I. General Provisions, Scope of Application
01. All offers, deliveries, and other services provided by WP Digital GmbH—including future ones—to the buyers specified in paragraph 2 are governed exclusively by these “Terms and Conditions of Sale and Delivery for International Transactions.” Any counter-confirmations by the buyer referring to its own terms and conditions of business or purchase are hereby rejected. Any deviating or conflicting terms and conditions of the buyer may only become part of the contract if we have expressly acknowledged them in writing.
02. Our “Terms and Conditions of Sale and Delivery for International Transactions” apply only to buyers domiciled abroad (outside the Federal Republic of Germany) who, at the time of concluding the contract, are acting in the course of their professional or commercial activities. Our “Terms and Conditions of Sale and Delivery for Domestic Transactions” apply to our buyers domiciled in Germany.
II. Drawings and Descriptions; Customer’s Duty to Provide Information
01. We reserve all rights of ownership, copyrights, and industrial property rights (including the right to apply for these rights) in drawings, plans, samples, cost estimates, and other documents or electronic data relating to the delivered goods. The aforementioned documents may only be used for their intended purpose and may not be disclosed to third parties without our consent.
02. The customer must inform us prior to the conclusion of the contract if the ordered delivery item – is not intended exclusively for normal use, – is to be used under unusual conditions or under conditions that require increased stress or pose a particular health, safety, or environmental risk, – is intended for processing unusual materials.
III. Conclusion of the Contract, Contractual Terms
01. The details and information contained in product catalogs and price lists become legally binding parts of the contract only if the contract expressly refers to them.
02. The subject matter of the contract is definitively determined by the product description contained in our written offer or in our written order confirmation. Side agreements, oral statements by employees or representatives, and changes to confirmed orders (including changes to the items to be delivered) require our written confirmation or confirmation sent via electronic means of communication to be effective.
03. For items to be delivered that are manufactured according to customer specifications and that are not series-produced products manufactured by us (custom designs), the accompanying documentation may deviate from our standard documentation requirements and those customary within the WP Group. In particular, the scope, form, and function of the documentation may differ or be more limited.
IV. Changes to the Deliverable
01. We reserve the right to make design and material changes to the contractually agreed-upon description of the delivered item, provided that such changes do not significantly or adversely affect the normal use or the use of the delivered item as stipulated in the contract, and provided that the buyer can reasonably be expected to accept the change.
02. Requests for changes by the buyer will be considered subject to a corresponding agreement that addresses the impact on price and delivery time.
V. Prices, Payment
01. Unless otherwise agreed, prices are quoted ex works (EXW), plus packaging, shipping, insurance, and any taxes and other charges associated with the delivery.
02. Payments must be made in the currency specified in our offer or in our order confirmation.
03. Payments must be transferred free of charge and without deduction to the account specified on the invoice. Regardless of the method of payment, payment is not considered to have been made until the full invoice amount has been irrevocably credited to our account, such that we can dispose of it (receipt of payment). All additional costs arising from the choice of payment method shall be borne by the buyer.
04. If the buyer fails to pay the purchase price within the agreed payment period, we may, without prejudice to other legal remedies, charge interest at a rate of 8% per annum above the European Central Bank’s main refinancing rate. We reserve the right to prove that actual damages were higher.
05. Offsetting or set-off, or the exercise of a right of retention, is permitted only on the basis of the buyer’s legal claims that have been acknowledged by us, are undisputed, are ready for adjudication, or have been legally and finally established.
VI. Delivery Period, Doubts Regarding Creditworthiness, Acceptance of the Delivered Goods
01. The delivery period is determined by the agreements between the contracting parties. Compliance with the delivery period is contingent upon the timely provision of all documents to be supplied by the buyer and the complete clarification of technical questions to be answered by the buyer, as well as the details of the desired design to be specified by the buyer.
02. The delivery period is deemed to have been met if, prior to its expiration, the circumstances specified in Section VII, Paragraph 2 that effect the transfer of risk have occurred.
03. The delivery period shall be extended appropriately in the event that we are unable to fulfill our delivery obligation—or unable to do so on time—due to an impediment beyond our control that we could not reasonably have foreseen at the time the contract was concluded. Circumstances beyond our control include, in particular, the failure of our suppliers to deliver to us on time and in accordance with specifications. We will notify the buyer of the start and end of the hindrance as soon as possible. If the hindrance lasts longer than three months or it is certain that it will last longer than three months, both the buyer and we may declare the contract terminated.
04. If, after the conclusion of the contract, we become aware of circumstances that justify reasonable doubt regarding the buyer’s solvency or creditworthiness and that pose a risk to our claim for payment under the concluded contract, we are entitled to withhold our performance until payment under the contract has been made or security for payment has been provided, and the buyer has settled any other due claims arising from the business relationship that are economically related to the contract.
05. Unless otherwise agreed, the buyer is obligated to take delivery of the goods at our plant within ten days of receiving our notice that the goods are ready for pickup. If this acceptance period is exceeded by more than three days, this constitutes a material breach of contract, which entitles us—without prejudice to other legal remedies—to arrange for the shipment of the goods to the buyer and to handle the associated formalities at the buyer’s expense. Failure to accept the goods shall not affect the buyer’s obligation to pay the purchase price.
06. If the buyer defaults on acceptance of the goods or payment of the purchase price, we may, after the fruitless expiration of a reasonable grace period required by law and set by us, withdraw from the contract and/or claim damages in lieu of performance. If we assert a claim for damages in lieu of performance, we may, without having to provide proof, demand compensation – in the amount of 20% of the purchase price, provided that the delivered item is a mass-produced or standard product, or – in the amount of 100% of the purchase price, provided that the delivered item is a custom-made product manufactured according to the customer’s specific requirements and we have incurred the expenses necessary to prepare the item for delivery. The contracting parties remain free to prove that the actual damage was higher or significantly lower. The statutory rules for determining damages shall also remain unaffected, provided that we have already fully performed our obligations under the contract. Furthermore, in the event of a delay in acceptance by the customer, we are entitled to charge for any additional expenses incurred, in particular storage costs.
VII. Delivery, Shipping, and Transfer of Risk
01. The place of delivery is determined by the delivery terms agreed upon between us and the buyer, which are to be interpreted in accordance with Incoterms 2010. Unless a specific delivery term has been agreed upon, delivery is always EXW.
02. Unless otherwise agreed, risk passes to the buyer at the time the goods are made available to the buyer. If the goods are transported to the buyer, risk passes to the buyer no later than the time the first carrier takes possession of the goods. If transport of the goods is delayed due to circumstances beyond our control, the risk passes to the buyer upon notification that the goods are ready for shipment.
03. We will make every reasonable effort to obtain any necessary export license. We do not guarantee that an export license will be granted. However, we are not aware of any circumstances that would prevent the granting of an export license. It is the buyer’s responsibility to obtain any necessary import license.
04. At the buyer’s request, all shipments will be insured at the buyer’s expense from the time of transfer of risk. In the event of damage, we will assign the insurance claims to the buyer concurrently with the buyer’s performance of its contractual obligations (including reimbursement of the insurance premium).
VIII. Preparation for Installation, etc.
If our services include the installation, assembly, and/or commissioning of the delivered item or similar work, the customer is obligated to make all necessary arrangements at the work site to enable the planned work to be carried out. In particular, the customer is obligated to provide electrical connections, compressed air connections, and adequate lighting at the work site. Furthermore, dry and lockable rooms must be provided for the storage of the installation personnel’s tools.
IX. Acceptance Inspection, Acceptance
01. The parties may agree—particularly when installation work is being performed—that compliance of the delivered item with the contract shall be determined by a joint acceptance inspection.
02. If no acceptance date has been agreed upon, we shall notify the buyer of the date of the acceptance test.
03. The costs of the acceptance inspection (including the costs of test materials and operating resources) shall be borne by the buyer. However, the costs of our personnel shall be borne by us.
04. A written report of the acceptance inspection shall be prepared and signed by both parties. Any defects in the delivered goods must be recorded in the report.
05. The delivered goods are deemed accepted if—the delivered goods have no defects or only minor defects, or—the acceptance inspection could not be conducted due to the buyer’s fault, or—the buyer has put the delivered goods into service for its own commercial purposes.
06. If the acceptance inspection reveals that the delivered item is not in conformity with the contract, we are entitled and obligated to remedy the nonconformity without delay; in all other respects, the provisions of Section X apply.
X. Nonconformity of the Delivered Item or Documents, Notice of Defects, Warranty
01. Unless a joint acceptance inspection is conducted, the buyer must notify us in writing of any nonconformity of the delivered goods and/or the documents that is apparent upon acceptance, without delay and no later than one week after acceptance, and must specify the nature of the nonconformity in detail. Furthermore, the buyer must inspect the delivered goods and/or the documents without delay, no later than one week after taking delivery, even if a joint acceptance inspection was conducted. The buyer loses the right to invoke a breach of contract regarding the delivered goods if the buyer does not notify us in writing within one week of the time at which the buyer discovered or should have discovered it, and precisely describe the nature of the breach of contract, regardless of the reasons the buyer may cite for failing to comply with these requirements. The buyer’s written notice of defects must have been sent by the buyer within the one-week period following acceptance of the delivered item or discovery of the nonconformity; furthermore, it is required that the notice of defects, sent within the prescribed period, has actually been received by us. We may not invoke the provisions of this paragraph only if we were actually aware of the facts giving rise to the breach of contract and failed to disclose them to the customer.
02. If, following a notice of defect from the buyer, a breach of contract regarding the delivered item cannot be established, the buyer must reimburse us for the costs incurred in connection with the inspection of the delivered item.
03. In the event of a breach of contract regarding the delivered item or the documents, we are entitled to remedy this by repair or replacement even after the agreed delivery time. In the case of a replacement delivery, the nonconformity must be material. Unless otherwise provided in the contract or by the circumstances surrounding the conclusion of the contract—in particular the negotiations conducted—a nonconformity does not exist merely because the delivered item does not comply with the technical and other standards applicable in the country of destination (the buyer’s place of business) or if the delivered goods are not suitable for specific purposes.
04. If the nonconformity of the delivered goods or the documents is not remedied within a reasonable period by repair or replacement, the buyer may demand a reduction in the purchase price corresponding to the reduced value of the delivered goods.
05. In the event of a nonconformity of the delivered goods or the documents, the buyer has no right to demand rescission of the contract in lieu of a reduction in the purchase price, unless the nonconformity constitutes a material breach of contract. There is no material breach of contract if we remedy the nonconformity within a reasonable grace period set by the buyer, which must be at least six weeks.
06. Subject to sentence 3, the buyer’s right to assert warranty claims expires twelve months after the buyer takes delivery of the delivered goods. If an acceptance inspection has been agreed upon, the statute of limitations begins at the end of the day on which the acceptance inspection was conducted or—if it was not conducted due to the buyer’s fault—should have been conducted, but no later than the end of the day on which the buyer put the delivered item into service for its own commercial purposes. The statute of limitations shall in any case take effect as soon as the delivered item has reached 2,500 operating hours.
XI. Liability, Damages
01. Our liability for damages—in particular for consequential financial losses due to delayed delivery or a breach of contract regarding the delivered item or the documents—is excluded, unless it is based on at least gross negligence or willful misconduct, or we have fraudulently concealed the breach of contract from the buyer.
02. Our liability under the applicable statutory product liability rules, which cannot be modified by contract, remains unaffected.
XII. Retention of Title
01. The goods delivered remain our property until full payment of the purchase price within the meaning of Section V, Paragraph 3, provided that such a retention of title is valid under applicable law.
02. The buyer is obligated to take all necessary measures to preserve this retention of title or a functionally equivalent security interest recognized in the country of destination (the buyer’s place of business). If the buyer breaches this obligation, this shall constitute a material breach of contract.
03. The agreement on retention of title does not affect the provisions regarding the transfer of risk as defined in Section VII, Paragraph 2.
XIII. Jurisdiction, Governing Law
01. The courts at our registered office in D-33397 Rietberg shall have exclusive jurisdiction over all disputes arising from the contract. Notwithstanding the first sentence, however, we are also entitled to bring an action against the buyer before the courts at the buyer’s place of business.
02. The contract is governed by the United Nations Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980. Legal issues not governed by this Convention or that cannot be resolved in accordance with its principles are subject to Swiss substantive law.
XIV. Final Provisions
01. The invalidity or unenforceability of any individual provision of these Terms and Conditions of Sale and Delivery or of any agreement contained in contracts concluded on the basis of these Terms and Conditions of Sale and Delivery shall not affect the validity of the other provisions or agreements. In the event of an invalid or unenforceable provision or agreement, the contracting parties shall endeavor to replace it with a valid and enforceable provision or agreement that corresponds as closely as possible to the economic purpose of the invalid or unenforceable provision or agreement.
02. The contracting parties are mutually obligated to take all reasonable measures necessary to achieve the purpose of the contract and to refrain from any action that would impair the achievement and maintenance of the contract.
Terms and Conditions of Sale and Delivery for International Transactions of WP Digital GmbH, 33397 Rietberg, as of April 1, 2015
