors. However, prior express written consent from WEISS GmbH is required for the use of subcontractors. Any consent from WEISS GmbH is contingent upon precautionary assignment of claims for performance against the subcontractor. The contractor remains responsible for the proper performance of the contractual services for WEISS GmbH in any case.
3.18 WEISS GmbH is entitled to request changes at any time to the delivery items, designs, specifications, logistics processes (such as packaging and shipping) of an individual contract. As a general rule, the contractor shall present the consequences of such a change in terms of price and delivery date by providing a calculation and, if required, additional necessary documentation within two (2) weeks of notification of the request for change. If such a change requires an adjustment in terms of price or delivery dates, the contractual partners shall agree upon an appropriate amendment to the individual contract.
3.19 The contractor may not replace materials or change the place of manufacture, production process or the specification of the goods without prior written consent from WEISS GmbH. WEISS GmbH will refuse such consent only based on legitimate reasons.
3.20 WEISS GmbH usually carries out spot checks as part of incoming goods inspection; the contractor is duty bound to carry out a 100% inspection of delivered parts.
4.1 General provisions
a) The contractor will select the personnel assigned to fulfill the contractual performance with due care. The contractor will ensure that the selected employees are reliable and suitable for the intended services. Furthermore, the contractor will ensure that the employees are committed to performing their work with professional due diligence and monitors compliance with their duties.
b) The personnel selected by the contractor must always have the necessary technical expertise as well as sufficient professional experience to perform the contractual services. Furthermore, the contractor will ensure that no legal regulations and/or provisions oppose the assignment of the respective personnel and that the applicable occupational safety and accident prevention regulations are complied with.
c) There are also services forming objects of the individual contracts that must be performed by a qualified electrician. The relevant regulations for the use of qualified electricians also apply. The contractor shall ensure that the qualified electrician performing the work is aware of the applicable regulations. With regard to services that require a specific professional training in order to be performed pursuant to relevant regulations (e.g. welding, use of forklifts), the contractor must ensure that the employee performing the task holds the necessary professional expertise and certification.
d) If WEISS GmbH reasonably assumes that the conduct or qualification of the personnel assigned by the contractor does not meet the provisions in this section, and informs the contractor of this, the contractor will undertake measures that it considers reasonable and necessary to address the problem.
e) For security reasons, WEISS GmbH must issue prior written consent regarding the assignment of the contractor’s personnel to WEISS GmbH’s sites. Upon request by WEISS GmbH, the contractor will provide WEISS GmbH with a list of the personnel assigned by the contractor before each assignment/contract. In particular, the list must include the following information: last name, first name, date of birth, profession, nationality. WEISS GmbH is entitled to refuse approval of a person suggested for the assignment only if there is a good cause. A good cause exists, in particular, if there is considerable concern with regard to the qualification, suitability or trustworthiness of a person to be assigned or other legitimate security concerns.
f) For security reasons, interventions on parts of the building systems (e.g. air conditioning, sanitary, sound insulation/electric, telecommunications and smoke extraction systems) require prior express written consent from WEISS GmbH in the individual contract, if any, or in a separately issued approval; these interventions may only be performed by itself or by companies it selects and hires for such purposes. If there is doubt in individual cases, the contractor should inquire with WEISS GmbH in writing if its activity is considered an intervention on parts of the building systems.
g) The contractor will ensure that its employees inform themselves about the relevant accident prevention and safety provisions before performing services on site at WEISS GmbH’s sites or the contractor will distribute this information to the employees itself and is obligated to ensuring compliance with these provisions. In particular, the contractor will ensure that its employees adhere to all instructions issued by authorized personnel at WEISS GmbH that are given in connection with the safety and regulatory provisions at WEISS GmbH’s sites.
h) The contractor retains the unrestricted right to instruct and manage all employees assigned by the contractor to work at WEISS GmbH’s sites. The contractor particularly has the right to
- make decisions regarding the selection and number of assigned employees;
- determine working hours and potentially overtime;
- dgrant vacation and leisure time;
- dexecute work inspections and the monitoring of the regularity of the work processes.
4.2 No transfer of personnel, no employee leasing
a) The parties agree that during the term of the individual contract or thereafter, no transfer of undertakings within the meaning of Directive 2001/23/EC of the European Parliament and the Council on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses and national implementation, e.g. in § 613a of the German Civil Code (BGB) and no employee leasing will be conducted.
b) Except where otherwise expressly agreed between the contractual partners, if legally permissible the contractual partners undertake appropriate efforts to avoid a transfer of undertakings or employee leasing and to prevent a transfer of personnel of the contractor to WEISS GmbH on the basis of the German Civil Code (BGB) or in any other way and to prevent employee leasing.
c) The contractor indemnifies and holds harmless WEISS GmbH from any losses, liability, costs, claims and expenditures that are claimed against WEISS GmbH or any subsequent service provider irrespective of the basis thereof, either before or after this agreement ends, by the contractor’s personnel based on the assertion that they should be treated as employees of WEISS GmbH or, depending on the circumstances, of a subsequent service provider. WEISS GmbH will however undertake all necessary measures to mitigate the financial commitments of the contractor. In particular, WEISS GmbH will undertake all reasonable measures required to end the employment relationships as soon as possible. In particular, WEISS GmbH will ensure that any subsequent service provider undertakes all reasonable measures required to end the employment relationships as soon as possible. WEISS GmbH will inform the contractor immediately about any possible claims within the meaning of this section and will reach agreement with the contractor regarding strategy and content of any agreement.
5. Documents, ownership and rights held by WEISS GmbH
5.1 Calculations, illustrations, plans, tender documentation, profiles of requirements, requirements specifications, designs, other documents and other data carriers such as models and other materials, e.g. tools, remain the property of WEISS GmbH and are transferred only temporarily to the contractor. These items shall be clearly labeled as the property of WEISS GmbH. They shall be stored securely and separately from the contractor’s property. The contractor will maintain these items in good condition at its own cost and will replace them, if necessary. The contractor will bear the risk for these items as long as they are in its custody or under its control; the contractor will insure these items at its own cost and to an extent that covers the cost of replacement if the items are lost. The contractor hereby assigns all payment claims against the insurer to WEISS GmbH, and WEISS GmbH accepts this assignment. The contractor will handle these items with caution and care. After the individual contract ends, the items are to be returned immediately to WEISS GmbH and no copies are to be made of any kind; at the request of WEISS GmbH, the contractor will destroy the items.
5.2 WEISS GmbH remains owner of existing and future copyright and other property rights to its items and documents (in particular, patent, utility and trademark rights, etc.), including their processing, amendment and further development. The ownership right includes, in particular, the entire know-how, resource and development reports, suggestions, ideas, drafts, designs, patterns, models, concepts, etc.
5.3 WEISS GmbH hereby grants to the contractor a simple, non-transferrable right to use the intellectual property of WEISS GmbH for the duration of the relevant service to be fulfilled in accordance with the contract, insofar as this is necessary to perform the contractual services for WEISS GmbH.
5.4 Items and rights owned by WEISS GmbH may be used only for the purpose stipulated in the contract. They may not be reproduced, in part or in whole, by way of photocopies, microfilming, electronic storage or any other process, unless this is necessary to execute the contract. Processing or altering is permissible only if this is required to perform the contractual services. Issuing sub-licenses or enabling access or use by third parties is excluded subject to an express written individual agreement to be concluded on a case-by-case basis.
5.5 For the purpose of executing the agreement, the models, fixtures, and other materials, in particular tools, created by the contractor for WEISS GmbH become the property of WEISS GmbH upon creation. These items shall be surrendered to WEISS GmbH after the individual contract is executed or ends and no copies are to be made of any kind.
6. Duty to cooperate of WEISS GmbH
6.1 WEISS GmbH provides the documents necessary to perform the service and transfers the information necessary for fulfillment of the agreement by the contractor.
6.2 WEISS GmbH is entitled to allow third parties to fulfill its duties to cooperate.
6.3 If cooperation is not provided by WEISS GmbH as stipulated in the schedules, if any, as agreed upon by the contractual partners, the contractor informs WEISS GmbH in due time about the cooperation required so that the agreed provision of services is not endangered. If, according to the contractor’s opinion, WEISS GmbH does not provide cooperation deemed as essential for project success, properly or in due time, the contractor will inform WEISS GmbH of this.
6.4 The contractor will inform WEISS GmbH immediately if cooperative services or information of WEISS GmbH is incorrect, incomplete or contradictory and the contractor recognizes this or should have recognized this. Insofar as possible with reasonable effort, the contractor will also inform WEISS GmbH in writing at the same time of the identifiable consequences and waits until the information has been corrected before undertaking further measures. WEISS GmbH will issue the corrected information immediately. The contractor is not obligated to further inspect and check the cooperative services and/or information of WEISS GmbH beyond that which is necessary for the performance of the contractual services.
6.5 If, despite appropriate requests from the contractor, WEISS GmbH does not fulfill its duties to cooperate at all, in due time or in full, and if WEISS GmbH is responsible for this, the service deadlines and dates affected by the delay are reasonably postponed, if and to the extent that they cannot be complied with as a result of the delay.
6.6 The contractor must make every effort that can be reasonably expected to compensate for performance disruptions that arise as a result of non-fulfillment of duties to cooperate or supply by WEISS GmbH. In particular, the contractor will offer to support WEISS GmbH with the performance of the duties to cooperate or supply as far as possible. The contractor will notify WEISS GmbH in writing in advance if it intends to assign additional personnel for this purpose and if this will result in additional costs for WEISS GmbH. Insofar as the contractor is partly responsible for the disruption of services in that it did not make a reasonable effort to prevent the hindrance to the provision of contractual services, the contractor remains responsible for the service disruption despite the improper fulfillment of the duties to cooperate and supply.
6.7 If the contractor requests a service from WEISS GmbH that goes beyond the cooperation owed by WEISS GmbH, WEISS GmbH can assume this duty as its own obligation to cooperate instead of the contractor; remuneration for the performance is reduced accordingly. The contractor is obligated to check this amount from WEISS GmbH, and if necessary, correct and accept it. The contractual and statutory claims of WEISS GmbH remain unaffected.
7. Third-party rights and licenses
7.1 The contractor is responsible for ensuring that it is the exclusive owner of the rendered service and free of third-party rights (e.g. copyright, license, patent and other property rights) and legally and contractually compliant.
7.2 If third parties assert a claim against WEISS GmbH based on possible legal infringements associated with the contractor’s service, the contractor undertakes to indemnify and hold harmless WEISS GmbH from any liability and to reimburse WEISS GmbH for the costs that arise related to the possible legal infringement. The indemnification obligation also includes the obligation to fully indemnify WEISS GmbH from legal defense costs (e.g. court and legal costs).
7.3 If the contractor’s industrial property rights are necessary for use of the delivery item by WEISS GmbH, the contractor hereby grants to WEISS GmbH the unrestricted right in terms of time and geographic location, irrevocable and free of charge, to repair, sell, or use the delivery item itself or with regard to third parties.
7.4 If standard software is the object of the individual contract, the contractor grants to WEISS GmbH a freely transferrable right of use, including provision of documents and data carriers.
7.5 If the individual contract includes development work commissioned and paid for by WEISS GmbH, whether by means of a one-time payment or in installments based on unit price, WEISS GmbH acquires the exclusive rights to all results of development work. WEISS GmbH receives the unrestricted irrevocable right in terms of time and geographic location to all property rights on which the results of development work are based or the rights required by WEISS GmbH to use the results of development work, including the right to grant sub-licenses.
8.1 The contractor undertakes to adhere to the specified delivery period. Designated delivery dates/deadlines refer to the time at which the service is performed in full at the agreed destination.
8.2 The contractor is responsible for a delay in delivery if it does not render its services by the agreed dates unless the delivery is not rendered based on a circumstance for which it is not responsible, particularly force majeure.
8.3 The contractor must notify WEISS GmbH without prompting of any foreseeable delivery or performance delays immediately after becoming aware of such, at the latest when the specified delivery and performance period is exceeded.
8.4 In the event of delay, regardless of the legal consequences of delay, WEISS GmbH is entitled to request a contractual penalty to the amount of 0.2 % of the contract value for each calendar day on which the performance of the contractor is delayed. Overall, the total of the contractual penalty to be paid based on this provision may amount to no more than 5 % of the contract value of each affected individual contract. If WEISS GmbH is subject to a greater contractual penalty from its customers, this greater contractual penalty shall be paid by the contractor instead. Deviating from § 341 section 3 German Civil Code, the penalty can be asserted by WEISS GmbH until the final payment. This does not apply if WEISS GmbH did not reserve the contractual penalty at the time of acceptance despite express written request by the contractor. Contractual penalties are offset against claims for damages.
9. Force majeure
9.1 Events of force majeure are events that – even if foreseeable – cannot be influenced by the contractual partners and the consequences of these events on the fulfillment of the agreement cannot be prevented through reasonable efforts, such as fire, flood, storm, earthquake and other natural events, strike, lockout and war. The fulfillment of the affected individual contract is postponed for the duration of the respective event. The contractor must inform WEISS GmbH in writing immediately about this type of event, at the latest within three (3) days.
9.2 If events of force majeure last longer than two (2) weeks or result in a permanent inability to provide the services, the contractual partners are entitled to terminate the individual contract. Statutory termination rights of WEISS GmbH in its role as a purchaser of work services remain unaffected.
10. Prices and terms of payment
10.1 The prices for the contractor’s services are specified in the service description and/or in the individual contract. Except where otherwise agreed in writing in the individual contract, the prices listed in an individual contract are fixed prices and represent the total price for manufacture and delivery. The prices include in particular all services necessary in the context of fulfilling the services described in these General Terms and Conditions of Purchasing or in the individual orders, and include all taxes, duties, packaging and transport costs, insurance and statutory VAT. Unless WEISS GmbH has issued express prior consent in writing, the contractor is not entitled to adjust prices or request additional costs of any kind.
10.2 The invoice shall be prepared in such a way that it is capable of being checked and in particular also enables clear allocation and control of the costs. Except where otherwise agreed in writing in the individual contract, remuneration due to the contractor is payable within thirty (30) days after complete rendering of services in accordance with the contract and receipt of an invoice capable of being checked with 3 % discount. In the case of bank transfer, the payment is deemed as having been rendered on time if the bank transfer mandate from WEISS GmbH is received by its bank before the payment period expires. WEISS GmbH is not responsible for delays owing to the banks involved in the payment process.
10.3 WEISS GmbH does not owe interest on maturity. The statutory regulations apply to payment arrears.
10.4 Partial payments are only to be paid by WEISS GmbH if this was agreed in the service description that is attached as an appendix, or this is separately and expressly agreed in writing. Any partial payments of WEISS GmbH do not constitute recognition of contractually compliant services.
11. Offsetting, retention
11.1 The contractor is entitled to offsetting and retention rights only if its counterclaims have been legally established, are undisputed or recognized by WEISS GmbH. In addition, the contractor is authorized to exercise any right of retention only to the extent that its counterclaim is based on the same contractual relationship.
11.2 WEISS GmbH has the right to offset with its claims based on further contractual agreements with the contractor in addition to its statutory rights to set off. WEISS GmbH may generally retain due payments for as long as it holds claims from incomplete or defective services against the contractor.
12. Retention of title and lien
12.1 The items of WEISS GmbH remain its property at all times. The contractor does not hold a right of lien or right of retention to the goods or other assets under its control based on any claims, due or not yet due, to which the contractor is entitled arising from its services. The contractor will conduct any processing, mixing or combining (further processing) of provided items for WEISS GmbH. The same applies to further processing of delivered goods by WEISS GmbH, so that WEISS GmbH is considered the manufacturer and becomes owner of the product at the latest upon further processing according to legal requirements.
12.2 The transfer of title of the delivery to WEISS GmbH takes place unconditionally and independent of payment of the price by WEISS GmbH. If nonetheless in a specific case an offer for transfer of title by the contractor is accepted conditional on payment of the purchase price, the reservation of title becomes obsolete upon payment of the purchase price at the latest. WEISS GmbH is authorized also in this case to sell on the delivery as part of orderly business transactions even before the purchase price is paid against prior assignment of the demand arising from this (extended reservation of title). In this case, the validity of the processing clause according to point 12.1 remains unaffected.
13. Delivery / Acceptance
13.1 Following delivery or creation and assembly or installation of the respective delivery item, the contractor will conduct an appropriate check of the rendered services. Acceptance is not necessary unless WEISS GmbH requests acceptance, which shall then be performed according to the following provisions:
13.2 The contractor will announce that the completed and assembled or installed delivery item is ready for acceptance on the agreed date (“announcement”). This announcement is subject to the condition that the contractor has assembled or installed the delivery item consistent with the contract.
13.3 Partial acceptance does not take place.
13.4 The acceptance is subject to an inspection, which is to be conducted within ten (10) working days of announcement of completion, assembly and functionality in the presence of the contractor and WEISS GmbH.
13.5 An acceptance log will be created in which any defects that may have arisen are described (hereinafter also referred to as “errors”).
13.6 WEISS GmbH will declare acceptance if the assembly or installation do not appear to have any errors. Errors are declared as such in the acceptance declaration and remedied by the contractor immediately unless a deadline for remedy has been agreed upon.
13.7 Acceptance shall be rendered formally. Acceptance is also deemed issued if WEISS GmbH does not declare acceptance of the delivery items within ten (10) working days after completion, assembly and functionality although it is obligated to do so.
14. Liability for defects
14.1 Insofar as legally applicable, WEISS GmbH is obligated to inspect the delivered items immediately following delivery to ensure that the agreed quantity has been delivered and/or if other obvious defects exist. Obvious defects are deemed by all accounts such defects that become obviously recognizable as part of a check when the delivery is received by way of external inspection or become recognizable as part of quality spot checks. For the rest, it depends to what extent an inspection taking into account the circumstances of the individual case is feasible according to the proper course of business. There is no duty to investigate if it has been agreed that acceptance will take place. Any complaints regarding obvious defects are deemed to have been made in due time if they are received by the contractor within a period of two (2) weeks after transfer of the delivery item. WEISS GmbH shall issue complaints involving concealed defects within a deadline of two (2) weeks after the defect was discovered.
14.2 The contractor warrants that its services are free of defects. It warrants in particular that the delivery item meets the specification and the standard of quality agreed in contract. If the contractor is responsible for the design, the contractor also warrants that the design is free of errors and that the delivery item is suitable for the purpose stipulated in the contract.
14.3 WEISS GmbH is entitled without restriction to the statutory warranty rights. In particular, WEISS GmbH is entitled at its own discretion to remedy of the defect, to delivery of an item free of defects, or to request payment of compensation. Supplementary performance includes also the de-installation of the defective goods and re-installation of such provided that the goods in terms of their type and intended purpose had been installed in a different item or mounted to a different item; the statutory entitlement to reimbursement of the associated expenditure remains unaffected. In the event of having demanded defect remedy unjustifiably, WEISS GmbH is liable for damages only if it had recognized or not recognized by way of gross negligence that there was not a defect. The contractor is liable for measures aimed at risk prevention (recalls) insofar as it is legally obligated to do so.
14.4 In accordance with the legal requirements, the contractor is particularly liable for ensuring that the service has the agreed characteristics at the time of transfer of risk to WEISS GmbH. In any case, the specific service descriptions that are the objects of the individual contracts, in particular through designation or reference in WEISS GmbH’s order, or are included in the individual contract in the same manner as these General Terms and Conditions of Purchasing, shall be considered agreements on characteristics. In this context, it is immaterial whether the service description originates from WEISS GmbH, the seller or the manufacturer.
14.5 Deviating from § 442 section 1 sentence 2 German Civil Code, WEISS GmbH is also entitled without restriction to assert claims for defects if the defect remains unknown to WEISS GmbH at the time the contract is concluded as a result of gross negligence.
14.6 WEISS GmbH is entitled to conduct measures to remedy the defect at the cost of the contractor, to arrange for third parties to do so, or to procure a replacement itself, if the contractor does not comply with the written request to remedy the defect within a reasonable deadline set by WEISS GmbH, or if an application to open insolvency proceedings against the assets of the contractor is filed. This also applies – also without the need to issue a prior request – to urgent cases involving a threat to operational safety or excessively extensive damage if it is no longer possible to notify the contractor about the defect and the threat of damage due to the particular urgency of the case and to set a deadline for the contractor to provide support. The relevant, statutory claims of vendor regress pursuant to §§ 445a, 445b, 478 German Civil Code are not restricted by this and remain unaffected. They apply equally if the defective delivery was further processed.
14.7 WEISS GmbH is entitled to remedy minor defects immediately at the cost of the contractor or to have them remedied.
14.8 In the event of imminent danger, WEISS GmbH is entitled to remedy the defect itself or have the defect remedied at the cost of the contractor after appropriate notification has been issued to the contractor.
14.9 In the event that WEISS GmbH’s customers are entitled to conduct measures to remedy the defect themselves, or arrange for measures to be conducted, without issuing a deadline at the cost of WEISS GmbH, e.g. because the delivery is made after onset of default and the customer has an interest in immediate remedy of the defect to avoid its own default, the contractor must reimburse these costs to WEISS GmbH unless the contractor is not responsible for the delay.
14.10 In the cases stated above in sections (6) to (9), the contractor must be notified immediately. WEISS GmbH sends a report to the contractor regarding the type and scope of the defect and the works performed.
14.11 WEISS GmbH is entitled to request that the contractor indemnifies and holds harmless WEISS GmbH from all claims of customers, if and to the extent that the contractor is responsible for the liability-based cause based on its service. With regard to indemnification from claims for compensation against WEISS GmbH beyond the scope of liability according to the German Product Liability Act, this only applies if and to the extent that the contractor is responsible for the cause in terms of its management and organization, and has its own external liability.
14.12 Where any claims against the contractor are dependent upon conditions in the contractor's sole sphere of risk or responsibility, the contractor bears the burden of proof for the non-existence of such conditions for the claim.
14.13 The above-described claims of WEISS GmbH expire within thirty-six (36) months following transfer of risk unless a longer limitation period for claims regarding defects is provided in the applicable statutory provisions. If WEISS GmbH is also entitled to extra-contractual claims for damages due to a defect, the usual statutory period of limitation applies to this (§ 195 and § 199 German Civil Code) unless the application of the periods of limitation of the law governing the sale of goods leads to a longer period of limitation in certain cases.
14.14 Provided that WEISS GmbH is subjected effectively to longer periods of limitation and/or a later onset of the period of limitation, this longer period of limitation or later onset of such are dispositive in lieu.
14.15 The approval of a development by WEISS GmbH neither excludes nor limits warranty and product liability claims.
15.1 In addition to its liability for defects, the contractor assumes a guarantee for a period of twenty-four (24) months ensuring that the service is free of material defects and contains the agreed upon features.
15.2 The guarantee stated above commences upon handover of the delivery item or performance of the service.
16.1 WEISS GmbH is entitled to inspect and audit the contractor’s manufacturing process on site at any reasonable time as far as practicable following prior notification.
16.2 The contractor ensures that WEISS GmbH is entitled to inspect and audit with regard to its vicarious agents and subcontractors.
17. Liability of WEISS GmbH
The following provisions shall apply to the liability of WEISS GmbH as well as to the liability of its employees, vicarious agents and performing agents - irrespective of the legal grounds:
17.1 The liability of WEISS GmbH for damages shall be limited as follows:
a) WEISS GmbH is liable only to the extent of damage that typically could have been envisaged at the time of contract conclusion for slightly negligent infringement of cardinal duties (i.e. of fundamental duties of which fulfillment is owed by WEISS GmbH and is of eminent importance for achieving the contractual objective and/or observance of such is owed by WEISS GmbH and violation of such can lead to achievement of the contractual purpose becoming endangered);
b) WEISS GmbH is not liable for the slightly negligent violation of other obligations.
17.2 The foregoing disclaimers, limitations of liability and restrictions shall not apply to claims under the Product Liability Act or to damages resulting from injury to life, body or health.
17.3 The limitation period for claims for damages against WEISS GmbH shall be one (1) year from the start of the statutory period of limitation. This does not apply to claims under the product liability act as well as to damages resulting from the violation of life, body or health and in the event of willful or grossly negligent breach of duty which expires within the regular period of limitation.
17.4 WEISS GmbH assumes no liability whatsoever against the contractor or third parties if the damage is based on the behavior of the contractor or its vicarious agents. WEISS GmbH particularly assumes no liability for damages arising from violations of public law protective regulations or from violations of the applicable directives and instructions. The contractor shall inform itself independently about this matter. A contributory negligence on the part of the contractor shall be counted against it.
17.5 With regard to free-of-charge services, WEISS GmbH is responsible only for the degree of care that it applies to its own matters.
17.6 If claims for damages are levied, legal proceedings shall be instituted within six (6) months after the written refusal by WEISS GmbH. A subsequent assertion shall be excluded, unless an independent demonstration procedure has been initiated within the time limit. This does not apply to claims under the product liability act as well as to damages resulting from the violation of life, body or health and in the event of willful or grossly negligent breach of duty which expires within the regular period of limitation.
18. Liability insurance
18.1 The contractor will conclude the industry-standard global insurance protection with an efficient insurer (in particular, third party liability (Betriebshaftpflicht), product liability and recall insurances) that each covers damage to the property of WEISS GmbH, its customers or third parties up to an reasonable amount. The contractor’s employees shall be insured against work-related accidents. The contractor will provide evidence to WEISS GmbH at the conclusion of the contract that it holds this type of liability insurance.
18.2 The contractor will maintain this insurance protection until the individual contract ends, and at least until the limitation period expires for claims related to defects or other compensation claims. If the contractor does not fulfill this obligation, WEISS GmbH is entitled to withdraw from the contract or to terminate without notice period following failure to adhere to a reasonable deadline. Further claims of WEISS GmbH, in particular claims for compensation, remain unaffected.
19. Confidentiality obligation, business data
19.1 The contractor is obliged to treat all business and trade secrets confidentially, as well as confidential information or information of WEISS GmbH ("Confidential Information") that is intrinsically confidential, and shall not make copies of this information or disclose this information to third parties, unless this is necessary to fulfill any obligations resulting from the order and/or these General Terms and Conditions of Purchasing. The contractor is obligated in particular to maintain strict confidentiality with regard to calculations, illustrations, plans, tender documentation, profiles of requirements, requirements specifications, drawings, other documents and other data carriers such as models and other materials that can be accessed only by a limited group of people and therefore are of economic value, for which the associated confidentiality measures have been implemented and for which there is a justified interest in confidentiality. These may be disclosed to third parties and/or used for the contractor’s own purposes that are not content of the individual contract or these General Terms and Conditions of Purchasing only with express and written approval from WEISS GmbH. The contractor may disclose the contractual relationship with WEISS GmbH to third parties only with written consent from WEISS GmbH. The contractual parties are informed about the prevailing prohibitions of acts according to § 4 Act on Corporate Secrets (GeschGehG) regarding obtaining, use and disclosure of corporate secrets as well as the prevailing punishable nature of violating corporate secrets pursuant to § 23 GeschGehG.
19.2 This confidentiality obligation does not apply to information that is publicly accessible, that has previously been rightfully known to the contractor, that has arisen independently from this contract, and in the case of a disclosure or duty of disclosure of the contractor that is legal or due to an official or judicial order. The aforementioned obligations to maintain confidentiality shall be for an unlimited time and also extend beyond the term of the individual agreement and shall be imposed expressly and in writing on third parties, in particular employees and vicarious agents who are granted access to confidential information.
19.3 WEISS GmbH reserves all ownership rights and copyrights to the information according to this point 19.1 in full.
19.4 The contractor shall be duty bound to store all documents, files and other embodiments of confidential information received from WEISS GmbH with due care. Such items shall be returned to WEISS GmbH immediately once the contractual relationships have been completed, or shall be destroyed with the consent of WEISS GmbH in a demonstrable manner.
20. Data protection and data security
20.1 The contractor is responsible for all persons observing data protection and data security as enlisted by the contractor with fulfilling or processing the individual contract and/or the service description or these General Terms and Conditions of Purchasing. Express reference is made to the legal basis and applicable pre-requisites of Art. 6(1) b), c), f) GDPR. The mandatory obligation under data protection law to observe the data secret shall be imposed before the work is commenced for the first time, and shall be demonstrated to WEISS GmbH upon request. The contractor agrees to WEISS GmbH saving and automatically processing the personal data that becomes known as part of the business relationship in the WEISS GmbH IT systems for the purposes of the conditions standardized in Art. 6(1) a) - e) GDPR and based on consent according to Art. 6(1) a) GDPR. The legal deletion and storage periods are observed.
20.2 In the event that the contractor collects, processes or uses data for the WEISS GmbH for the purpose of rendering the services forming the subject matter of the contract as part of instruction-bound subcontracted data processing (Art. 28, 29 GDPR, 81 et seqq. recital GDPR), the parties will enter into a “Data Processor Agreement” pursuant to Art. 28 section 3 GDPR, which WEISS GmbH will provide to the contractor.
21. Termination, withdrawal
21.1 WEISS GmbH is entitled to terminate the individual contract pursuant to § 648 BGB. Except where otherwise agreed, in the case of termination the contractor is entitled to the statutory rights based on this provision; however, the contractor is obligated to explain clearly the claimed remuneration in a transparent manner taking into account expenditures saved as a result of the termination. Furthermore, the contractor is duty bound to specify which partial services it views as completed and initiated services. Upon request, the contractor shall support WEISS GmbH in a reasonable manner in exchange for reasonable remuneration so that WEISS GmbH or a third party can complete the ordered service insofar as this is not unreasonable for the contractor. The support service is considered “topping-up orders” according to § 648 sentence 2 BGB insofar as this is not unreasonable for the contractor.
21.2 The right to extraordinary termination of the individual contract based on good cause as well as the statutory right to withdraw from the individual contract remain unaffected.
21.3 Both termination and withdrawal must be placed in writing to be valid.
22. Service and replacement parts
22.1 With regard to production material, the contractor will ensure WEISS GmbH’s need for replacement parts during serial delivery and for fifteen (15) years after serial delivery ends. The price is the agreed current production price stipulated in the individual contract valid for the term of the individual contract. After the individual contract ends, the price is agreed upon in the context of orders issued.
22.2 With regard to delivery items that are not production material, the contractor will ensure WEISS GmbH’s need for replacement parts at standard market prices for the duration of at least fifteen (15) years, which commences on the date of the first delivery.
22.3 Upon request by WEISS GmbH, service literature and additional necessary material will be made available free of charge, in at least German and English.
23. Contractor’s tools
23.1 The contractor will grant to WEISS GmbH a purchase right for tools that are necessary to produce the specific delivery items of WEISS GmbH. This also includes all accessories, such as patterns, matrices, measurement instruments, fixtures, forms, samples and connected software, drawings and other associated documentation required to produce the delivery item. If WEISS GmbH exercises its right to purchase, the price is calculated based on the original cost of acquisition less depreciation for wear and, if applicable, other depreciation conducted until the tool is transferred following exercise of the purchase right option. Depreciation for wear is taken into consideration only if the contractor received compensation for this depreciation through the unit price. Under no circumstances may the purchase price exceed the market value (replacement costs for a similar used tool) at the time that the purchase right is exercised. There is no right to purchase if the contractor requires the tools for producing its other standard products.
23.2 The contractor will furnish WEISS GmbH with all information WEISS GmbH requires for installation, assembly and use of these tools. Subject to industrial property rights held by the contractor, WEISS GmbH is entitled to use and publish this information without restriction. Design or production information subject to intellectual property rights of the contractor may be used by WEISS GmbH for its own purposes only.
24. Closing provisions
24.1 The vendor undertakes that it will not offer or grant, or demand or accept benefits either in business transactions or from officials violating applicable anti-corruption regulations. Furthermore, the vendor undertakes not to enter into any manners of behavior or agreements with the effect of restricting or misleading the competition pursuant to the valid regulations under cartel law.
24.2 Subject to the assignment of outstanding debts pursuant to § 354 a German Commercial Code (HGB), the contractor may not transfer individual rights to this individual contract and the Terms and Conditions of Purchasing or the contract as a whole to third parties unless WEISS GmbH expressly grants its written consent.
24.3 The non-use of a contractual right shall not be regarded as a waiver of the right in question unless the other party to the agreement expressly informs the other contractual partner in written form.
24.4 Place of performance is the registered office of WEISS GmbH. Insofar as the contractor is a businessperson within the meaning of the German Commercial Code, legal person of the public law or public special fund, the exclusive jurisdiction for all disputes arising directly or indirectly from the contractual relationship (including check, bill of exchange and documentary processes) will be the registered office of WEISS GmbH. This also applies to the judicial default action as well as to persons not having a general place of jurisdiction in Germany, and to persons who have moved their place of residence or have habitual residence abroad after the conclusion of the contract or whose domicile or habitual residence is unknown at the time the action is brought. WEISS GmbH is entitled to also take legal action at the legal place of jurisdiction. Superordinate legal regulations, particularly that of the sole place of jurisdiction, remain unaffected.
24.5 All agreements and legal acts of the contractual partners in the context of these General Terms and Conditions of Purchasing are subject to the law of the Federal Republic of Germany excluding the conflict of law provisions. The United Nations Convention on contracts for the international sale of goods (CISG) shall not apply.
24.6 These General Terms and Conditions of Purchasing are in German and English. However, only the German version is legally binding.
24.7 Verbal ancillary agreements and/or other individual agreements in a specific case are ineffective provided that it does not expressly arise from such that they should apply on a binding basis. Such are reserved for managing directors and authorized officers (‘Prokuristen’) of WEISS GmbH. Other employees are not authorized to enter into verbal agreements and/or individual agreements in the specific case deviating from the written agreement. Pending evidence to the contrary, a written contract and/or written confirmation by WEISS GmbH is dispositive for the content of such agreements. Deviating or supplementary Terms and Conditions as well as amendments to the contract, including this written form clause, shall apply only if they have been agreed in writing and are expressly marked as amendments or additions.
24.8 The effectiveness of the remaining provisions shall not be affected by the possible invalidity of one or more provisions of these General Terms and Conditions of Purchasing.
24.9 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.