| 1. | General |
| 1.1 | The terms and conditions set out below shall only apply if
the purchaser is an entrepreneur in the sense of § 14
BGB (German Civil Code), a legal entity under public law
or a special fund under public law and has its domicile
outside the European Union, Switzerland, Norway or
Iceland. |
| 1.2 | All supplies and services are provided at the supplier’s
terms and conditions set out below. Any purchaser’s
conditions are not binding on the supplier even if they
have not been expressly rejected. |
| 1.3 | Electronic data processing equipment is used for handling
the commercial relationships and for in-house handling of
business transactions. In compliance with the General
Data Protection Regulation, the purchaser is hereby made
aware of the fact that the supplier processes the personal
data required for these purposes and will only pass them
on internally within the company. |
Further information about data protection can be found in
the data protection declaration of the supplier, which can
be downloaded from the internet site of the supplier
“www.weishaupt.de”.
| 2. | Offer |
| 2.1 | The supplier’s offer is subject to confirmation.
A purchase order shall not be deemed accepted until it
has been confirmed in writing by the supplier; this may be
done in text format (pursuant to § 126 b BGB).
The same shall apply accordingly for any amendments,
changes or side agreements. |
| 2.2 | The supplier reserves all property rights and copyrights to
catalogues, quotations, drawings, technical
documentation, product descriptions and other
documents; they must neither be reproduced nor made
available to any third party. |
| 2.3 | The supplier reserves the right to make changes in design. |
| 3. | Prices and payment |
| 3.1 | Unless otherwise agreed, the prices shall be understood
free purchaser’s point of receipt of goods within the
Federal Republic of Germany. Shipments with a net
invoice amount of up to EUR 150.– are subject to an extra
charge covering packaging and freight. If the value of
goods of a shipment is less than EUR 50.–, this will incur
an extra charge for small orders in the amount of EUR 5.–.
Any surcharge for express shipments etc. of any kind shall
be at the recipient’s expense. Prices are understood plus
value added tax at the applicable statutory rate unless
already included. If the goods are to be shipped abroad
outside of Germany, the prices shall be understood ex
works Schwendi (Incoterms 2020) unless otherwise
agreed. |
| 3.2 | Unless otherwise agreed, the invoice amount shall be
payable immediately without any deduction and free of any
transaction charges to the supplier’s point of payment. The
supplier may any time, even in a current business
relationship, make deliveries, in whole or partly only
against prepayment. The supplier will announce the
reservation of prepayment latest with the order
confirmation. |
| 3.3 | If, after closing of the contract, there is evidence that the
payment claim of the supplier is in danger caused by lack
of financial ability of the purchaser (e.g. by any filings for
insolvency), the supplier may, under the provision of § 321
BGB, refuse to supply and – if necessary after setting a
deadline – rescind the contract. In case of production of
custom made products (single items) the supplier may
rescind from the contract without further notice; the legal
provisions about cancellation without notice remain
unaffected. |
| 3.4 | Any payments to any representatives not having written
authority to collect are inadmissible. |
| 3.5 | The price agreed is based on the current cost of materials
and wages. If these should change by the time of shipping
the order, the price shall also be adjusted in proportion
with the percentage of the change in cost of materials and
wages, with the change in cost of materials and wages
being taken into account at the same percentages. The
current state of progress of production at the time of
occurrence of a change in cost of materials or wages shall
be taken into account, i.e. the adjustment shall only apply
to that portion of the price corresponding to the costs that
will still be incurred. |
| 3.6 | Any set-off against the supplier’s claims shall be excluded
unless the claims asserted for set-off are either
uncontested or established as final and absolute. The
same shall apply accordingly for exercising a lien based on
purchaser’s claims against the supplier in money. Any lien
relating to other claims of the purchaser shall be excluded
unless it is based on the same contractual relationship. |
| 4. | Default |
| 4.1 | If the purchaser should fail to honour its payment
obligations, cease payments or fail to honour a cheque or
bill of exchange or if the supplier should learn about a
substantial deterioration of the purchaser’s economic
standing which puts the claim to the purchase price at
risk, the complete remaining debt shall become due,
including any bills of exchange of a later maturity. If the
complete remainder of the debt is not paid immediately,
the purchaser’s right to use the delivery item shall be
voided. The supplier shall be entitled to either take back
possession of the delivery item without waiving any claims
until their satisfaction or cancel the contract. If the delivery
item should be taken away, all related costs shall be at the
purchaser’s expense. In case of cancellation, the
purchaser shall pay compensation to the supplier for the
use of the delivery item and also for any loss in value –
whether caused through fault of its own or not – and for
any lost profit. |
| 4.2 | If the purchaser should still be in default with acceptance
of the goods ordered after expiration of a respite, the
supplier shall be entitled to cancel the contract and claim
damages amounting to 15 % of the order value (net price).
The supplier is free to assert a higher loss. The purchaser
is at liberty to prove that a loss has not occurred at all or is
substantially lower than the flat charge above. |
| 5. | Delivery period |
| 5.1 | If a period of delivery is agreed, it shall begin on mailing
the order confirmation, however, neither before receipt of
any documents to be provided by the purchaser, licences
and approvals nor before receipt of any agreed down
payment. |
| 5.2 | The agreed delivery period shall be deemed to be
complied with if the delivery item has left the works or
readiness for shipment has been notified by the time the
delivery period expires. |
| 5.3 | If the supplier should be unable to keep a binding delivery
period for reasons beyond its control (unavailability of
service, non-fulfilment of legal obligations), it will inform
the purchaser about this without delay and communicate
the anticipated new delivery period at the same time. If the
service should still not be available within the new delivery
period or if it should subsequently turn out to be
impossible (in full or in essential parts) without the
supplier’s fault, the supplier shall be entitled to cancel the
contract in full or in part; any consideration provided by
the purchaser shall be reimbursed without delay. The
purchaser shall not be entitled to make any claims for
damages in such a case. This concept of unavailability of
service shall include, without limitation, failure of timely
delivery by supplier’s sub-suppliers if the supplier had
concluded a congruent covering contract. The supplier’s
statutory rights to cancellation and termination and the
statutory regulations about settling a contract in case of
exclusion of the obligation to perform (e.g. impossibility or
unacceptability of the service and/or remedial
performance) shall remain unaffected. |
| 5.4 | The existence of a default in delivery shall be governed by
the statutory provisions. However, a reminder by the
purchaser shall be required in any case. If the supplier
should get into default in delivery, the purchaser shall be
entitled to claim liquidated damages due to delay. The flat
rate for damages shall be 0.5% for every full calendar
week of delay, however, not exceeding 5% of the order
value (net price) of that part of the total order which
cannot be used at all or according to the intention of the
contract due to the delay. The supplier shall be at liberty to
prove that the purchaser has not suffered any loss or only
a substantially lower loss than the flat rate specified
above. |
| 5.5 | Fulfilment of the purchaser’s contractual duties is a
prerequisite for compliance with the delivery deadline. |
| 5.6 | If any delays in shipment should occur or storage should
be necessary on purchaser’s request or for any other
reasons attributable to the purchaser, either the related
costs incurred or reasonable costs shall be charged. |
| 6. | Passage of risk |
| 6.1 | The risk accidental destruction or accidental deterioration
shall, latest, pass to the purchaser on delivery and
unloading of the goods on the ground or ramp at the
purchaser’s premises. If the purchaser has specified a
place of delivery, the risk shall pass to the purchaser on
arrival of the goods at this place of delivery. If the place of
delivery specified is outside of the Federal Republic of
Germany, the risk shall pass to the purchaser on delivery
of the goods to the forwarder or freight carrier. If the
contract includes an acceptance by the purchaser the risk
passes with the acceptance. § 7.3 shall apply
correspondingly. |
| 6.2 | If shipment should be delayed as a result of circumstances
beyond the supplier’s control, the risk shall pass to the
purchaser from the date of readiness for shipment and its
notification. |
| 7. | Assembly and customer service work |
| 7.1 | Any assembly and customer service work shall be
remunerated separately unless otherwise agreed. These
costs include, without limitation, travel expenses, daily
allowance and working hours of the assembly and
customer service personnel including the statutory and
collectively agreed overtime, night, Sunday and holiday
premiums. If the work should be delayed for reasons
attributable to the purchaser, the purchaser shall bear all
costs for any waiting periods and any necessary further
travel. |
| 7.2 | The agreed flat rates for assembly and customer service
work do not include any premiums for overtime, night,
Sunday and holiday work if such work is requested by the
purchaser or should become necessary for reasons
attributable to the purchaser. These may be charged
additionally. |
| 7.3 | Assembly, maintenance and commissioning work shall be
deemed completed upon successful trial start-up by the
supplier and are subject to acceptance immediately
thereafter. The work shall be deemed accepted, if the
supplier has set the purchaser a time limit of 12 working
days for the declaration of acceptance and the purchaser
does not refuse to accept by claiming at least one defect
of the goods. |
| 7.4 | If any delays should occur during assembly or
commissioning that are not the supplier’s fault, the risk
relating to the delivery item shall pass to the purchaser
from this point of time unless the passage of risk has
already occurred pursuant to clause 6 above. |
| 8. | Defects |
| 8.1 | Any claims for defects against the supplier shall be limited
to the latter’s supplies or services and do not extend to the
overall system. |
| 8.2 | In case of a defect that is attributable to the supplier, the
latter shall be entitled to remedy the defect at its own
discretion by repair or replacement free of charge. Any
parts replaced shall become the property of the supplier. If
the supplier should not be ready or unable to perform such
rectification, particularly if this should be delayed beyond
reasonable time-limits for reasons attributable to the
supplier, or if at least two rectification attempts should fail,
the purchaser shall be entitled – without prejudice to any
claims for damages pursuant to clause 9 – to cancel the
contract or claim reduction of payment. |
| 8.3 | If the purchaser is entitled to make claims for defects at its
discretion, it shall be obliged to state on supplier’s request
and within reasonable time whether it will demand
– subject to the appropriate requirements – remedial
performance, cancel the contract, claim reduction of the
purchase price and/or claim damages in place of
performance. |
| 8.4 | Such defects do not include normal wear of wear parts
such as nozzles, filters, seals, fuses, ignition or feeler
electrodes, lamps, switches, relays, sensors or
thermostats subject to natural wear. |
| 8.5 | Liability shall not apply to damage caused by the following
reasons:
- Disregard of the assembly and operating instructions,
inappropriate operation of the equipment,
noncompliance with the recommended and/or
prescribed maintenance intervals.
- Use of boiler water with inadequate properties,
particularly if it does not meet the requirements for boiler
and/or supply water and filling water of heating systems
according to the VDI specifications no. 2035 and the
VdTÜV specifications in their latest versions and/or the
supplier’s operating instructions.
- Disregard of special regional requirements for operation
of the delivery item.
- Operation of equipment outdoors, if not explicit made
therefor or under inadmissible operational or ambient
conditions. This may require special measures that have
to be agreed with the supplier on a contract specific
basis.
- Inappropriate assembly or start-up by the purchaser or
any third party, inadequate or non-approved fuels,
inappropriate brickwork, defects in supply lines unless
installed by the supplier.
- Use of bio-fuels or special fuels not approved by the
supplier.
- Effects of parts of foreign origin not procured from the
supplier.
- Damage caused by continuing operation in disregard of
the occurrence of a defect.
|
| 8.6 | The delivery item shall be inspected without delay after
receipt.
Any obvious defects shall be reported to the supplier in
writing within 14 days after receipt at the latest in order to
avoid forfeiting any rights to claims for defects; hidden
defects shall be notified within 14 days after discovery of
the defect at the latest.
Any claims of supplier regress are excluded if the supplied
goods have been processed by the purchaser, e.g .by
implementing into another product. However, the legal
provisions which apply in case of further delivery of the
unprocessed goods to a consumer shall remain
unaffected, even if the consumer may process the goods
(supplier regress under § 478 ff. BGB). |
| 8.7 | Liability for defects of the Weishaupt products is subject
to a statutory period of limitation of 24 months from the
date of delivery/acceptance. |
Liability for defects of other Weishaupt products or
deliveries including spare parts are subject to a statutory
period of limitation of 24 months from the date of passing
of risk.
Liability for defects of assembly works, after sales services
or maintenance works are subject to a statutory period of
limitation of 24 months from the date of performance.
In case of integration of purchaser`s products into
process-technology systems, thermal processing plants or
other special equipment such as, for example, waste
incineration plants, wood chip furnaces, drying or baking
systems etc., any claims for defects are subject to a
statutory period of limitation of 12 months after delivery/
acceptance.
Claims for defects of software are subject to a statutory
period of limitation of 12 months after delivery/
acceptance. Software delivered by the supplier has been
developed using the best possible care. It performs those
functions that are either included in the product
description valid at the time of conclusion of the contract
or have been agreed separately. The reproducibility of a
defect is a prerequisite for any liability for defects. The
purchaser must provide a sufficient description thereof. If
the software should be found defective, the supplier will
remedy the defect at its own discretion either by
rectification or by delivery of software without defect
(supplementary performance) free of charge within a
reasonable period of time.
The above periods of limitation do not apply insofar as the
law prescribes longer periods pursuant to § 438 para. 1
no. 2 BGB (buildings and objects for buildings), § 445 b)
BGB (right of recourse) and § 634 a para. 1 no. 2 BGB
(constructional defects) and for contracts including the
VOB/B German Construction Contract Procedures as a
whole. Further special provisions to the statute of
limitation shall remain unaffected (especially § 438 para. 1
no. 1, para. 3, § 444 BGB).
| 8.8 | Supplier’s personnel charged with inspection and
rectification of defects are not authorized to accept
defects as such with binding effect on the supplier. |
| 8.9 | In order to enable the supplier to proceed with all
replacement supplies and rectification measures that
appear necessary according to supplier’s equitable
discretion, the purchaser shall give the required time and
opportunity in coordination with the supplier and provide
auxiliary manpower on request; otherwise the supplier
shall be exempt from liability for defects.
Liability for defects shall also be inapplicable if rectification
was attempted by any persons other than supplier’s
agents. The purchaser shall only be entitled to remedy a
defect on its own or have it remedied by a third party and
claim reasonable compensation for the costs incurred in
urgent cases where operational safety is jeopardized – in
which case the supplier shall be informed immediately – or
if the supplier should be in default with rectification of the
defect. |
| 8.10 | In case of subsequent delivery of spare parts, we are only
obliged to deliver according to FOB Incoterms 2010. |
| 8.11 | Any claims for defects of repairs against the supplier
without legal obligation shall only apply if agreed in writing. |
| 8.12 | The supplier does not warrant that the equipment supplied
complies with foreign national regulations unless
specifically agreed in writing. |
| 8.13 | Any rights of recourse of the purchaser pursuant to
§§ 478, 445 b) BGB against the supplier shall only be
effective insofar as the purchaser has not made any
agreements with the purchaser exceeding the statutory
liability for defects. |
| 8.14 | The supplier’s liability shall be governed by clause 9 in all
other respects. Any further claims for defects shall be
excluded. |
| 9. | Liability |
| 9.1 | With respect to any further claims, including but not
limited to damage other than to the very delivery item, the
supplier’s liability in case of ordinary negligence is limited
to the indemnification paid by the supplier’s liability
insurance. This shall also apply to any personal liability of
supplier’s employees, collaborators, representatives and
vicarious agents.
The supplier is prepared to allow inspection of the
insurance policy to the purchaser on request. However,
the limitation of liability shall only apply if the sum insured
is within the foreseeable extent of such material damage
and consequential loss. If the insurance should not step in
without the sum insured being exceeded, the supplier shall
accept subsidiary liability versus the purchaser, however
limited to the liability according to clause 9.2 below. |
| 9.2 | The purchaser shall not be entitled to any claims for
damages or indemnification beyond this. This shall not
apply to inalienable rights according to the product liability
legislation, in case of intent or gross negligence, in case of
loss of life, limb or health and in case of culpable violation
of an essential contractual obligation (an obligation which
is a prerequisite for proper execution of the contract and
the fulfilment of which the contractual partner does and
may regularly rely on). In case of culpable violation of an
essential contractual obligation, the supplier’s liability shall
be limited to the foreseeable damage as typical for the
contract unless – again – intent or gross negligence
should be established or for loss of life, limb or health. The
provisions of clause 9 shall not involve any reversal of the
burden of proof to the detriment of the purchaser. |
| 9.3 | Insofar as the purchaser should be entitled to claims for
damages pursuant to clause 9.1 above, they are subject
to statutory limitation along with the expiration of the
statutory period of limitation for claims for defects
pursuant to clause 8.7. |
| 10. | Retention of title |
| 10.1 | The supplier reserves ownership of the delivery item until
receipt of all payments including any costs and interests
according to the supply contract. In case of a current
account, the retention of title shall be deemed as a
security for the supplier’s balance claim; this shall apply
also if payments are made with specific reference to
invoices for supplies and services (current account
reservation).
The retention of title shall also apply in case of integration
of the equipment supplied, for example, into a heating
system, since the equipment is only considered as an
addition. If the equipment supplied is installed into a
building or connected to other systems in such a way that
the equipment supplied is deemed an essential
component of the overall system, the supplier’s title shall
extend proportionally to the system created by installation
and the finished product. |
| 10.2 | The purchaser shall have the right – revocable at any
time – to resell the delivery item within the scope of
ordinary business transactions unless the claim resulting
from such resale should already have been assigned to
any third party or cannot be assigned to the supplier for
any other reason. The right to resale is also forfeited in
case of suspension of payments by purchaser. |
| 10.3 | The purchaser hereby and now assigns to the supplier by
way of security any claim to which purchaser is entitled
from resale or a similar economic disposition, regardless
of whether the goods subject to retention of title are sold
without or after integration with other goods. |
| 10.4 | If the goods subject to retention of title should be sold by
the purchaser together with other goods not owned by the
supplier, the assignment shall only apply in the amount of
the value of the goods subject to retention of title at the
time of delivery for settlement of the supplier’s claims. |
| 10.5 | If the goods subject to retention of title should be resold
after integration with other goods, particularly goods not
owned by the supplier, the assignment shall only apply in
the amount of the value of the goods subject to retention
of title at the time of integration. |
| 10.6 | The purchaser is entitled to collect assigned claims as
long as purchaser complies with its contractual payment
obligations towards the supplier, however, the amounts
collected shall be paid over to the supplier immediately
insofar as the latter’s claim is due. The authorization to
collect shall cease without requiring the supplier’s explicit
revocation if the purchaser should get into financial
trouble, particularly suspension of payments, or become
subject of insolvency proceedings. The purchaser is
obliged to give the supplier the information about the
assigned claims that is necessary for their collection,
submit related documents and notify the debtor about the
assignment on supplier’s request.
In case of a delay of payment or if the economic standing
of the purchaser should be found to have deteriorated
substantially, the supplier shall also be entitled to notify the
purchaser’s debtor about the assignment and request
payment directly from the latter to the supplier. |
| 10.7 | The supplier’s right of retention of title is conditional in
such a way that the title to the goods subject to retention
and any assigned claims shall pass directly to the
purchaser upon full payment of supplier’s claims. |
| 10.8 | On request of the purchaser, the supplier is obliged to
release the securities to which it is entitled insofar as their
value should exceed the value of supplier’s claims thereby
secured by 20 %. |
| 10.9 | The purchaser must neither pledge the delivery item nor
transfer it by way of security. In case of an order of
attachment or other disposition by a third entity, the
purchaser must inform the supplier without delay. The
costs of any interventions are at the purchaser’s charge. |
| 10.10 | If the supplier should exercise its right of retention of title
by taking back the goods subject to retention of title in
accordance with the above provisions, the supplier shall
be entitled to deduct a flat amount of 30% of the value of
the goods without prejudice to any further claims. The
purchaser shall be at liberty to prove that the supplier has
only suffered a lower loss. |
| 10.11 | The supplier shall be entitled to request surrender of the
goods subject to retention of title if the purchaser should
not meet its payment obligations either after a calendared
deadline or after fixing a time-limit. Such request to
surrender shall be deemed cancelation of contract at the
same time. |
| 11. | Place of performance and Arbitration Clause |
| 11.1 | The place of performance for all obligations from this
contractual relationship is the supplier’s domicile. |
| 11.2 | Written notices to the supplier as provided in the present
terms and conditions of delivery and payment shall be sent
directly to the supplier’s domicile in D-88475 Schwendi.
Any communications to any representatives are ineffective. |
| 11.3 | If the purchaser has its domicile outside the European
Union, Switzerland, Norway or Iceland all disputes or
claims arising out of or in connection with this contract,
including disputes relating to its validity, preach,
termination or nullity, shall be finally settled unter the Rules
of Arbitration (Vienna Rules) of the Vienna International
Arbitral Centre (VIAC) of the Austrian Federal Economic
Chamber by three arbitrators appointed in accordance
with the said Rules. The substantive law applicable to the
contractual relationship and the substantive law applicable
to the arbitration agreement shall be German Law
excluding the collision provisions of the private
international law. The language to be used in arbitral
proceedings shall be English. The place of the arbitral
proceedings shall be Salzburg. The obligation of
confidentiality als stated in § 16 para. 2 of the Vienna
Rules shall also apply to the parties, the representatives of
the parties and to any expert involved in the arbitral
proceedings. |
| 12. | Governing law, language |
| 12.1 | The mutual legal relationships shall be exclusively
governed by the laws of the Federal Republic of Germany,
excluding the application of the conflict rules. By contrast,
the prerequisites and effects of the right of retention of
title according to clause 10 shall be governed by the
specific laws of the location of the subject-matter insofar
as the related choice of jurisdiction in favour of German
law should be invalid or ineffective. |
| 12.2 | The contractual language is German. If there should be
any semantic discrepancy between the German text and a
foreign-language translation of the contract and the
present terms and conditions of delivery and payment, the
meaning of the German text shall prevail. |
| 13. | Binding nature of the contract |
| The contract shall remain effective even if individual parts
of its provisions or individual clauses of the terms and
conditions of delivery and payment should be legally void.
Any gap caused by a void provision shall be filled in good
faith according to the intent of the contract. |