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, conclusion of contract
1.1 Unless a different agreement has been made in writing in individual cases, the following General Terms and Conditions of Delivery of WEISS GmbH and affiliated companies (hereinafter referred to as "WEISS GmbH") shall apply as terms of the contract.
1.2 These General Terms and Conditions of Delivery shall also apply to all future business relations, even if they are not expressly agreed again.
1.3 General Terms and Conditions of customers (hereinafter referred to as "contractual partners") of WEISS GmbH shall not become part of the subject matter of the contract, even if WEISS GmbH does not expressly object to them. To the extent that General Terms and Conditions of the contractual partner do not comply with the following General Terms and Conditions of Delivery, the contractual partner 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 Delivery. If such an indication does not exist, the contractual partner shall waive the assertion of its conflicting Terms and Conditions.
1.4 All offers and services provided by WEISS GmbH 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 All offers made by WEISS GmbH are non-binding unless the offer explicitly states otherwise.
1.6 The contract is concluded only by written order confirmation of WEISS GmbH to the contractual partner, whereby this may also take place by electronic means (fax, e-mail). Contracts concluded become binding by the outright acceptance of the offer of WEISS GmbH by the contractual partner within the term specified in the offer and otherwise only by WEISS GmbH's confirmation of the order. If the contractual partner orders goods from WEISS GmbH without a prior offer, it bindingly declares its intention to acquire the goods ordered. WEISS GmbH is entitled to accept the tentative offer subject to being ordered within two (2) weeks after the date of receipt by WEISS GmbH. The acceptance may be declared both in writing, and this may also be effected electronically (fax, e-mail), or by delivery of the goods to the contractual partner.
1.7 If the delivery contains software programmed by WEISS GmbH, the provisions of a written agreement which may be concluded separately, shall apply in addition.
1.8 The specifications and the nature of the delivery item are the result of the respective product description listed in the order confirmation, and, if such order confirmation is not available, from WEISS GmbH's offer. The description of the software programmed by WEISS GmbH in the application documentation or the description in a separately concluded written agreement is relevant for the properties of said software. Any properties going beyond the above are not due. The product descriptions and the descriptions for software do not imply warranties, nor are they guaranteed by their properties, nor need they correspond to the latest state of the art. Other information and figures in offers, brochures, advertisements, catalogs or other advertising and information material of WEISS GmbH are approximate values only and need not necessarily correspond to the latest state of the art; therefore they shall not constitute a quality agreement or guarantee and are irrelevant for the contractual stipulations of the delivery item.
1.9 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 Terms and Conditions of Delivery.
1.10 The delivery and / or service contained in the order confirmation can e.g. are subject to export control regulations under German, European or US law due to their nature or purpose, or their final destination. Each order is therefore subject to the proviso that there is no prohibition of delivery or performance in accordance with these regulations, or that the necessary permits or approvals required to fulfill the contract are issued.
2. Services provided by WEISS GmbH, delivery, transfer of risk
2.1 All services provided by WEISS GmbH shall be made exclusively in accordance with the contents of the order confirmation or the offer of WEISS GmbH and these General Terms and Conditions of Delivery. In the case of contradictions between the contents of these contractual principles, the contents of the order confirmation or the offer of WEISS GmbH and then the provisions of these General Terms and Conditions of Delivery shall apply.
2.2 Data from WEISS GmbH as well as illustrations on the object of the delivery or service (e.g. dimensions, durability, technical data, tolerances, illustrations, figures, drawings) are only approximate provided that the contractually envisaged purpose of use does not require exact compliance. The data and illustrations are merely descriptions of the delivery or service. They are not guaranteed properties. Deviations usual for the trade and those rendered due to legal regulations or technical improvements as well as replacing components with parts of equal value are permissible provided that they do not impair the usability for the contractually envisaged purpose.
2.3 WEISS GmbH is entitled to change the delivery item and its services in the scope of what is reasonable for the contractual partner, in particular if the scope of use and the assured functionality are not impaired thereby.
2.4 WEISS GmbH is permitted to assign appropriate third parties (subcontractors) either for the entire services according to this contract or for parts thereof.
2.5 WEISS GmbH is entitled to partial services, unless the partial services have such a small extent in relation to the contractually agreed service that there is no interest on the part of the contracting party for functional, objectively assessable reasons. In the case of partial services, the contractually agreed fee shall be reduced on a prorated basis (possibly also taking account of any damage delay of the contractual partner under the provisions of these General Terms and Conditions of Delivery on liability). Short-term impairments pursuant to the preceding paragraph shall not be regarded as a partial service reducing the contract price or giving rise to claim a performance delay.
2.6 All delivery and performance dates shall be subject to correct and timely self-delivery.
2.7 In the absence of any express written agreement to the contrary, the delivery deadlines and dates contained in the order confirmation or in the offer are expected and non-binding estimations of WEISS GmbH; they are in particular no fixed dates. To the extent that the supplier is required to carry out preparatory work or if participation services by the contractual partner are required, the delivery period shall start with the completion of such actions only. In addition, the delivery period shall start by sending the order confirmation by WEISS GmbH.
2.8 Unless otherwise expressly agreed in writing, delivery and transport "EXW" (ex works) shall be made at the expense of the contractual partner in accordance with Incoterms 2020. The transfer of risk to the contractual partner occurs when the delivery is provided (packed and appropriately labeled) at the agreed time at WEISS GmbH, however no later than when the delivery object is handed over (whereat the commencement of loading is decisive) to the hauler, freight carrier or other third party appointed to execute shipping. This applies even in cases where partial deliveries are rendered or the vendor has assumed other services.
2.9 If the delivery is delayed due to circumstances beyond the control of WEISS GmbH, the risk shall pass to the contractual partner with the notification of the readiness for dispatch or delivery.
2.10 Insurances against damage of any kind shall be taken out on the explicit request and expense of the contractual partner. To obtain transport insurance coverage, the contractual partner is duty bound to inspect the delivery item immediately after receipt for transport damage. Obvious damage to the delivery item or the packaging shall be confirmed by the freight carrier or its vicarious agent on the bill of lading. Concealed damage shall be reported to the transport manager as well as WEISS GmbH within seven (7) days after discovery.
2.11 The risk of accidental loss shall be borne by the contractual partner. It is obligated to treat WEISS GmbH's delivery item with due care and take out insurance for it to a sufficient extent. Claims against the insurance company shall be deemed to be assigned until the full payment of all claims and dues of WEISS GmbH.
2.12 Cases of force majeure or unforeseen events (in particular operational and traffic disruptions, difficulties in the supply of energy or in the supply by upstream suppliers, machine defects, accident, strikes, lockouts, fire, confiscation) beyond the will and/or the sphere of influence of the contracting parties will result in the performance being interrupted for the duration of the force majeure or the unforeseen event ("downtime") and the delivery period shall be extended according to the downtime. Such events shall entitle the customer to terminate the respective order only if the terminating party can no longer be expected to wait further; a further wait shall in any case be deemed unreasonable after six (6) weeks from the onset of the downtime. Any further claims of the contracting party, in particular for damages, shall be excluded.
2.13 WEISS GmbH shall take back packaging within the scope of its obligations under the packaging ordinance. The contractual partner may return packaging on the premises of WEISS GmbH at the usual business hours after timely prior notice in advance, unless a different acceptance/collection point has been designated. The packaging can also be returned to WEISS GmbH upon delivery, unless the other party to the agreement has designated another acceptance/collection point. Packaging is accepted for return only immediately after delivery of the delivery item, in the case of subsequent deliveries only after prior notification and provision. The cost of transporting used packaging shall be borne by the contractual partner. If a designated acceptance/collection point is more remote than the premises of WEISS GmbH, the contractual partner only bears the transportation costs that would be incurred for a distance up to the operational facility of WEISS GmbH. The returned packaging must be clean, free from foreign substances, and sorted according to different kinds of materials (cardboard, plastics, ...) Otherwise, WEISS GmbH is entitled to demand reimbursement of the extra costs incurred during disposal from the contractual partner.
3. Special provisions for external software (third-party software)
3.1 If software from other manufacturers (third party software) is obtained by the contractual partner via WEISS GmbH, it shall be obliged to comply with the license Terms and Conditions and/or the Terms and Conditions of use of these third parties when using this software. These terms will be transmitted to the contractual partner by WEISS GmbH upon request. By ordering third-party software, the contractual partner confirms that it accepts the scope of services and the license Terms and Conditions of the third-party software.
3.2 The delivery of third-party software is subject to the stipulated license Terms and Conditions and/or the Terms and Conditions of use of such third parties. Until full payment of the respective due remuneration, the contractual partner is allowed to use the third-party software, but this right can be revoked; the contractual partner shall be granted the right to use the copyrighted services of such third parties, in particular of the third-party software, only on full payment of the agreed remuneration. If the third-party software is made available as part of a continuing obligation, the use of the third-party software by the contractual partner shall be permissible only for the period between maturity and full payment of the usage fee. This use can, deviating from the provisions of the above clause, be revoked during the said term. WEISS GmbH can revoke the right of use of such third-party software for which the contractual partner is in default of payment for the duration of the delay. Further rights of WEISS GmbH due to a default of payment of the contractual partner shall remain unaffected thereof.
3.3 In the event of a material deficiency or deficiency in title in the third-party software or any other damage caused by the third-party software, the contracting parties agree as follows: (i) WEISS GmbH assigns all rights to the contractual partner that WEISS GmbH is entitled to against third parties in such a case. The contracting party hereby accepts this assignment. (ii) In such a case, the contractual partner shall first fully make use of the third party and assert the assigned rights against the third party (including legal proceedings). (iii) Only thereafter, and insofar as the claim has been unsuccessful against the third party (e.g. due to its insolvency or untraceability), the contractual partner is entitled to make claims from WEISS GmbH for warranty and liability in accordance with the provisions of these General Terms and Conditions of Delivery (liability for defects) as well as to liability.
3.4 WEISS GmbH shall not assume any warranty or liability whatsoever for software that the contractual partner obtains from it and is qualified as "public domain", "freeware" or "shareware", and which was not programmed by WEISS GmbH unless WEISS GmbH concealed the existence of a defect with intent. The contractual partner shall observe the license Terms and Conditions or usage terms of the respective rights owner for such software.
3.5 The contractual partner shall fully indemnify WEISS GmbH against claims for any non-fulfillment of its obligations under the above special provisions for third-party software and exempt it from resulting claims from third parties.
4. Special provisions for software developed by WEISS GmbH
4.1 For software developed by WEISS GmbH (hereinafter referred to as "Weiss Software", e.g. the "Weiss Application Software", other standard software, customer-specific software or customized software, the data recorded on the machine-readable media such as files, databases and database material, updates, upgrades, releases, etc., including related documentation, information and materials), the scope of services shall be governed in the application documentation as well as, if applicable, separately in the contract by a service description.
4.2 Deviating from the software version defined at the time that the contract is concluded, the latest version of the Weiss software may be delivered at the time of delivery insofar as this does not affect the application area and the software's promised functionality.
4.3 The Weiss software is transferred to the contractual partner on the machine-readable recording medium, on which it is recorded as object programs in the executable state. The application documentation, which is part of the Weiss software, is handed over to the contractual partner in printed form or on machine-readable recording media.
4.4 The contractual partner has been informed about the essential functional features of the Weiss software and is responsible for the fact that the Weiss software meets its expectations, wishes and needs. In case of doubt, the contractual partner shall ask for consultation from employees of WEISS GmbH or expert third parties before conclusion of the contract. WEISS GmbH informs the contractual partner on request about the technical application options and operating conditions of Weiss software.
4.5 Unless expressly agreed otherwise in writing, the following shall apply: The contractual partner shall receive the simple non-exclusive right to use the agreed software with the agreed features in an unmodified form on the agreed devices. The contractual partner shall not receive the source code of the software. The contractual partner shall not change the Weiss software, reverse engineer it or translate it and it is not allowed to remove any parts, unless this is compulsory according to the provisions of the copyright law. The contractual partner shall also not remove alphanumeric identifiers, trademarks and copyright notices from Weiss Software or the data carrier and shall, as long as it is authorized to reproduce them, reproduce them unchanged. Details shall follow from a separate written agreement.
5. Assignments of WEISS employees and third parties on the premises of the contractual partner, installation and assembly
Unless otherwise agreed in writing, the following provisions shall apply:
5.1 The employees of WEISS GmbH as well as the employees of subcontractors of WEISS GmbH ("employees") are obligated by the WEISS GmbH before the start of the provision of services on the premises of the contractual partner to comply with relevant accident prevention and safety regulations which shall be submitted in writing by the contractual partner before order placement. They shall also comply with the instructions issued by the authorized personnel of the contractual partner, which are given to them in connection with the safety and regulatory provisions on the company premises.
5.2 The right to issue instructions and directives for employees employed by WEISS GmbH on the premises of the contractual partner shall remain with WEISS GmbH (in relation to the contractual partner). It alone shall decide on the selection and the number of employees assigned, the granting of vacation and holidays, the determination of working hours and the arrangement of any overtime. The same applies to the execution of work controls and the monitoring of the regularity of the work processes.
5.3 The contractual partner shall carry out earthworks, construction work and other auxiliary work at its own expense; this also includes the costs for specialist and auxiliary personnel, as well as the necessary building materials and tools.
5.4 Consumption items and materials required for assembly and commissioning (in particular, scaffolding, lifting gear and other devices, fuels or lubricants) shall be made available by the contractual partner at its expense.
5.5 The cost of energy and water used at the place of use shall also be borne by the contractual partner; this also applies to the costs for connections, heating and lighting.
5.6 At its own expense, the contractual partner shall provide sufficiently large and dry rooms for the storage of machine parts, apparatuses, materials, and tools next to the installation site. These rooms shall be lockable. The contractual partner shall also provide at its own expense adequate working and recreational spaces for the assembly personnel, which shall also be equipped with appropriate sanitary facilities and shall also be lockable in an appropriate way to protect the property of WEISS GmbH and the assembly personnel. The contractual partner shall undertake the necessary measures in these rooms which it would also take to protect its own property.
5.7 The contractual partner shall provide at its expense protective clothing and other protective devices which are necessary due to special circumstances of the assembly site.
5.8 The contractual partner shall provide without request the necessary information on the location of covered electricity wires, gas and water pipes or similar installations before the start of the assembly work. The same applies to any static information required.
5.9 Before installation or assembly is started, the supply items and items necessary to start work shall be available at the erection or assembly site. All preparatory work shall be advanced before the start of the set-up in such a way that erection or assembly can be started in accordance with the agreement and can be carried out without interruption. The contractual partner shall ensure that the access routes as well as the erection or assembly site are leveled and cleared. In the event that a delay of erection, assembly or commissioning occurs and WEISS GmbH is not responsible for the delay leading to this condition, the contractual partner shall bear the costs in a reasonable scope for the waiting period and additionally required trips of WEISS GmbH or the assembly personnel.
5.10 The contractual partner shall provide WEISS GmbH with a weekly certificate of the duration of the working time of the assembly personnel as well as the completion of erection, assembly or commissioning.
6. Reservation of ownership and acceptance
6.1 Reservation of ownership
The reservation of ownership agreed upon in the following serves to secure all current and future claims of WEISS GmbH against the contractual partner from the contractual relationship existing between the contractual partners (including outstanding balances due from the current account relationship limited to this contractual relationship).
The delivered goods shall remain the property of WEISS GmbH until full payment of all secured claims. The delivery items as well as the objects which are subject to the retention of ownership in accordance with these provisions and objects covered by retention of ownership are hereinafter referred to as "reserved goods".
If the reserved goods are processed by the contractual partner, it shall be deemed agreed that the processing takes place in the name and for the account of the WEISS GmbH as manufacturer and the WEISS GmbH directly acquires the property or - if the processing is done from substances of several owners or the value of the processed item is higher than the value of the reserved goods - acquire co-ownership (fractional ownership) in the newly created item in the ratio of the value of the reserved commodity to the value of the newly created property. In the event that no such property acquisition should take place at WEISS GmbH, the contractual partner shall already now transfer its future property or - in the above mentioned relationship - co-ownership of the newly created object for security to the WEISS GmbH. If the reserved goods are combined with other items to form a uniform item, or inseparable, and if one of the other items is to be regarded as the main item, WEISS GmbH, as far as the main item belongs to it, transfers the co-ownership of the uniform item mentioned in clause 1 of designated relationship, proportionately to the contractual partner.
In the event of the resale of the reserved goods, the contractual partner right at this point assigns the claims against the buyer resulting therefrom to WEISS GmbH as a security measure - in the case of co-ownership of the reserved goods by WEISS GmbH proportionately corresponding to the co-ownership share. The same shall apply to other claims which replace the reserved goods or otherwise arise with respect to the reserved goods, such as, e.g., insurance claims or claims arising from tortuous acts in the event of loss or destruction. WEISS GmbH authorizes the contractual partner to collect the claims assigned to WEISS GmbH in its own name, but this right is revocable. WEISS GmbH may revoke this collection authorization only in the event of liquidation.
In the case of access by third parties to the reserved goods, the contractual partner is obliged to refer to the property of WEISS GmbH and to inform WEISS GmbH immediately. If the third party is not able to reimburse WEISS GmbH for the judicial or extra-judicial costs incurred in this connection, the contractual partner shall be liable to WEISS GmbH. Security transfers, transfers of rights of use, pledges and seizures, which are carried out for security reasons, are not permitted.
In the case of assertion of the reservation of ownership by WEISS GmbH, the right of the contractual partner to use the reserved goods expires. Any withdrawal of the goods by WEISS GmbH shall always be as a precaution only. In no case shall this be considered as a withdrawal from the contract, even if partial payments have been permitted. WEISS GmbH is also entitled to sell or auction the goods on the open market. The right to make further claims for damages, in particular lost profits shall remain reserved.
WEISS GmbH undertakes to release the securities to which it is entitled in so far as the value of the securities exceeds the claims to be secured, if these have not yet been settled, by more than fifty percent (50%).
Unless otherwise agreed in writing in individual cases, acceptance shall not take place. Insofar as WEISS GmbH provides individual programming or other work services according to the terms of the contract, sets up, connects and installs Weiss devices with standard software at the contractual partner, or the parties expressly agree on acceptance for other services, the following provisions shall apply:
After setting-up and connection of the devices as well as installation of the standard software, their readiness for acceptance is determined by a test run with standard test programs. The functionality of individual software is also determined by a test run. If the services to be accepted meet the contractual agreements, the contractual partner immediately declares acceptance on the relevant acceptance report, unless there is a major defect. Any deficiencies shall be recorded and specified in the acceptance report. A declared acceptance to the manufacturer or the supplier is also valid in relation to WEISS GmbH.
In the case of non-essential defects, the provisions of these General Terms and Conditions of Delivery shall apply to liability for defects ("warranty"). If the contractual partner refuses acceptance due to the existence of major defects, WEISS GmbH shall be entitled to carry out rectification or effect replacement delivery and subsequently declare the readiness for acceptance again; it shall then be carried out again in accordance with the provisions of the preceding paragraph.
If, within two (2) weeks after determination of the readiness for acceptance by the WEISS GmbH, the contractual partner does not declare the acceptance and if, in the meantime, it has not complained of any material defects, the service shall be considered as accepted. Acceptance also takes place if the contractual partner uses the service without declaring to WEISS GmbH that the use is considerably impaired.
If the parties agreed on milestones or comparable project sections, in particular a schedule, the contractual partner is obligated to check the respective result of such sections without delay and to release them for the further work of WEISS GmbH no later than within two (2) weeks. The approval shall also be considered as partial acceptance. The risk of possible defects shall be transferred to the contractual partner with the respective declaration of release, unless these are defects which have arisen or been recognized only within the scope of the services following the declaration of release.
7. Duties of the contractual partner to cooperate
7.1 The contractual partner shall make every effort at its own expense to enable WEISS GmbH to ensure the smooth performance of the services and to refrain from anything which might make it difficult or impossible to carry out the work. For this purpose, it shall provide WEISS GmbH with all necessary resources, any necessary templates for the production, documentation and information without delay and free of charge. If the contractual partner recognizes that its own data and requirements are incorrect, incomplete, ambiguous or unfeasible, it must immediately notify this and the consequences to WEISS GmbH.
7.2 The contractual partner grants the employees of WEISS GmbH access to buildings and rooms of the contractual partner and allows them to access the IT systems of the contractual partner, as far as this is necessary for provision of the services. Further details shall be agreed in the respective contract.
7.3 The contractual partner shall ensure appropriate backup of its own data, materials, and programs. WEISS GmbH will inform the contractual partner if planned work or other services of WEISS GmbH may result in the loss of data so that the contractual partner can check in each case whether a current and sufficient data backup is available.
7.4 If the contractual partner finds that documents or information provided by WEISS GmbH are incorrect, incomplete or not clear, the contractual partner shall notify WEISS GmbH without delay.
7.5 If the contractual partner fails to make the required means available in due time or if it does not fulfill its obligations to cooperate according to the contract, WEISS GmbH will endeavor to deliver the goods in a timely manner without being obliged to do so. WEISS GmbH shall be entitled to invoice the extra costs incurred in addition to the agreed remuneration. In addition, agreed performance periods or deadlines are correspondingly extended by the period necessary for the elimination of the consequences of non-contractual fulfillment of the cooperation obligations.
7.6 The contractual partner obtained information of the essential functional characteristics of the delivery items and is responsible for ensuring that these correspond to its expectations, wishes and needs.
8. Prices and terms of payment
8.1 The prices stated by WEISS GmbH in the respective offer or order confirmation shall apply.
8.2 All amounts shall be considered ex works and are understood as excluding packaging, transport and transport insurance, other taxes, duties, fees, and net plus any potentially applicable value-added tax. In the case of invoices for services agreed under contract charged without value added tax (VAT), WEISS GmbH reserves the right to charge value added tax (VAT) at the statutory applicable rate plus any legal or official surcharges if the approach of the financial administration to the respective situation has changed, or a tax audit brings this about.
8.3 Payments shall be made in Euro within thirty (30) days after receipt of the invoice without any deduction and free of charge for WEISS GmbH. If the payment period is exceeded, WEISS GmbH will charge default interest at statutory rate, without prejudice to further rights. WEISS GmbH reserves the right to claim higher damages.
8.4 The contractual partner 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 contractual partner is authorized to exercise any right of retention only to the extent that its counterclaim is based on the same contractual relationship.
8.5 If the contractual partner is in default of payment, WEISS GmbH shall be entitled to withhold the delivery from other orders from the contractual partner. To the extent that payment of the outstanding amounts is made, WEISS GmbH is entitled to determine a new delivery period taking into account its other delivery obligations at its own discretion.
8.6 WEISS GmbH is authorized to execute or render outstanding deliveries or services only against prior payment or security if it becomes aware of circumstances after contract conclusion suitable to reduce the contractual partner’s creditworthiness significantly and that endanger payment of the open receivables held by WEISS GmbH from the respective contractual relationship.
The parties agree that WEISS GmbH is entitled to a right of lien for the means provided by the contractual partner for all claims arising from this contract.
10. Liability for defects ("Warranty")
10.1 WEISS GmbH warrants that the delivery item meets the agreed quality. WEISS GmbH shall ensure that its software at the time of delivery meets the description in the application documentation and/or the description in any other written agreement that may have been concluded separately. The contractual partner is aware that software may contain technical errors. Irrelevant technical errors therefore do not entitle the customer to rescission from the contract.
10.2 The contractual partner shall immediately check the contractual condition of the delivery item and, if applicable, the preliminary and interim results transmitted for checking. The contractual partner shall test the delivery item thoroughly, in particular for freedom from defects and for usability in the specific situation, before starting the operational use. This also applies to items delivered to the contractual partner within the scope of warranty and maintenance or care. Defects shall be reported by the contracting party in writing without notice, subject to a description of the arisen symptoms. In particular, the contractual partner undertakes to notify any obvious defects within a period of ten (10) days from receipt of the delivery item without undue delay, otherwise warranty claims are excluded. With regard to other defects, the delivery items are deemed approved by the contractual partner if the notice of defects is not received at WEISS GmbH within a period of ten (10) days after the time at which the fault became visible. Timely sending of the notification of defects is sufficient to meet the deadline. The contractual partner will also inform WEISS GmbH after the expiry of the warranty period without undue delay if third parties assert infringements of property rights through the delivery item.
10.3 If there is a defect in the delivery items supplied by WEISS GmbH, WEISS GmbH shall, at its option, either repair or deliver the goods ("subsequent performance"). Should it be legally determined that a delivery item of WEISS GmbH is responsible for the infringement of the property rights of third parties, WEISS GmbH shall, at its own expense, procure the necessary right of use for the contractual partner or modify the services in such a way that they no longer infringe the property rights but still correspond to the contractual agreements. WEISS GmbH may refuse the selected type of subsequent performance or the entire subsequent performance if it is only possible at disproportionate costs. In the case of subsequent delivery, WEISS GmbH will exchange the affected items of delivery and bear the expenses necessary for this purpose, unless these are increased by the fact that the subsequent delivery is to be transported to a location other than the contractually agreed location of the delivery items. If WEISS GmbH supplies a defect-free delivery item for the purpose of the subsequent performance, WEISS GmbH shall be entitled to take back the defective delivery item. The warranty is obsolete if the principal alters the delivery item or allows a third party to do so without the consent of WEISS GmbH and default rectification is thus made impossible or unreasonable. Irrespective of such, the principal shall bear the additional costs for rectifying the faults arising from the alteration. Delivery of used items agreed with the principal in a specific case is rendered under exclusion of any warranty for material defects.
10.4 If the WEISS GmbH is not ready or unable to perform subsequent performance, or if it is delayed beyond reasonable time periods for reasons attributable to WEISS GmbH or if the subsequent performance fails in any other way, the contractual partner shall within the scope of the statutory provisions be entitled to assert its rights to withdraw from the contract with regard to the delivery items or to reduced payment and to claim damages. The subsequent performance is only deemed to have failed if three (3) attempts have been unsuccessful.
10.5 Claims arising out of the subsequent performance, the right to withdraw or terminate the contract and the reduction in price, in particular claims for damages, including lost profits or other assets of the contractual partner, shall be permissible only to the extent of the provisions of these General Terms And Conditions of Delivery on liability.
10.6 The warranty period 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.
10.7 Guarantees in the legal sense or assurances of certain properties of the delivery item shall only be given by WEISS GmbH if they are expressly designated as such in the order confirmation by WEISS GmbH.
10.8 WEISS GmbH does not have any obligation if a defect is attributable to a behavior of the contractual partner. This is particularly the case if:
- the defect is due to an improper use, in particular not intended use or overuse of the delivery item by the contractual partner or its customers, or
- if statutory installation or operating instructions or those issued by WEISS GmbH are not followed by the contractual partner or its customers, unless the defect is not attributable to this non-compliance, or
- if the delivery item has been produced in accordance with the specifications of the contractual partner, in particular drawings it submits, and the defect is attributable to these specifications.
A contributory negligence on the part of the contracting party shall be counted against it.
The following provisions shall apply to the liability of WEISS GmbH as well as to the liability of its bodies, statutory representatives, employees, vicarious agents and performing agents - irrespective of the legal grounds:
11.1 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 upon use of typical due diligence 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. ‘Eminent’ in this context refers to the obligation to deliver the delivery item on time, that it is free of legal defects as well as material defects impairing its functionality or suitability for use more than insignificantly, as well as also advisory, protection and custodial care intended to enable the principal to use the delivery item consistent with the contract or with the purpose of protecting the life and limb of the principal’s personnel or protecting the principal’s property from significant damage.) Indirect damage as well as consequential damage arising from defects to the delivery item can be reimbursed only to the extent that such damage can be typically expected upon intended use of the delivery item.
b) WEISS GmbH is not liable for the slightly negligent violation of other obligations.
11.2 WEISS GmbH shall be liable for cases of initial impossibility if it was aware of the impediment to performance or the ignorance is based on gross negligence.
11.3 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, as well as for liability on account of intentional conduct and for guaranteed properties.
11.4 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.
11.5 WEISS GmbH assumes no liability whatsoever against the contractual partner or third parties if the damage is based on the behavior of the contracting party or its vicarious agents. The cases listed in section 10.8. shall apply correspondingly. A contributory negligence on the part of the contracting party shall be counted against it.
11.6 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.
12. Third party rights
12.1 The contractual partner shall ensure that the means it made available are free from the rights of third parties (e.g. copyright, license, patent or other proprietary rights) that prevent a contractual service provided by WEISS GmbH and are compliant contractually and legally. However, WEISS GmbH shall not be obliged to check the means made available for possible legal violations. Should WEISS GmbH become aware of the obvious illegality of a product made available by the contractual partner through means made available by WEISS GmbH for provision of service, it shall notify the contractual partner without delay. In this case, WEISS GmbH shall be entitled, but not obliged, to reject the means made available by the contractual partner.
12.2 Should third parties take action against WEISS GmbH for potential legal infringements resulting from means made available by WEISS GmbH for services provided by the contractual partner according to the contract, the contractual partner undertakes to release WEISS GmbH from all liability and to indemnify costs which may be incurred for WEISS GmbH as a result of the possible infringement. The indemnification obligation also includes the obligation to fully indemnify WEISS GmbH from legal defense costs (e.g. court and legal costs). The parties must immediately notify each other in writing if claims for such legal violations are brought against them.
13. Cancellation and withdrawal of trainings and events
13.1 Training courses and events by WEISS GmbH which are subject to a charge can be canceled by the contractual partner without charging fees up to four (4) weeks before the start of the event. In the case of a cancellation by the contractual partner between four (4) and two (2) weeks before the start of the training/event, 30% of the participation fee; in the case of shorter term cancellations by the contractual partner, the full participation fee will be charged.
13.2 WEISS GmbH shall, at its discretion, be entitled to withdraw from the training related contract or to cancel the event or to claim damages due to non-fulfillment if the contractual partner fails to pay the due fees within a reasonable grace period.
13.3 In addition, WEISS GmbH is entitled to withdraw from the training or event for self-justifiable reasons if force majeure or other circumstances beyond the control of WEISS GmbH render the fulfillment of the contract impossible. In this case, a participation fee already paid by the contractual partner shall be refunded; any participation fee not yet charged will not be charged.
13.4 In the case of a justifiable withdrawal by WEISS GmbH, no claim by the contracting party for damages shall arise.
14. Access to online systems
The contractual partner is obliged to keep its access data (login and password) to all WEISS GmbH online systems confidential and make it inaccessible for third parties. The contractual partner is liable for the misuse of its access data.
15. Confidentiality obligation, business data
15.1 Each contracting party is obliged to treat all business and trade secrets confidentially, as well as confidential information or information of the other contracting parties ("Confidential Information"), which are considered as 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 contract. Business and trade secrets include in particular internal information regarding business transactions, business plans, concepts and other business matters, products, research, structures, drawings, designs, models, manufacturing methods, expertise, patents, technical specifications, marketing and distribution strategies, customer lists, business forecasts, price calculations, turnover figures, financial data and similar 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. This obligation does not apply to information which is publicly accessible, which has previously been rightfully known to the contracting party, which has arisen independently from this contract, and in the case of a disclosure or duty of disclosure of the contacting party, which 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 this 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. 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.
15.2 Each contractual party is duty bound to store all documents, files and other embodiments of confidential information it has received from the respective other party as it would store its own confidential information as laid out in point 15.1, at least however to the extent of due care as stipulated in law.
15.3 WEISS GmbH and the contractual partner shall remain the owner of their respective own business documents as well as owners of existing and future copyrights and other proprietary rights to these business documents (in particular patent rights, registered design rights, rights of use and trademark rights, etc.). The ownership right includes, in particular, the entire know-how, resource and development reports, suggestions, ideas, drafts, designs, patterns, models, concepts, etc.
16. Data protection and data security
16.1 The legal provisions on data protection and data security shall be observed. The contractual partner is responsible for compliance with laws and regulations on data protection and data security when passing on data to WEISS GmbH.
16.2 In the event that WEISS GmbH collects, processes or uses data for the contractual partner 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 contractual partner.
16.3 WEISS GmbH will delete contractual partner-related personal data at the end of the contractual relationship insofar as no further storage is required to meet statutory obligations (in particular storage obligations) by WEISS GmbH and to the extent as this is required to demonstrate the proper fulfillment of the contract to the contractual partner.
16.4 The contractual partner allows WEISS GmbH to include its name or company in a reference list.
17. Final clause
17.1 Subject to the assignment of outstanding debts pursuant to § 354 a German Commercial Code (HGB), the contractual partner may not transfer individual rights to this contract or the contract as a whole to third parties, unless WEISS GmbH expressly grants its written consent.
17.2 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.
17.3 Place of performance is the registered office of WEISS GmbH. In so far as the contractual partner is a businessman within the meaning of the German Civil 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.
17.4 This agreement shall be governed by the law of the Federal Republic of Germany excluding the provisions of international private law. The United Nations Convention on contracts for the international sale of goods (CISG) shall not apply.
17.5 These General Terms and Conditions of Delivery are in German and English. However, only the German version is legally binding.
17.6 The concluded contract including these General Terms and Conditions of Delivery are exclusively dispositive for the legal relationships between the contractual parties. Deviating or supplementary terms and conditions as well as amendments to this contract, including this written form clause, shall only apply if they have been agreed in writing and are expressly marked as amendments or additions. To adhere to “written form”, it is sufficient to send the declaration by telecommunication, particularly by fax or e-mail provided that the copy of the signed declaration is transmitted. 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.
17.7 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 Delivery.
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..