§ 1 Validity of these conditions
- Excluding any and all other business conditions, the following conditions are applicable to any and all business relations with the ordering party.
- Agreements modifying or supplementing our conditions, subsidiary agreements, as well as conditions by the ordering party are only effective if confirmed by us in writing. 'Handelsvertreter' (commercial agents)
§ 2 Proposal
Our proposals are not binding. The documentation pertaining to the respective proposal does not constitute a warranty of quality, it only serves to inform the ordering party and must not be submitted to third parties..
§ 3 Orders, Acceptance of orders
- Orders are binding on the ordering parties. We will only become committed through our written acceptance. The order is deemed to be accepted if we do not refuse acceptance prior to expiration of a period of 30 days.
- In the event that the merchandise is submitted to the ordering party prior to receipt of the acceptance of the order or the invoice, the merchandise is submitted on loan.
§ 4 Prices and Payment
- All prices are applicable ex factory without packing, excluding installation, assembly or taking into operation. We reserve the right to correct the prices in accordance with Section 315 of the BGB (German Civil Code), in the event that individual cost factors change prior to delivery. In the event that the ordering party is a 'Nichtkaufmann' (not a merchant), the stated prices will remain unchanged for a period of 4 months starting on the ordering date.
- Commercial agents and traveling salesmen are not authorized to collect payment and/or agree to the deferment of payment.
- The ordering party is not authorized to withhold payments for reason of counterclaims which are not based on this contractual relationship, or set-off against claims which are contested by us or not yet judicially finally determined.
- Non-compliance with the terms of payment or circumstances which are suitable to reduce the credit standing of the ordering party, will result in all our claims becoming due without delay, notwithstanding any accepted bills of exchange. In such cases, we are further entitled to deliver against prepayment or security only, as well as to cancel the contract subsequent to granting a reasonable period of grace and/or claim compensation for damages based on failure to perform.
- Place of performance of payment is the registered office of the banking establishments listed on our invoices.
- All prices are deemed to be in Euro if nothing to the contrary was expressly agreed.
§ 5 Delivery time, Delay in delivery
- The stated delivery time is approximate only. In the event that circumstances which are unforeseeable or not caused by fault and can not be avoided by reasonable care, cause a hindrance for us to timely deliver, the time of delivery extends reasonably.
- The time of delivery will commence by mailing the acceptance of the order; however, not prior to receipt of an agreed prepayment, not prior to clarification of all technical details and not prior to the ordering party fulfilling all prerequisites incumbent on the ordering party for performance of the transaction.
- We reserve the right to cancel the contract in the event that based on force majeure, strike, natural disaster, civil war or the similar, delivery will become impossible or if we are not supplied based on failure of any of our suppliers. In the event of nonavailability of performance, we commit to inform the customer without delay of the nonavailability and to immediately re- fund all payments rendered by the customer.
- The time of delivery is deemed to be complied with if the delivery item left the plant prior to expiration of the time of delivery or notification was given of readiness for shipment.
§ 6 Shipment, Passing of risk
- We deliver ex factory. All risk passes to the ordering party at the latest when the merchandise leaves our plant, usually though at the time when the ordering party is informed of its readiness for shipping. This also applies when shipping is performed through our own means of transport.
- In the event that shipment is delayed through circumstances for which we are not responsible, risk will pass to the ordering party at the day of readiness for shipment.
- In the event that the ordering party will not immediately accept the merchandise when ready for shipment, we will store it if possible, for and at the risk of the ordering party. This storage does not free the ordering party from the obligation to pay which accrues at the time when made available.
§ 7 Packing and Packaging
Cardboard boxes, crates and cases, pallets and other packing material will be charged. This packaging material can not be taken back.
§ 8 Installation, Putting into operation, Assembly
The ordering party is solely and fully responsible for any type of installation, putting into operation and assembly. This also applies to planning, design and professionally correct installation of the merchandise into the total systems or production facilities where the merchandise is a partial or structural component only. The ordering party coordinates all work required ahead and guarantees that it will timely and properly be performed. The ordering party is also responsible for timely transporting the merchandise to the place of installation. In the event that the installation will be delayed for reasons which are not the responsibility of Wipotec, we are able to charge the accruing extra costs and waiting times to the ordering party.
§ 9 Reservation of ownership
- We reserve ownership to the delivered merchandise until the purchase price is paid in full. However, regarding commercial business, our ownership will only become void upon payment of all claims which accrued against the ordering party based on the business relationship.
- Possible 'Verarbeitung' (use for production) will be performed by the ordering party for us. In the event of further 'Weiterverarbeitung' (processing) or connection to other goods, we obtain a coownership share in the amount of the value of our merchandise.
- If the ordering party is a reseller, the reseller is permitted to sell through commercial transaction the merchandise under reservation. Dispositions of any other type are prohibited.
- The ordering party assigns to us in advance in the amount of the invoice value of the merchandise under reservation, the claims to which it is entitled based on resale.
- The ordering party is authorized to collect the assigned claims. It must inform its debtors of the assignment upon our demand.
- The authorization of the ordering party to dispose of the merchandise under reservation and to collect the assigned claims becomes void if the payment conditions are not complied with, payment is stopped, as well as in the event of protested bills of exchange or cheques. In such cases, we are authorized to take possession of the merchandise under reservation. The incurred costs will be borne by the ordering party.
- The ordering party must inform us without delay of forthcoming and enforced seizure by third parties of the merchandise under reservation or of the assigned claims. The costs of interventions are borne by the ordering party.
- In the event that the value of the collateral furnished to us, exceeds our claims by more than 20 % in total, we are obliged to release the above stated collateral to this extent upon request by the ordering party.
§ 10 Obligation to inspect and to return
- The ordering party shall inspect the merchandise without delay and notify us (not our commercial agents and authorized agents) in writing of defects 10 days upon receipt of the merchandise at the place of destination at the latest.
- Sufficient for compliance within the period of objection is timely sending to our known, central fax number, the written notice describing in detail the defects objected to.
- Delivery is deemed to be accepted in the event that objections or notices of defects are not timely submitted.
- Hidden defects must be notified 14 days upon discovery at the latest.
§ 11 Warranty, Liability for defects
- In the event that the delivery item is defective or through deficiencies of manufacturing or material becomes defective during the warranty period, the ordering party based on our choice is entitled to 'Nachbesserung' (subsequent repair) or delivery of spare parts. In the event that it is not possible to remedy the defect by a second subsequent improvement, the ordering party may request that the purchase is rescinded or the purchase price is reduced.
- We are liable for damages for which we are responsible, only up to an amount not exceeding the purchase price.
- The ordering party is responsible for selecting the software functions. Software defects which more than insignificantly affect the selected functions adversely, will at our option be corrected or rectified through delivery of an improved software version or through information for removal or circumvention of the effects of the defect.
- The warranty period amounts to 12 months in the event of one shift operation. In as far as use is made through multiple shift operation (more than 8 hours per day), this is not in agreement with use in conformity with the contract. Wipotec does not assume any liability for defects or damages caused through this, which would not have occurred through use in one-shift operation. Time limits will start at the date of the invoices or in case of Para 6c., at the time when the item is made available.
- The warranty period for spare parts and subsequent repair is 12 months; however, duration of the period will last at minimum until expiration of the original warranty period.
- The claims by the ordering party based on liability for defects expire if the ordering party does not grant us during the regular business hours the time and opportunity necessary to remove the defects.
- We do not assume any warranty for possible defects / damages which were caused by the following reasons:
- Insufficient information by the ordering party concerning:
- requested functions;
- the place of installation;
- harmful environmental influences;
- the item/s to be weighed and its/their characteristics;
- Normal wear and tear, faulty and careless treatment (particularly, excessive stress), failure to comply with the operating, use, installation and mounting instructions, circumstances of the surroundings, defective construction work, unsuitable building site, chemical, electromagnetic or electric influences, improper storage of operating material;
- If our merchandise will be furnished with attachments, superstructures and/or substructures, as well as with fixed and/or flexible connections to join it to other equipment, regardless if these could cause or not cause interferences;
- If through the planned structural integration and/or the actually realized installation of our merchandise, setting, maintenance or service work which might have to be performed on the merchandize will be more difficult or prevented or the requested performance or characteristic can not be achieved. The exclusion of the warranty is not applicable when the defects/damages are based on wrongful intent or gross negligence committed by us.
- The warranty expires or is not applicable when defects/damages occur caused through interference by individuals who are not authorized by us and/or use of spare parts or operating material which are not original Wipotec.
The above stated warranty, a. through g., will only be fulfilled to the extent and in the amount which would accrue if the purchased item would have been brought to the legal residence or the business establishment of the ordering party. In as far as the expenditures will be increased through the fact that the purchased item is brought to an other location, the ordering party must bear these additional expenses.
§ 12 Other claims for damages
For damages which did not occur on the delivered item itself, we are only liable (on what legal basis ever) in the event of wrongful intent, gross negligence by the owner / of the executive bodies or executive employees, in the event of fatal injury, body or health, in the event of defects which we maliciously did not disclose or were guaranteed by us not to exist or in the event of defects of the delivered item, in as far as based on the Produkthaftungsgesetz (Product Liability Law), a liability exists for damages caused to individuals or privately used property. Hereby, the liability based on the Produkthaftungsgesetz is not excluded. In the event of faulty violation of substantial contractual obligations, we are also liable for gross negligence of non-executive employees and for slight negligence; in the last case, limited to the contract typical, reasonably foreseeable damages. Further claims are excluded.
§ 13 Contract
- The contract contains all stipulations. Additional written or verbal subsidiary agreements do not exist. Modifications and supplementation must be in written form.
- The legal ineffectivity of individual terms of the purchase contract and these conditions do not affect the legal effectivity of the other parts of the contract. The parties to the contract commit to replace ineffective terms by effective arrangements which in their economical effect are as close as possible to the ineffective terms and suit the purpose of the contract best. The same applies in the event of a loophole in the terms and conditions.
§ 14 Software
- A non-exclusive and non-negotiable right for internal use is granted on software and documentation (all other rights remain with us). The ordering party must insure that software and documentation are not accessible to third parties without our prior written consent.
- Copies may only be made for filing purposes; Para a. applies accordingly. In the event that the original documents bear a note indicating protection by copyright, the ordering party must also affix this note to copies. Unless otherwise agreed, the above agreed right to use is respectively deemed to be granted by acceptance of the order and delivery of the software.
- Through purchase of the software, the ordering party will receive ownership to the corporeal data carrier, the packing, the manual and the other written pertinent material only. The ordering party acknowledges that the software is protected by copyright.
- The ordering party is liable to us for all damages which are caused by omitted erasure, other use by third parties which is not permissible by the copyright protection and/or the contract.
- It is understood between the parties of the contract that it is not possible to design software which is fault free for all application conditions.
- We are not liable if through the use of the sold software, performance results do not occur; as well as we are not liable for not realized profit, not realized savings, indirect and consequential damages.
- Further the parties to the contract agree that Wipotec is not responsible for the installation of the software. This is incumbent on the ordering party. Accordingly, Wipotec does not assume responsibility that through the installation or the use of its software on the disc drives or data processing equipment of the ordering party, disadvantageous alterations occur, such as data loss, alterations, erasures or other negative changes, e.g.
§ 15 Place of litigation, Governing law
Kaiserslautern is place of litigation in the following cases:
- If the ordering party is 'Kaufmann' (merchant), a 'juristische Person des öffentlichen Rechts' (public law entity) or 'öffentlich rechtliches Sondervermögen' (special funds under public law);
- If the ordering party does not have a general domestic place of litigation or this place of litigation will become void after the contract was signed.
The law of the Federal Republic of Germany is applied, excluding the UN Law on Sales.